Federal Practice Manual for Legal Aid Attorneys
The Shriver Center's Federal Practice Manual for Legal Aid Attorneys covers all stages of federal
litigation, from drafting and filing the complaint to trial practice and limitations on relief. This
popular resource, available free of charge online, has been updated to include relevant recent
caselaw and legal developments. Edited by Jeffrey S. Gutman, Professor of Clinical Law at
George Washington University Law School, with the assistance of a group of experienced legal
aid advocates, the manual includes links to federal statutes, Supreme Court case citations, and
relevant regulations. Moreover, the full text of the manual is searchable by keyword.
Updated 2011
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Chapter 1: Preparing for Litigation
Chapter 2: Jurisdiction
Chapter 3: The Case or Controversy Requirement and Other Preliminary Hurdles
Chapter 4: Drafting and Filing the Complaint
Chapter 5: Causes of Action
Chapter 6: Pretrial and Trial Practice
Chapter 7: Class Actions
Chapter 8: Limitations on Relief
Chapter 9: Relief
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Chapter 1: Preparing for Litigation
Updated 2010
Litigation can be a powerful tool for solving problems for clients. It can also be expensive,
protracted and, ultimately, unsuccessful. Affirmative litigation may be one option, while
individual judicial review of agency decisions may provide an alternate route for addressing
problems, each with its own risks and strengths. Other tools, such as legislative and
administrative advocacy (both individual appeals and rule-making procedures), community
education, direct action and use of the media, should always be considered along with litigation
options. Before filing suit, the lawyer must first determine that a lawsuit is the best strategy, or
one of several strategies, for solving the particular problem or attaining a specific goal. The
purpose of this MANUAL is to assist legal aid lawyers in assessing and exercising the power of
litigation most effectively
1. The Sargent Shriver National Center on Poverty Law maintains the Poverty Law Library, a
brief bank of case documents available at the center’s website www.povertylaw.org.
Clearinghouse Review: Journal of Poverty Law and Policy, published by the Shriver Center, is
available to subscribers at www.povertylaw.org.
Updated 2010
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1.1 Introduction
1.2 Alternatives and Complements to Litigation
1.3 Factors for Strategic Consideration
1.4 Crafting and Preparing the Lawsuit
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Chapter 2: Jurisdiction
Updated 2010
This chapter addresses three topics. First, we discuss the subject matter jurisdiction of the
federal courts and review the principal legislative provisions by which Congress has vested
federal courts with jurisdiction. Second, we review the abstention doctrines, which are
limitations on the exercise of that jurisdiction. Third, we cover the jurisdiction of state courts
over federal claims.
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2.1 Courts of Limited Jurisdiction
2.2 Pleading Requirements
2.3 Federal Question Jurisdiction
2.4 Other Jurisdictional Statutes
2.5 Litigation Against the Government
2.6 Supplemental Jurisdiction
2.7 Removal Jurisdiction
2.8 Absention—Discretion to Decline Jurisdiction
2.9 State Court Jurisdiction over Federal Claims
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Chapter 3: The Case or Controversy Requirement and
Other Preliminary Hurdles
Updated 2011
This chapter discusses several constitutionally or prudentially imposed limitations on the
pursuit of federal litigation. First, the chapter surveys the doctrine of standing and discusses
constitutional and prudential requirements as well as associational and third-party standing.
Second, the chapter covers ripeness and mootness, including mootness in the context of class
action litigation. Questions of mootness may arise at any time in litigation and, as suggested in
Chapter 9 of this Manual, the doctrine of mootness has emerged as an important issue in the
recovery of attorney's fees. Third, the chapter examines a significant prerequisite to pursuit of
federal litigation in some types of cases: exhaustion of mandatory or voluntary administrative
remedies, and the preclusive effects that availability of or utilization of administrative agency
and/or state court adjudication have on subsequent federal court litigation.
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3.1 Standing
3.2 Ripeness
3.3 Mootness
3.4 Exhaustion and Preclusion
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Chapter 4: Drafting and Filing the Complaint
Updated 2010
This chapter discusses several basic issues relating to the drafting and filing of a federal court
complaint, including the mechanics and strategy of drafting a complaint, as well as selection of
parties, alleging facts and framing the request for relief. Sanctions should not be an issue for
well-researched and factually-substantiated complaints. Nonetheless, the legal aid attorney
should be familiar with the ethical dimensions and standards of filing a complaint in federal
court. Indeed, this Manual refers frequently to Rule 11, offers suggestions for complying with
the rule, and advises legal aid attorneys to temper zeal and belief in remedying apparent
injustices with reflection on the rule’s implications for filing complaints and subsequent papers
with the court. Finally, this chapter reviews the mechanics of filing a complaint in federal court
and the procedure for filing for in forma pauperis status.
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4.1 Drafting the Complaint
4.2 Sanctions
4.3 Filing the Action
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Chapter 5: Causes of Action
Updated 2011
This Chapter discusses several bases for suing to enforce rights created by federal law. To sue in
federal court, plaintiffs must have a “cause of action.” The term has a special, particularized
meaning in federal litigation. Most lawyers use the term “cause of action” synonymously with
the term “legal claim” to indicate a client’s legal right that the defendant has violated. In federal
litigation, however, a party has a cause of action only if his or her legal rights have been
violated and he or she has a recognized constitutional and/or statutory right to redress the
violation by bringing an affirmative action in federal court. The Supreme Court has explained
the cause of action concept and compared it to the related, but distinct, concepts of
jurisdiction, standing, and relief in the following terms:
[I]t may be said that [j]urisdiction is a question of whether a federal court has the power, under
the Constitution or laws of the United States, to hear a case ...; standing is a question of
whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or
controversy, or at least to overcome prudential limitations on federal-court jurisdiction ...; cause
of action is a question of whether a particular plaintiff is a member of the class of litigants that
may, as a matter of law, appropriately invoke the power of the court; and relief is a question of
the various remedies a federal court may make available. A plaintiff may have a cause of action
even though he be entitled to no relief at all, as, for example, when a plaintiff sues for
declaratory or injunctive relief although his case does not fulfill the “preconditions” for such
equitable remedies./1/
The substantive rights at issue may arise from the federal Constitution, statutes, or regulations.
An individual plaintiff’s basis to enforce an asserted statutory right through litigation – a
“private right of action” may be derived from express language in a statute creating the right,
from other federal statutes that provide a vehicle for the enforcement of rights created by the
Constitution and laws of the United States, or by implication from the source of the right.
This Chapter will not address statutes that both create rights and express remedies for
violations of those rights./2/ Instead, it will first analyze umbrella statutes that provide a
general right to sue for violations of rights arising under other sources of federal law that do
not themselves specifically provide the right to sue. This chapter will then analyze causes of
action claimed to arise by implication from other sources of federal law. Finally, third party
beneficiary claims are discussed.
1. Davis v. Passman, 442 U.S. 228, 239-40 n.18 (1979) (citations omitted; emphasis in original).
For a helpful overview of potential claims, see Rochelle Bobroff, You Have a Federal Right, but
Do You Have a Remedy?, 44 Clearinghouse Review 428 (Jan.-Feb. 2011).
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2. The authors presume that legal aid advocates have familiarity with the specific statutes
relevant to their particular practice. Examples of statutes creating express rights and remedies
include: (1) anti-discrimination statutes, such as 42 U.S.C. §§ 1981 (contracts), 1982 (property),
1985 (conspiracy), 2000d-2 (federally assisted programs), 2000e-5 et seq. (employment), and
45 U.S.C. § 3612 (housing); the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.; the minimum wage and maximum hours
provisions of the Fair Labor Standards Act, 29 U.S.C. § 216(b); and the Consumer Credit
Protection Act provisions, such as 15 U.S.C. §§ 1640 (truth in lending), 1691e (equal credit
opportunity), and 1692k (debt collection practices). For further information on these statutes
and many others of potential interest, please consult the list of specialized national support
centers listed in the inside back cover of the Clearinghouse Review.
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5.1.A Express Causes of Action, Section 1983, Elements of the Claim
5.1.B Express Causes of Action, Section 1983, Due Process Claims and Procedural Issues
5.1.C Express Causes of Action, Administrative Procedure Act
5.2 Implied Causes of Action
5.3 Third-Party Beneficiary Contract Claims
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Chapter 6: Pretrial and Trial Practice
Updated 2010
Without intending to be comprehensive, this chapter discusses a variety of procedural issues
related to litigation and trial practice, roughly in the chronology of litigation. First, the chapter
deals with conferences and scheduling, with particular attention to the role of magistrate
judges. Second, the chapter reviews informal and formal methods of discovery, including
mandatory initial disclosures and conferences involving discovery issues. Mechanics, strategy,
and practice pointers are included.
Third, the chapter delves into motions practice, including motions for emergency relief and for
summary judgment, which should be of particular interest to legal aid attorneys. Fourth, the
rise and use of mandatory or encouraged alternative dispute resolution (ADR) procedures are
covered and practical advice on the use of ADR and crafting litigation to make subsequent use
of ADR more successful is included. Finally, the chapter discusses both trial and appellate
practice.
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6.1 Conferences and Scheduling
6.2 Discovery
6.3 Motions Practice
6.4 Alternative Dispute Resolution
6.5 Trial Practice
6.6 Expert Testimony
6.7 Appellate Practice
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Chapter 7: Class Actions
Updated 2010
This chapter discusses a range of issues related to class action practice./1/ Legal aid lawyers
historically have used class actions to obtain relief for large groups of clients in a broad range of
substantive areas. Since 1996, however, organizations funded by the Legal Services Corporation
(LSC) have been barred from bringing or participating in class actions and must explore other
approaches for systemic relief, such as declaratory judgment actions./2/ Nonetheless, for those
attorneys able to bring class actions, this chapter reviews the strategic considerations
underlying the decision whether to bring a class action. It then discusses the class certification
requirements set forth in Rule 23 of the Federal Rules of Civil Procedure, including amendments
adopted in 2003, /3/ how to define and manage the class action, and settlement issues.
In addition, in February 2005, the Class Action Fairness Act of 2005 (CAFA) was signed into
law./4/ CAFA was passed in an effort to limit forum shopping for perceived abuses of the class
action mechanism in state courts seen as plaintiff–friendly. The CAFA expands federal
jurisdiction over class actions by requiring only minimal diversity in cases in which the amount
in controversy, defined as the aggregated claims of individual class members, exceeds $5
million./5/ The broad removal provision allows removal by home state defendants and does not
require the consent of all defendants./6/ In addition, the court may decline to exercise
jurisdiction over class actions in which over one-third but less than two-thirds of the proposed
plaintiff class and the primary defendants are citizens of the state of filing upon consideration
of several factors set forth in the statute./7/ Not always consistently, the federal appellate
courts are deciding a range of jurisdictional issues arising from the CAFA. If such issues come up
in your practice, consult your circuit's most recent decisions on them.
1. Excellent materials are available for more in-depth review of the matters covered in this
chapter. See 4 William Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class
Actions (4th ed. 2002 & Supp. 2010); 7-7B Charles A. Wright et al., Federal Practice and
Procedure (3d ed. 2005 & Supp. 2010); 3B James Wm. Moore et al., Moore's Federal Practice
(3d ed. 1997 & 2010); National Consumer Law Center, Consumer Class Actions (7th ed.
2010); Federal Judicial Center, Manual for Complex Litigation (Fourth) § 21 (2004).
2. See 42 U.S.C. § 2996e(d)(5); 45 C.F.R. § 1617.3. However, LSC program attorneys may
represent individual clients “seeking to withdraw from or opt out of a class or obtain the
benefit of relief ordered by the court, or non-adversarial activities, including efforts to remain
informed about, or to explain, clarify, educate or advise others about the terms of an order
granting relief.” Id. at § 1617.2(b)(2). See Chapter 9.3 (declaratory judgments) and Chapter
1.4.C. (impact litigation under the restrictions) of this Manual. See also Ilisabeth Smith
Bornstein, From the Viewpoint of the Poor: An Analysis of the Constitutionality of The
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Restriction on Class Action Involvement By Legal Services Attorneys, 2003 U. Chi. Legal F. 693
(restriction on class actions unconstitutional).
3. These changes addressed four areas: the timing of class certification under Rule 23(c)(1); the
notice provisions in Rule 23(c)(2); the settlement-review process in Rule 23(e); and the addition
of two new subdivisions regarding the appointment of class counsel (Rule 23(g)) and attorney’s
fee awards (Rule 23(h)).
4. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 114 Stat. 4 (primarily codified at 28
U.S.C. § 1332 (diversity) and § 1453 (removal)). See Nan Ellis, Class Action Fairness Act of 2005:
The Story Behind the Statute, 35 J. Legis. 76 (2009).
5. 28 U.S.C. § 1332(d)(2), (6).
6. 28 U.S.C. § 1453(b).
7. 28 U.S.C. § 1332(d)(3). The district court is required to decline jurisdiction over class actions
that bear the characteristics listed in 28 U.S.C. § 1332(d)(4). For a useful guide for the
management of class actions written for judges after the CAFA, see Barbara J. Rothstein &
Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges, Federal
Judicial Center (3rd ed. 2010).
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7.1 Whether to Bring a Class Action
7.2 Rule 23 Class Certification Requirements
7.3 Defining and Managing a Class (part one)
7.3 Defining and Managing a Class (part two)
7.4 Resolution of Class Actions
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Chapter 8: Limitations on Relief
Updated 2010
This chapter will explore the contours of the primary limitations on suing states, state
subdivisions, and state officials in federal court. The first section surveys the Eleventh
Amendment and focuses on important recent developments in this area. It covers the
abrogation and waiver of sovereign immunity and the availability of prospective injunctive relief
under the Ex Parte Young doctrine. The second section discusses the scope of absolute and
qualified immunity in Section 1983 suits against public officials in their individual capacities. The
final section covers limitations imposed on Section 1983 claims against municipal agencies and
governments.
Updated 2010
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8.1 Enforcing Federal Rights Against States and State Officials
8.2 Suits Against Public Officials in Their Individual Capacity
8.3 Damage Claims Against Cities and Counties Under Section 1983
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Chapter 9: Relief
Updated 2010
This chapter addresses issues related to the recovery of relief in federal litigation. Section 1 of
this chapter discusses the general rules governing the recovery of compensatory and punitive
damages, focusing primarily on litigation under 42 U.S.C. § 1983. Because the law governing
proof of damages under Section 1983 closely parallels proof of damages in common-law tort
actions, no attempt is made to repeat the suggestions of many commonly available sources on
how to prove damages of a particular type.
Generalizations about injunctive relief are more difficult. The scope and nature of injunctive
relief typically are functions of the underlying substantive law and the scope of the violation of
that law. Because many claims for injunctive relief are resolved by settlement, Section 2 focuses
on issues that arise in the context of negotiating settlements and consent decrees, and
discusses in some detail the kinds of provisions that should be included in those agreements.
These same factors should be considered when drafting a proposed final judgment submitted
when a claim for injunctive relief proceeds to trial.
Section 3 discusses declaratory relief and the ways that it can be used to obtain relief that has
an impact beyond the specific needs of the individual plaintiffs. This is a form of relief that is
useful in a wide variety of contexts, but is especially important in cases that cannot be brought
as class actions.
Section 4 reviews the law and practice governing the award of attorney's fees in federal
litigation. This section discusses the major issues that arise concerning entitlement to fees and
calculating the amount of the fee award. This chapter also suggests practical ways of dealing
with these issues. Section 5 covers costs and interest.
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9.1 Damages
9.2 Negotiated Settlements and Injunctive Relief
9.3 Declaratory Judgment Act
9.4 Attorney Fees
9.5 Costs and Interest
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1.1 Introduction
Updated 2010
For most public interest and legal services organizations, the decision whether to engage in
litigation and which cases to pursue is the product of strategic planning. Planning benefits from
an understanding of the history, trends, successes and limitations of the practice of public
interest law./1/ Professor Deborah Rhode describes such practice as "at mid-life" and her
recent survey of public interest organizations offers compelling insights necessary for such an
understanding./2/ Public interest law, once identified with progressive causes, but now
embracing conservative ones as well, emerged from the "test case" strategy of the NAACP Legal
Defense and Educational Fund in an era in which the federal judiciary was sympathetic to civil
rights claims, government agencies could be changed through public law litigation and the
challenges to seemingly clear injustices resonated with broad segments of the American
people. In hindsight, litigation victories by public interest organizations were relatively easy to
achieve as the facts were often starkly presented and favorable precedent developed in the
areas of standing, civil rights, judicial review, redressability and attorney's fees.
By the 1980s, a more conservative judiciary was less receptive to the sorts of claims advanced
in the 1960s and 1970s and deregulated federal agencies were less receptive to efforts by
advocates in the environmental, consumer, anti-poverty, and labor movements. The difficulty
the progressive movement had in building on its early successes resulted in a more
defensive orientation aimed at trying to minimize the erosion of those advances./3/ It also led
to a critique of public interest law by those arguing that litigation, once seemingly successful,
was not well suited to progressive reform./4/ Instead, the changing environment was favorable
to the growing conservative public interest movement which often skillfully used litigation to
advance its aims./5/ In the view of progressive critics, litigation-oriented public interest law
diverted resources and energy from other forms of advocacy more likely to achieve deeper and
more substantive progress./6/
As reflected in Professor Rhode's empirical study, there is a well-established recognition of the
complexity of social problems and the limitations of litigation as a means for addressing
them./7/ Litigation requires considerable resources and there is substantial competition among
growing numbers of public interest organizations for those limited resources. Important
limitations on some legal services organizations were imposed by the Legal Services
Corporation in the 1990s./8/ Significant retrenchment in legal doctrine that had once favored
progressive causes, such as justiciability, private enforcement and attorney's fees, each covered
in this MANUAL has dimmed the prospects of success in progressive public interest
litigation. Even when lawsuits are successful, enforcement on the ground is often difficult as
state actors are often resistant to change./9/ The result has placed progressive public interest
law at a crossroads.
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There is tension between a recognition of the limitations of litigation and the relative
accessibility and familiarity of the courts as a forum for addressing social
problems. Similarly, there is an understanding that alternative means of advocacy may be more
effective than litigation, but such efforts are often complex and beyond the skill sets of many
lawyers./10/ The empirical data suggests that many organizations have adapted
accordingly. Generally, compared with groups in the 1970s, the public interest law organization
of today are relatively smaller, and staffed with higher proportions of non-lawyer
professionals./11/ This suggests that growing numbers of smaller organizations are increasingly
specialized in niche areas, have developed substantial expertise in these narrower areas and
employ the skills of both lawyers and other professionals to advance their agendas. The means
by which they do so and their prospects of success (and funding) are not uniform across subject
matter. For example, the need to address environmental harm and gay rights has considerable
public support and has met with some litigation success. Coalition building and fundraising
is relatively easier in these areas. In contrast, segments of the public are unsupportive, if not
hostile, to advocacy for less popular causes, such as those involving immigrants and prisoners,
where powerful and successful opposing organizations are very active./12/
Professor Rhode's survey showed that public interest organizations, progressive and
conservative, have, since the 1970s, continued to devote a significant amount of time to
litigation, but the proportion has declined. Relatively more time is devoted to legislative work,
community education and coalition building./13/ For some, litigation is pursued not because
there is an expectation of victory, but to limit loss, focus public attention on a subject or to
develop momentum for legislative change. For many organizations, then, litigation is part of a
broader advocacy campaign, frequently conducted with coalition partners and community
organizations./14/ These efforts are fraught with potential challenges, from funding the
project to managing the often competing needs and expectations of partner groups./15/
Funding issues have led to creative solutions, like teaming with pro bono private counsel, other
public interest organizations, private public interest law firms and law school clinics,/16/ but
group efforts by their nature require management and ongoing consultation./17/ Surmounting
these challenges requires careful and creative strategizing with clients and consideration of
potential assets, such as boards of directors, pro bono resources, community and other
partners and the preferences of funders.
Professors Rhode and Cummings offer important lessons for analyzing the place of litigation in
this strategy:
A central theme is that the effective use of litigation requires a strategic analysis of the forces
that shape its outcome, including organizational capacity, the likelihood of success on the
merits, the challenges of enforcement, and the possible political responses. This strategic
analysis should be informed by two considerations. The first relates to how lawyers can
maximize the political impact of litigation. Litigation typically works best when it is strategically
embedded in broader political campaigns that help define litigation goals and enforce legal
mandates. The second consideration involves which lawyers are most capable of bringing
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litigation in different circumstances. The way that legal groups are structured affects the
content and scope of their litigation dockets . . . ./18/
Each public interest organization and legal services office considering litigation, particularly
impact litigation, must carefully evaluate the organization's goals and priorities, needs of its
clients and capacity to manage the litigation. It must identify the client’s goals and
analyze whether litigation is a strategy that may achieve those objectives. The organization
must assess whether other organizational priorities may suffer if resources are devoted to
litigation and what the impact of either a victory or a loss might be. It will need to answer the
following basic questions:
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What are the client’s goals?
Who has the power and resources to provide what is desired?
What will cause the person or entities to do what needs to be done?
How will you achieve your client’s goals?
What resources will be required?
Can other organizations meaningfully and helpfully participate in the effort?
When do you need to get results?
How long will alternative methods for achieving the client’s goals take?
What are the benefits and risks involved in potential strategies?
How will you know when you have succeeded?
Only when these questions have been carefully considered and provisionally answered can you
be confident that you are providing the best advocacy for your client. If, based on your planning
assessment, litigation is a viable strategy, additional and somewhat more technical questions
must be asked. Many of these questions will be addressed later in this chapter:
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What are the capacities and limitations of your firm or organization?
Who will the client or clients be?
What will your claims be?
On what law will you rely?
What specific claims for relief will you make?
In what forum will the suit be filed?
How will the lawsuit be staffed and financed?
Before addressing these questions, we turn next to a consideration of the alternatives and
complements to litigation.
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1. See Alan W. Houseman & Linda E. Perle, Securing Equal Justice for All: A Brief History of Civil Legal
Assistance in the United States (2003).
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2. Deborah L. Rhode, Public Interest Law: The Movement at Midlife, 60 Stan. L. Rev. 2027
(2008).
3. Id. at 2036-37.
4. See Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory
and Practice, 36 Fordham Urb. L.J. 603, 608-09 (2009).
5. See Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition
(2008).
6. Cummings & Rhode, supra note 4, at 608.
7. Rhode, supra note 2, at 2036-42.
8. Cummings & Rhode, supra note 4, at 620.
9. Rhode, supra note 2, at 2043.
10. Id. at 2044; Cummings & Rhode, supra note 4, at 648.
11. Rhode, supra note 2, at 2033-34.
12. Id. at 2039-40, 2044-45; Cummings & Rhode, supra note 4, at 650.
13. Rhode, supra note 2, at 2047-49.
14. Cummings & Rhode, supra note 4, at 611, 615-16.
15. Rhode, supra note 2, at 2049-75.
16. Cummings & Rhode, supra note 4, at 621-28, 639-46.
17. Rhode, supra note 2, at 2068
18. Cummings & Rhode, supra note 4, at 615. See Brad Seligman, Using Law for Change:
Litigation to Challenge Systemic Violations, 44 Clearinghouse Review 483 (Jan.-Feb. 2011).
Updated 2010
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Chapter 2: Jurisdiction
Updated 2010
This chapter addresses three topics. First, we discuss the subject matter jurisdiction of the
federal courts and review the principal legislative provisions by which Congress has vested
federal courts with jurisdiction. Second, we review the abstention doctrines, which are
limitations on the exercise of that jurisdiction. Third, we cover the jurisdiction of state courts
over federal claims.
Updated 2010
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2.1 Courts of Limited Jurisdiction
2.2 Pleading Requirements
2.3 Federal Question Jurisdiction
2.4 Other Jurisdictional Statutes
2.5 Litigation Against the Government
2.6 Supplemental Jurisdiction
2.7 Removal Jurisdiction
2.8 Absention—Discretion to Decline Jurisdiction
2.9 State Court Jurisdiction over Federal Claims
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2.1 Courts of Limited Jurisdiction
Updated 2010
Federal courts are courts of limited jurisdiction. Article III, Section 1 of the U.S. Constitution
gives Congress the power to create inferior federal courts. The outer boundary of federal
judicial power is defined in Article III, Section 2. These constitutional provisions are not selfexecuting. Beginning with the Judiciary Act of 1789, Congress has created a system of federal
courts and has vested it with much, but not all, of the jurisdiction permitted by Section 2. The
Constitution therefore established the potential scope of federal jurisdiction, and Congress has
defined the actual, more limited, breadth of it.
Federal statutes also limit the exercise of subject matter jurisdiction by federal courts. Some of
these limitations are explicit restrictions on federal jurisdiction in matters such as state taxation
and public utility rate-making. /1/ Other limitations are implicit in the jurisdictional provisions
of other congressional enactments. The U.S. Supreme Court has also restricted the exercise of
statutorily conferred jurisdiction. Some of the restrictions are derived from Article III’s case and
controversy requirement, discussed in Chapter 3 of this MANUAL. Others fall within the ambit
of the abstention doctrine, discussed in this chapter.
2.2 Pleading Requirements
Updated 2010
The burden of pleading and demonstrating subject matter jurisdiction rests on the party
invoking federal jurisdiction. Thus, a federal court plaintiff must make in the complaint “a short
and plain statement of the grounds upon which the court’s jurisdiction depends.”/2/ Likewise, a
defendant who removes a case from state court must allege the basis of federal jurisdiction in
the notice of removal./3/ In contrast, most state courts of general jurisdiction are presumed to
have jurisdiction over all civil actions unless such jurisdiction is specifically prohibited. As a
result, plaintiffs typically do not need to plead or prove the existence of subject matter
jurisdiction in state court./4/
Failure to plead properly the existence of jurisdiction may be cured by amendment. Indeed, 28
U.S.C. § 1653 provides that such amendment may occur in the trial or appellate courts. Because
federal courts lack power to act without subject matter jurisdiction, defendants may not waive
objections to jurisdiction and may move to dismiss on jurisdictional grounds at any time./5/
Moreover, both trial and appellate courts may raise subject matter jurisdiction issues sua
sponte, even after entry of judgment./6/
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The federal courts have been "less than meticulous"/7/ in distinguishing between statutory
limitations which are jurisdictional and those which are essential elements of a claim for
relief. The Supreme Court attempted to clarify this distinction in Arbaugh v. Y&H Corp./8/ In
Arbaugh, the plaintiff won a federal judgment after trial in a Title VII case. Subsequently, the
employer moved to dismiss the action on the ground that it was not an "employer" subject to
Title VII because it employed less than fifteen persons. The question presented was whether
Title VII's limitation on the definition of "employer" was jurisdictional, permitting postjudgment dismissal of the action, or whether satisfying the "employer" definition was an
essential element of plaintiff's claim for relief, the absence of which may be challenged in a Fed.
R. Civ. P. 12(b)(6) motion, and clearly waived if not raised before judgment. The Court held that
Congress must specify limitations of this sort as jurisdictional and did not do so in Title VII. In
the absence of a clear statement that Congress regarded the restriction as jurisdictional, the
Court held that it should be treated as nonjurisdictional./9/
The Court has also considered this distinction in "claim-processing" contexts in which an
individual fails to file timely an administrative appeal regarding a government benefit. The most
recent such case is Henderson v. Shineki/9a/ a case in which a veteran failed to appeal the
denial of a claim to the Veteran's Court within the 120 days prescribed by Congress. The Court
held that, ordinarily, such claim-processing deadlines are not jurisdictional, and may therefore
be tolled or waived, since they do not govern the court's "adjudicatory capacity" as personal
and subject matter jurisdiction do./9b/ Congress can intend such a rule to be jurisdictional, but
must do so clearly. In Henderson, no jurisdictional attributes appeared in the relevant VA
statutes, which are otherwise to be interpreted in favor of veterans.
_____________________________________________________________________________________
2. Fed. R. Civ. P. 8(a)(1). Plaintiffs do not need to cite the statutory basis of federal court
jurisdiction as long as they plead sufficient facts to establish jurisdiction. See Andrus v.
Charlestone Stone Products Co., 436 U.S. 604, 608 n.6 (1978); Radici v. Associated Insurance
Companies, 217 F.3d 737, 740 (9th Cir. 2000); Jensen v. Schweiker, 709 F.2d 1227, 1229 (8th Cir.
1983). If the defendant facially challenges the jurisdictional allegations by arguing that they are
insufficient to invoke federal jurisdiction, the court will employ a Fed. R. Civ. P. 12(b)(6)
standard and assume the truth of sufficently pled jurisdictional allegation for purposes of
resolving the motion. If the defendant challenges the truth of the factual assertions, the court
will consider evidence outside the pleading and impose on the plaintiff the burden of
demonstrating the facts asserted to warrant federal jurisdiction. Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004), cert. denied, 544 U.S. 1018 (2005). See 2 James Wm.
Moore, et al., Moore's Federal Practice - Civil section 12-30 (2010).
Page 20 of 559
3. 28 U.S.C. § 1446(a).
4. See Section 2.9 for a discussion of state court jurisdiction over federal claims.
5. See Fed. R. Civ. P. 12(h)(3).
6. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); see also Reed Elsevier v. Muchnick, 130 S.
Ct. 1237 (2010) (copyright registration requirement in Copyright Act is not jurisdictional and
does not preclude federal jurisdiction over suits to enforce copyright claims by those who failed
to register their copyright). The Supreme Court recently listed cases in which it found certain
requirements jurisdictional and non-waivable and others waivable claims processing
requirements in Union Pacific RR Co. v. Brotherhood of Locomotive Engineers, 130 S. Ct. 584,
596-97 (2009).
7. Id at 511.
8. Arbaugh, 546 U.S. 500.
9. Id. at 515 (noting that the fifteen employee threshold requirement was not in the
jurisdiction section of the statute). Compare CNA v. United States, 535 F.3d 132, 140-43 (3d Cir.
2008) (scope of employment limitation in Federal Tort Claims Act is jurisdictional as it is in the
same sentence as the grant of jurisdiction).
9a. Henderson v. Shinseki, 131 S.Ct. 1197 (2011).
9b. Id. at 1202-03
Updated 2010
2.3 Federal Question Jurisdiction
Updated 2010
Title 28, Section 1331 of the United States Code confers upon federal district courts jurisdiction
over “all civil actions arising under the Constitution, laws, or treaties of the United States.”
Section 1331, which grants what is commonly referred to as federal question jurisdiction, is an
all-purpose jurisdictional statute,/10/ available regardless of the defendant's identity and, since
1980, is not limited by any requirement that a minimum dollar amount be in controversy./11/
Section 1331 also confers jurisdiction in actions authorized by 42 U.S.C. § 1983 against
defendants acting under color of state law./12/ It is generally available in suits against the
federal government and its agencies and in actions against federal officers and employees./13/
Page 21 of 559
Both Article III, Section II of the Constitution and 28 U.S.C. § 1331 use the same phrase, “arising
under,” to define federal question jurisdiction, but the Supreme Court has not interpreted the
constitutional and statutory language identically. In addressing the constitutional language, the
Court has been expansive, broadly interpreting “arising under” to include any case in which a
federal question is an “ingredient of the original cause.”/14/ A federal ingredient is very likely
present in any case in which the plaintiff or defendant rests or may rest on a proposition of
federal law as part of its claim or defense./15/ In Osborn v. Bank of the United States, federal
law established the Bank of the United States. That ingredient alone made constitutional a
statute enabling the bank to sue and be sued on its contracts (generally state-law claims) in
federal courts. Because the Bank was incorporated by federal law, any case involving it arose
under federal law./16/ However, the Court subsequently made clear that a statute which does
nothing more than to establish federal jurisdiction cannot serve as the federal law under which
an action arises./17/
The most recent Supreme Court Case confirming Osborn's broad reading of Article III is Osborn
v. Haley./18/ Osborn sued Haley, a non-diverse federal employee, on state law grounds in state
court. Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), the federal government certified
that Haley was acting within the scope of his employment, substituted the United States as
defendant, and removed the case to federal court. After the government asserted later that
the alleged conduct had not, in fact, occurred (thereby contradicting the basis for the
certification), the district court rejected the certification and remanded the case to state
court. The Supreme Court held that the Westfall Act prohibits remand of certified cases to
state court. That result naturally led to a question of how Article III would permit the federal
court to retain jurisdiction over a case involving state law claims between non-diverse parties
when the court concludes that the Westfall certification was improper. Without citing Osborn
v. United States, the Court held that whether the employee had Westfall Act immunity was an
issue "arising under" federal law for purposes of Article III and that the court had discretion
to maintain jurisdiction after that issue was decided./19/ Thus, the court permitted the
threshold certification, even an erroneous one, to satisfy Article III in a case otherwise raising
only state law issues between non-diverse parties.
In contrast, since Congress conferred general federal question jurisdiction in 1875, the Court
has consistently held that the statutory grant is not as broad as the Constitution would
allow./20/ The primary test that has been developed for determining whether a civil action
arises under the Constitution or laws of the United States for purposes of Section 1331 requires
(1) a substantial federal element and (2) such element being part of the plaintiff’s “well-pleaded
complaint.”
A case clearly arises under the Constitution for purposes of Section 1331 when the plaintiff
claims, for example, that a government officer or employee, acting in his or her official capacity,
injures the plaintiff by taking an action that violates a provision of the Constitution or by
acting pursuant to an unconstitutional statute. The federal question jurisdiction of the district
courts also encompasses causes of action created by federal statutes, such as 42 U.S.C. § 1983,
Page 22 of 559
which explicitly authorizes a private remedy for acts that are taken under color of state law and
violate rights secured by federal law./21/ In such cases, federal law both creates the cause of
action, supplying the underlying substantive rules that govern defendants’ conduct, and
authorizes plaintiffs to enforce the rights created.
As Justice Stevens remarked for the Court in an opinion that canvassed Section 1331
jurisprudence, “[t]he ‘vast majority’ of cases that come within this grant of jurisdiction are
covered by Justice Holmes’s statement (in American Well Works v. Layne and Bowler Co.) that a
‘suit arises under the law that creates the cause of action.’”/22/ A case in which the complaint
is based on federal common law also arises under the laws of the United States for the purpose
of jurisdiction under Section 1331./23/ With rare exceptions /24/, then, when a federal law
creates the claim, federal jurisdiction exists. The more difficult question is the converse: when,
if ever, does federal question jurisdiction exist when the claim is presented under state law? A
recent and colorfully written First Circuit decision refers to these cases as potentially involving
"embedded" federal questions. /25/
The Court interpreted Section 1331 more broadly in Smith v. Kansas City Title and Trust Co/26/
than it had in American Well Works. In Smith, a bank shareholder, invoked state law to
challenge a bank's investment in bonds issued pursuant to an allegedly unconstitutional federal
law. The plaintiff therefore sought to prevent the state bank from buying the
federal bonds. Justice Holmes, in dissent, argued that the case should be regarded as arising
solely under the state law defining the bank’s powers./27/ Yet, the Court held that federal
jurisdiction existed because the state law claim involved an inquiry into the constitutionality of
a federal statute./28/
The apparent conflict between Smith and American Well Works made it difficult to determine
when federal jurisdiction existed in cases where state-created actions require an interpretation
of federal law. Merrell Dow Pharmaceuticals v. Thompson/29/ added to this complexity. One
count of what was otherwise a purely state law tort action against a drug manufacturer for
harm caused by one of its drugs alleged that the drug was misbranded in violation of the
Federal Food, Drug, and Cosmetic Act and that the violation created a presumption of
negligence. The Court joined the parties in assuming that the Act did not create a private cause
of action. On that assumption, the Court held that assertion of federal jurisdiction would “flout,
or at least undermine, congressional intent”/30/Merrell Dow suggested that federal jurisdiction
was not available for state-law claims which sought to enforce federal standards when there
was no federal private right of action to enforce them. In doing so, Merrell Dow confused the
existence of a federal claim or remedy with the presence of federal jurisdiction. not to create a
federal remedy for violation of the federal law. Thus,
More recently, however, the Supreme Court appears to have confined Merrell Dow to its facts.
In Grable & Sons Metal Products v. Darue Engineering,/31/ the Supreme Court upheld federal
jurisdiction in a state-law quiet title action which turned entirely on the interpretation of a
federal Internal Revenue Service notice provision. The Court held that federal jurisdiction is
Page 23 of 559
appropriate in state-law actions if there is a disputed and substantial federal question and if
federal jurisdiction “is consistent with congressional judgment about the sound division of labor
between state and federal courts governing the application of § 1331.”/32/
The Court viewed Merrell Dow’s focus on the absence of a federal private right of action (there
was no available federal quiet title claim) as a clue to, but not dispositive of, the interpretation
of this congressional judgment. Rather, the Court distinguished Merrell Dow on the ground that
finding jurisdiction there would have swept thousands of state negligence per se claims based
on federal standards into the federal courts, thereby upsetting the division of labor between
federal and state courts. Jurisdiction over quiet title actions arising from federal tax
controversies would not similarly affect the “normal currents of litigation.”/33/ Declaring that
Merrell Dow did not, as some courts believed, overrule Smith, the Court reaffirmed the notion
that federal courts can hear some state-law claims that turn on questions of federal law. The
Court thereby adopted a functional, rather than a “single, precise, all-embracing”/34/ test for
“arising under” jurisdiction./35/
Not only must the action “arise under” the Constitution or federal law, but the federal question
must also appear on the face of a “well-pleaded complaint.”/36/ In practice, this means that
plaintiffs may not invoke federal jurisdiction by raising contrived federal issues in the
complaint/37/ or anticipated federal defenses,/38/ "Nor can federal jurisdiction rest upon an
actual or anticipated counterclaim. /39/ Conversely, the Court has not been willing to allow a
plaintiff seeking to avoid federal jurisdiction by artfully omitting a substantial federal question
essential to its case./40/
Somewhat more difficult are cases in which federal preemption may be a defense to state law
claims. Generally, the well pleaded complaint rule would disregard such a potential federal
defense and view such claims as not invoking federal jurisdiction. However, the Supreme Court
has crafted an exception when federal law completely occupies, and thereby preempts, the
entire field addressed by the state law claim. In such cases, these state law complaints
are recharacterized as necessarily invoking federal law, thereby permitting the defendant to
remove the action to federal court./41/
10. In addition to the general federal question jurisdiction conferred by Section 1331, Congress
has enacted a number of more specific statutes conferring jurisdiction on the district courts in
cases arising under particular federal laws. One of these, once of considerable importance,
grants jurisdiction of cases arising under any congressional act regulating commerce, 28 U.S.C.
§ 1337(a) . Section 1337 and provisions conferring jurisdiction in admiralty, bankruptcy, and
patent, trademark, and copyright cases (28 U.S.C. §§ 1333, 1334, and 1338) are in the district
court jurisdiction chapter of the Judicial Code (Chapter 85 of Title 28). Others, such as the
provision for district court jurisdiction of actions to review adverse social security decisions,
discussed in Section 2.4.F below, are in other titles of the Code, typically in agency organic
Page 24 of 559
statutes. Besides conferring jurisdiction in the federal courts, such organic statutes may waive
sovereign immunity, create causes of action, or specify relief.
11. Until 1980, Section 1331 was limited by a $10,000 amount-in-controversy requirement.
Before the repeal of this limitation, plaintiffs with federal statutory claims involving $10,000 or
less for each plaintiff had to rely on other jurisdictional provisions not so limited. Plaintiffs often
invoked 28 U.S.C. § 1337(a) since much legislation that is litigated finds its constitutional
authority in the commerce clause. In this regard, Section 1337 is now superfluous. See ErieNet
Inc. v. Velocity Net Inc., 156 F.3d 513, 519-20 (3d Cir. 1998). Similarly, before 1980, in Section
1983 litigation involving $10,000 or less, plaintiffs relied on 28 U.S.C. § 1343(a)(3), the
jurisdictional counterpart of Section 1983. While this jurisdictional provision is now also
superfluous, it is often still invoked along with Section 1331 in civil rights cases. See, e.g.,
Clinton v. Jones, 520 U.S. 681, 685 n.1 (1997); Dixon v. Burke Co., Ga., 303 F.3d 1271, 1274 (11th
Cir. 2002).
12. See 28 U.S.C. § 1343.
13. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
14. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 823 (1824); see also Verlinden
B.V. v. Central Bank of Nigeria, 461 U.S.480, 492 (1983) (Foreign Sovereign Immunities Act is
constitutional as actions against foreign sovereigns or foreign plaintiffs in U.S. courts require
the application of federal law).
15. Osborn, 22 U.S. (Wheat.) at 825; See The Pacific R.R. Removal Cases, 115 U.S. 1 (1885).
16. American Nat'l Red Cross v. S.G., 505 U.S. 247, 264 (1992) (Article III authorizes Congress to
confer federal jurisdiction over claims involving federally chartered corporations).
17. Verlinden, 461 U.S. at 496.
18.Osborn v. Haley, 549 U.S. 225 (2007).
19. Id. at 245.
20. See generally Charles A. Wright & M. Kane, Law of Federal Courts § 17 (6th ed. 2002), see
also Verlinden, 461 U.S. at 495; Louisville and N.R. Co. v. Mottley, 211 U.S.149 (1908). By
employing in Section 1331 the identical “arising under” phrase as is found in Article III, Congress
might have been thought to be conferring federal question jurisdiction to the limit of Article III.
But the Court has interpreted the statute narrowly to keep the district courts’ caseload
manageable and to minimize intrusion on state courts.
Page 25 of 559
21. See Grable & Sons Metal Products v. Darue Eng’g. and Mfg., 545 U.S. 308, 312 (2005).
22. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986) (quoting Franchise
Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (which in turn quoted
American Well Works Co. v. Layne and Bowler Co., 241 U.S. 257, 260 (1916) (suit for damages to
business allegedly resulting from slanderous accusations that plaintiff had infringed defendant’s
patent arises under state law even though federal patent law was an ingredient to the claim)).
23. Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
24. See Shoshone Mining v. Rutter, 177 U.S. 505 (1900).
25. Rhode Island Fishermen's Alliance v. Rhode Island Dept. of Env. Mgmt., 583 F.3d 42, 48 (1st
Cir. 2009).
26. Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921).
27. Id. at 213–14 (Holmes, J., dissenting).
28. See also Sweeney v. Abramowitz, 449 F. Supp. 213 (D. Conn. 1978) (federal court has
jurisdiction over suit for malicious prosecution based on filing of a claim under Section 1983
because an essential element of plaintiffs’ complaint is that the defendant had no probable
cause to believe that he had a valid Section 1983 claim).
29. Merrell Dow Pharmaceutical Inc. v. Thompson, 478 U.S. 804, 804 (1986).
30. Merrell Dow, 478 U.S. at 812. Like several of the other cases that have defined the contours
of “arising under” jurisdiction, Merrell Dow involved not an original action in a federal district
court but an attempt to remove a case brought in state court to the federal court. The
Supreme Court said that “ [s]ince a defendant may remove a case only if the claim could have
been brought in federal court…the question for removal jurisdiction must…be determined by
reference to the ‘well-pleaded complaint’” under Section 1331. Id. at 808. See also Caterpillar
Inc., v. Williams, 482 U.S. 386, 392 (1987); Franchise Tax Board, 463 U.S. at 9-10. Removal is
treated separately in this chapter in Section 2.7.
31. Grable & Sons Metal Products v. Darue Engineering, 545 U.S. 308 (2005).
32. Id. at 314.
33. Id. at 319.
Page 26 of 559
34. Id. at 314 (citation omitted).
35. The Supreme Court subsequently held that Grable did not extend federal jurisdiction to a
claim by a private health insurer which sought reimbursement of money recovered in a state
court tort action by a former federal employee insured under the Federal Employees Health
Insurance Benefits Act. Empire HealthChoice Assur. Co. v. McVeigh, 547 U.S. 677, 700-01
(2006).
36. Franchise Tax Bd, 463 U.S. at 9–10.
37. Nor can federal jurisdiction be founded on insubstantial or frivolous federal claims. Hagans
v. Lavine, 415 U.S. 528, 535, 542–43 (1974).
38. The case most often cited for this proposition, though not the first, is Mottley, 211 U.S. at
149. In Mottley the plaintiff alleged that a federal defense the plaintiff anticipated violated the
Constitution. The Supreme Court denied jurisdiction because “a suit arises under the
Constitution and laws of the United States only when the plaintiff’s statement of his own cause
of action shows that it is based upon those laws or that Constitution.” Id. at 153. See also
Merrell Dow, 478 U.S. at 808 (relying on Mottley, 211 U.S. 149).
39. Vaden v. Discover Bank, 129 S.Ct. 1262, 1272 (2009) (citing Holmes Group, Inc. v. Vornado
Air Circulation Systems, Inc., 535 U.S. 826 (2002)). In Vaden, the Court held that a federally
preempted state law counter-claim cannot serve as the basis for federal jurisdiction. Id. at
1276; see also Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 476 (1998) (defense of claim
preclusion based on prior federal judgment does not justify removal).
40. Franchise Tax Bd, 463 U.S. at 22.
41. For example, in Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 66 (1987), a disability
benefits case preempted by ERISA, the Court permitted removal to federal court where
Congress “clearly manifested an intent” to preempt the field and all state causes of action; see
also Aetna Health Care Inc. v. Davila, 542 U.S. 200, 208-09 (2004) (Clearinghouse No. 55,597);
Beneficial National Bank v. Anderson, 539 U.S. 1, 8 (2003).
Updated 2010
Page 27 of 559
2.4 Other Jurisdictional Statutes
Updated 2010
Two less commonly used jurisdictional statutes in legal services practice are those
involving diversity jurisdiction and with declaratory judgments. They are discussed briefly
below.
2.4.A. Diversity Jurisdiction
Article III, Section 2, Clause 1 of the Constitution provides that federal judicial power extends to
cases between citizens of different states and between a citizen of a state and a citizen of a
foreign country. The diversity statute, 28 U.S.C. § 1332(a), grants original jurisdiction to U.S.
district courts over cases between citizens of different states and between citizens of a state
and citizens of a foreign country when the matter in controversy exceeds $75,000./42/
Federal jurisdiction based on diversity of citizenship requires “complete diversity.” All plaintiffs
must be citizens of states different from the state of citizenship of any defendant./43/ If there is
any overlap of state citizenship between any plaintiff and any defendant, diversity is defeated
and the case cannot be brought in, or removed to, federal court unless there is an independent
basis for federal jurisdiction./44/ Diversity must exist at the time of filing, not when the claim
arose/45/ unless the diversity-destroying party is dismissed prior to judgment./46/
Citizenship for purposes of diversity jurisdiction requires citizenship of the United States and a
particular state. State citizenship turns on domicile - the concurrent establishment of state
residence and subjective intent to remain there indefinitely./47/ The District of Columbia, the
territories (e.g., U.S. Virgin Islands, Guam, American Samoa), and the Commonwealth of Puerto
Rico are considered states for purposes of diversity./48/ Aliens admitted for permanent
residence are citizens of the state in which they are domiciled./49/ A corporation typically has
dual state citizenship —the state in which the corporation is incorporated and the state in
which it has its principal place of business./50/
The policy of diversity jurisdiction, to protect out-of-state parties against possible home-state
bias, is manifested in the provisions governing removal. A case may not be removed to federal
court on the basis of diversity if any defendant is a citizen of the forum state./51/
Federal courts have historically applied a domestic relations exception to limit their jurisdiction,
refusing to entertain cases otherwise within their diversity jurisdiction./52/ In Ankenbrandt v.
Richards, the Supreme Court traced to Barber v. Barber the origin of the doctrine./53/ Barber
held that federal courts had no jurisdiction over suits for divorce or alimony./54/ The
Ankenbrandt Court dealt with a tort dispute brought in federal court by a mother against her
former husband and his companion, alleging physical and sexual abuse of the couple’s children.
The Court found federal jurisdiction of the action since the domestic relations exception
Page 28 of 559
specifically served only to “divest . . . the federal courts of power to issue divorce, alimony, and
child custody decrees.”./55/
A similar “probate exception” has been read into the diversity statute. The Supreme Court
analyzed this exception and generally limited it in Marshall v. Marshall./56/ There, the Court
held that “the probate exception reserves to state probate courts the probate or annulment of
a will and the administration of a decedent's estate; it also precludes federal courts from
endeavoring to dispose of property that is in the custody of a state probate court. But it does
not bar federal courts from adjudicating matters outside those confines and otherwise within
federal jurisdiction.”/57/
The Class Action Fairness Act of 2005 imposed significant changes to 28 U.S.C. § 1332,
applicable to civil actions filed on or after February 18, 2005./58/ The changes define the
jurisdiction of the federal courts to hear class actions which do not raise federal questions. In
brief, the federal courts have original jurisdiction to entertain class actions in which the amount
in controversy exceeds $5 million and in which any member of the plaintiff class is diverse from
any defendant./59/ Considering the factors set forth in 28 U.S.C. § 1332(d)(3)(A)-(F), the court
may decline jurisdiction over such cases in which more than one-third, but less than two-thirds,
of the members of the plaintiff classes and the primary defendants are citizens of the forum
state. The federal court must decline jurisdiction over two categories of class actions: 1) when
more than two-thirds of the members of the plaintiff classes are citizens of the forum state, at
least one important defendant is a citizen of the forum state, the principal injuries were
incurred in the forum state, and either no similar class actions had been filed during the prior
three year period or 2) when two-thirds or more of the plaintiffs and the primary defendants
are citizens of the forum state./60/
2.4.B. Declaratory Judgment Act
The Declaratory Judgment Act is not, strictly speaking, a jurisdictional statute./61/ Under the
Act, federal courts have the power in cases of “actual controversy” to “declare the rights and
other legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought.”/62/ In suits against federal agencies or officials for review of
adverse agency action, plaintiffs often seek judgments declaring the action illegal as well as
(occasionally in lieu of) injunctive relief. The Act does not confer or expand federal
jurisdiction./63/ Therefore, the Act cannot be used defensively to raise federal issues that
would not appear on the face of a well-pleaded complaint./64/ Rather, the Act creates an
additional remedy that is available to a district court in a case in which (1) the case or
controversy requirement of Article III of the Constitution is met and (2) the court independently
has subject-matter jurisdiction because of either the presence of a federal question or diversity
of citizenship./65/
_________________________________________________________________________________________
__
Page 29 of 559
42. 28 U.S.C. § 1332(a)(1)–(2) . Diversity jurisdiction also exists when the parties include
“citizens of different States and . . . citizens or subjects of a foreign state are additional
parties,” id. § 1332(a)(3), and “a foreign state as plaintiff and citizens of a State or different
States,” id. § 1332(a)(4). H.R. 4113 was introduced in the House of Representatives in
November, 2009. It proposes to index the amount in controversy requirement to changes in
the Consumer Price Index.
43. See Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806); see also Exxon Mobil v. Allapattah
Services, 545 U.S. 546, 553 (2005).
44. See Ankenbrandt v. Richards, 504 U.S. 689 (1992). Removal jurisdiction is discussed in this
Chapter in Section 2.7.
45. See Freeport-McMoran v. KN Energy, 498 U.S. 426, 428 (1991) (per curiam).
46. See Grupo Dataflux v. Atlas Global Group, 541 U.S. 567 (2004) (explaining Caterpillar v.
Lewis, 519 U.S. 61 (1996)).
47. See Garcia Perez v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004).
48. 28 U.S.C. § 1332(e); see National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S.
582 (1949).
49. 28 U.S.C. § 1332(a). H.R. 4113 proposes to delete the last sentence of Section 1332(a) and
clarify that there would be no diversity jurisdiction in cases between citizens of a state and noncitizens lawfully admitted for law permanent residence who are domiciled in the same state.
50. 28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 2010 U.S. LEXIS 1897 (U.S. Feb. 23, 2010), the
Supreme Court resolved decades of confusion over a corporation's principal place of business
when a firm's operations are directed from one state, but significant corporate activities occur
elsewhere. Essentially adopting what has been known as the “nerve center” test, the Court
held that the principal place of business is ordinarily where the company maintains its
headquarters so long as the headquarters is the location where corporate officers “direct,
control, and coordinate the corporation's activities.” Id. at *28-29. <!--[if gte mso 9]><![endif]--><!-[if gte mso 9]><![endif]--><!--[if gte mso 10]> <! /* Style Definitions */ table.MsoNormalTable {mso-stylename:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; msostyle-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt;
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51. See 28 U.S.C. § 1441(b); Lincoln Property Co. v. Roche, 546 U.S. 81, 83 (2005).
52. Most courts have not applied this exception in cases resting on federal question jurisdiction.
53. Ankenbrandt, 504 U.S. at 693.
54. Barber v. Barber, 62 U.S. (How.) 582 (1858); see Ankenbrandt, 504 U.S. at 693.
55. Ankenbrandt, 504 U.S. at 703–04; Dunn v. Cometa, 238 F.3d 38 (1st Cir. 2001) (tort claims
regarding management of former spouse not barred by domestic relations exception);
Friedlander v. Friedlander, 149 F.3d 739 (7th Cir. 1998) (tort claims not barred by exception). A
similar exception excludes probate matters from federal jurisdiction. Federal courts may not
probate a will or administer an estate but may entertain claims against administrators and
executors as long as they do not interfere with probate proceedings. See generally 13E Charles
A. Wright et al., Federal Practice and Procedure § 3609 (5th ed. 2009).
56. Marshall v. Marshall, 547 U.S. 293 (2006).
57. Id. at 311.
58. Class Action Fairness Act of 2005, Pub. L. No. 109-2 (codified in parts of 28 U.S.C. §§ 1332,
1335, 1453, 1711-15).
59. 28 U.S.C. § 1332(d)(2)(A). This does not apply to class actions in which the “primary
defendants are States, State officials, or other government entities against whom the district
court may be foreclosed from ordering relief,” or in which there are less than 100 class
members. 28 U.S.C. § 1332(d)(5).
60. Id. § 1332(d)(4). For three recent and leading Court of Appeals decisions interpreting
these provisions, see In re Sprint Nextel Corp., 2010 U.S. App. LEXIS 1928 (7th Cir., Jan. 28,
2010); In re Hannaford Bros. Co. Customer Data Security Breach Litigation, 564 F.3d 75 (1st Cir.
2009); Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144 (3rd Cir. 2009).
61. Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.
62. Id. § 2201(a). See Medimmune v. Genentech, 549 U.S. 118, 126 (2007) (plaintiff did not have
to terminate licensing agreement before seeking a declaratory judgment that underlying patent
was invalid).
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63. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); cf. Franchise Tax Bd.,
463 U.S. 1 (1983) (state declaratory judgment acts do not expand removal jurisdiction).
64. See Franchise Tax Bd., 463 U.S. at 15; Skelly Oil Co., 339 U.S. at 671–72.
65. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937).
Updated 2010
2.5 Litigation Against the Government
Updated 2010
Section 1331 is the principal basis of federal jurisdiction in litigation against the federal
government and its agencies. Under Bivens v. Six Unknown Named Agents, individual
employees of the federal government are subject to suit for damages for acts in violation of
plaintiffs’ federal constitutional rights./66/ Jurisdiction over such actions is also provided by
Section 1331. In addition, Congress has enacted a variety of specific jurisdictional statutes
governing particular kinds of litigation against the government based on the nature of the
judicial proceeding or the subject matter of the controversy. These jurisdictional grants often
also contain specific remedial provisions that establish conditions to suit or create immunities.
2.5.A. Mandamus Jurisdiction
Section 1361 of Title 28 confers on the district courts “jurisdiction of any action in the nature of
mandamus to compel” a federal officer, employee, or agency “to perform a duty owed to the
plaintiff.” The mandamus jurisdiction conferred by this provision is available only if the duty
breached is “a clear nondiscretionary duty”/67/ and no other remedy is available./68/ If a
federal official, however, goes far beyond “any rational exercise of discretion,” mandamus may
lie even when the action is within the statutory authority granted./69/ The significance of this
statute as a separate source of federal jurisdiction has faded with the abolition of the amount
in controversy requirement for federal question jurisdiction and with the elimination of the
sovereign immunity defense to suits against federal agencies, officers, and employees for
injunctive relief./70/
2.5.B. Administrative Procedure Act
The Administrative Procedure Act creates a cause of action against agencies of the federal
government acting under federal law. The Act authorizes judicial review, establishes the form
and venue of judicial review proceedings, states what agency actions are reviewable, and
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describes the scope of review of such actions./71/ The Act eliminates the defense of sovereign
immunity in cases seeking relief other than money damages and claiming that a federal agency,
officer, or employee acted or failed to act in an official capacity or under color of legal
authority./72/
While these judicial review sections of the Act are important in providing for judicial review of
agency action and describing its scope, they do not of their own force confer jurisdiction on the
district courts./73/ A plaintiff bringing an action under the APA, therefore, must also have a
jurisdictional foundation for the action. Federal question jurisdiction under Section 1331 is
typically available for claims under the Act./74/
2.4.C. Tucker Act--Damage Claims Against the Federal Government
The Tucker Act gives the U.S. Court of Federal Claims jurisdiction
to render judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive department, or upon any
express or implied contract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort./75/
When it applies, the Tucker Act provides the exclusive method by which to file actions against
the United States./76/
For damage claims of $10,000 or less, the U.S. Court of Federal Claims and federal district
courts have concurrent jurisdiction./77/ If the claim is over $10,000, the Court of Federal Claims
has exclusive jurisdiction. /78/ If a plaintiff wishes to remain in district court instead of the
Court of Federal Claims, the plaintiff may waive all damages over $10,000./79/ If a plaintiff has
multiple claims, none of which individually exceeds $10,000, the claims are not aggregated for
jurisdictional purposes./80/ The Court of Federal Claims is also authorized to grant very limited
equitable relief and declaratory judgments, most notably in cases involving termination of
government contracts and challenges to awards of such contracts./81/
The Act creates no substantive rights; it confers jurisdiction over claims based on statutes,
contracts, or regulations that themselves create the right to damages against the United
States./82/ The Tucker Act, therefore, can be used as the jurisdictional basis for claiming
government benefits provided for by a substantive statute.
In some cases, the exclusive jurisdiction of the Court of Federal Claims over damage claims
exceeding $10,000 is not a bar to a plaintiff’s request for equitable relief from a district court if
there is another basis for federal jurisdiction./83/ The district courts have jurisdiction over
mixed claims involving both injunctive (or declaratory) relief and monetary relief that does
amount technically to “damages” in excess of $10,000./84/ On the other hand, courts look
behind the pleadings to determine whether the jurisdictional provisions of the Tucker Act
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apply. A plaintiff may not avoid jurisdiction in the Court of Federal Claims by “framing a
complaint in the district court as one seeking injunctive, declaratory, or mandatory relief when,
in reality, the thrust of the suit is one seeking money [damages] from the United States.”/85/
All appeals from non-tax claims under the Tucker Act, whether arising in the Court of Federal
Claims or district courts, go to the U.S. Court of Appeals for the Federal Circuit./86/ The Federal
Circuit also has exclusive jurisdiction of appeals from the district courts that contain a mixture
of Tucker Act and Federal Tort Claims Act claims./87/
2.5.D. Federal Tort Claims Act
Pursuant to the Federal Tort Claims Act (FTCA),
district courts . . . have exclusive jurisdiction of civil actions on claims against the United States,
for money damages, . . . for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred./88/
Under the FTCA, federal district courts may entertain tort claims for damages against the
United States based on the actions of government employees in cases in which the United
States has not abrogated its sovereign immunity under the Tucker Act. The FTCA’s consent to
be sued and waiver of sovereign immunity apply only to cases in which “a private person”
would be liable. Further, under the statute, the United States is exempt from (i.e., it has not
waived its sovereign immunity for) claims based on discretionary acts of government
employees,/89/ and from claims based on injury suffered in a foreign country./90/
The extent of the United States’ liability under the Act is determined by state law, except that
punitive damages are not allowed./91/ The Supreme Court, however, has liberally permitted
damages that were more than a plaintiff’s actual loss, as long as the damages were not
intended to punish the defendant for intentional actions./92/
The Act also imposes certain procedural prerequisites to filing a suit in district court. For
instance, before filing a civil action, a plaintiff must “file an administrative claim to the
appropriate Federal agency” within two years after the claim accrues. /93/ The administrative
claim must specify the amount requested by way of compensation, and a plaintiff may not later
in court seek an amount in excess of the administrative claim./94 / If the agency does not
dispose of the administrative claim within six months, the claimant may consider the lack of
decision to be a final denial and proceed to court./95/ If the agency denies the administrative
claim, suit must be filed within six months of the date of mailing of such denial./96/
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66. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Suits against federal employees
in their individual capacities are not suits against the United States for purposes of venue or
service of process.
67. Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S.
602, 616 (1984)); see also Ingalls Shipbuilding Inc. v. Asbestos Health Claimants, 17 F.3d 130,
133 (5th Cir. 1994) (“Mandamus is only appropriate when the claim is clear and the duty of the
officer is ministerial and so plainly prescribed as to be free from doubt. Mandamus is thus not
generally available to review discretionary acts of public officials.”) (internal quotations and
citations omitted).
68. See Taylor v. Barnhart, 399 F.3d 891, 894 (8th Cir. 2005); Lifestar Ambulance Serv. v. U.S.,
365 F.3d 1293, 1295 (11th Cir. 2004), cert. denied, 543 U.S. 150 (plaintiff must exhaust
administrative remedies). Mandamus has also been invoked successfully in efforts to overturn
judicial rulings. See Cheney v. United States District Court, 542 U.S. 367, 380-82 (2004)
(ultimately successful effort to vacate discovery orders in Federal Advisory Committee Act
case); to challenge a court’s decision to transfer the venue of a case, see, e.g., In re ChatmanBey, 718 F.2d 484, 487–88 (D.C. Cir. 1983); and to compel performance of a prior court order,
see, e.g., Kahmann v. Reno, 967 F. Supp. 731, 733–34 (N.D.N.Y. 1997).
69. See United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968),
cert. denied, 394 U.S. 929 (1969).
70. 5 U.S.C. § 702; see Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235-36 (10th Cir. 2005)
(noting district court had mandamus jurisdiction in prison conditions case, and that mandamus
and injunctive relief might be “interchangeable”).
71. Administrative Procedure Act, 5 U.S.C. §§ 701–706. Other sections of the Administrative
Procedure Act address agency procedure and the interaction of agencies and Congress. See 5
U.S.C. §§ 551 et seq. A full discussion of the Act is found in Chapter 5.1.B of this MANUAL.
72. 5 U.S.C. § 702.
73. See Califano v. Sanders, 430 U.S. 99, 105–07 (1977).
74. While jurisdiction is found in 28 U.S.C. § 1331 , practitioners should also look to the agency’s
organic statute or other provisions in the Judicial Code. For instance, some suits to review
agency actions are committed to the exclusive jurisdiction of the court of appeals. See 8 U.S.C.
§§ 2341–2351 .
75. 28 U.S.C. § 1491(a)(1).
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76. Congress has the power to remove the Tucker Act as a remedy, but Congress must manifest
that intent unambiguously. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984);
California v. United States, 271 F.3d 1377, 1382 (Fed. Cir. 2001). However, when provisions in
other statutes specify comprehensive remedial schemes, the Supreme Court cautioned, the
Tucker Act may give way. United States v. Fausto, 484 U.S. 439, 452–55 (1988) (finding Civil
Service Reform Act implicitly withdraws certain actions by civil servants from the reach of the
Tucker Act).
77. 28 U.S.C. § 1346(a)(2).
78. Jan's Helicopter Serv. v. FAA, 525 F.3d 1299, 1304 (Fed. Cir. 2008).
79. See Roedler v. Dep't of Energy, 255 F.3d 1347, 1351 (Fed. Cir. 2001); Smith v. Orr, 855 F.2d
1544, 1552–53 (Fed. Cir. 1988).
80. See Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983); Glaskin v. Klass, 996 F. Supp.
67, 73 (D. Mass. 1998).
81. 28 U.S.C. § 1491(a)(2), (b)(2).
82. One exception is that the district court version of the Tucker Act does not provide
jurisdiction for claims arising under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601 et seq.
See 28 U.S.C. § 1346(a)(2).
83. Brown v. United States, 631 F. Supp. 954 (D.D.C. 1986). See also Favereau v. United States,
44 F. Supp.2d 68, 71 (D. Me. 1999).
84. Bowen v. Massachusetts, 487 U.S. 879 (1988) (state seeking monetary and equitable relief
under Medicaid program). Significantly, in Bowen the Court held that not all actions that would
result in the payment of money were necessarily actions for money damages: “The fact that a
judicial remedy may require one party to pay money to another is not a sufficient reason to
characterize the relief as ‘money damages’" Id. at 893.
85. Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997) (internal quotations omitted).
86. 28 U.S.C. § 1295(a)(2)–(3).
87. United States v. Hohri, 482 U.S. 64, 75-76 (1987).
88. Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).
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89. 28 U.S.C. § 2680(a). The test for what is a “discretionary function” also has been much
litigated, but the general formulation of the inquiry involves whether the action “involve[d] an
element of judgment or choice” and whether the conduct was “based on considerations of
public policy.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). Federal employees are
absolutely immune from tort liability if the attorney general certifies that the employee was
acting within the scope of employment. 28 U.S.C. § 2675(d). If the certification is made, the
United States is substituted as the defendant. Id.
90. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004).
91. 28 U.S.C. § 2674; see also Molzof v. United States, 502 U.S. 301, 305–06 (1992).
92. See Molzof, 502 U.S. at 306–07.
93. 28 U.S.C. § 2401(b); United States v. Kubrick, 444 U.S. 111 (1979).
94. 28 U.S.C. § 2675(b).
95. Id. § 2675(a).
96. 28 U.S.C. § 2401(b). There is a split in the circuits regarding whether the FTCA time limits
are jurisdictional or are subject to equitable tolling. Marley v. United States, 567 F.3d 1030 (9th
Cir.), cert. denied, 2009 U.S. LEXIS 8751 (Dec. 7, 2009) (jurisdictional); Santos v. United States,
559 F.3d 189 (3rd Cir. 2009) (equitable tolling permitted).
Updated 2010
2.6 Supplemental Jurisdiction
Updated 2010
In 1990, Congress enacted the supplemental jurisdiction statute, 28 U.S.C. § 1367, which largely
codified, with certain critical distinctions, the former common law doctrines of pendent,
ancillary, and pendent-party jurisdiction. When applicable, these doctrines permitted the
federal court to take jurisdiction over state law claims over which there was no independent
basis of jurisdiction so long as they were anchored to a claim in the action over which federal
jurisdiction was appropriate.
2.6.A. Historical Basis of Pendent and Ancillary Jurisdiction
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In order to understand the supplemental jurisdiction statute, the legal aid lawyer should first be
familiar with the basic pre-codification principles of pendent and ancillary jurisdiction
established by the Supreme Court.
2.6.A.1. Pendent Jurisdiction
The doctrine of pendent jurisdiction governed the exercise by federal courts of subject matter
jurisdiction over claims that lack an independent basis of jurisdiction. When a plaintiff files a
federal claim against a defendant, under what circumstances may it add a state law claim over
which there is no independent basis of federal jurisdiction to the complaint? The Supreme
Court’s decision in United Mine Workers v. Gibbs created the modern test for determining
when federal courts may exercise pendent jurisdiction over state law claims./97/ By
“establishing a new yardstick for deciding whether a federal court has jurisdiction over a statelaw claim brought in a case that also involves a federal question,” the Gibbs Court intended
“not only to clarify, but also to broaden, the scope of federal pendent jurisdiction.”/98/
The Court in Gibbs drew a distinction between power and discretion. Under the two-prong test
adopted in Gibbs, federal courts must first determine whether they have the constitutional
power to exercise pendent jurisdiction. This power exists when there is a substantial federal
claim over which federal courts have subject matter jurisdiction, /99/ and when both the “state
and federal claims derive from a common nucleus of operative facts” so that a plaintiff would
“ordinarily be expected to try them all in one judicial proceeding./100/ When the entire action
before the federal court comprises a single constitutional “case,” the court may, under Article
III, exercise jurisdiction over the action, including the state-law claims./101/
If the federal court has the power to exercise jurisdiction over the pendent claim, the federal
court may nevertheless refuse to exercise pendent jurisdiction based on “considerations of
judicial economy, convenience and fairness to litigants.”/102/ Questions of economy arise
when the federal claim is dismissed or resolved before the pendent state claim. The Gibbs Court
observed that “if the federal claims are dismissed before trial, even though not insubstantial in
a jurisdictional sense, the state claims should be dismissed as well.”/103/ The Court
subsequently qualified this statement to permit trial courts to entertain pendent claims after
the jurisdiction-conferring claims are dismissed as moot./104/ Ultimately the issue turns on
whether sending the pendent claim to state court would result in the wasteful and duplicative
expenditure of resources. The Gibbs Court was also mindful of principles of comity, and
cautioned against making “[n]eedless decisions of state law.”/105/ Indeed, “if it appears that
the state issues substantially predominate, whether in terms of proof, of the scope of the issues
raised, or of the comprehensiveness of the remedy sought, the state claims may by dismissed
without prejudice and left for resolution to state tribunals.”/106/
2.6.A.2. Pendent Party Jurisdiction
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Some federal courts subsequently used the Gibbs approach to support the exercise of
jurisdiction over new parties over whom there was no independent basis of federal jurisdiction.
When a plaintiff files a federal claim against a defendant, under what circumstances may the
court entertain jursidiction over a state claim against a second defendant when there is no
independent basis for federal jurisdiction? Such state law claims might, for example, fall short
of the amount in controversey requirement or be filed against a non-diverse second defendant.
The Supreme Court first considered the question of pendent party jurisdiction in Aldinger v.
Howard./107/ The plaintiff there sued county officials under Section 1983, and asserted a
pendent state law claim against the county. Because the state law claim against the county
arose from the same nucleus of facts as the Section 1983 claim against its officials, the Gibbs
test appeared to support the assertion of jurisdiction.
Nevertheless, the Court rejected the attempted use of pendent party jurisdiction and held the
asserted expansion of subject matter jurisdiction to be inconsistent with congressional
limitations on the exercise of jurisdiction. The Court observed that adding a transactionally
related state law claim against a defendant subject to a properly filed federal claim was quite
different from adding a pendent claim to a new defendant. The Court further held that
Congress impliedly negated the exercise of pendent party jurisdiction over counties pursuant to
28 U.S.C. § 1343 because counties were not “persons” subject to Section 1983. The specific
basis for this latter conclusion was later overruled in Monell v. New York City Department of
Social Services./108/ Still, Aldinger continued to stand for the proposition that, before
exercising pendent party jurisdiction, the court must determine whether Congress had
impliedly negated the authority for doing so.
In Owen Equipment and Erection Company v. Kroger, the Court extended the reasoning of
Aldinger to a case involving Rule 14(a) of the Federal Rules of Civil Procedure./109/ There, the
plaintiff in a tort case over which the court had diversity jurisdiction amended her complaint to
add claims arising from the same accident against a non-diverse third-party defendant.
Reasoning that the exercise of jurisdiction would be inconsistent with the statutory
requirement of complete diversity, the Court rejected jurisdiction over the claims.
Finley v. United States marked the death knell of pendent party jurisdiction./110/ In Finley, the
Supreme Court held that a plaintiff suing the United States under the Federal Tort Claims Act
was not allowed to assert a pendent party claim against jointly liable, non-diverse defendants,
even though the claim against the United States was within the exclusive jurisdiction of the
federal courts. The plaintiff was therefore consigned to suing the United States in federal court
and the private defendants in state court. Modifying the test established in Aldinger, the Court
held that federal courts had no authority to assert subject matter jurisdiction over pendent
parties absent an affirmative grant of jurisdiction by Congress. In the absence of a legislative
basis for the assertion of pendent party jurisdiction, the plaintiff had to establish an
independent basis of subject matter jurisdiction for each defendant sued. Since most
jurisdictional statutes say nothing about pendent jurisdiction, the Finley Court called into
question the statutory bases of both ancillary and pendent jurisdiction. /111/
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2.6.A.3. Ancillary Jurisdiction
The related doctrine of ancillary jurisdiction developed to empower a federal court to hear
some counterclaims and third-party claims over which it lacked an independent jurisdictional
base. /112/ In a case in which a plaintiff filed a federal claim against a defendant, under what
circumstances may the defendant bring claims against the plaintiff or others over which there is
no independent basis of subject matter jurisdiction? Such claims are brought by defending
parties which have not chosen the federal forum. Generally, when a claim bore a logical
relationship to the main claim or arose out of the same transaction or occurrence, courts
permitted ancillary jurisdiction. Ancillary jurisdiction consequently extended to compulsory
counterclaims, cross-claims, and additional parties to such claims. /113/ It did not generally
extend to permissive counterclaims, which, by definition, lacked the required factual nexus with
the main claim. /114/
However, the Court in Owen cautioned that satisfying the Gibbs constitutional test is necessary,
but not sufficient, to confer ancillary jurisdiction. Jurisdiction may also be limited by statute.
Thus, since the diversity statute has been interpreted to require complete diversity, the Owen
Court held, a plaintiff may not advance even transactionally related state claims against a nondiverse third-party defendant. As noted above, the Finley Court’s insistence on an express
legislative grant of ancillary jurisdiction effectively precluded most exercises of it.
2.6.B. Statutory Codification of Supplemental Jurisdiction
Congress responded to Finley in 1990 by enacting 28 U.S.C. § 1367. The supplemental
jurisdiction statute retains the basic division described by the Supreme Court in Gibbs between
the power of a court to entertain a pendent claim and the discretionary authority of a court to
decline to exercise that power. However, in codifying supplemental jurisdiction, Congress also
chose to incorporate several of the discretionary factors that warranted declining
jurisdiction. /115/
The statute first delineates the power of the federal court to hear supplemental claims and
claims against supplemental parties. Section 1367(a), which provides that “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,” confers power to entertain supplemental
jurisdiction in mandatory terms./116/ Rather than using Gibbs' “common nucleus of operative
fact” standard, Section 1367(a) explicitly makes direct reference to the constitutional “case or
controversy” requirement, signaling Congress’ intent to vest the federal courts with the full
measure of supplemental jurisdiction permitted by the Constitution. Most courts have
indicated that the "common nucleus" and "case or controversy" tests are the same./117/ The
statute also expressly retains the doctrine of pendent party jurisdiction by mandating the
inclusion of claims involving “the joinder or intervention of additional parties.”/118/
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Section 1367(b) imposes some limitations of supplemental jurisdiction in cases in which
original federal jurisdiction rests on diversity. In such cases, the statute codified the result in
Kroger and does not permit supplemental jurisdiction over claims by plaintiffs against persons
made parties under Rules 14, 19, 20 and 24 when doing so would destroy complete diversity.
Yet, the Supreme Court recently interpreted Section 1367(a) and (b) broadly when the
jurisdictional issue involved the amount in controversy requirement. In Exxon Mobil Corp.v.
Allapattah Services,/119/ a class action, the Court decided that federal courts may exercise
supplemental jurisdiction over class member claims which fail to satisfy the amount in
controversy requirement if their claims are part of the same case or controversy presented
by at least one plaintiff who alleges a sufficient amount in controversy. So long as the federal
court has original jurisdiction over a claim made by at least one plaintiff, there is a “civil action
of which the district courts have original jurisdiction,”/120/ to which supplemental claims may
adhere./121/ The decision in Exxon Mobil is important to legal services attorneys because it
holds that Section 1367(a) overrules Zahn v. International Paper Co.,/122/ which held that each
class member in a class action seeking to invoke diversity jurisdiction must meet the amount in
controversy requirement./123/ In Exxon Mobil's companion case, Ortega v. Star-Kist Foods Inc.,
the Court reached the same conclusion in a non-class action case in which the plaintiffs were
joined under Rule 20. The Court found nothing in § 1367(b) that withdrew supplemental
jurisdiction in either Exxon Mobil or Ortega,where plaintiffs were joined by Rule 23 and Rule 20,
respectively./124/
Section 1367(c) sets forth the occasions in which a federal court may exercise its discretion not
to hear a supplemental claim or add a supplemental party, despite the power of the court to do
so. A federal court may decline to assert supplemental jurisdiction over a pendent claim if any
of the following four circumstances specifically enumerated in Section 1367(c)(1)-(4) apply: “the
claim raises a novel or complex issue of State law,” “the claim substantially predominates over
the claim or claims over which the district court has original jurisdiction,” “the district court has
dismissed all claims over which it has original jurisdiction,” or “in exceptional circumstances,
there are other compelling reasons for declining jurisdiction.” The first three factors in Section
1367(c)(1)–(3) “are rephrased Gibbs factors.”/125/ The statute offers no guidance on the fourth
ground for declining supplemental jurisdiction. The courts have accordingly used a range of
factors to define this exception to supplemental jurisdiction,/126/ resting principally on Gibbs'
language of fairness, economy, comity, or convenience,/127/ even though these terms are not
found in the statute./128/ Section 1367(c) applies equally to claims removed from state
court./129/
The statute, then, has a framework that alternately uses mandatory commands and
discretionary criteria for the exercise of supplemental jurisdiction. Section 1367(a) uses the
term “shall,” indicating that once a supplemental claim is determined to be related to the
federal claim within the court’s original jurisdiction such that they form the same case or
controversy, the court must assert supplemental jurisdiction over the related claim. In contrast,
the use of “may” in Section 1367(c) appears to confer on federal courts at least some discretion
to decline to hear claims over which supplemental jurisdiction is potentially available. The
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circuits are split over the question of whether the word “may” in Section 1367(c) broadly
incorporates the discretionary Gibbs factors or whether Section 1367(c) more narrowly sets
forth the only bases for declining supplemental jurisdiction.
The Seventh Circuit has taken the former approach,/130/ followed by the First, Third, and D.C.
Circuits./131/ In Executive Software North America Inc. v. U.S. District Court, in contrast, the
Ninth Circuit held that the statutory structure adopted by Congress demonstrated its intent for
Section 1367(c) “to provide the exclusive means by which supplemental jurisdiction can be
declined by a court .... [a]ccordingly, unless a court properly invokes a [S]ection 1367(c)
category in exercising its discretion to decline to entertain pendent claims, supplemental
jurisdiction must be asserted.”/132/ The Ninth Circuit reasoned that, although subsections
(c)(1)–(3) “appear to codify concrete applications of the underlying Gibbs values,” the statute
“channels” their application and alters “the nature of the Gibbs discretionary inquiry.”/133/
Once a court identifies one of the “factual predicates” corresponding to one of the subsection
1367(c) categories, the exercise of discretion “is informed by whether remanding the pendent
state claims comports with the underlying objective of most sensibly accommodat[ing] the
values of ‘economy, convenience, fairness, and comity.’”/134/
In addition, the Executive Software court found that the “other compelling reasons” referred to
in the Section 1367(c)(4) “catchall” subsection referred back to the circumstances identified in
subsections (c)(1)–(3), thus requiring the court to balance the Gibbs discretionary values of
economy, convenience, fairness, and comity. Nonetheless, the Ninth Circuit also found that the
“exceptional circumstances” referred to in subsection (c)(4) meant that the court’s discretion
should be employed only when the circumstances were “quite unusual.” This would require a
district court to “articulate why the circumstances of the case are exceptional in addition to
inquiring whether the balance of the Gibbs values provide compelling reasons for declining
jurisdiction in such circumstances.”/135/ The Ninth Circuit’s approach has been either expressly
adopted or effectively utilized by the Second, Eighth, and Eleventh Circuits./136/
The Supreme Court has not directly acknowledged this controversy./137/ The Court in City of
Chicago v. International College of Surgeons observed that federal courts “can decline to
exercise jurisdiction over pendent claims for a number of valid reasons.”/138/ “Accordingly,”
the Court added, “we have indicated that ‘district courts [should] deal with cases involving
pendent claims in the manner that best serves the principles of economy, convenience,
fairness, and comity which underlie the pendent jurisdiction doctrine.’”/139/ The Court flatly
stated that “[t]he supplemental jurisdiction statute codifies these principles.”/140/
The Court has also addressed the applicability, in light of the Eleventh Amendment, of Sections
1367(a) and (d) in the context of claims against non-consenting states. In Raygor v. Regents of
the University of Minnesota, the Court noted that Pennhurst had barred the adjudication of
pendent state-law claims against non-consenting state defendants in federal court before the
enactment of Section 1367./141/ The Court held that Section 1367(a) did not alter this
principle, “even though nothing in the statute expressly excludes such claims.”/142/ The
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Raygor/143/ Court further held that Section 1367(d), which tolls the period of limitations for
supplemental claims while they are pending in federal court and for thirty days after they are
dismissed, does not apply to toll the period of limitations for state law claims asserted against
non-consenting state defendants and dismissed on Eleventh Amendment grounds.
2.6.B. Tactical Considerations--Whether or Not to Raise Supplemental Claims
Although federal courts generally have discretion to adjudicate pendent state law claims,
plaintiffs who can raise pendent state law claims are required as a practical matter to attempt
to do so. In most states, the alternative to raising pendent state law claims in federal court
litigation is forfeiting them. This is because the doctrine of res judicata or claim preclusion bars
plaintiffs from litigating state law claims that they could have raised as pendent claims in earlier
federal court litigation. Therefore, even with only a slim chance that a federal court will exercise
pendent jurisdiction, pendent state law claims should be pled. However, advocates should be
mindful that pleading supplemental state law claims may increase the chances, in a appropriate
cases, of Pullman absention as explained in Section 2.8.B.1, infra.
Most state courts confronted with state law claims that were not joined (or attempted to be
joined) in earlier federal court litigation have been unwilling to assume that federal courts
would have refused to exercise pendent jurisdiction and have applied claim preclusion to bar
litigation of the state law claims in state courts./144/ Some state courts have refused to
preclude litigation of state claims only when federal courts clearly would have declined to hear
them as pendent claims for jurisdictional/145/ or discretionary reasons./146/ When, however,
these courts cannot conclude that the federal court would clearly have declined jurisdiction
over the state claims, they apply claim preclusion./147/
97. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
98. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349 (1988) (citing Gibbs, 383 U.S. at 725).
99. In determining whether a federal claim is sufficiently substantial to confer pendent
jurisdiction, the Supreme Court requires federal courts to determine whether the claim is “so
insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely
devoid of merit as not to involve a federal controversy within the jurisdiction of the District
Court.” Hagans v. Levine, 415 U.S. 528, 543 (1974).
100. Gibbs, 383 U.S. at 725. Such an expectation would turn on the plaintiff's desire to avoid
losing omitted claims on grounds of claim preclusion. Consequently the “common nucleus of
operative fact” test is commonly equated to the “transaction or occurrence” standard
employed in several federal rules of civil procedure and in preclusion law.
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101. The Supreme Court has refused to read Gibbs to allow supplemental jurisdiction over
transactionally related claims which fail to satisfy Article III case or controversy requirements,
such as standing or mootness. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
102. Id. at 726.
103. Id.
104. See Rosado v. Wyman, 397 U.S. 397, 404 (1970).
105. Gibbs, 383 U.S. at 726.
106. Id. at 726–27.
107. Aldinger v. Howard, 427 U.S. 1 (1976).
108. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).
109. Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365 (1978).
110. Finley v. United States, 490 U.S. 545 (1989).
111. Id. at 551.
112. See Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).
113. The Supreme Court, however, has made clear that the context in which the ancillary claim
is asserted is important. In Owen, a diversity case, plaintiff asserted a state-law claim against a
nondiverse third-party defendant arising out of the same transaction or occurrence. Although
the court assumed that federal jurisdiction over the claim would be constitutional, Section
1332(a) negated jurisdiction.
114. See generally 6 Charles A. Wright et al., Federal Practice and Procedure § 1422 (5th ed.
2008); Jones v. Ford Motor Credit Co., 358 F.3d 205, 210-13 (2d Cir. 2004) (summarizing preSection 1983 law). But see Ambromovage v. United Mine Workers of America, 726 F.2d 972, 990
(3d Cir.1984) (suggesting that some permissive counterclaims may be constitutionally joined).
115. 28 U.S.C. § 1367.
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116. McLaurin v. Prater, 30 F.3d 982, 984 (8th Cir. 1994) (“The [supplemental jurisdiction]
statute’s use of the word ‘shall’ . . . is a mandatory command.”).
117. See Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006); MCI
Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1102 (3d Cir. 1995), cert. denied,
519 U.S. 815 (1996); Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1175 (1st Cir. 1995). In
an interesting discussion of this issue, the Second Circuit in Jones, 358 F.3d at 213, n.5,
expressed uncertainty as to whether this constitutional limit was congruent with Gibb’s
“common nucleus” test, suggesting that it might be broader. In Channell v. Citicorp Nat’l Servs.,
89 F.3d 379, 385 (7th Cir. 1996), the Seventh Circuit offered some support for this view
and required only "[a] loose factual connection between the claims" to satisfy Section
1367(a). See also Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (E.D. Cal. 2005). While
the issue has been addressed by academic commentators, it is presented squarely in a practical
context: whether a federal court has supplemental jurisdiction over any permissive
counterclaims.
118. 28 U.S.C. § 1367(a); see Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1181 (7th
Cir. 1993).
119. Exxon Mobil v. Allapattah Services, 545 U.S. 546 (2005).
120. 28 U.S.C. § 1367(a).
121. Exxon Mobil, 545 U.S. at 559.
122. Zahn v. International Paper Co., 414 U.S. 291 (1973).
123. See 28 U.S.C. § 1332(d)(1), (6) (establishing $5 million amount in controversy requirement,
aggregated among class members in class actions subject to Class Action Fairness Act).
124. 545 U.S. at 560-61
125. R. Hinkle, The Revision of 28 U.S.C. § 1367(c) and the Debate Over the District Court’s
Discretion to Decline Supplemental Jurisdiction, 69 Tenn. L. Rev. 111, 120 (2001).
126. Compare Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008) (affirming decision retain
jurisdiction over state law claims, holding that the court was familar with the case and it raised
simple state law issues) with Hays County Guardian v. Supple, 969 F.2d 111, 125 (5th Cir. 1992),
cert. denied, 506 U.S. 1087 (1993) (“exceptional circumstances” and “compelling reasons”
existed to decline supplemental jurisdiction under Section 1367(c)(4) since deciding “state-law
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claims in federal court while identical claims are pending in state court would be a pointless
waste of judicial resources”).
127. See Gibbs, 383 U.S. at 726; Carnegie-Mellon, 484 U.S. at 350 (“[A] federal court should
consider and weigh in each case, and at every stage of the litigation, the values of judicial
economy, convenience, fairness and comity in order to decide whether to exercise jurisdiction
over a case . . . .”).
128. In Carlsbad Technology v. HIF Bio, Inc., 129 S.Ct. 1862 (2009), the Supreme Court held that
an order remanding state law claims under Section 1367(c) is subject to appellate review
because such a remand is not one for lack of subject matter jurisdiction. Had such a remand
been interpreted as one for lack of subject matter jurisdiction, rather than an exercise of
discretion, 28 U.S.C. §§ 1447(c) and (d) would bar appellate review.
129. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988).
130. See Brazinski, 6 F.3d at 1182.
131. See O’Connor v. Commonwealth Gas, 251 F.3d 262 (1st Cir. 2001); Rodriguez v. Doral
Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) (“the district court, in reaching its
discretionary determination on the jurisdictional question, will have to assess the totality of the
attendant circumstances”); Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)
(“Section 1367(c) . . .was intended simply to codify the preexisting pendent jurisdiction law,
enunciated in Gibbs and its progeny . . . .”); Women Prisoners of District of Columbia Dept. of
Corrections v. District of Columbia, 93 F.3d 910, 921 (D.C. Cir. 1996); Diven v. Amalgamated
Transit Union and Local 689, 38 F.3d 598, 601 (D.C. Cir. 1994) (“Despite Congress’ use of ‘shall’
[in Section 1367(a)], the statute fairly exudes deference to judicial discretion—at least once the
threshold determinations have been met and the court moves on to consider the exceptions.”).
132. Executive Software North America Inc. v. U.S. District Court, 24 F.3d 1545, 1556 (9th Cir.
1994) (citations omitted).
133. Id.
134. Id. at 1557 (citations and interior quotation marks omitted).
135. Id. at 1558.
136. See Itar-Tass Russian News Agency v. Russian Kurier Inc., 140 F.3d 442, 447 (2d Cir. 1998);
McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994); Palmer v. Hospital Authority, 22 F.3d 1559,
1569 (11th Cir. 1994).
Page 46 of 559
137. For additional characterizations of the circuits’ treatment of the Gibbs supplemental
jurisdiction decisions, see J. Corey, The Discretionary Exercise of Supplemental Jurisdiction
Under the Supplemental Jurisdiction Statute, 1995 BYU L. Rev. 1263, 1288-95 (1995), and
Hinkle, supra note 125, at 120-35.
138. City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997).
139. Id. at 172–73 (quoting Carnegie-Mellon, 484 U.S. at 357) (further citations omitted).
140. Id. at 173.
141. Raygor v. Regents of the University of Minnesota, 534 U.S. 533, 546 (2002); Pennhurst
State School and Hospital v. Halderman, 465 U.S. 89 (1984).
142. Raygor, 534 U.S. at 541–42.
143. Id. at 546–48. The Supreme Court further noted that “serious doubts about the
constitutionality” would be raised if Section 1367(d) did in fact toll state claims against state
defendants when those claims were dismissed on Eleventh Amendment grounds. Id. at 542.
The Court’s ruling did not reach “the application or constitutionality of Section 1367(d) when a
State consents to suit or when a defendant is not a State.” Id. at 547. The tolling provision
does, however, apply to suits against counties. Jinks v. Richland Co., 538 U.S. 456 (2003).
144. See, e.g., Milone v. Nissan Motor Corp., 594 A.2d 642, 644 (N.J. Super. Ct. App. Div. 1991).
145. E.g., Mayronne v.Vaught, 655 So. 2d 390, 392–93 (La. Ct. App. 1995); Craig v. County of Los
Angeles, 221 Cal. App. 3d 1294, 1300 (Cal. Ct. App. 1990).
146. E.g., Toomey v. Blum, 54 N.Y.2d 669, 426 N.E.2d 181, 442 N.Y.S.2d 774 (1981).
147. E.g., Berg v. Berg, 2008 Tex. App. LEXIS 2108 *10-14 (Tex. Mar. 28, 2008); Penn v. Iowa
State Board of Regents,577 N.W.2d 393, 401–02 (Iowa 1998); Anderson v. Phoenix Investment
Counsel Inc., 440 N.E.2d 1164, 1168–69 (Mass. 1982); Rennie v. Freeway Transportation, 656
P.2d 919, 924 (Or. 1982).
Updated 2010
2.7 Removal Jurisdiction
Updated 2010
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In addition to motions to change venue, removal serves as a device for defendants to avoid the
plaintiff's choice of forum. Sections 1441 and 1442 of Title 28 of the U.S. Code cover the
removal of cases from state court to federal court. Section 1446 sets forth the procedure for
removal and section 1447 deals with post-removal procedure, including remands to state
court. They are discussed in turn below.
2.7.A. General Removal--28 U.S.C. § 1441
It is useful to remember, as the Fourth Circuit observed, that “[r]emoval statutes do not create
jurisdiction. They are instead a mechanism to enable federal courts to hear the cases that are
already within their original jurisdiction.”/148/ Removal provides a federal forum to defendants
wishing to litigate federal claims in federal rather than state court and to defendants in
diversity cases filed in the plaintiff's home state court. Because removal jurisdiction requires
that the case invoke original federal jurisdiction, the discussion in Chapter 2.3 of federal court
jurisdiction is helpful in understanding principles of removal jurisdiction.
The key provision of the principal federal removal statute, 28 U.S.C. § 1441(a), authorizes a
defendant to remove from state court to federal court “any civil action brought in a State court
of which the district courts of the United States have original jurisdiction ....”/149/ Section
1441(a), in effect, requires federal courts considering removal petitions to decide whether they
could have initially exercised jurisdiction over the case./150/ Section 1441(b) permits the
removal of federal question cases, regardless of the citizenship or residence of the parties, and
thereby incorporates the Section 1331 law and principles discussed in Chapter 2.3./151/ For
instance, “[t]he well-pleaded complaint rule applies to the original jurisdiction of the district
courts as well as to their removal jurisdiction.”/152/ Thus, a defendant may not remove based
on their federal defenses or a federal counterclaim./153/ In addition, the plaintiff may take
advantage of the well-pleaded complaint rule and prevent possible removal by omitting federal
claims. The Supreme Court has noted that, “[t]he rule makes the plaintiff master of the claim;
he or she may avoid federal jurisdiction by exclusive reliance on state law.”/154/ However, in
an exception to the well-pleaded complaint rule, removal may be permitted in those
comparatively rare cases where the plaintiff’s state-law claim is completely preempted by
federal law./155/
If federal question or one of the more exotic bases for federal jurisdiction do not apply, general
removal jurisdiction must be founded upon diversity. However, in a significant limitation to
original diversity jurisdiction, removal is permitted only when none of the defendants are
citizens of the forum state./156/ All circuits but one, the Eighth, have held that this
requirement is not jurisdictional and can be waived if not the subject of a timely motion to
remand./157/ Generally, all defendants must join in a petition for removal./158/ Fraudulently
joined defendants are generally disregarded for purposes of determining diversity or unanimity
for removal./159/
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Removal jurisdiction does not expand the limitations elsewhere imposed on original federal
jurisdiction. For example, the All Writs Act,/160/ which allows federal courts to issue writs in
aid of their jurisdiction, but which does not itself provide an independent grant of federal
jurisdiction, cannot provide the basis for removal./161/ Similarly, principles of “ancillary
jurisdiction” cannot confer the original jurisdiction necessary for removal, because the assertion
of jurisdiction over ancillary claims depends initially on original jurisdiction over a case or
controversy./162/ In addition, removal otherwise permitted by Section 1441(a) may be barred
by Congress if such prohibitions on removal are expressly stated./163/
Under Section 1441(a), the removed “civil action” must also have been pending in a state
“court.”/164/ The federal courts are divided on whether removal can extend to proceedings
before administrative agencies. Most have applied a functional test, allowing removal in cases
when a state agency functions like a court./165/ Other courts have rejected the use of such a
test because they found the statutory term “state court” to be unambiguous./166/
The Court recently decided two important cases relating to removal and the Eleventh
Amendment. In Wisconsin Department of Corrections v. Schacht, the Court held that the
presence of an Eleventh Amendment-barred claim against a State defendant in an otherwise
removable case did not deprive the federal court of the removal jurisdiction that would
otherwise exist./167/ The Court noted that the Eleventh Amendment “does not automatically
destroy jurisdiction” but instead “grants the State a legal power to assert a sovereign immunity
defense,” which can be waived./168/ Thus, a State’s successful assertion of an Eleventh
Amendment defense after removal prevents the federal court from hearing the barred claim,
but it does not destroy removal jurisdiction over the remaining claims, which the court may
proceed to hear./169/
In addition, noting its long-standing acknowledgment of the principle that a State’s voluntary
appearance in federal court constitutes a waiver of immunity, the Supreme Court held in
Lapides v. Board of Regents that a State waived its Eleventh Amendment immunity when it
removed a case from state court to federal court./170/ The Court’s holding, however, was
limited to a situation in which a state statute waived sovereign immunity from state-law suits in
state court and in which no valid federal claim was asserted against the State./171/ The Court
did not reach the question whether removal of federal claims/172/ or state claims over which
the state did not waive sovereign immunity in state courts abrogated a State’s Eleventh
Amendment immunity./173/
2.7.B. Federal Officer Removal--28 U.S.C. § 1442
Under 28 U.S.C. § 1442(a)(1), the United States, any federal agency, or any officer of the United
States or agency (or person acting under that officer) being sued in their individual or official
capacity may remove to federal court any civil action arising from “any act under color of such
office.” The statute thus authorizes removal to federal court of state court actions against
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federal agencies and individuals who are acting in the course of their employment, by or on
behalf of the federal government./174/
Federal agencies and officers may, therefore, remove cases under Section 1442 that other
defendants could not under Section 1441: “The special right of removal conferred on federal
officers by statute has been held to be absolute, and may be exercised even though the action
might not have been brought initially in a federal court.”/175/ Removal is proper when none of
the other defendants in the action joins in the removal notice or when the federal officer is
sued as a third-party defendant rather than as an original defendant./176/
Most significant, federal officers may only remove to federal court state cases in which they
have a federal defense, such as absolute or qualified immunity./177/ Without such a federal
defense, the Supreme Court declined to interpret Section 1442 to permit removal of cases
arising solely under state law./178/ Moreover, federal officers must establish that the state suit
is “for an act under color of office.”/179/ To do so, the officer must show a “‘causal connection’
between the charged conduct and asserted official authority.”/180/ Such a connection usually
serves as the predicate for a colorable immunity defense./181/ Section 1442, therefore, allows
removal only when the federal defendant’s act essentially was ordered or demanded by federal
authority, thereby giving rise to the federal defense required by the statute./182/
2.7.C. Removal of Joined State-Law Claims
Should attorneys for plaintiffs file claims in state court that arise under both federal and state
law, defendants may remove all claims. The Supreme Court has suggested that “t]he presence
of even one claim ‘arising under’ federal law is sufficient to satisfy the requirement that the
case be within the original jurisdiction of the district court for removal.”/183/ The presence of
related state-law claims does not alter the fact that pleaded federal claims constitute “civil
actions” within the original jurisdiction of the federal courts for purposes of removal./184/
Federal courts may exercise removal jurisdiction over state-law claims joined with removed
federal claims under the doctrine of supplemental jurisdiction. The codification of supplemental
jurisdiction principles in 28 U.S.C. § 1367, the Court has held, “applies with equal force to cases
removed to federal court as to cases initially filed there; a removed case is necessarily one ‘of
which the district courts ... have original jurisdiction.’”/185/ Thus, when joined state law claims
meet the statutory standards of supplemental jurisdiction, federal courts may exercise removal
jurisdiction over both the state and the federal claims.
Federal courts may also, in appropriate circumstances, exercise removal jurisdiction over
unrelated state law claims pursuant to 28 U.S.C. § 1441(c). This section allows a federal court to
remove an “entire case” and determine “all issues therein,” “whenever a separate and
independent claim or cause of action within the federal question jurisdiction of Section 1331 is
joined with one or more otherwise non-removable claims or causes of action.” Alternatively,
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the court may utilize its discretion to remand “all matters in which State law
predominates.”/186/
Whether the federal claim is “separate and independent” of a non-removable state claim is not
easy to determine. Supplemental claims are, essentially by definition, not separate and
independent./187/. The Supreme Court has offered some guidance: “where there is a single
wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions,
there is no separate and independent claim or action . . . .”/188/ Claims are instead, separate
and independent when the there are separate wrongs requiring different proof./189/
The federal court must retain the federal claims if they are separate and independent from the
state law claims and exercise its discretion to remand only those state law claims that it can
decline to hear under the supplemental jurisdiction principles of 28 U.S.C. § 1367(c)./190/
Conversely, the district court abuses its discretion if, under Section 1441(c), it remands statelaw claims that are not separate and independent from the removed federal claims./191/ The
statutory phrase allowing remand of “all matters in which State law predominates” should not
allow the federal court to remand the entire case to state court./192/
2.7.D. Removal Procedure
The statutory procedures for removal are to be strictly construed./193/ A defendant removing
a civil action must file, in the U.S. district court for the district and division in which the state
proceeding is pending, a “notice of removal” that contains “a short and plain statement of the
grounds for removal” and that attaches the process, pleadings, and orders served upon the
defendant in the action./194/ Generally, the notice of removal must be filed within thirty days
after simultaneous service of the summons and complaint or formal service of the complaint,
“through service or otherwise.”/195/ The thirty days does not being running upon receipt of a
faxed courtesy copy of a complaint, unaccompanied by formal service./196/
In a case not originally removable, the defendant may remove to federal court within thirty
days of receiving information in an “amended pleading, motion, order or other paper” which
allows the defendant to “ascertain ... that the case is one which is or has become removable
....”/197/ In cases founded upon diversity jurisdiction, removal is not permitted more than one
year after commencement of the action./198/ Removal is effected when, promptly after filing
the notice of removal with the federal court, the defendant files a copy with the clerk of the
state court and gives written notice to all adverse parties./199/
2.7.E. Remands--28 U.S.C. § 1447(c)
28 U.S.C. § 1447(c) provides that a motion to remand on grounds other than subject matter
jurisdiction must be filed within thirty days of removal. This implies that a motion to remand on
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subject matter jurisdiction grounds may be filed at any time. The statute further provides
that,“[i]f at any time before final judgment it appears that the district court lacks subjectmatter jurisdiction, the case shall be remanded.”/200/ Removed civil actions that could not
originally have been filed in federal court must be remanded to state courts. The district court
has discretion to enter an order awarding attorney’s fees when remanding a removed case to
state court under Section 1447(c), unless the removing party has “an objectively reasonable
basis for removal.”/201/ Federal courts have a general non-statutory power to remand
pendent state claims besides the power to remand cases under the removal statutes. The Court
in Carnegie-Mellon University v. Cohill held that federal courts possessing discretion to hear
pendent state law claims may remand those claims to state court instead of dismissing them
outright./202/
An order denying a motion to remand is not a final judgment and is, therefore, not reviewable
until after final judgment, unless certified pursuant to 28 U.S.C. § 1292(b)./203/ Whether an
order granting a motion to remand is appealable presents a more difficult question. Although
Section 1447(d) quite clearly provides that, with one exception, a remand order is not
reviewable on appeal, the Court has not adopted that reading, Instead, the Court has held
that "§ 1447(d) must be read in pari materia with § 1447(c), thus limiting the remands barred
from appellate review by § 1447(d) to those that are based on a ground specified in §
1447(c)."/204/ There is no dispute that, when a district court remands a properly removed
case because it lacks subject-matter jurisdiction, the order is unreviewable./205/ Remands
based on a procedural defect in the removal petition are not reviewable./206/ When,
however, a court remands state law claims as a matter of discretion under Section 1367(c),
such an order is not based on the lack of subject matter jurisdiction and is, therefore,
reviewable./207/ The Court has not yet quite decided, however, whether an appellate court
can look behind the district court's "colorable" characterization of why the motion to remand
was granted./208/
148. Lontz v. Tharp, 413 F.3d 435, 444 (4th Cir. 2005) (citation omitted).
149. Defendant is defined narrowly. A state-court plaintiff may not remove a counterclaim,
which, had it been an independent action, would have been subject to original federal
jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). Most courts have held
that third-party defendants are not entitled to remove under Section 1441. Palisades
Collections LLC v. Shorts, 552 F.3d 327, 333 (4th Cir. 2008); Casul v. Modell's NY II, Inc., No 04
Civ. 7204, 2004 U.S. Dist. LEXIS 19604, *5-6, 2004 WL 2202581, at *1-2 (S.D.N.Y. Sept. 30,
2004); Sanford v. Premier MIllwork & Lumber Co., 234 F. Supp. 2d 569, 571 (E.D. Va. 2002);
Johnston v. St. Paul Fire & Marine Ins. Co., 134 F. Supp. 2d 879 (E.D. Mich. 2001); but see
Mignogna v. Sair Aviation, Inc., 679 F. Supp. 184, 189 (N.D.N.Y. 1988); Soper v. Kahn, 568 F.
Supp. 398, 402 (D. Md. 1983); Ford Motor Credit Co. v. Aaron-Lincoln Mercury, Inc., 563 F. Supp.
1108, 1112-14 (N.D. Ill. 1983).
Page 52 of 559
150. See City of Chicago v. International College of Surgeons, 522 U.S. at 163 (1997). The
Supreme Court previously treated the removal jurisdiction of the federal courts as derivative;
the Court reasoned that federal courts could entertain cases removed from state courts only if
the state court originally had subject-matter jurisdiction of the suit. See Lambert Run Coal Co.
v. Baltimore and Ohio Railroad, 258 U.S. 377, 382 (1922). Congress ended this practice in 1986
by amending 28 U.S.C. § 1441(e) to provide that the federal court to which the action is
removed “is not precluded from hearing and determining any claim” in the action because the
state court “did not have jurisdiction over that claim.” Thus, federal courts may now exercise
removal jurisdiction in cases in which they have subject-matter jurisdiction but the state courts
do not.
151. In this regard, the Supreme Court has held that a state court appeal of a state
administrative ruling is removable to federal court as long as the complaint presents a wellpleaded claim of administrative action violating federal law even if it is coupled with state-law
claims that require deferential, on-the-record review of the administrative findings. City of
Chicago, 522 U.S. at 164-65.
152. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 n.9 (1983). See
also Holmes Group Inc v. Vornado Air Circulation Sys., 535 U.S. 826, 830 n.2 (2002).
153. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998) (affirmative preclusion
defense resting on prior federal judgment is not a basis for removal); Holmes Group, 535 U.S. at
831-32 (rejecting argument that counterclaim should be regarded as part of a well-pleaded
complaint because it would "radically expand" removal jurisdiction).
154. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). An “independent corollary” to the
well-pleaded-complaint rule is the “artful pleading” doctrine, which holds that “‘a plaintiff may
not defeat removal by omitting to plead necessary federal questions.’” Rivet, 522 U.S. at 475
(quoting Franchise Tax Board, 463 U.S. at 22). If the federal court determines that the plaintiff
has “artfully pleaded” claims in this manner, it may allow removal even though no federal
question appears on the face of the complaint. The artful-pleading doctrine generally allows
removal in cases where federal law completely preempts state-law claims pleaded by the
plaintiff. Rivet, 522 U.S. at 475.
155. Beneficial National Bank v. Anderson, 539 U.S. 1, 9 (2003). See also Aetna Health Care Inc.
v. Davila, 542 U.S. 200 (2004) (ERISA preempts state law tort claims against ERISA regulated
health providers; defendants may therefore remove state claims).
156. 28 U.S.C. § 1441(b) ; See Lincoln Property Co. v. Roche, 546 U.S. 81, 88 (2005); Caterpillar
Inc. v. Lewis, 519 U.S. 61, 68 (1996) (the “complete diversity” requirement of Section 1332(a),
which mandates that the citizenship of each plaintiff must be diverse from the citizenship of
each defendant, applies to removal jurisdiction based on diversity). But see 28 U.S.C. § 1453(b)
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(defendant in class action filed in state court may remove the action “without regard to
whether any defendant is a citizen of the State in which the action is brought” and removal may
be accomplished without the consent of all the defendants).
157. Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 938-42 (9th Cir. 2006), cert. denied, 549 U.S.
1207 (2007).
158. Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245 (1900); DiLoreto v. Costigan, 2009 U.S.
App. LEXIS 24457 at *13 (3rd Cir. Nov. 6, 2009). This general rule has generated a fair amount of
recent litigation in connection with the timeliness of removal petitions involving multiple
defendants served at different times. As noted below, § 1446(b) requires that a petition for
removal must be filed within 30 days of service upon the defendant. When there are multiple
defendants, however, the courts initially considering the question imposed the "first served
defendant" rule: all served defendants must remove within thirty days of service on the first
served defendant. If a later served defendant fails to do so timely, there is no unanimity and
removal is not possible. The recent trend, joined by the Fourth, Sixth, Eighth and Eleventh
Circuits, is in favor of the "last served defendant" rule: that each defendant has thirty days from
service to file a petition for removal in which earlier-served defendants may join if they had not
filed a petition to remove previously. Barbour v. Int'l Union, 549 F.3d 315 (4th Cir. 2010)
(collecting cases). H.R. 4113, a bill introduced in the House in November, 2009, would, if
enacted, essentially codify the "last served defendant" rule.
159. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 207 (2d Cir. 2001); Heritage Bank v.
Redcom Labs., Inc., 250 F.3d 319, 323 (5th Cir. 2001).
160. All Writs Act, 28 U.S.C. § 1651(a).
161. Syngenta Crop Protection Inc. v. Henson, 537 U.S. 28 (2002).
162. Id. at 33-34.
163. Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003). Certain state-court civil actions,
such as those arising under state workmen’s compensation laws or the federal Violence Against
Women Act of 1994, for example, expressly may not be removed to federal court. 28 U.S.C.
§§ 1445(c), (d).
164. McDowell v. Wetterau Inc., 910 F. Supp. 236 (W.D. Pa. 1995) (removal allowed from state
justice-of-the-peace court). But see Williams-Willis v. Carmel Fin. Corp., 139 F. Supp. 2d 773,
775 (S.D. Miss. 2001) (removal not allowed from tribal court); DeCoteau v. Sentry Insur. Co., 915
F. Supp. 155 (D. N.D. 1996) (same).
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165. See, e.g., Volkswagen de Puerto Rico Inc. v. Puerto Rico Labor Relations Board, 454 F.2d 38,
44 (1st Cir. 1972); Gottlieb v. Lincoln Nat'l Life Insur. Co., 388 F. Supp. 2d 574 (D. Md. 2005);
BellSouth Telecommunications v.Vortec Telecommunications, 185 F. Supp. 2d 1280 (N.D. Fla.
2002). The Seventh Circuit’s use of a functional test in Floeter v. C.W. Transport Inc., 597 F.2d
1100, 1102 (7th Cir. 1979), was questioned by the Circuit in Wirtz Corp. v. United Distillers and
Vintners North America Inc., 224 F.3d 708, 713 (7th Cir. 2000) (stressing need to examine
Floeter decision in greater detail and limiting its holding to its facts).
166. See, e.g., Oregon Bureau of Labor and Industries ex rel. Richardson v. U.S. West
Communications Inc., 288 F.3d 414, 419 (9th Cir. 2002); DeLallo v. Teamsters Local Union #776,
No. 94-3875, 1994 U.S. Dist. LEXIS 11275, at *3, 1994 WL 423873, at *1 (E.D. Pa. Aug. 12, 1994).
167. Wisconsin Department of Corrections v. Shacht, 524 U.S. 381 (1998).
168. Id. at 389 (citations omitted). The Supreme Court also rejected the argument that a
remand was appropriate under 28 U.S.C. § 1447(c). If an Eleventh Amendment defense pertains
to subject-matter jurisdiction, Section 1447(c) requires a remand only when the entire case is
with- out subject-matter jurisdiction, not when jurisdiction is lacking over only one claim within
the case. Id. at 391–92.
169. Id. at 392–93.
170. Lapides v. Board of Regents, 535 U.S. 613 (2002) (Clearinghouse No. 53,836).
171. Id. at 617. See Omosegbon v. Wells, 335 F.3d 668 (7th Cir. 2003); Bank of Lake Tahoe v.
Bank of America, 318 F.3d 914, 916–19 (9th Cir. 2003) (Nevada waived Eleventh Amendment
immunity from state-law claims by joining in removal to federal court). Plaintiff’s Section 1983
damages claim against the State was barred since a State was not a “person” for purposes of
such a claim. Id. (citing Will v. Michigan Department of State Police, 491 U.S. 58, 66 (1989). The
Lapides Court accordingly noted that the U.S. district court might remand the state-law tort
claims against the State to state court under the supplemental jurisdiction standards referred
to in 28 U.S.C. § 1367(c)(3). Lapides, 535 U.S. at 618, 624.
172. Since Lapides, several Courts of Appeal have extended its holding and found that states
waive their Eleventh Amendment immunity from suit over federal claims as well when they
remove such claims to federal court. Lombardo v. Pennsylvania, 540 F.3d 190 (3rd Cir. 2008)
(state waives immunity from suit but retains immunity from liability); Meyers v. Texas, 410 F.3d
236, 240-50 (5th Cir. 2005), cert. denied, 550 U.S. 817 (2007); Embury v. King, 361 F.3d 562, 564
(9th Cir. 2004); Estes v. Wyoming Dept. of Transp., 302 F.3d 1200, 1206 (10th Cir. 2002).
173. Whether removal of state-law claims over which the state had not waived sovereign
immunity in state court waives such immunity seems to have divided the courts. Embury, 361
Page 55 of 559
F.3d at 566 (implicitly finding a waiver); compare Stewart v. North Carolina, 393 F.3d 484 (4th
Cir. 2005) (finding no waiver of immunity over state claims to which it would have been
immune in state court); see also Meyers, 410 F.3d at 249-50 (criticizing Stewart).
174. The statute also permits removal by any person acting under the authority of an federal
officer. For an interesting recent decision interpreting this provision, see Watson v. Philip
Morris Cos., 551 U.S. 142 (2007) (holding that cigarette manufacturer could not use §
1442(a)(1) to remove claims of false advertising on the grounds that it was heavily and actively
regulated by the FTC; statute requires delegation of power or authority). See also Isaacson v.
Dow Chem., 517 F.3d 129 (2d Cir. 2008) (finding chemical companies that produced Agent
Orange are persons acting under a federal officer under color of federal office); Kaye v.
Southwest Airlines Co., No. 3:05-CV-0450-D, 2005 U.S. Dist. LEXIS 18389, 2005 WL 2074327
(N.D. Tex. Aug. 29, 2005) (airline could not use provision to remove because its collection of
certain fees was not sufficiently controlled by the government).
175. 14C Charles A. Wright et al., Federal Practice And Procedure § 3727, at 169 (5th ed. 2008).
176. Id.
177. In Jefferson County v. Acker, 527 U.S. 423 (1999), federal judges were permitted to remove
to federal court collection actions filed by the county in state court seeking payment of an
occupational license fee. The judges asserted an ultimately unsuccessful federal defense on the
grounds of intergovernmental tax immunity. See also Isaacson, 517 F.3d at 138-40 (holding
that the defense does not have to be an immunity defense in case involving government
contract).
178. Mesa v. California, 489 U.S. 121 (1989).
179. 28 U.S.C. § 1442(a)(3).
180. Willingham v. Morgan, 395 U.S. 402, 409 (1969) (citation omitted). Such a connection was
established by the federal judges in Jefferson County whose legal theory was that the county’s
enforcement action was grounded upon their being engaged in the occupation of federal
judges.
181. See Mesa, 489 U.S. at 133 (federal employees prosecuted for crimes involving vehicles had
no immunity defense and therefore did not “act under color of such office”).
182. Wright et al., supra note 175, at 146–57.
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183. Schacht, 524 U.S. at 386 (citing College of Surgeons, 522 U.S. at 163–66). See also Exxon
Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 563 (2005) (. . . “College of Surgeons
stressed that a district court has original jurisdiction of a civil action for purposes of § 1441(a) as
long as it has original jurisdiction over a subset of the claims constituting the action.”)
(emphasis supplied).
184. Exxon Mobil, 545 U.S. at 563 (citing College of Surgeons, 522 U.S. at 166).
185. College of Surgeons, 522 U.S. at 165 (citing 28 U.S.C. § 1367(a)) (further citation omitted).
186. 28 U.S.C. § 1441(c).
187. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 786 (3d Cir. 1995) (citations
omitted). The combination of supplemental jurisdiction and Section 1441(c) raises an
interpretive question whether a claim may not be “separate and independent” enough to
qualify for Section 1441(c) while also being too separate and independent to qualify for
supplemental jurisdiction. See Busey v. Bd. of County Commissioners of Shawnee, 163 F. Supp.
2d 1291, 1296 (D. Kan. 2001).
188. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14 (1951).
189. See, e.g., State of Texas v. Walker, 142 F.3d 813 (5th Cir. 1998).
190. Borough of West Mifflin, 45 F.3d at 786–87; see discussion of Section 1367(c). H.R. 4113
would eliminate this discretion and require the district court sever and remand state law claims
over which there would be no original or supplemental jurisdiction.
191. See Eastus v. Blue Bell Creameries, 97 F.3d 100, 105 (5th Cir. 1996).
192. See Majeske v. Bay City Bd. of Educ., 177 F. Supp. 2d 666, 672-73 (E.D. Mich. 2001); Miney
v. Staff Leasing, 100 F. Supp. 2d 1050, 1055-58 (D. Ariz. 2000); Wright et al., supra note 175, §
39, at n.43 (criticizing the holdings of courts remanding entire cases under Section 1441(c) and
stating, “The remand provision of § 1441(c) surely applies only to cases removed under that
subsection”); but see Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1037 (8th Cir. 1999).
193. Syngenta Crop Protection, 537 U.S. at 32.
194. 28 U.S.C. § 1446(a).
195. Id. § 1446(b).
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196. Murphy Bros. v. Michetti Pipe Stringing Inc., 526 U.S. 344 (1999). The “initial pleading” in
the statute refers not only to the complaint but also to any pleading “contain[ing] sufficient
information to enable the defendant to intelligently ascertain the basis for removal.” Whitaker
v. American Telecasting Inc., 261 F.3d 196, 203 (2d Cir. 2001) (quoting Brooklyn Hospital Center
v. Diversified Information Technologies Inc., 133 F. Supp. 2d 197, 201 (E.D.N.Y. 2001)).
197. 28 U.S.C. § 1446(b). See, e.g., Eyak Native Village v. Exxon Corp., 25 F.3d 773, 779 (9th Cir.
1994), cert. denied,513 U.S. 1102 (1995) (plainti ffs’ reply brief, filed two years after
commencement of action in state court, set forth removable federal claim which triggered
thirty -day removal period).
198. 28 U.S.C. § 1446(b).
199. Id. § 1446(d).
200. Id. § 1447(c).
201. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
202. Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988).
203. Neal v. Brown, 980 F.2d 747, 748 (D.C. Cir. 1992).
204. Carlsbad Technology v. HIF Bio, Inc., 129 S. Ct. 1862 (2009).
205. Things Remembered v. Petrarca, 516 U.S. 124, 127-28 (1995) (interpreting prior version of
statute); Cook v. Wikler, 320 F.3d 431, 435-39 (3d Cir. 2003).
206. Powerex Corp. v. Reliant Energy Services, 551 U.S. 224, 231 (2007).
207. Carlsbad Technology, 129 S.Ct. at 1867 (although several concurring Justices suggested
that this area was ripe for revisiting in an appropriate case).
208. Powerix Corp., 551 U.S. at 231.
Updated 2010
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2.8 Absention—Discretion to Decline Jurisdiction
Updated 2010
Federal courts have a “virtually unflagging obligation” to exercise the jurisdiction vested in
them by Congress./209/ Nonetheless, the Supreme Court has identified certain important
countervailing interests that have justified the development of doctrines under which federal
courts have discretion to decline to exercise jurisdiction./210/ These abstention doctrines allow
federal courts to defer to state courts and state judicial proceedings as the basis for refusing to
exercise jurisdiction. Although the abstention doctrines have different characteristics and will
be discussed separately, the Court has observed that the “various types of abstention are not
rigid pigeon holes into which federal courts must try to fit cases. Rather, they reflect a complex
of considerations designed to soften the tensions inherent in a system that contemplates
parallel judicial processes.”/211/
2.8.A. The Younger Doctrine--Equitable Abstention
2.8.A.1. Doctrinal Foundations
The Supreme Court limited the ability of federal courts to enjoin or otherwise to interfere with
state judicial proceedings in Younger v. Harris and subsequent decisions./212 / In Younger,
plaintiffs sought a federal injunction against a state criminal prosecution on the ground that the
state statute alleged to have been violated was unconstitutionally vague. The Court held that
such an injunction could be granted only in extraordinary circumstances to prevent immediate
irreparable injury. This standard was not met when the federal plaintiff has a defense in the
state proceeding. Such a defense was regarded as an adequate remedy at law even when the
pendency of the criminal prosecution is alleged to chill First Amendment rights incidentally. The
Court held that the result was also commanded by principles of federalism, comity, and
equality.
Recognizing that, in some circumstances, state court defendants should not be subjected to a
criminal trial, the Younger Court established some exceptions to its broad policy of
nonintervention. When state court criminal prosecutions are brought in bad faith or for the
purpose of harassment (such as repeated prosecutions without any hope of ultimately securing
a conviction), federal equitable principles justify intervention./213/ The Court explained that
there might also be “extraordinary circumstances in which the necessary irreparable injury can
be shown even in the absence of the usual prerequisites of bad faith and harassment.”/214/
The Court in Younger further noted the possibility of exception in cases involving “a statute
[that] might be flagrantly and patently violative of express constitutional prohibitions in every
clause, sentence and paragraph, and in whatever manner and against whomever an effort
might be made to apply it.”/215/
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Although the case itself arose as a suit to enjoin a pending state criminal proceeding, the
Younger doctrine has expanded substantially. In a companion case, the Court held that
declaratory judgment actions were also barred when injunctions against pending state criminal
proceedings were unavailable./216/ The Court has further expanded Younger beyond state
court criminal proceedings. In Huffman v. Pursue Ltd., the Court applied Younger to a an
attempt to enjoin a state court nuisance proceeding based on alleged violations of state
obscenity statutes. /217/ Noting that the statutes were closely related to, and in aid of, criminal
statutes, the Court held that abstention was required. The Court has regarded as open the issue
of whether Younger considerations apply to all civil proceedings. /218/ However, the Court has
applied Younger to civil cases in which the state was a party in civil enforcement
proceedings, /219/ and to civil proceedings involving important state interests in which the state
was not a party, but where the state court’s ability to exercise a particular judicial function was
at issue. /220/
In addition to expanding Younger from criminal to civil proceedings in which the state had an
important interest, the Court has applied this abstention doctrine to pending state
administrative proceedings. In Middlesex County Ethics Committee v. Garden State Bar
Association, the Court relied on the Younger doctrine to deny a requested federal injunction
against state bar disciplinary proceedings./221/ The Court justified that decision, in part, on the
close relationship between lawyer disciplinary proceedings and the supervisory role played by
the state courts. In addition, in Ohio Civil Rights Commission v. Dayton Christian Schools Inc., a
sectarian school, the respondent in a state administrative proceeding involving alleged genderbased employment discrimination, unsuccessfully sought a federal injunction against the
pending proceeding on First Amendment grounds./222/ In applying Younger, the Court
emphasized the important state interest in rooting out employment discrimination, and the
school’s opportunity to raise the First Amendment claim in the administrative proceeding, to
justify its refusal to permit the district court to entertain suits challenging the validity of
administrative enforcement proceedings on these grounds.
Some courts have since addressed the Dayton Christian Schools extension of Younger
abstention to civil administrative cases in terms of whether the state proceeding is remedial or
coercive. Recent examples have arisen in the Medicaid context. In Brown v. Day, the Tenth
Circuit held, as a matter of first impression, that abstention was not warranted where the
plaintiff had requested a state administrative hearing contesting the termination of her
Medicaid benefits and had received a final adverse agency decision prior to commencing the
federal action. The court reasoned that "the Younger pedigree is rooted in state coercive action
(namely criminal proceedings) that parties were seeking to enjoin in federal court."/223/ Unlike
the Dayton Christian Schools plaintiff, which was seeking to block enforcement of an
employment discrimination challenge brought against it as a state defendant, the court in
Brown held that the Medicaid state administrative proceeding was remedial, not coercive:
Brown initiated the state administrative proceeding after her benefits were summarily
terminated. The state did not compel her to participate in the proceedings. Moreover, Brown
seeks not to enjoin the state proceedings, but to secure relief from the state's allegedly unlawful
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conduct by recovering her Medicaid benefits. Accordingly, this state proceeding was not the
type of proceeding entitled to Younger deference./224/
In its decision in New Orleans Public Service Inc. v. Council of City of New Orleans, the Supreme
Court balked at extending Younger abstention beyond nonjudicial state proceedings. In a
Section 1983 challenge to the operation of a city council utility rate order on the grounds of
federal preemption, the Court noted that, “it has never been suggested that Younger requires
abstention in deference to a state judicial proceeding reviewing legislative or executive
action.”/225/ To the contrary, the Court stated, “[s]uch a broad abstention requirement would
make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal
to decide a case in deference to the States.”/226/ Analyzing the city council’s rate-making
proceeding and the subsequent state court challenge to it, the Court determined that the ratemaking decision itself was a completed legislative action and that the state court review was
not an extension of the legislative process. Federal court relief, accordingly, would not
represent “the interference with ongoing judicial proceedings against which Younger was
directed.”/227/
2.8.A.2. The Three-Part Test for Applying Younger
A number of federal courts have adopted, in slightly varying formulations, a three-part
threshold test derived from Middlesex County Ethics Committee for assessing the propriety of
invoking Younger./228/ Under this analysis, absent extraordinary circumstances inherent in the
exceptions stated in Younger, abstention is generally proper when three stardards are met: (1)
there are ongoing state adjudicative proceedings, which (2) implicate important state interests,
and which (3) provide an adequate opportunity to raise the plaintiff’s federal claims./229/
These factors have generated varying amounts of case law in the lower courts. We examine
them in reverse order, addressing first those issues most likely to occur in litigation pursued by
legal services advocates. With respect to the third Middlesex factor, a key assumption of the
Younger doctrine is that plaintiffs should be able to assert federal defenses to a state
proceeding in the course of that proceeding./230/ If the underlying state proceedings do not
afford plaintiffs a meaningful opportunity to present their federal claims, then abstention is not
appropriate./231/ Thus, in Dayton Christian Schools, a question arose as to whether the federal
court plaintiffs could have raised their First Amendment defense in the course of the state
proceeding./232/ The Court assumed that they could not, but it nonetheless observed that the
school could have raised its federal claims in the state court appeal of any state administrative
orders./233/
Many lower federal court decisions have since hinged their Younger abstention analyses upon
finding the state forum to be an adequate outlet for the raising of federal claims. For example,
in affirming abstention in a suit seeking an injunction against the prosecution of a state
attorney discipline complaint, the Sixth Circuit held that the state proceedings gave adequate
opportunities for the plaintiff to raise his constitutional challenges to the grievance
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procedures./234/ The court noted that, even if the attorney disciplinary board could not
declare a rule of professional conduct unconstitutional, the board could still refuse to enforce
the rule or otherwise narrowly construe it./235/ Similarly, in another challenge to lawyer
disciplinary proceedings, the Ninth Circuit found Younger to be satisfied, notwithstanding that
the state constitution precluded the bar from considering federal constitutional claims, because
discretionary state judicial review was available./236/
The adequate state forum factor also frequently arises in the specific context of institutional
reform litigation raising systemic constitutional challenges to the administration of state agency
or court proceedings. These cases generally present the issue of whether broad-ranging federal
court challenges to procedural deficiencies in child welfare, public benefits, and other
adjudicatory systems should be dismissed due to asserted opportunities for plaintiffs to raise
these same systemic claims in the very state court and administrative hearings that form the
bases for the litigation. The decisions have produced somewhat mixed outcomes./237/
Courts frequently give short shrift to the second Middlesex factor regarding the implication of
important state interests. While many state interests can conceivably be said to relate to
significant guarantees of public health, safety, and welfare, it is important to closely analyze
these declared interests. For example, after surveying numerous Younger abstention decisions
reviewing various state interests, the court in Harper v. Public Service Commission discounted
the state interest proffered by the defendant—the improper disposal of solid waste—and recast
it as an actual state interest in limiting access of out-of-state companies to the waste removal
market./238/ The court declined to allow Younger abstention, ruling that this state “interest”
actually interfered with the comity and federalism concerns embodied in the Commerce
Clause./239/ Similarly, the court in McCartney v. Cansler declined to abstain in a challenge to
reductions or terminations of mental health and developmental disability services received by
children eligible under the Medicaid Act, despite the plaintiffs' pending administrative appeals,
since the Medicaid program is subject primarily to federal law that outweighs state interests.
/240/
Finally, and not to be overlooked, the Younger doctrine logically assumes the existence of an
ongoing state proceeding—the first Middlesex factor. This has generated a fair amount of
discussion in the lower courts. If no state court proceeding is actually pending at the
commencement of the federal litigation, declaratory, injunctive or compensatory relief may be
available to the federal plaintiff./241/ In Ankenbrandt v. Richards, a diversity action brought by
a mother on behalf of her children and alleging torts of physical and sexual abuse committed by
her former husband and his companion, the Court held the application of Younger abstention
to be erroneous since the state proceedings had concluded prior to the filing of the federal
lawsuit./242/ The Court reasoned that Younger had never been applied “when no state
proceeding was pending nor any assertion of important state interests made.”/243/
A determination of whether state proceedings are actually “pending” at the time of the federal
action being brought can be confusing, especially in institutional reform cases./244/ While this
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determination may prove to be pivotal to the court’s decision to abstain,/245/ it is important
to note that the actual order of the state and federal court filing dates alone may not solely
influence the outcome of any abstention analysis. In Hicks v. Miranda, the Court held that, even
where the state proceeding commences after the federal suit is filed, Younger still applies as
long as the state proceedings were initiated “before any proceedings of substance on the
merits have taken place in the federal court.”/246/
Although the Younger doctrine severely limits the federal court’s ability to enjoin pending state
court proceedings, the mere existence of a state court proceeding with some relationship to
the litigants or issues involved in a federal court case does not, standing alone, justify the
invocation of Younger. The Younger abstention doctrine justifies, as “the normal thing to do,”
the “withholding of authorized equitable relief because of undue interference with state
proceedings. . . .”/247/ In ruling that parallel state and federal actions filed by the same
plaintiff did not present a sufficient level of undue interference to allow abstention, the
Eleventh Circuit stated in Wexler v. Lepore: “We interpret the Younger doctrine as preventing
federal courts from being the grand overseers of state courts and court-like
administration.”/248/ In modifying its prior influential ruling that the Middlesex three-part test
is only triggered when federal court relief would directly ‘interfere’ with ongoing state
proceedings,/249/ the Ninth Circuit acknowledged that, while “interference” with state
proceedings is indeed a critical component of Younger’s comity concerns, “direct” interference
is not necessarily a threshold element. Only a “federal court action that would enjoin the
proceeding, or have the practical effect of doing so, would interfere in a way that Younger
disapproves.”/250/ Other courts have adhered to the general principle of “interference” being
a key component of the Younger analysis./251/
2.8.B. Pullman Abstention
When federal constitutional claims arise from unsettled issues of state law, federal courts have
discretion to abstain from exercising jurisdiction. When they do so, the federal courts avoid
predicting what state courts would decide and permit the state courts the first opportunity to
interpret state law. Doing so may also dispose of the need of the federal court to decide the
federal constitutional issue later.
2.8.B.1. The Pullman Doctrine
This aspect of abstention, known as Pullman abstention, was announced by the Supreme Court
in Railroad Commission v. Pullman Co./252/ In Pullman, the railroad sued a state regulatory
agency; the railroad challenged on Fourteenth Amendment grounds the requirement that all
trains in Texas have a conductor in each sleeping car. Employment in the railroad industry was
racially segregated; whites were employed as conductors, while African Americans performing
similar work were employed as porters. Thus, the regulation had a discriminatory impact on
African Americans.
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The Court held that the authority of the regulatory agency to issue the challenged requirement
was unclear under state law. Reasoning that resolution of the question could obviate the need
to decide the constitutional issue, the Court ruled that the uncertain issue of state law should
be resolved in state court before a federal court adjudicated the constitutional challenge. Thus,
the Court in Pullman required the district court to abstain in order to enable the parties to
litigate the unresolved question of state regulatory authority in state court.
Pullman abstention is, therefore, appropriate when (1) the federal court is presented with an
ambiguous or uncertain provision of state law, and (2) state court interpretation of the state
law issue may avoid the federal constitutional question./253/ Mere ambiguity in state law is
insufficient—Pullman abstention also involves a “discretionary exercise of the court’s equity
powers.”/254/ The Court has stated that “the relevant inquiry is not whether there is a bare,
though unlikely, possibility that state courts might render adjudication of the federal question
unnecessary.”/255/ Rather, the Court has “‘frequently emphasized that abstention is not to be
ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting
construction.’”/256/ Thus, the ambiguity in state law must be of a type such that a clarifying
construction could eliminate the need to reach the constitutional issue, or at least alter it
substantially./257/
Because the purpose of Pullman abstention is to avoid the unnecessary decision of unsettled
questions of constitutional law, its use is improper when “the unconstitutionality of the
particular state action under challenge is clear.”/258/ For that same reason, many federal
courts refuse to apply the doctrine in cases raising claims that clear state law is inconsistent
with federal statutory law./259/ The Ninth Circuit has gone one step further, holding that
preemption is not a constitutional issue justifying Pullman abstention. /260/ Since Pullman
abstention necessarily results in delayed piecemeal adjudication, the Court is somewhat less
inclined to sanction abstention in cases involving federal First Amendment challenges./261/
State constitutions frequently contain provisions similar to the substantive provisions of the
United States Constitution. Those provisions could be an alternative basis under state law for
enjoining challenged state conduct./262/ However, the Court has held that federal courts need
not abstain to permit state courts to first address state constitutional provisions that are
counterparts of federal provisions. The Court observed that a contrary rule “would convert
abstention from the exception into the general rule.”/263/ In cases where states possess
unique constitutional provisions with no federal counterpart, the Court has required
abstention./264/
Advocates should be aware that the inclusion of supplemental state claims in a federal
constitutional lawsuit increases the risk of Pullman abstention. If the supplemental claim offers
an alternative basis for resolving the litigation and for obviating the need to construe the
federal Constitution, its inclusion invites abstention./265/ Therefore, the increased risk of
abstention should be taken into account before including a supplemental state law claim as an
alternative basis for relief in constitutional litigation. Although the inclusion of supplemental
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claims can increase the risk of abstention, their omission does not eliminate the risk. If the state
law that purportedly authorizes the challenged conduct is unclear, Pullman abstention remains
a threat./266/ While a parallel state proceeding is not required for Pullman abstention, a
pending state court action may in fact make it more likely that the federal court will abstain. In
Ford Motor Co. v. Meredith Motor Co., for example, the First Circuit found that the federal court
plaintiff’s concurrently pending state court appeal of the underlying state agency decision
constituted an additional factor justifying Pullman abstention. /267/ The court was persuaded
by the state court appeal’s potential to moot the federal issues and, consequently, stayed the
federal action pending final review of the agency decision in the state court system./268/
2.8.B.2. England Reservations and Practice
Once a federal court invokes Pullman abstention, it generally should not dismiss the action, but
instead retain jurisdiction and stay proceedings regarding the federal constitutional issues while
the plaintiff litigates the unclear question of state law through the state courts./269/ In the
state court action, the plaintiff must not only present the state law question, but must also ask
the state court to construe it in light of the federal issue, which must itself be expressly
reserved for subsequent litigation in federal court. This is called an “England reservation.”/270/
Failure to inform the state court of the reservation of the federal issue precludes a later return
to federal court for its resolution./271/ Thus, following an order of abstention, the state court
action must describe the nature of the federal constitutional issue in some detail, but must
expressly reserve its determination for the federal court./272/
An express England reservation has three elements: (1) explicit expression to the state tribunal
of an intent to return to federal court in the wake of an adverse state determination, if any; (2)
explicit notification to the state tribunal of the federal questions that would be reserved, and
(3) an absence of voluntary litigation in the state court by the reserving party of the federal
questions that would be preserved for federal trial./273/
The Court’s decision in San Remo Hotel v. City and County of San Francisco emphasizes the
critical nature of the third element of refraining from litigating the federal issues in the state
tribunal./274/ The plaintiffs there had litigated their federal constitutional takings claims on
remand to state court and had subsequently tried to avoid the preclusive effect of the state
court judgment when they returned to federal court. The Supreme Court disallowed this,
holding that “by broadening their state action” to include their federal claims, “petitioners
effectively asked the state court to resolve the same federal issues they asked it to reserve.
England does not support the exercise of any such right.”/275/ The Court held the plaintiffs to
be subject to the full faith and credit statute, 28 U.S.C. § 1738, which barred them from relitigating their federal claims in federal court./276/
2.8.B.3. State Certification as a Pullman Alternative
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If the forum state has a procedure by which its highest court answers state law questions
certified to it, a federal court can potentially obtain an authoritative ruling on ambiguous issues
of applicable state law. Although certification procedures vary widely among the states, most
states accept certified questions from the U.S. Supreme Court, any federal court of appeals, or
any U.S. district court. Other states accept certified questions from specified federal
courts./277/ Several states have no apparent procedure for the certification of questions of
state law from the federal courts. State procedures to certify questions of state law to the
state’s highest court can potentially shorten delays associated with Pullman abstention. In
Arizonans for Official English v. Arizona, the Court discussed and endorsed the concept of state
court certification of novel or unsettled questions of state law as a more suitable “cautious
approach” which now covers territory once dominated by Pullman abstention. The Court found
that this may also prove in practice to avoid the protracted, expensive litigation frequently
associated with the doctrine./278/ Federal courts have exercised varying degrees of discretion
to certify questions of state law to state courts. /279/
In a state with no available or adequate certification procedure, the delay associated with
Pullman abstention requires a careful evaluation of whether the prospect of eventual return to
district court is worth the wait. The alternative is to abandon the federal action and present
both the state and federal issues to a state court for resolution in a single action. Although
Pullman abstention can cause long delay, minimizing the impact of delay is possible in
appropriate cases by seeking preliminary injunctive relief in the federal forum in the interim.
Federal courts retain equitable power to issue preliminary relief to preserve the status quo
while the parties seek clarification of state law in state court./280/
2.8.C. Burford Abstention
In Burford v. Sun Oil Co., the Supreme Court ordered the dismissal of a federal suit challenging
the reasonableness under Texas law of a state commission’s decision to grant a permit to drill
oil wells./281/ The Court created what has become known as Burford abstention to avoid the
potentially disruptive impact that federal court intervention would have had on the state’s
efforts to maintain a unique and complex administrative structure to regulate a vital state
activity.
Defendants often attempt to rely on the language in Burford to assert a broader doctrine of
abstention based simply on the existence of a complex state administrative or regulatory
structure. Such an expansive reading of the Burford decision, however, ignores the many
unique factors involved in Texas regulation of oil and gas, which the Court addressed in the
decision. The reasonableness of the particular permit to drill oil weels at issue in Burford was
not itself of “transcendent importance.”/282/ However, federal court review of
reasonableness, under state law, “where the state had established its own elaborate review
system for dealing with the geological complexities of oil and gas fields,” would have had “an
impermissibly disruptive effect on state policy for the management of those
fields.”/283/ Because the “exercise of equitable jurisdiction by comparatively unsophisticated
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Federal District Courts alongside state-court review had repeatedly led to ‘[d]elay,
misunderstanding of local law, and needless federal conflict with the state policy,’” the Court in
Burford held that abstention was warranted./284/
The Court in New Orleans Public Service v. Council of New Orleans summarized the Burford
abstention doctrine as follows:
Where timely and adequate state-court review is available, a federal court sitting in equity must
decline to interfere with the proceedings or orders of state administrative agencies: (1) when
there are “difficult questions of state law bearing on policy problems of substantial public
import whose importance transcends the result in the case then at bar”; or (2) where the
“exercise of federal review of the question in a case and in similar cases would be disruptive of
state efforts to establish a coherent policy with respect to a matter of substantial public
concern.”/285/
Burford does not require abstention, the Court emphasized, simply because a complex state
administrative process exists. Nor does it mandate abstention in all situations where a federal
ruling may potentially conflict with state regulatory law or policy./286/ Indeed, the Court in
New Orleans Public Service concluded that Burford abstention was unwarranted in the case
before it because federal adjudication of the plaintiff’s federal preemption claim relating to a
city council rate decision and a related “pretext claim” would not result in undue interference
with local regulatory policy concerns./287/ Even if injunctive relief was ordered against
enforcement of the rate order, the Court noted, “‘there is ... no doctrine requiring abstention
merely because resolution of a federal question may result in the overturning of a state
policy.’”/288/
The Court in Quackenbush v. Allstate Insurance Co., narrowly construed Burford abstention and
described it as balancing the interest in retaining federal jurisdiction against the competing
concern for the “independence of state action,” which, it noted,” only rarely favors
abstention.”/289/ The Court acknowledged that it had “revisited the [Burford] decision only
infrequently in the intervening 50 years.”/290/ The Court noted several factors “unique to that
case”—the difficulty of the state regulatory issues, the need for uniform regulation in the oil
and gas area and the important state interests served by this system, and, “most
important[],”the “detrimental impact of ongoing federal court review of the [state agency’s] ...
orders, which review had already led to contradictory adjudications by the state and federal
courts.”/291/
The Quackenbush Court considered whether Burford abstention supplied a proper basis for
dismissal, as opposed to a stay, of federal actions presenting damages claims. Noting that prior
abstention holdings did not supply a “formulaic test for determining when dismissal under
Burford is appropriate,” the Court observed that the power to dismiss was based on
discretionary doctrines of equity, comity, and federalism./292/ This had previously led the
Court to allow “federal courts applying abstention principles in damages actions to enter a stay,
but [the Court had] ... not permitted them to dismiss the action altogether[.]”/293/ The Court
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held that, while “Burford might support a federal court’s decision to postpone adjudication of a
damages action pending the resolution by the state courts of a disputed question of state law,”
federal courts “have the power to dismiss or remand cases based on abstention principles only
where the relief being sought is equitable or otherwise discretionary.”/294/
The class example of Burford abstention remains a challenge to a state utility regulatory
system./295/ Burford abstention has also been upheld, however, in varied settings such
as workers compensation, insurance, zoning, and related land use issues./ 296/ Burford
abstention has been upheld in a Medicaid contract funding challenge,/297/ but other courts
have refused to abstain in cases involving state agency curtailment of Medicaid
services./298/ Defendants periodically attempt to rely on Burford in cases involving
constitutional rights of individuals, but the courts are often reluctant to permit such an
expanded use of Burford abstention./299/ The Second Circuit has stated: “Burford abstention is
not required even in cases where the state has a substantial interest if the state’s regulations
violate the federal constitution.”/300/
The Supreme Court has indicated a potential application of Burford in the area of state
domestic relations law. In Ankenbrandt v. Richards, the Court addressed a tort action brought
by a mother on behalf of her daughters against their father./301/ The Court stated that, even
though the action did not fall within the “domestic relations” exception to federal jurisdiction,
Burford abstention “might be relevant in a case involving elements of the domestic relationship
even when the parties do not seek divorce, alimony, or child custody.”/302/ Difficult state law
questions bearing on substantial public policy problems could be implicated “if a federal suit
were filed prior to effectuation of a divorce, alimony, or child custody decree and the suit
depended on a determination of the status of the parties.”/303/ Some federal courts have
followed the suggestion of the Ankenbrandt Court by applying Burford abstention in the
domestic relations area./304/
2.8.D. Colorado River Abstention
In Colorado River Water Conservation District v. United States, the Supreme Court established a
fourth type of abstention applicable to situations when parallel state and federal litigation are
pending./305/ Colorado River was a water rights case involving simultaneous state and federal
court proceedings against the United States. Although the federal litigation did not fall within
the Younger, Pullman, or Burford abstention doctrines, the Court held that, in a limited number
of cases, federal courts should abstain because of the pendency of parallel and duplicative state
court litigation. The Court observed that these cases are founded upon concerns of judicial
administration, not the “weightier considerations” of comity and federalism that animate the
other abstention doctrines./306/ Emphasizing “the virtually unflagging obligation of the federal
courts to exercise the jurisdiction given them,” the Court nevertheless recognized that
“exceptional” circumstances might permit a federal court to refrain from exercising jurisdiction
“for reasons of wise judicial administration, in situations of concurrent state litigation.”/307/
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Colorado River abstention is inapplicable unless there is parallel litigation./308/ The mere fact
that the two lawsuits may involve different parties may not be enough to preclude abstention.
For example, the Seventh Circuit noted that, “the requirement is of parallel suits, not identical
suits” and treated a suit as parallel when “substantially the same parties are
contemporaneously litigating substantially the same issue in another forum.”/309/ The Second
Circuit, on the other hand, refused to apply Colorado River when the parties were not identical
because the stay of the federal action would not necessarily avoid piecemeal
litigation./310/ The Eighth Circuit has attempted to bring "more precision" to determining
when state and federal proceedings are parallel, keeping in mind the limited reach of Colorado
River abstention:
The pendency of a state claim based on the same general facts or subject matter as a federal
claim and involving the same parties is not alone sufficient. Rather, a substantial similarity must
exist between the state and federal proceedings, which similarity occurs when there is a
substantial likelihood that the state proceeding will fully dispose of the claims presented in the
federal court . . . Moreover, in keeping with the Supreme Court's charge to abstain in limited
instances only, jurisdiction must be exercised if there is any doubt as to the parallel nature of the
state and federal proceedings. /311/
The Colorado River decision identified four factors relevant to whether a federal court should
abstain in favor of parallel state proceedings: (1) which court first assumes jurisdiction over
property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal
litigation, and (4) the order in which jurisdiction was obtained by the concurrent forums./312/
In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., the Court identified the
following additional factors that courts must also consider in applying Colorado River: (1) the
source of the governing law; (2) the adequacy of the state court action to protect federal rights;
(3) the relative progress of the state and federal proceedings; (4) the presence or absence of
concurrent jurisdiction; (5) the availability of removal, and (6) the vexatious or contrived nature
of the federal claims./313/ The Court noted that these constituted merely “some of the
factors.”/314/ In Moses H. Cone the Court cautioned that
the decision whether to dismiss a federal action because of parallel state-court litigation does
not rest on a mechanical checklist, but on a careful balancing of the important factors as they
apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.
The weight to be given to any one factor may vary greatly from case to case, depending on the
particular setting of the case./315/
Despite the potential for construing Colorado River abstention broadly, the Supreme Court has
emphasized the narrowness of the doctrine. Federal courts have long permitted parallel
litigation, using preclusion doctrines to limit re-litigation./316/ Moreover, in Moses H. Cone, the
Court emphasized the limiting language in Colorado River and noted that pendency of a parallel
state proceeding should not generally bar federal court proceedings./317/
However, the Supreme Court held in Wilton v. Seven Falls Co., a diversity action, that a standard
of substantial discretion, rather than the Colorado River “exceptional circumstances” standard,
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governed a district court’s decision to stay a declaratory judgment action on grounds of a
parallel state court proceeding./318/ This discretion is conferred upon the federal courts by the
permissive language of the Declaratory Judgment Act./319/ The Court reaffirmed Brillhart v.
Excess Insurance Co., which stated that district courts are “under no compulsion” to entertain
claims of declaratory relief, since they possess discretion to exercise their jurisdiction under the
Declaratory Judgment Act./320/ Thus, in contrast to Colorado River abstention, which allows a
federal court to decline to exercise jurisdiction only under exceptional circumstances, the
Brillhart doctrine, applicable to declaratory judgment actions, gives the district court broader
discretion to determine “whether and when to entertain an action under the Declaratory
Judgment Act, even when the suit otherwise satisfies subject-matter jurisdictional
prerequisites.”/321/ The Wilton Court cautioned that its decision did not address the Brillhart
doctrine’s “outer boundaries,” such as actions raising issues of federal law or cases without
parallel state proceedings./322/
Simultaneously filing identical Section 1983 suits in state and federal courts potentially invites
Colorado River absention. More complicated issues arise when plaintiffs split their claims,
seeking some relief in state court and other relief in federal court. The prohibition of such
piecemeal litigation is one of the Colorado River factors, but, in an increasing number of cases,
plaintiffs have no choice but to split claims if they wish to preserve access to federal court
without abandoning meritorious state claims./323/
When plaintiffs must split their claims to avoid the Eleventh Amendment bar, they may lessen
the likelihood of Colorado River abstention by delaying the filing of the state claim until
substantial progress is made on the federal lawsuit. Delay in filing the state claim also
minimizes the risk that the state case will be decided first and thereby acquire preclusive
effect./324/ However, a plaintiff following this strategy must take care not to delay filing a state
claim beyond the statute of limitations. For claims against the state, statutes of limitations are
often short, but state tolling policies may extend these periods.
A less risky strategy may be to file both state and federal claims in federal court whenever there
is an arguable basis for reading Pennhurst narrowly. Even if the federal court dismisses the state
claim, the risk of a later, refiled state claim acquiring preclusive effect may be at least partially
minimized.
2.8.E. The Rooker-Feldman Doctrine
Because lower federal courts do not have appellate jurisdiction over state courts, the Supreme
Court refuses to permit losing state court litigants to invoke federal jurisdiction to attack state
court judgments on the ground that the state court acted unconstitutionally./325/ This
doctrine, often referred to as the Rooker-Feldman doctrine, originated in Rooker v. Fidelity
Trust Co./326/ The Supreme Court reaffirmed the doctrine in District of Columbia Court of
Appeals v. Feldman./327/
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The Rooker-Feldman doctrine derives from 28 U.S.C. § 1257, which sets forth the exclusive
means by which state court judgments are reviewable in federal court. The doctrine is also
supported by the structure of the federal judicial system, in which only the Supreme Court of
the United States has appellate jurisdiction over state court judgments. As a result, the doctrine
bars “a party losing in state court ... from seeking what in substance would be appellate review
of the state judgment in a United States district court, based on the losing party’s claim that the
state judgment itself violates the loser’s federal rights.”/328 / District courts may not review
state court decisions “even if those challenges allege that the state court’s action was
unconstitutional.”/329/
In distinguishing between general challenges to the constitutionality of state bar rules and
challenges to particular state court decisions that raised constitutional questions, the Court in
Feldman held that a federal district court has jurisdiction to consider the former but not the
latter. The Court determined that the district court had jurisdiction to consider the general
attack on the constitutionality of a D.C. bar rule requiring graduation from an accredited law
school, but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the
District of Columbia Court of Appeals' decisions, in judicial proceedings, to deny the
respondents' petitions.”/330/
Taking their cue from this language in the Feldman decision, courts expansively applied the
doctrine where the assertion of district court jurisdiction was determined to be “inextricably
intertwined” with the state court action. Courts held, for example, that a federal claim is
inextricably intertwined with a state court judgment, and therefore barred by Rooker-Feldman,
when the claim can succeed only upon a showing that the state court was wrong./331/
In its first significant application of Rooker-Feldman, apart from the two cases giving the
doctrine its name, the Court sought to reemphasize and clarify its limited reach and original
purpose. In Exxon Mobil Corp. v. Saudi Basic Industries Corp., the Court held that the doctrine
does not supplant preclusion or abstention principles. Instead, it “is confined to cases of the
kind from which the doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those
judgments.”/332/ Emphasizing the comparatively narrow reach of the doctrine, the Court held
that Rooker-Feldman only applies when a party complains of injury caused by a state court
judgment and seeks to overturn it in federal court./333 / The Court further underscored the
limits on the scope of the Rooker-Feldman doctrine by subsequently holding that it cannot be
invoked against federal plaintiffs who were not parties in a state court proceeding, even if
preclusion law would regard them as in privity with such parties./334/
Post-Exxon Mobil, the lower courts are now interpreting the Rooker-Feldman threshold
standards more restrictively. The Second Circuit has stated that the "inextricably intertwined"
phrase "has no independent content" and is just a "descriptive label attached to claims that
meet the requirements outlined in Exxon Mobil."/335/ Observing that much of its prior case
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law was abrogated by the Supreme Court's holding, the Second Circuit has drawn from
the decision in Exxon Mobil four "requirements" that must be met before the doctrine
applies: (1) the plaintiff must have lost in state court; (2) the plaintiff must complain of injuries
caused by a state court judgment; (3) the plaintiff must invite federal district court review and
rejection of that state court judgment; and (4) the state court judgment must have been
rendered before the commencement of the federal district court proceedings./336/ The
Sixth Circuit focuses the inquiry on the "source of the injury" suffered by the plaintiff. If the
source is the state court decision, the Rooker-Feldman bar is raised. If instead there is some
other source, such as the actions of a third party, the plaintiff has asserted an independent
claim that the federal court can hear./337/ The Eleventh Circuit has declined to adopt a multifactor test, choosing instead to simply apply the language of Exxon Mobil "as is."/338/
The Rooker-Feldman doctrine does not apply to parallel state and federal court
litigation./339/ It has "no application to judicial review of executive action, including
determinations made by a state administrative agency."/340/
____________________________________________________________
209. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). See also
R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941).
210. The Supreme Court has “often acknowledged that federal courts have a strict duty to
exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716 (1996) (Clearinghouse No. 51,212) (citations omitted). Nevertheless, the
Court went on to observe: “This duty is not, however, absolute . . . . Indeed, we have held that
federal courts may decline to exercise their jurisdiction, in otherwise exceptional
circumstances, where denying a federal forum would clearly serve an important countervailing
interest, for example, where abstention is warranted by considerations of proper constitutional
adjudication, regard for federal-state relations, or wise judicial administration . . . .” Id.
(citations and internal quotation marks omitted). The Court recognized, however, that
abstention from the exercise of federal jurisdiction was the exception, not the rule, and it
should rarely be invoked. Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992).
211. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 11 n.9 (1987).
212. Younger v. Harris, 401 U.S. 37 (1971).
213. See id. at 48-49; Perez v. Ledesma, 401 U.S. 82, 85 (1971). This inquiry largely hinges, the
lower federal courts have since emphasized, upon a showing of the subjective motivation of the
state authority in bringing the proceeding. This has proven to be a difficult task for plaintiffs.
E.g., Phelps v. Hamilton, 59 F.3d 1058, 1064-65 (10th Cir. 1995) (factors for determining
whether prosecution was brought in bad faith or to harass include: (1) whether it was frivolous
Page 72 of 559
or undertaken with no objective hope of success; (2) whether it was motivated by the
defendant’s suspect class, or in retaliation for the exercise of constitutional rights; and (3)
whether it was conducted in a manner to harass or to constitute an abuse of prosecutorial
discretion, typically through unjustified and oppressive use of multiple prosecutions). But see
Kern v. Clark, 331 F.3d 9, 12-13 (2d Cir. 2003) (district court committed error in resolving factual
disputes regarding bad faith exception to Younger without conducting an evidentiary hearing).
214. Younger, 401 U.S. at 53. See Kugler v. Helfant, 421 U.S. 117, 124–25 (1975) (such
circumstances would involve the state court or agency being “incapable of fairly and fully
adjudicating the federal issues before it.”). Bias might be one such circumstance, see Gibson v.
Berryhill, 411 U.S. 564 (1973), but plaintiffs have otherwise faced uphill challenges in invoking
this second exception to abstention. See Diamond “D” Constr. Corp. v. McGowen, 282 F.3d 191,
201–02 (2d Cir. 2002) (“extraordinary circumstances” exception did not apply where plaintiff
could pursue state mandamus relief for state agency’s alleged delay in conducting
administrative proceedings); Lawson v. City of Buffalo, 52 F. App’x. 562 (2d Cir. 2002)
(“irreparable harm” exception to Younger inapplicable in due process contest of state criminal
court order of demolition of plaintiffs’ homes where no demolition order was currently in effect
and any future order could be appealed in state court); Employers Resource Mgmnt. Co. v.
Shannon, 65 F.3d 1126 (4th Cir. 1995), cert. denied, 516 U.S. 1094 (1996) (refusing to find
“extraordinary circumstances” to Younger abstention in federal action since there was no
showing that state commission was incapable of reviewing ERISA (Employee Retirement Income
Security Act) federal preemption claim in context of state administrative proceeding). In Esso
Standard Oil Co. v. Cotto, 389 F.3d 212, 216 (1st Cir. 2004) ("Esso I"), the court determined that
Younger abstention should be upheld despite a significant showing of actual bias in an agency
adjudicative hearing process, because the plaintiff could potentially use state interlocutory
review procedures to address the bias claim. Following an unsuccessful attempt to seek
interlocutory relief through the Puerto Rican court system however, plaintiff returned to the
federal court, which declined to abstain further and proceeded to address the claims of bias in
the administrative process. Esso Standard Oil Co. v. Lopez-Freytes, 522 F. 3d 136 (1st Cir. 2008
("Esso II").
215. Younger, 401 U.S. at 53–54 (quoting Watson v. Buck, 313 U.S. 387, 402 (1941)). The Court
used the “patently violative” exception as an illustration of “extraordinary circumstances” in
which an exception might be justified. The Court, however, never further defined this exception
or indicated what other “extraordinary circumstances,” if any, would fit into it. The “possible
unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good
faith attempts to enforce it,” especially absent “any showing of bad faith, harassment, or any
other unusual circumstance that would call for equitable relief.” Id. at 54.
216. See Samuels v. Mackell, 401 U.S. 66 (1971).
217. Huffman v. Pursue Ltd., 420 U.S. 592 (1975).
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218. See, e.g., Pennzoil, 481 U.S. at 14 n.12; Moore v. Sims, 442 U.S. 415, 423 n.8 (1979).
219. See Trainor v. Hernandez , 431 U.S. 434, 444 (1977) (action to recover fraudulently
obtained public assistance payments). See also Moore v. Sims, 442 U.S. 415, 423 (1979) (state
child neglect proceedings).
220. See, e.g., Pennzoil, 481 U.S. at 11 (proceeding to enforce judgment on tortuous
inducement of breach of contract); Juidice v. Vail, 430 U.S. 327, 328 (1977) (contempt of court
proceedings).
221. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)
222. Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986).
223. Brown v. Day, 555 F.3d 882, 888 n.5 (10th Cir. 2009).
224. Id. at 889; accord, Moore v. Medows, No. 1:07-CV-631-TWT, 2007 U.S. Dist. LEXIS 47087,
2007 WL 1876017, at *5-6 (N.D. Ga. June 28, 2007) (Younger abstention unwarranted where
plaintiff initiated remedial challenge to state administrative order reducing skilled nursing care
hours covered by Medicaid.
225. New Orleans Pub. Serv. Inc. v. Council of City of New Orleans , 491 U.S. 350, 368 (1989).
226. Id. (citations omitted).
227. Id. at 372.
228. E.g., M&A Gabaee v. Cmty. Redevelopment Agency, 419 F.3d 1036, 1039 (9th Cir. 2005);
Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005); Joseph A. v. Ingram, 275 F.3d 1253, 1267
(10th Cir. 2002) (Clearinghouse No. 54,011); Diamond “D” Constr. Corp. v. McGowan, 282 F.3d
191, 198 (2d Cir. 2002); Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996), cert.
denied, 519 U.S. 1080 (1997); Brooks v. N.H. Supreme Court, 80 F.3d 633, 638 (1st Cir. 1996);
Fieger v. Thomas, 74 F.3d 740, 743–44 (6th Cir. 1996).
229. Middlesex County Ethics Comm., 457 U.S. at 432.
230. “This doctrine of federal abstention rests foursquare on the notion that, in the ordinary
course, "a state proceeding provides an adequate forum for the vindication of federal
constitutional rights.” Diamond “D” Constr. Corp., 282 F.3d at 198 (quoting Cullen v. Fliegner, 18
F.3d 96, 103 (2d Cir.), cert. denied sub nom. Tuxedo Union Free Sch. Dist. v. Cullen, 513 U.S. 985
(1994)) (citing Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
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231. The Supreme Court in Juidice v. Vail, 430 U.S. 327, 337 (1977), emphasized: “[Plaintiffs]
need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing
state proceedings, and their failure to avail themselves of such opportunities does not mean
that the state procedures were inadequate” (citations and footnotes omitted). Younger
abstention “naturally presupposes the opportunity to raise and have timely decided by a
competent state tribunal the federal issues involved.” Gibson v. Berryhill, 411 U.S. 564, 577
(1973). See also Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14 (1987) (quoting Moore, 442 U.S. at
432) (holding that “the burden on this point rests on the federal plaintiff to show ‘that state
procedural law barred presentation of [its] claims.’”).
232. Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 619 (1986).
233. Id. at 629 (“[I]t is sufficient under Middlesex . . . that constitutional claims may be raised in
state-court judicial review of the administrative proceeding.”). Similarly, in Huffman v. Pursue
Ltd., 420 U.S.592, 608 (1975), the Supreme Court concluded that, where the plaintiff had not
exhausted state court appeals, abstention was appropriate. The Dayton Christian Schools and
Huffman decisions should not be confused with either Patsy v. Board of Regents, 457 U.S. 496
(1982) or Monroe v. Pape, 365 U.S. 167 (1961). The Court in Patsy held that exhaustion of
administrative remedies was not required under Section 1983. In Monroe, the Court held that
exhaustion of state judicial remedies was not a prerequisite to litigation under Section 1983.
The Dayton and Huffman holdings do not undermine either rule; rather they prohibit injunctive
relief against ongoing administrative or judicial proceedings.
234. Hirsh v. Justices of the Supreme Court of Cal., 67 F.3d 708 (9th Cir. 1995).
235. Id. at 747-48; see also Dayton Christian Sch., 477 U.S. at 629 (noting that a holding that the
state agency could not interpret its own statutory mandate in light of federal constitutional
principles would be an “unusual doctrine”).
236. Hirsh, 67 F.3d at 713. See also Brooks v. N.H. Supreme Court, 80 F.3d 633, 639 (1st Cir.
1996) (abstention upheld in challenge to enforcement of confidentiality of attorney disciplinary
proceedings rule, where state court appeal, despite its being closed to the public, still
presented adequate opportunity to litigate federal claims); Doe v. Connecticut, 75 F.3d 81, 85
(2d Cir. 1996) (abstention invoked in doctor’s Americans with Disabilities Act federal court
challenge to state’s administrative disciplinary action seeking revocation of his license since
state proceedings implicated important state interests and plaintiff could assert federal
statutory claims in context of eventual court appeal); Wightman v. Tex. Supreme Court, 84 F.3d
188, 190 (5th Cir. 1996), cert. denied, 519 U.S. 1080 (1997) (constitutional objections could be
raised at multiple stages of attorney discipline administrative proceedings and on appeal, thus
satisfying Younger abstention). But cf. Meredith v. Oregon, 321 F.3d 807, 818-20 (9th Cir. 2003)
(affirming denial of abstention where plaintiff did not have adequate or timely opportunity to
raise constitutional challenge to administrative enforcement action for erecting a sign on
vacant property without a permit).
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237. See, e.g., Gerstein v. Pugh, 420 U.S.103, 107 n.9 (1975) (Younger distinguished by Supreme
Court in challenge to state court procedures of pretrial detention of persons without judicial
finding of probable cause since issue raised by plaintiffs “could not be raised in defense of the
criminal prosecution,” the federal injunctive order to hold preliminary hearings was not
directed at the state prosecutions, and the order “could not prejudice the conduct of the trial
on the merits”); LaShawn A. v. Kelly, 990 F.2d 1319, 1323 (D.C. Cir. 1993), cert. denied sub nom.
Kelly v. LaShawn A. by Moore, 510 U.S. 1044 (1994) (abstention rejected in child welfare system
challenge brought by foster care children, where state Family Division case law precedent
indicated that those proceedings were a “questionable vehicle” for raising plaintiffs’
“multifaceted request for broad-based injunctive relief based on the Constitution and on
federal and local statutory law.”). But see Hansel v. Town Court, 56 F.3d 391, 393-94 (2d Cir.),
cert. denied, 516 U.S. 1012 (1995) (abstention applied in challenge to constitutionality of use of
nonlawyer judges in town criminal court system, where, even though state’s highest court had
already declared this type of system constitutional, federal court still determined that plaintiff
could raise federal claims in state court); Joseph A. v. Ingram, 275 F.3d 1253, 1273-74 (10th Cir.
2002) (Clearinghouse No. 54,011) (abstention affirmed in consent decree enforcement action
brought by state wards who experienced abuse or neglect and alleged lack of meaningful
access to adoption services, where, although individual children’s court proceedings may not be
authorized to hear class actions, they possessed the power to consider federal claims, including
plaintiffs’ claimed due process violations); J.B. v. Valdez, 186 F.3d 1280, 1292-93 (10th Cir.
1999) (Clearinghouse No. 52,608) (abstention warranted in challenge to lack of therapeutic
services for disabled children in child welfare system, where plaintiffs failed to show that state
children’s court could not adjudicate federal claims during periodic review proceedings);
Pompey v. Broward County, 95 F.3d 1543, 1551 (11th Cir. 1996) (procedural bar to raising
constitutional claims in state courts, not whether claims will be successful on the merits, is
pertinent inquiry in ordering that abstention precluded federal court from issuing injunctive
relief on behalf of individuals alleging incarceration for failure to make child support payments
following contempt hearings devoid of due process protections); Connor B. v. Patrick, 2011 U.S.
Dist. LEXIS 401, at . Dist. LEXIS 401, at *24-27 (D. Mass. Jan. 4, 2011) (requests for wide-ranging
injunctive relief of foster care system are not cognizable in juvenile court system); E.T. v.
George, 681 F. Supp. 1151 (2010) (Younger abstention applicable in constitutional challenge to
overburdened caseloads in dependency court system).
238. Harper v. Public Service Comm’n, 396 F.3d 348 (4th Cir. 2005)
239. Id. at 348. See also, Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 41011 (3d Cir. 2005) (abstention not warranted on discrimination claims that did not implicate
declared state interests in zoning and land use).
240. McCartney v. Cansler, 608 F. Supp.2d 694, 703-04 (E.D.N.C. 2009). But see, Columbus
Rehabilitation and Subacute Institute v. Franklin County Dept. of Job and Family Services, No.
2:08-cv-103, 2008 U.S. Dist. LEXIS 102093; 2008 WL 5273924, at *4 (S.D. Ohio Dec. 17, 2008)
Page 76 of 559
(Younger abstention applicable where "the State of Ohio has a significant interest in decisions
regarding the Medicaid eligbility process").
241. See Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705 (1977). In
Wooley the Supreme Court found Younger abstention to be improper where the federal
plaintiff, having previously been criminally convicted for his practice of covering the “live free or
die” motto on the New Hampshire license plates that he was required to purchase in order to
drive his automobile, sought relief that was “wholly prospective, to preclude further
prosecution under a statute alleged to violate appellees’ constitutional rights . . . Younger does
not bar federal jurisdiction.” Id. at 711.
242. Ankenbrandt, 504 U.S. at 689.
243. Id. at 705.
244. In institutional reform cases, federal courts may invoke abstention even where the relief
sought does not target a specific state court proceeding. In Joseph A. v. Ingram, 275 F.3d at
1253, the Tenth Circuit abstained from enforcing a consent decree mandating access to child
adoption services even though plaintiffs did not seek to enjoin any specific state proceeding.
The court ruled that Younger applied because enforcement of at least some of the consent
decree provisions would require “interference with the operations of the Children’s Court in an
insidious way in that the [decree]…expressly prevents the Department’s employees from
recommending a range of planning options for children who are in the Department’s custody.”
The court viewed this as having the parallel effect of an injunction or declaratory judgment,
which essentially precluded the state court from considering those options. Id.see also Anthony
v. Council, 316 F.3d 412, 419-21 (3d Cir. 2003) (Clearinghouse No. 55,083) (abstention upheld in
litigation brought by persons who had been seeking right to counsel and had been held in civil
contempt for failure to comply with child support orders; retroactive relief would implicate past
contempt proceedings and prospective relief regarding plaintiffs; open cases would implicate a
“comprehensive and fluid system,” which must be “viewed as a whole” for abstention
purposes); J.B., 186 F.3d at 1291 (abstention applied to child welfare litigation continuing
jurisdiction of state court to modify child’s disposition, coupled with mandatory periodic review
hearings, constituted ongoing state judicial proceedings). Luckey v. Miller, 976 F.2d 673, 677-78
(11th Cir. 1992) (abstention affirmed in constitutional challenge to adequacy of state indigent
criminal defense system, where, although plaintiffs did not seek to restrain any single criminal
prosecution or contest any conviction, this “only functions to set up an empty syllogism by
which plaintiffs may argue that their intent is not to interfere with pending prosecutions”). Cf.
Meachem v. Wing, 77 F. Supp. 2d 431, 442-43 (S.D.N.Y. 1999) (Clearinghouse No. 52,561) (court
declined to abstain in challenge to public assistance fair hearing procedures where “Article 78”
state court proceedings could be filed to contest the administrative decisions terminating
benefits; these did not constitute ongoing state appellate proceedings); Marisol A. v. Giuliani,
929 F. Supp. 662, 688-89 (S.D.N.Y. 1996), aff’d on other grounds, 126 F.3d 372 (2d Cir. 1997)
(Clearinghouse No. 50,954) (abstention inappropriate in child welfare systemic litigation where
Page 77 of 559
state defendants could not point to any state court proceeding being improperly challenged). at
1268-69;
245. See, e.g., Canatella v. California, 304 F.3d 843, 850–52 (9th Cir. 2002) (analysis of when
state bar disciplinary action commences leads court to find abstention unwarranted, as no state
proceeding was ongoing); Zaharia v. Cross, 216 F.3d 1089 (10th Cir. 2000) (state criminal
proceeding was ongoing and abstention was appropriate where plaintiff could apply to state
court to modify or dismiss contested restraining order or could otherwise appeal it to state
district court and raise federal claims).
246. Hicks v. Miranda, 422 U.S. 332, 349 (1975); see Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229
(1984) (application of Hicks ruling to civil proceedings); Aaron v. Target Corp., 357 F.3d 768,
776-77 (8th Cir. 2004) (federal court preliminary injunction proceedings not sufficiently
advanced proceedings of substance on the merits to prevent YoungerSee also M&A Gabaee v.
Community Redevelopment Agency, 419 F.3d 1036, 1041-42 (9th Cir. 2005) (Younger abstention
applied to federal proceedings filed before and after state actions). abstention).
247. New Orleans Pub. Serv. Inc. v. Council of City of New Orleans, 491 U.S. 350, 359 (1989)
(citing Younger, 401 U.S. at 45) (emphasis supplied).
248. Wexler v. Lepore, 385 F.3d 1336, 1341 (11th Cir. 2004); see Rio Grande Cmty Health Ctr,
Inc. v. Rullan, 397 F.3d 56, 70-71 (1st Cir. 2005) (Clearinghouse No. 55,925) (abstention
improper where federal court injunction directed state Medicaid agency to conform to federal
law and did not prohibit state court from independently proceeding against agency).
249. Green v. City of Tucson, 255 F.3d 1086 (9th Cir.), cert. dismissed, 533 U.S. 966 (2001)
overruled in part, Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004). The Green court
concluded that abstention was not called for in a federal action contesting the constitutionality
of a state statute making incorporation of a territory contingent upon the consent of the
neighboring city or town despite parallel state court proceedings involving similar issues.
250. Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004).
251. Joseph A., 275 F.3d at 1272 (“Younger governs whenever the requested relief would
interfere with the state court’s ability to conduct proceedings, regardless of whether the relief
targets the conduct of a proceeding directly.”); J.B., 186 F.3d at 1291–92 (placing federal court
“in the role of making dispositional decisions such as whether to return the child to his parents”
would prevent state court from carrying out its functions, thus requiring abstention in child
welfare action). Broad-based institutional challenges continue in general to confront Younger
abstention obstacles. See, e.g., E.T. v. George, 681 F. Supp. 1151 (E.D. Cal. 2010) (Younger
abstention applicable in constitutional challenge to overburdended caseloads in dependency
court system.)
Page 78 of 559
252. R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941). Justice Scalia underscored the distinctive
nature of this brand of “abstention” by noting: “To bring out more clearly . . . the distinction
between those circumstances that require dismissal of a suit and those that require postponing
consideration of its merits, it would be preferable to speak of Pullman ‘deferral.’ Pullman
deferral recognizes that federal courts should not prematurely resolve the constitutionality of a
state statute . . . .” Growe v. Emison, 507 U.S. 25, 32 n.1 (1993).
253. Circuit courts have articulated the Pullman factors in slightly different ways. See Fireman’s
Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939–40 (9th Cir. 2002), cert. denied, 538 U.S. 961
(2003); Ford Motor Co. v. Meredith Motor Co., Planned Parenthood v. Farmer, 220 F.3d 127,
149–50 (3d Cir. 2000); Beavers v. Ark. State Bd. of Dental Exam’rs, 151 F.3d 838, 841 (8th Cir.
1998); Williams v. Lambert, 46 F.3d 1275, 1281 (2d Cir. 1995). 257 F.3d 67, 71 (1st Cir. 2001);
254. Baggett v. Bullitt, 377 U.S. 360, 375 (1964); see Batterman v. Leahy, 544 F.3d 370, 374 (1st
Cir. 2008) (abstention disallowed, partly due to lack of any ambiguity in state law requiring
clarification).
255. Hawaii Hous. Auth., 467 U.S. at 237.
256. Id. (quoting Zwickler v. Koota, 389 U.S. 241, 251 n.14 (1967)).
257. See, e.g., Carey v. Sugar, 425 U.S. 73, 78-79 (1976) (abstention appropriate in due process
challenge to state pre-judgment attachment statute).
258. Thornburgh v. American Coll. of Obstetricians, 476 U.S. 747, 756 (1986), overruled in part
on other grounds by Planned Parenthood of Se. Pa.v. Casey, 505 U.S. 833 (1992).
259. See Fleet Bank v. Burke, 160 F.3d 883, 890-93 (2d Cir. 1998), cert. denied, 527 U.S. 1004
(1999).
260. See Fireman’s Fund Insurance Co., 302 F.3d at 939 n.12 (noting prior holdings, with one
decision to the contrary, that preemption is not a “constitutional issue” justifying Pullman
abstention). But see Qwest Commc’ns Corp. v. Neb. Pub. Servs. Comm’n, No. 8: 05CV182 2005
U.S. Dist. LEXIS 23620, at *23-24 (D. Neb. Oct. 7, 2005 ) (approving abstention). Cases allowing
federal courts to abstain on the basis of preemption have been criticized, as raising no
substantive constitutional issue under the Supremacy Clause that justifies Pullman abstention.
since “the claim that a federal statute controls is essentially an exercise in construing the
federal statute.” 17A Charles Alan Wright el al., Federal Practice & Procedure § 4242 (3d ed.)
(2007).
261. See City of Houston v. Hill, 482 U.S. 451, 467–68 (1987); see also Harman v. Forsennius, 380
U.S. 528, 535 (1965); Mangual v. Rotger-Sabat, 317 F.3d 45, 63–64 (1st Cir. 2003) (court refused
Page 79 of 559
to abstain in challenge to unambiguous criminal libel statute and noted that delay involved in
abstention was problematic where First Amendment rights were implicated).
262. See La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1493 (5th Cir.), cert.
denied, 515 U.S. 1145 (1995) (if state or local statute or ordinance is subject of challenge, any
asserted state constitutional claims should be “so interrelated” as to render state law
ambiguous for Pullman abstention purposes).
263. Examining Bd. of Engineers, Architects and Surveyors v. Otero, 426 U.S. 572, 598 (1976).
See also Wisconsin v. Constantineau, 400 U.S. 433 (1971).
264. Reetz v. Bozanich, 397 U.S. 82 (1970) (requiring Pullman abstention to enable Alaska courts
to construe unique and previously unconstrued provision of Alaska Constitution regarding the
privilege of fishing). See also Harris County Comm’rs Court v. Moore, 420 U.S. 77, 85 n.8 (1975)
(requiring abstention to enable Texas courts to construe state constitution because challenged
statute was part of “an integrated scheme of related constitutional provisions, statutes, and
regulations”); Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 806 (9th Cir.
2001) (abstention justified where detailed analysis of state constitutional counterpart of Fourth
Amendment revealed significant differences).
265. In Bad Frog Brewery Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), the
Second Circuit declined to apply Pullman abstention due to the presence of a First Amendment
challenge based on specific prohibition of speech even though the interpretations of related
state regulations were unclear. The court, however, dismissed plaintiff’s state damage claims
and declined to exercise supplemental jurisdiction because they presented novel or complex
issues of state law.
266. In Pustell v. Lynn Public Schools, 18 F.3d 50, 53 n.5 (1st Cir. 1994), the First Circuit observed
that the plaintiffs could not “avoid [ Pullman ] abstention by excluding crucial state law issues
from their pleadings.” The unsettled nature of state home schooling statutes and regulations,
coupled with the particularly local nature of educational policy, led the court to uphold
abstention.
267. Ford Motor Co. v. Meredith Motor Co., 257 F.3d 67 (1st Cir. 2001).
268. Id. at 72–73. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 78 (1997)
(Clearinghouse No. 52,194) (noting that pending state supreme court appeal concerning
interpretation of state constitutional amendment may greatly simplify adjudication of federal
constitutional issues).
269. See Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, vicram David Amar, Federal
Practice & Procedure § 4243 (3d ed.) (2007); see also Harrison v. NAACP, 360 U.S. 167, 177
Page 80 of 559
(1959) ("This [Pullman] principle does not, of course, involve the abdication of federal
jurisdiction, but only the postponement of its exercise; it serves the policy of comity inherent in
the doctrine of abstention; and it spares the federal courts of unnecessary constitutional
adjudication.") (footnote omitted).
270. England v. La. State Bd. of Medical Exam’rs, 375 U.S. 411 (1964).
271. Id. at 421-22.
272. The Supreme Court reaffirmed the England reservation rule in Allen v. McCurry, 449 U.S.
90, 101 n.17 (1980) and in Migra v. Warren City School District, 465 U.S. 75, 85 n.7 (1984).
273. An England reservation must be used carefully. See, e.g., Bernardsville Quarry v. Borough
of Bernardsville, 929 F.2d 927, 929 n.1 (3d Cir.), cert. denied, 502 U.S. 861 (1991) (federal
litigants must be careful to make the reservation to the state court, not the federal court);
Temple of the Lost Sheep Inc. v. Abrams, 930 F.2d 178 (2d Cir.), cert. denied, 502 U.S. 866 (1991)
(court disallowed attempted England reservation and dismissed plaintiffs’ Section 1983 claims
on basis of collateral estoppel, where concurrent federal action had been dismissed on Younger
abstention grounds); see also Hickerson v. City of New York, 146 F.3d 99, 110–11 (2d Cir. 1998),
cert. denied, 525 U.S. 1067 (1999) (England reservation available only to those litigants who
initially choose to proceed in the federal forum, not in state court). But see Los Altos El Granada
Investors v. City of Capitola, 583 F.3d 674, 685 (9th Cir. 2009) ("overly constrained approach to
England" rejected in favor of allowing reservation where plaintiff initially files in state court and
has opportunity to raise all claims in that forum.).
274. San Remo Hotel v. City and County of San Francisco , 545 U.S. 323 (2005).
275. Id. at 341.
276. Id. at 346-48.
277. See 17A Charles Alan Wright et al., Federal Practice & Procedure § 4248 n. 30 (3d ed.)
(2007) (state-by-state listing of certification statutes).
278. Arizonans for Official English, 520 U.S. at 76–80; see 17A Charles Alan Wright et al.,
Federal Practice & Procedure § 4248 (3d ed.) (2007) ("Thus, the Court has made it clear that in
marginal cases of Pullman-type abstention, where delay and expense might otherwise tip the
scales against abstention of the traditional kind, it would be appropriate to use certification if
that is available.") (footnote omitted).
Page 81 of 559
279. See generally, 17A Charles Alan Wright et al., Federal Practice & Procedure § 4248 (3d
ed.) (2007).
280. See Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 309 n.18 (1979); Reprod.
Health Servs. of Planned Parenthood v. Nixon, 428 F.3d 1139, 1142 (8th Cir. 2005) (“the
Supreme Court has recognized that an abstaining federal court may grant a preliminary
injunction while state courts construe the challenged statute.”) (citations omitted).
281. Burford v. Sun Oil Co., 319 U.S. 315 (1943).
282. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 815 (1976).
283. Id.
284. New Orleans Pub. Serv., 491 U.S. at 360 (quoting Burford, 319 U.S. at 327).
285. Id. at 361 (quoting Colorado River, 424 U.S. at 814). See also Hachamovitch v. DeBuono,
159 F.3d 687, 697 (2d Cir. 1998); Tucker v. First Maryland Sav. & Loan Inc., 942 F.2d 1401, 1405
(9th Cir. 1991).
286. New Orleans Pub. Serv., 491 U.S. at 362; Hawthorne Sav. v. Reliance Ins. Co. of Ill., 421 F.3d
835, 845 (9th Cir. 2005).
287. New Orleans Pub. Serv., 491 U.S. at 362–63.
288. Id. at 363 (quoting Zablocki v. Redhail, 434 U.S. 374, 380 n.5 (1978)). “[D]ifficult state law
questions alone are not enough for Burford abstention . . . Burford’s concern is interference
with the state regulatory process.” Sevigny v. Employers Ins. of Wausau, 411 F.3d 24, 29 (1st
Cir. 2005) (emphasis in original) (citing New Orleans Pub. Serv., 491 U.S. at 361).
289. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) (quoting Burford, 319 U.S. at
334).
290. Id. at 726 (citation omitted).
291. Id. at 725 (citing Burford, 319 U.S. at 327–28) (further citations omitted).
292. Id. at 727–28.
293. Id. at 730 (citation omitted).
Page 82 of 559
294. Id. at 730-31; see King v. Jeffries, 402 F. Supp. 2d 624 , 635 (M.D.N.C. 2005). Courts have,
however, allowed a stay of federal proceedings on damages claims under the auspices of
Younger abstention. See, e.g., D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir.
2004), cert. denied, 544 U.S. 1050 (2005); Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir.
2004). But see, Diamond “D” Constr. Corp., 282 F.3d at 196 n.2 (“Younger abstention is
inappropriate on a claim for money damages”). See generally K. Lesch, Aggressive Application
of Federal Jurisdiction Under the Younger Abstention Doctrine to Section 1983 Damage Claims,
65 Geo. Wash. L. Rev. 645 (1997).
295. E.g., Adrian Energy Associates v. Michigan Pub. Serv. Comm'n, 481 F.3d 414 (6th Cir. 2007)
(power purchasing agreements for electricity generation).
296. See, e.g., Liberty Mutual Ins. Co. v. Hurlbut, 585 F.3d 639 (2d Cir. 2009) (workers
compensation); MacDonald v. Vill. of Northport, 164 F.3d 964 (6th Cir. 1999) (land use);
Palumbo v. Waste Techs. Indus., 989 F.2d 156, 159–60 (4th Cir. 1993) (hazardous waste
permitting); Law Enforcement Ins. Co. v. Corcoran, 807 F.2d 38 (2d Cir. 1986), cert. denied, 481
U.S. 1017 (1987) (insurance); Browning Ferris Inc. v. Baltimore County, 774 F.2d 77 (4th Cir.
1985) (permits for sanitary landfills). See also Johnson v. Collins Entm’t Co., 199 F.3d 710 (4th
Cir. 1999) (gaming industry). But see Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988)
(mere existence of land-use regulation does not justify Burford abstention.
297. Bethpage Lutheran Serv., Inc. v Weicker, 965 F.2d 1239 (2d Cir. 1992).
298. Parents League for Effective Autism Services v. Jones-Kelley, 565 F. Supp.2d 905, 914 (S.D.
Ohio 2008) (abstention declined despite impact on state budget, where Medicaid involves
federal concerns); Moore v. Medows, No. 1:07-CV-631-TWT, 2007 U.S. Dist. LEXIS 47087, 2007
WL 1876017, at *3 (N.D. Ga. June 28, 2007) (abstention declined since plaintiff's claims
"implicate not a complex state regulatory scheme, but an important federal interest embodied
in the Medicaid Act") (citation omitted)).
299. See, e.g., Neufeld v. Baltimore, 964 F.2d 347 (4th Cir. 1992) (reversing the trial court’s
decision to abstain from deciding plaintiff’s claim that a zoning ordinance violated his
constitutional rights); Ass’n for Retarded Citizens of N.D. v. Olson, 713 F.2d 1384 (8th Cir. 1983)
(conditions in facility for mentally retarded citizens and their treatment); Moe v. Brookings
County, 659 F.2d 880 (8th Cir. 1981) (administration of county poor relief program); Hanna v.
Toner, 630 F.2d 442 (6th Cir. 1980) (challenge to the conditions of confinement of the county
juvenile detention home), cert. denied, 450 U.S. 919 (1981); Ramos v. Lamm, 639 F.2d 559
(10th Cir. 1980) (prison conditions suit), cert. denied, 450 U.S.1041 (1981).
300. Hachamovitch, 159 F.3d at 698 (due process challenge to suspension of physician license)
(citations omitted).
Page 83 of 559
301. Ankenbrandt v. Richards, 504 U.S. 689 (1992).
302. Id. at 705.
303. Id. at 705–06. The Supreme Court held Burford to be inapplicable in the case before it
since the status of the domestic relationship had been determined in state court and it had no
bearing on the torts alleged. Id. at 706.
304. See, e.g., Dunn v. Cometa, 238 F.3d 38 (1st Cir. 2001) (tort claims regarding former wife’s
management of former husband’s care); Minot v. Eckardt-Minot, 13 F.3d 590 (2d Cir. 1994)
(custodial interference tort action).
305. Colo. River Water Conservation Dist., 424 U.S. at 800.
306. Id. at 817-18.
307. Id. at 818. In disallowing abstention in favor of a state court insurance liquidation action,
the First Circuit observed that “Colorado River is scarcely a formal ‘doctrine’ at all.” Sevigny v.
Employers Ins. of Wausau, 411 F.3d 24, 29 (1st Cir. 2005).
308. See Chase Brexton Health Serv. v. Maryland, 411 F.3d 457, 463 (4th Cir. 2005) (the parallel
state litigation may be an administrative proceeding if adjudicative in nature).
309. Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1288 (7th Cir. 1988). Accord,
Ingalls v. AES Corp., 311 F. App'x 911, 914 (7th Cir. 2008) (determining whether state and
federal proceedings are parallel involves assessing whether they arise out of same facts and
involve similar factual and legal issues). See also, Gannett Co. v. Clark Constr. Group Inc., 286
F.3d 737, 742 (4th Cir. 2002); Fox v. Maulding, 16 F.3d 1079, 1081–82 (10th Cir. 1994). But see,
McLaughlin v. United Virginia Bank, 955 F.2d 930, 935 (4th Cir. 1992) (although the two actions
involved similar claims and certain common facts, they were not parallel because neither the
parties nor the legal theories were the same).
310. See Zemsky v. City of New York, 821 F.2d 148 (2d Cir.), cert. denied, 484 U.S. 965 (1987).
311. Fru-Con Construction Corp. v. Controlled Air, Inc., 574 F.3d 527, 535 (8th Cir. 2009)
(emphasis supplied).
312. Colorado River , 424 U.S. at 818.
313. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).
Page 84 of 559
314. Id. at 15; see KPS & Assocs. v. Designs by FMC Inc., 318 F.3d 1, 10 (1st Cir. 2003) ( Colorado
River list “is by no means exhaustive”) (citation omitted).
315. Moses H. Cone, 460 U.S. at 16. The Second Circuit held that, although Colorado River
abstention did not employ a “mechanical checklist,” the district court must actually balance the
relevant factors in reaching its determination. Vill. of Westfield v. Welch’s, 170 F.3d 116, 121
(2d Cir. 1999)
316. See Kline v. Burke Constr. Co., 260 U.S. 226 (1922); McClellan v. Carland, 217 U.S. 268, 281–
82 (1910).
317. Moses H. Cone, 460 U.S. at 14. The Court went on to “emphasize that our task in cases
such as this is not to find some substantial reason for the exercise of federal jurisdiction by the
district court; rather, the task is to ascertain whether there exist ‘exceptional’ circumstances,
the ‘clearest of justifications,’ that can suffice under Colorado River to justify the surrender of
that jurisdiction.” Id. at 25-26 (emphasis in original). See also Gregory v. Daly, 243 F.3d 687,
701–02 (2d Cir. 2001) (disallowing, without showing of exceptional circumstances, defendant’s
claim that federal court should abstain under Colorado River in Title VII employment
discrimination action “on the bare fact that allowing this case to proceed will result in the
maintenance of duplicative proceedings”).
318. Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
319. 28 U.S.C. § 2201(a); see Wilton, 515 U.S. at 286–87.
320. See Brillhart v. Excess Insurance Co. of America , 316 U.S. 491, 494–95 (1942).
321. Wilton , 515 U.S. at 282. But see Chase Brexton Health Serv., 411 F.3d at 466-67 (claims for
declaratory and injunctive relief “are so closely intertwined that judicial economy counsels
against dismissing the claims for declaratory judgment relief while adjudicating the claims for
injunctive relief”).
322. Wilton, 515 U.S. at 290; see United States v. City of Las Cruces, 289 F.3d 1170, 1179–84
(10th Cir. 2002) (citing applications of Brillhart in cases founded on jurisdictional grounds other
than diversity).
323. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), applied the
Eleventh Amendment to bar supplemental claims seeking injunctive relief to compel state
officials to comply with state law.
324. See generally the discussion of claim and issue preclusion in Chapter 3.4 of this MANUAL.
Page 85 of 559
325. The only exception is for habeas corpus petitions.
326. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
327. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
328. Johnson v. DeGrandy, 512 U.S. 997, 1005–06 (1994) (citation omitted).
329. Feldman, 460 U.S. at 486.
330. Id. at 486-87.
331. Lemonds v. St. Louis County, 222 F.3d 488, 493 (8th Cir. 2000), cert. denied sub nom.
Halbman v. St. Louis County, 531 U.S. 1183 (2001); Marks v. Stinson, 19 F.3d 873, 886 n.11 (3rd
Cir. 1994).
332. Exxon Mobil Corp. v. Saudi Basic Indus. Corp ., 544 U.S. 280, 284 (2005).
333. Id. at 291-92. See Skinner v. Switzer, 131 S. Ct. 1289 (2011) (federal jurisdiction over Section 1983
claims challenging state statutes previously interpreted by state criminal courts of appeals are not barred by
Rooker-Feldman doctrine).
334. Lance v. Dennis , 546 U.S. 459 (2006). The Court did note, however, that it had not held
that the doctrine could never be used against a non-party to a state court proceeding.
335. Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 86-87 (2d Cir. 2005)
(acknowledging that the Circuit had applied Rooker-Feldman too expansively to be coextensive
with preclusion principles and that Exxon Mobil significantly pared back the doctrine); see also,
Pittman v. Cuyahoga County Dept. of Children and Family Services, 241 F. App'x 285, 287 (6th
Cir. 2007) ("In the wake of Exxon, this circuit has tightened the scope of Rooker-Feldman.")
(citation omitted)).
336. Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (citing Hoblock, 422 F.3d at 85)).
337. See McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006), cert. denied, 552 U.S. 828
(2007). For example, a biological father's constitutional claims in federal court against the
actions of a child welfare agency which allegedly led to loss of custody in juvenile court
proceedings were held not to be subject to Rooker-Feldman, since the challenge was against a
third party's conduct, not the state court judgment itself. Pittman, 241 F. App'x at 288.
338. Nicholson v. Shafe, 558 F.3d 1266, 1274 n. 8 (11th Cir. 2009).
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339. Exxon Mobil, 544 U.S. at 292.
340. Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 644 n.3 (2002).
Updated 2010
2.9 State Court Jurisdiction over Federal Claims
Updated 2010
In determining whether state courts are allowed to entertain jurisdiction over federally created
causes of action, the Supreme Court has applied a presumption of concurrency./341/ Under
this presumption, state courts may exercise jurisdiction over federally created causes of action
as long as Congress has not explicitly or implicitly made federal court jurisdiction
exclusive./342/ An implied exclusivity can result from an “unmistakable implication from
legislative history, or by a clear incompatibility between state-court jurisdiction and federal
interest.”/343/ In considering whether a federal claim is incompatible with state court
jurisdiction, the Court looks to “the desirability of uniform interpretation, the expertise of
federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly
federal claims.”/344/ Under this framework, federal courts have exclusive jurisdiction over
admiralty, bankruptcy, patent, trademark, and copyright claims because the relevant
jurisdictional statutes expressly provide so./345/ In other areas, such as antitrust, the federal
statutes do not make federal court jurisdiction exclusive, but courts found an implied
exclusivity./346/
In contrast, state courts may exercise jurisdiction over claims brought under 42 U.S.C. §
1983./347/ Although the Court has not expressly addressed state court jurisdiction over the
other Reconstruction-era civil rights actions, it reviewed a 42 U.S.C. § 1982 action arising in the
state courts without any apparent doubt about the permissibility of state courts to entertain
such actions./348/ Moreover, state courts addressing issues involving 42 U.S.C. §§ 1981 and
1982, both having their origins in Section 1 of the Civil Rights Act of 1866 and its 1870
reenactment, concluded that they were allowed to entertain such actions./349/
However, a state court may decline to entertain the federal claim if it has a valid excuse to do
so. That excuse must not violate the Supremacy Clause by treating the federal claim less
favorably than a parallel state claim. In Howlett v. Rose the Court was asked to decide whether
common-law sovereign immunity was available to a state school board to preclude a claim
under 42 U.S.C. § 1983 even though such a defense would be unavailable in federal court./350/
The state court had dismissed the lawsuit on grounds that the school board, as an arm of the
state, had not waived its sovereign immunity in Section 1983 cases. The Howlett Court stated
that state common-law immunity was eliminated by acts of Congress in which Congress
expressly made the states liable./351/The Court held that the state court’s refusal to entertain
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a Section 1983 claim against the school district, when state courts entertained similar state-law
actions against state defendants, violated the Supremacy clause./352/
More recently, the Supreme Court struck down a New York statute which divested its state
courts from entertaining Section 1983 or state law claims for damages by prisoners against
state correctional employees./353/ The state legislature determined that these kinds of
lawsuits were frequently frivolous and channeled them into the state court of claims which
offered more limited remedies and more stringent procedural requirements. The Supreme
Court held that the state law violated the Supremacy clause because it reflected a policy
contrary to Congress' view that state actors are liable for money damages when they violate
federal constitutional rights under color of state law./354/ The Court further determined that
merely because the state treated Section 1983 and parallel state law claims equally did not
mean that the law was a neutral rule of judicial administration and therefore a valid excuse for
barring the federal claim from being heard in state court: "[a]lthough the absence of
discrimination is necessary to our finding a state law neutral, it is not sufficient. A jurisdictional
rule cannot be used as a device to undermine federal law, no matter how evenhanded it may
appear."/355/
341. See, e.g., Robb v. Connolly, 111 U.S. 624 (1884); Claflin v. Houseman, 93 U.S.130, 136
(1876). See generally Martin H. Redish & John Muench, Adjudication of Federal Causes of Action
in State Court, 75 Mich. L. Rev. 311 (1976).
342. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 822 (1990). Congress may, of course,
expressly permit state courts to entertain certain federal claims. State courts are authorized to
hear claims arising under the Fair Labor Standards Act, 29 U.S.C. § 216(b), the Equal Pay Act, 29
U.S.C. § 206, the Age Discrimination in Employment Act, 29 U.S.C. § 626(c)(1) and Title VIII
actions involving housing discrimination. 42 U.S.C. § 3613(a). State courts have concurrent
jurisdiction over Title VII claims. Yellow Freight Sys. Inc. v. Donnelly, 494 U.S. 820 (1990).
343. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–78 (1981). Closely related to this
concept is a federal statute's complete preemption of state law causes of action, thereby
effectively vesting the federal court with exclusive jurisdiction over the claim. See, e.g., Aetna
Health Inc. v. Davila, 542 U.S. 200, 209 (2004) (discussing "pre-emptive force" of ERISA and the
Labor Management Relations Act).
344. Id. at 483–84. See also Hathorn v. Lovorn, 457 U.S. 255, 271 (1982) (Rehnquist, J.,
dissenting) (discussing considerations of uniformity, federal expertise, and federal hospitality to
federal claims).
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345. See See 28 U.S.C. §§ 1333-1334, 1338. Congress may also vest exclusive federal
jurisdiction over federal claims in the statute creating the claim. See, e.g., 15 U.S.C. § 78aa
(federal securities law).
346. See, e.g., General Investment Co. v. Lake Shore & M. S. R. Co., 260 U.S. 261, 286-88
(1922).
347. See Haywood v. Drown, 129 S. Ct. 2108, 2111 (2009); Patsy v. Board of Regents of Fla., 457
U.S. 496, 506-07 (1982); Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980).
348. Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).
349. See, e.g., Miles v. FERM Enters. Inc., 29 Wash. App. 61, 627 P.2d 564 (1981); see also
DeHorney v. Bank of America Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 463 (9th Cir. 1989) (state
courts have concurrent jurisdiction over Section 1981 suits); Blount v. Stroud, 904 N.E2d. 1, 232
Ill. 2d 302, 328 (2009) (holding that state circuit courts have jurisdiction to hear 1981
claims); People ex rel. Dep't of Trans. v. Cook Development Co., 274 Ill. App. 3d 175, 185 (Ill App.
Ct. 1st Dist. 1995) (concluding section 1982 actions may be brought against the state); Barber v.
Rancho Mortgage & Investment Corp., 26 Cal. App. 4th 1819, 1833 (Cal. App. 2d Dist. 1994)
(entertaining section 1982 claim in state court for housing discrimination). Cf. Filipino
Accountants Ass’n Inc. v. State Bd. of Accountancy, 204 Cal. Rptr. 913, 915 n.4 (Cal. Ct. App.
1984) (assuming state court jurisdiction over Section 1981 actions); State v. Sebastian, 243
Conn. 115, 160 (Conn. 1997) (suggesting state court's failure to exercise jurisdiction would be a
violation of Indians' rights under section 1981); Collins v. Dep't of Transportation, 208 Ga. App.
53, 56 n.2 (Ga. Ct. App. 1993) (citing section 1981 as an example of state court subject matter
jurisdiction over federal law actions). State courts also consistently exercised jurisdiction over
actions brought under 42 U.S.C. § 1985(3) and alleging conspiracies to deprive individuals of
equal protection of the laws, a result which is not surprising considering the common origin of
Section 1985 and Section 1983 in the Civil Rights Act of 1871. See, e.g., Rajneesh Found. Int’l v.
McGreer, 734 P.2d 871 (Or. 1987) (allowing Section 1985(3) counterclaim). State courts also
assumed the availability of state court jurisdiction over Section 1985(2) claims involving the
administration of justice in state courts. See Rutledge v. Ariz. Bd. of Regents, 711 P.2d 1207
(Ariz. 1985).
350. Howlett v. Rose, 496 U.S. 356 (1990).
351. Id. at 376.
352. But see Nat’l Private Truck Council Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 587 n.4 (1995)
(“We have never held that state courts must entertain § 1983 suits”) (citations omitted).
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353. Haywood v. Drown, 129 S.Ct. 2108 (2009). See also Felder v. Casey, 487 U.S. 131 (1988)
(striking down Wisconsin's notice of claim requirements as applied to § 1983 claims filed in
state court).
354. Id. at 2115.
355. Id. at 2116.
Updated 2010
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3.1 Standing
Updated 2011
Attorneys need to understand the law of standing in order to minimize the likelihood of having
to litigate the issue. Avoiding a standing defense requires a careful selection of plaintiffs,
thoughtful choice of claims and relief sought, and specific allegation of facts in the complaint.
Skillful pleading, therefore, should focus not only on the merits of the claims but also on the
standing of the plaintiffs to advance them. Failure to do so may result in delay of the case at
best, and dismissal of the case at worst.
3.1.A. Overview
The law of standing has its roots in Article III’s case and controversy requirement./1/ The U.S.
Supreme Court has established a three-part test for standing. The “irreducible constitutional
minimum of standing” requires the plaintiff to establish:
First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there
must be a causal connection between the injury and the conduct complained of—the injury has
to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of]
the independent action of some third party not before the court.” Third, it must be “likely,” as
opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”/2/
While the standing test is easily stated, it can be difficult to apply. The Supreme Court has
observed that “[g]eneralizations about standing to sue are largely worthless as such.”/3/
The Supreme Court also imposes “prudential” limitations on standing./4/ These include
limitations on the right of a litigant to raise another person’s legal rights, a rule barring
adjudication of generalized grievances more appropriately addressed legislatively, and the
requirement that a plaintiff’s complaint must fall within the zone of interests protected by the
statute at issue.
The Supreme Court has made it clear that the burden of establishing standing rests on the
plaintiff./5/ At each stage of the litigation—from the initial pleading stage, through summary
judgment, and trial—the plaintiff must carry that burden./6/ Standing must exist on the date
the complaint is filed and throughout the litigation./7/ Moreover, standing cannot be conferred
by agreement and can be challenged at any time in the litigation, including on appeal, by the
defendants or, in some circumstances, by the court sua sponte./8/ Finally, plaintiffs must
demonstrate standing for each claim and each request for relief./9/ There is no “supplemental”
standing: standing to assert one claim does not create standing to assert claims arising from the
same nucleus of operative facts./10/
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In this Chapter, we canvass the important Supreme Court cases on standing and attempt to
extract useful generalizations to employ in practice. A brief caveat is in order. Standing cases
are very fact specific. While the general discussion here may assist you in understanding the
outlines of the standing inquiry, you will need to do specialized research in the area in which
your case arises. Just as important, you must carefully interview your clients and perform other
necessary factual investigation to assess precisely how your client has or will be injured by the
action or policy you contemplate challenging.
3.1.B. The Constitutional and Prudential Requirements of Standing
Inherent in the constitutional limitation of judicial power on cases and controversies is the
requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public
interest law litigation involving claims of non-economic loss has forced the Supreme Court to
craft an analytical framework for determining whether the requisite adversity is present. The
Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause
them an injury in fact to judicially cognizable interests. By establishing that they personally
suffered injury, plaintiffs demonstrate that they are sufficiently associated with the controversy
to be permitted to litigate it. The question of injury raises two questions – (1) what kinds of
injuries count for purposes of standing and (2) how certain the injury must be if it has not yet
occurred.
3.1.B.1. Injury in Fact
The following section discusses several types of injuries considered by the Supreme Court in
the standing analysis.
3.1.B.1.a. Economic Interests
The Supreme Court has had no difficutly determining that economic interests are legally
protected interests./11/ More difficult is determining when economic injury that has yet to
occur is sufficiently imminent and likely to confer standing. The Court has been relatively
forgiving in this regard. Economic injury need not have already occurred but can result from
policies that, for example, are likely to deprive the plaintiff of a competitive advantage or a
bargaining chip./12/ In Clinton v. New York, for instance, the Court held that New York had
standing to challenge the veto of legislation permitting the state to keep disputed Medicaid
funds./13/ The veto left the state’s ability to retain the funds uncertain, subject to the outcome
of a request for a waiver. Despite this uncertainty, the Court regarded the “revival of a
substantial contingent liability” sufficient to confer standing./14/
Noting that states are to be given “special solicitude” in the standing analysis because of their
stake in protecting their “quasi-sovereign” interests, the Supreme Court held that
Massachusetts had demonstrated an economic injury in the recent “global warming” case./15/
Massachusetts, other states, cities and private organizations petitioned the EPA to regulate
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greenhouse gas emissions under the Clean Air Act. The plaintiffs challenged the EPA's
subsequent decision not to do so on the ground that it lacked statutory authority and if it did,
that setting emissions standards at that time was unwise. Relying on declarations by scientists,
the Court held that Massachusetts faced “climate change risks” associated with rising sea levels
which threatened state-owned coastal lands./16/ The Court noted that remediation would cost
hundreds of millions of dollars./17/ As explained below, the Court found these risks to be
sufficiently certain and imminent to support standing.
3.1.B.1.b. Non-economic Interests
Non-economic interests have proven more difficult for the Supreme Court to analyze. Most of
the important cases have arisen in the environmental law context. The Court has recognized
that environmental, recreational, and aesthetic injuries are legally cognizable for standing, but
has had difficulty in defining the circumstances in which such injuries are sufficiently concrete
and imminent to confer standing. Sierra Club v. Morton, for example, arose from a challenge to
a decision by the U.S. Department of the Interior to license the construction of a ski resort./18/
The Club claimed that the license agreement was illegal and asserted standing based upon its
long-standing interest in, and concern for, the protection of the environment and its experience
in environmental litigation. The Club did not plead that it or its members would suffer any
adverse consequence by virtue of the license agreement. Acknowledging that loss of
recreational opportunities or aesthetic enjoyment may be cognizable injuries, the Court held
that the Club failed to plead a particular cognizable injury associated with the agreement, and it
therefore lacked standing to sue. On remand to the district court, the Club amended the
complaint to allege that its members would suffer such injuries and ultimately succeeded in
blocking the development./19/
Sierra Club is significant both for what it permits and what it prohibits. By recognizing that noneconomic injury suffices for injury in fact, Sierra Club loosened the requirement of injury in fact.
By holding that a specialized interest in a particular issue may not give rise to injury sufficient to
challenge unlawful conduct, Sierra Club precluded citizen suits to enforce the law. Subsequent
cases expanded these principles.
United States v. Students Challenging Regulatory Agency Procedures (SCRAP) represents the
high watermark of environmental standing./20/ In SCRAP, the Supreme Court held that a
student organization assembled for the purpose of litigation had standing to challenge the
Interstate Commerce Commission’s approval of increased rail freight rates that would increase
the cost of recycling scrap metal. The students claimed to suffer aesthetic injury when using
parks and to suffer injury when breathing polluted air as a result of less recycling. Even though
the injuries would generally be suffered by virtually everyone and the connection between the
challenged policy and the claimed injuries was highly attenuated, the Court found standing. The
Court, however, has made it subsequently clear that SCRAP lies at the very margin of standing
doctrine, if not beyond./21/
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The Supreme Court recognized the role of carefully pleading injury in Duke Power Co. v.
Carolina Environmental Study Group./22/ Organizations and individuals who lived close to a
planned nuclear power plant challenged the constitutionality of federal legislation capping the
potential liability of a plant operator for a nuclear disaster. Plaintiffs alleged that, absent the
liability cap, the plant could not profitably be built, thereby tying the harm that would result
from construction of the plant to the liability cap. Plaintiffs claimed that use of two local lakes
to produce steam and to cool the reactor would release small amounts of non-natural radiation
and would cause a “sharp increase” in water temperature, which in turn would harm their
interest in the recreational use of the lakes./23/ Relying upon Sierra Club and SCRAP, the Court
held that the injuries were sufficient to confer standing. The Court also held that the plaintiffs
satisfied the causation and redressability requirements for standing, discussed below.
Since Duke Power, the Court has been less receptive to claims of environmental standing. In
Lujan v. National Wildlife Federation, for example, the plaintiffs challenged the Interior
Department’s efforts to review and classify hundreds of parcels of public lands in a manner that
might have resulted in their use for mining./24/ Relying on affidavits, plaintiffs claimed injury to
their recreational and aesthetic enjoyment of lands in the vicinity of public lands that had been
opened to mining and oil and gas leasing claims. The Court rejected standing. The public lands
at issue were massive tracts of land, only a small portion of which were subject to the
challenged decisions. The Court held that an interest in lands that simply lay in the vicinity of
areas subject to development was inadequate.
Similarly, Lujan v. Defenders of Wildlife involved a provision in the Endangered Species Act that
required federal agencies to consult with the Interior Department to make sure that any
programs authorized or funded by the agency do not adversely affect endangered species./25/
In Defenders of Wildlife, plaintiff organizations and individuals challenged an Interior
Department regulation that had the effect of limiting the consultative scope of the Act only to
projects undertaken within the United States rather than abroad as well. Plaintiffs alleged that
reducing this consultative arrangement would increase the rate of extinction of endangered
species overseas. Again, the Supreme Court recognized that a desire to observe animals was a
cognizable interest, but held that plaintiffs failed to demonstrate that they “would thereby be
‘directly’ affected apart from their ‘special interest’ in th[e] subject.”/26/ Affiants claimed only
that they had visited the habitats of endangered species abroad and intended to revisit them.
The Court observed that “[s]uch ‘some day’ intentions—without any description of concrete
plans, or indeed even any specification of when the some day will be—do not support a finding
of the ‘actual or imminent’ injury that our cases require.’”/27/
The Supreme Court’s more recent decision in Friends of the Earth v. Laidlaw Environmental
Services involved standing under the citizen-suit provision of the Clean Water Act./28/ That
provision authorizes the federal courts to hear actions for injunctive relief and civil penalties by
“a person or persons having an interest which is or may be adversely affected.”/29/ Laidlaw
received a permit to discharge certain pollutants into a river but repeatedly exceeded those
limits. South Carolina sued Laidlaw and quickly settled for $100,000 in civil penalties and a
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promise to comply with the permit. Friends of the Earth subsequently filed suit, seeking
additional civil penalties and injunctive relief. The issue before the Court was whether plaintiffs
had standing to seek civil penalties after Laidlaw had indeed complied with the discharge
permit.
The Court held that plaintiffs had established injury in fact and through affidavits and
deposition testimony that detailed their desire to recreate on the nearby river and to enjoy its
aesthetic beauty, but their hesitance to do so because of the pollution./30/ Distinguishing
National Wildlife Federation and Defenders of Wildlife, the Court held that, the affidavits and
testimony presented by FOE members assert that Laidlaw's discharges, and the affiants'
reasonable concerns about the effects of those discharges, directly affected those affiants'
recreational, aesthetic, and economic interests. The court stated that the submissions present
dispositively more than the mere "general averments" and "conclusory allegations" found
inadequate in National Wildlife Federation. Nor, the Court found, can the affiants' conditional
statements -- that they would use the nearby North Tyger River for recreation if Laidlaw were
not discharging pollutants into it -- be equated with the speculative "'some day' intentions" to
visit endangered species halfway around the world that we held insufficient to show injury in
fact in Defenders of Wildlife./31/
Friends of the Earth offers useful guidance to advocates who need to identify potential plaintiffs
and plead their injuries in the complaint or in affidavits. Unlike plaintiffs in National Wildlife
Federation, the Friends of the Earth plaintiffs alleged direct injury from the pollutants in
question to the particular area in which they wished to recreate./32/ Unlike plaintiffs in
Defenders of Wildlife, the plaintiffs in Friends of the Earth alleged that they would use the river
without the discharges, not that they might someday do so./33/ Notwithstanding the Court's
opinion in Earth Island Institute, discussed below, Friends of the Earth suggests that the Court
remains receptive to finding injury in fact in environmental cases where plaintiffs are able to
allege a clear wish to avail themselves of recreational or aesthetic opportunities in a particular,
proximate area, but assert that they had not done so because of reasonable concern of harm.
3.1.B.1.c. Injuries to Statutory Rights
Statutory rights can create the cognizable legal interest required for standing, but Defenders of
Wildlife seemed to place limits on this general principle. A majority of the Court found the
“citizen suit” provision of the Endangered Species Act unconstitutional./34/ The Act permitted
“any person” to obtain judicial review of agency action that is alleged to violate the Act. The
plurality opinion, authored by Justice Scalia, recognized that the Court had frequently held that
“[t]he ... injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the
invasion of which creates standing.’”/35/ However, relying on the line of “generalized
grievance” cases, Justice Scalia stated that Congress could recognize cognizable injuries by
statute but could not dispense with the concrete-injury requirement. Justices Kennedy and
Souter joined this holding, forming a majority, on slightly narrower grounds. They noted that
“Congress must, at the very least, identify the injury it seeks to vindicate and relate the injury to
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the class of persons entitled to bring suit.”/36/ That was something the citizen-suit provision of
the Act failed to do.
In so holding, the Supreme Court did not purport to overturn a line of cases arising under the
Fair Housing Act of 1968./37/ In those cases, the Court held that Congress may create by
statute a right, the deprivation of which constitutes the injury in fact necessary for standing,
even when the plaintiff would have suffered no judicially cognizable injury without the statute.
In Trafficante v. Metropolitan Life Insurance Co., cited with apparent approval in Defenders of
Wildlife, the Court held that Congress created a right to be free from the effects of racially
discriminatory housing practices directed at others./38/ Thus, white residents of an apartment
complex had standing to challenge the exclusion of black rental applicants because they
suffered the loss of the benefits of life in an integrated community./39/ Defenders of Wildlife
would suggest that such antidiscrimination laws can create new cognizable injuries, but that
such statutes can permit only those particularly and concretely suffering such injuries to
enforce these laws./40/ Indeed, acknowledging contrary authority under the Fair Housing Act,
the Supreme Court recently held that the "person aggrieved" right to sue provisions in Title VII
is narrower than Article III standing./40a/ Instead, the Court equated the "person aggrieved"
language should be interpreted similarly to the "zone of interest" test found in APA standing
jurisprudence./40b/
3.1.B.1.d. Procedural Injury
The Supreme Court has addressed an additional form of injury—other than economic,
recreational, and aesthetic injury—of potential value to legal aid attorneys. In Defenders of
Wildlife, plaintiffs sought standing on the ground that the Act in question created a procedural
right in the form of interagency consultation that was allegedly violated. The Court rejected the
view that anyone could have standing to assert this abstract “procedural right.”/41/ The Court
did, however, note that “‘procedural rights’ are special: the person who has been accorded a
procedural right to protect his concrete interest can assert that right without meeting all the
normal standards for redressability and immediacy.”/42/ Plaintiffs have, in short, standing to
challenge the alleged violation of procedures so long as the procedures are designed to protect
some concrete substantive interest of the plaintiff./43/ Otherwise, the claim of standing is
regarded as nothing more than a generalized interest in the government’s compliance with
laws./44/
The Supreme Court's recent decision in Massachusetts v. EPA clearly reinforces, if not expands,
this form of standing./45/ In that case, Massachusetts challenged the EPA’s decision not to
regulate greenhouse gases pursuant to the Clean Air Act, which expressly authorizes challenges
for actions unlawfully withheld. Holding that Massachusetts could advance this challenge
without meeting the ordinary standards for redressability and immediacy, the Court held:
When a litigant is vested with a procedural right, that litigant has standing if there is some
possibility that the requested relief will prompt the injury-causing party to reconsider the
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decision that allegedly harmed the litigant. [Citation omitted]; see also Sugar Cane Growers
Cooperative of Fla. v. Veneman, 289 F. 3d 89, 94, 95 (D.C. 2002) ("A [litigant] who alleges a
deprivation of a procedural protection to which he is entitled never has to prove that if he had
received the procedure the substantive result would have been altered. All that is necessary is to
show that the procedural step was connected to the substantive result.")/46/
3.1.B.2. Actual and Imminent Injury
Once a cognizable injury has been asserted, the Supreme Court has long cautioned that the
injury in fact be "actual and imminent, not conjectural or hypothetical."/47/ Our discussion of
non-economic injuries above describes the Court's approach to this requirement of standing in
several of the earlier cases. The most recent case, Summers v. Earth Island Institute, a closely
divided environmental standing decision, follows the logic of Defenders of Wildlife./48/ In Earth
Island, a number of environmental organizations challenged Forest Service regulations which
exempted small timber salvage sale projects from notice, comment and appeal processes set
forth in a federal statute. The challenge occurred in the context of one particular sale. After
that specific controversy settled, the challenge proceeded generally against the regulations, but
the absence of a particular factual context in which the regulation was applied to a specific
timber sale doomed standing. The affiant asserted plans to visit national forests in the future,
but he failed to allege an intent to visit a particular tract subject to a sale covered by the
regulation. The dissent pointed out that there was a "realistic likelihood" that a member of one
of the plaintiff organizations would visit an affected tract because the Forest Service conceded
that it would engage in thousands of projects exempt from the regulation in the future. The
Court, however, rejected reliance on "probabilistic standing" based on a realistic threat of
harm. Instead, it insisted that organizational plaintiffs use member affidavits to show that they
will imminently use specific tracts./49/ Earth Island presents particular challenges in situations
in which there is a settlement in an action filed by a plaintiff to challenge application of a legal
rule in a particular context as part of a broader effort to overturn the rule generally.
Although the analysis might well have been more forgiving because of its focus on the standing
of state, /50/ the question of "actual and imminent" harm was squarely presented in
Massachusetts v. EPA./51/In Massachusetts, the state alleged injury to its coastline from EPA's
failure to regulate the greenhouse gasses that contribute to global warming. Based on scientific
evidence presented, the Court found support in the plaintiffs' allegations linking greenhouse
gasses to global warming, chiding the dissent as being among the only naysayers on this
point./52/It also credited an affidavit from a scientist explaining that rising seas had already
encroached on Massachusetts coastline./53/A useful lesson from Massachusetts, made even
more clear in Earth Island, is to be prepared for an anticipated motion to dismiss on standing
grounds with credible and detailed affidavits that support allegations made in the Complaint.
3.1.B.3. Distinct and Palpable Injury
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One of the goals of public law litigation is to force the government to comply with the
Constitution and federal statutes. In the absence of more specific injuries, plaintiffs have
claimed that the Constitution confers upon all citizens the right to a lawful government and
upon all federal taxpayers the right not to be taxed to support unlawful governmental activity.
In a largely unbroken line of cases, the Supreme Court has refused to permit litigation of these
so-called citizen or taxpayer suits./54/
In United States v. Richardson/55/ and Schlesinger v. Reservists Committee to Stop the War/56/,
the Court held that injury resulting from the allegedly unlawful expenditure of tax monies did
not confer standing because of the “‘comparatively minute, remote, fluctuating and uncertain’
impact on the taxpayer.”/57/ With respect to the interest of citizens in lawful government, the
Court repeatedly characterized the injury to plaintiffs as citizens as “remote,” “abstract,”
“generalized,” and “undifferentiated,” rather than “concrete.” Because of this, the Court has
held that this “motivation [to enforce the Constitution] is not a substitute for the actual injury”
required for standing./58/
The Court expounded on these principles in Warth v. Seldin, where the Court coined the phrase
“distinct and palpable injury” to capture the requirement that plaintiffs must plead more than a
generalized or undifferentiated grievance against the government./59/ “Distinct” generally
means that the challenged act or policy affects the plaintiff differently from citizens at large.
“Palpable” means that the resulting injury is concrete and not abstract or hypothetical. The
Court explained in Warth that the prohibition against citizen standing and taxpayer standing did
not derive from Article III. Rather, the requirements that a plaintiff suffer a distinct and palpable
injury are “essentially matters of judicial self-governance.”/60/ Thus, while the requirement of
injury in fact is rooted in Article III, the requirement that the injury be distinct and palpable is a
prudential limitation on standing created to effectuate the separation of powers. Because the
requirement is prudential, Congress can dispense with it./61/
Allen v. Wright culminated the demise of both citizen standing and taxpayer standing./62/
Parents of African American public school children, residing in school districts undergoing
desegregation, challenged the Internal Revenue Service’s (IRS) failure to deny tax-exempt
status to discriminatory private schools in their respective districts. Plaintiffs did not allege that
their children wished to attend these private schools. Rather, the parents alleged that
governmental financial assistance to discriminatory schools both harmed them and impaired
their ability to have the public schools desegregated. Treating the claim as an abstract
allegation that the government stigmatized African American citizens by subsidizing race
discrimination, the Court held that the claim did not state a distinct and palpable injury./63/
The Court found that stigmatic injury “accords a basis for standing only to ‘those persons who
are personally denied equal treatment’ by the challenged discriminatory conduct.”/64/
More recently, the Supreme Court returned to the topic, dismissing a case raising what it
regarded as a generalized grievance. In Lance v. Coffman, the Supreme Court found that four
Colorado voters lacked standing to challenge a provision of the Colorado Constitution
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interpreted to permit a redistricting plan, on the grounds that it violated the Elections Clause in
the Federal Constitution. The Court viewed the complaint as only asserting an injury that the
government was not following the law./65/
Nonetheless, the Court has sometimes found standing based upon claims of injury that can be
described only as generalized or abstract. In F.E.C. v. Akins, for example, voters challenged a
decision by the Federal Election Commission that a particular organization was not a “political
committee.”/66/ Political committees must make certain disclosures to the commission; those
disclosures, in turn, may be made public. The Court found that plaintiff voters had standing
because the voters were not afforded access to information that might assist them in casting
their vote, even though all voters could have claimed the same thing./67/ Akins might be
justified on the grounds that the right of information at issue was statutorily created and that a
statute gave “aggrieved” parties a right to challenge the FEC decision. That would put Akins
closer to Trafficante than Defenders of Wildlife, discussed above.
3.1.B.4. Injury Fairly Traceable to the Challenged Conduct
In addition to alleging injury in fact, the plaintiff must demonstrate that the injury is fairly
traceable to the defendant’s unlawful conduct. In cases in which the government acts against
the plaintiff, causation is simple. When, however, governmental action or inaction relates to
third parties or only indirectly affects the plaintiff, the question becomes whether the causal
connection between action and injury is sufficient to confer standing. The Supreme Court has
found standing in some cases notwithstanding an attenuated or uncertain chain of
causation./68/ At the same time, the Court has denied standing in cases in which the chain
seemed both shorter and more certain./69/ The Court’s standing causation jurisprudence has
been markedly inconsistent and offers few lessons for general application.
The Court first articulated the requirements of causation and redressability in Linda R.S. v.
Richard D./70/ Plaintiff, an unmarried mother, sued to compel a local prosecutor to enforce the
state’s criminal nonsupport statute against the father of her child. She asserted that her injury
was the refusal of the child’s father to provide support and claimed the state’s refusal to
enforce the statute against unmarried fathers violated the Equal Protection Clause. The Court
held that the mother lacked standing because she did not show that enforcement or threat of
enforcement of the statute would cause the father to make child support payments.”/71/
There was, in short, an insufficient showing that the state’s enforcement policy was the cause
of her injury: the non-receipt of child support.
In Warth, low-income plaintiffs who wished to reside in Penfield, New York, challenged zoning
restrictions that effectively precluded the construction of low and moderate-income housing
within the city. The Court held that the individual plaintiffs lacked standing because they failed
to “allege facts from which it reasonably could be inferred that, absent the [city’s] restrictive
zoning practices, there is a substantial probability that they would have been able to purchase
or lease in Penfield.”/72/ The ability to purchase a home in Penfield turned on both the
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willingness of the developer to build homes there without the restrictions and the plaintiffs’
financial capability to do so. Both were regarded as too speculative. Because the plaintiffs failed
to establish that city zoning practices caused their injury, they were not allowed to challenge
those practices.
By contrast, the Court later held in Village of Arlington Heights v. Metropolitan Housing
Development Corp. that a developer of low-income housing and one of its putative tenants had
standing to challenge exclusionary zoning practices./73/ The developer had contracted to buy
property contingent upon its rezoning for multiple family use and filed a properly documented
application. When the city denied the application, the developer sued. Although financing for
the project was uncertain, the Court held that the developer had standing to challenge the
city’s action because an injunction would remove a barrier to development./74/ The individual
plaintiff alleged that he would seek and qualify for housing in the proposed development in
order to move closer to his job. Finding that the city’s action frustrated the individual plaintiff’s
specific plan and that an injunction would create at least a “substantial probability” of
development, the Court concluded that he too had standing./75/
Plaintiffs in Arlington Heights overcame standing problems by paying attention to detail. Rather
than mount an abstract challenge to exclusionary zoning practices on behalf of developers who
hoped to develop at some future time and tenants who hoped to rent somewhere, they
identified a developer and an individual with specific injuries more closely traceable to city
action. Because they pled a commitment to act if relief were granted, these plaintiffs also
established a greater likelihood of redressability. By recognizing from the outset the importance
of establishing that exclusionary zoning caused the inability to develop or to rent, they
overcame the Warth obstacle. Arlington Heights represents a wise response to Warth: to
identify with precision the injury and demonstrate the link between the injury and official
action./76/
Simon v. Eastern Kentucky Welfare Rights Organization, in contrast, demonstrates the hazards
of filing a suit without giving due regard to standing./77/ In that case, various individuals and
organizations challenged an IRS Revenue Ruling which permitted some hospitals to deny
admission to non-emergency indigent patients without jeopardizing their tax-exempt status.
Plaintiffs each claimed to have been denied hospital treatment because of their indigence and
asserted that the revised revenue ruling “encouraged” and “was encouraging” the continued
denial of treatment. Plaintiffs pled that each of the hospitals was tax-exempt and received
substantial private contributions.
The Court held that the plaintiffs failed to establish that the denial of treatment was fairly
traceable to the revised revenue ruling. The Court reasoned that, in the absence of evidence,
“[i]t is purely speculative whether the denials of service . . . fairly can be traced to [IRS]
‘encouragement’ or instead result from decisions made by the hospitals without regard to the
tax implications.”/78/ Eastern Kentucky Welfare Rights Organization presented a particular
challenge to the plaintiffs because they needed establish a causal relationship between a policy
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and the actions of a third party. Causation is much easier to show when it turns on the
plaintiffs' own actions or decisions not to act. Friends of the Earth is a good example. The Court
did not require the plaintiffs to demonstrate that particular discharges into a river had caused
them injury or increased their risk of injury. Rather, the Court found it sufficient that the
discharges generally created “reasonable concerns” about their effects and that these concerns
directly and reasonably affected plaintiffs’ recreational and aesthetic interests when plaintiffs
chose not to use the river./79/
The Court's recent decision in Massachusetts v. EPA involved a somewhat different concept of
causation./80/ There, the EPA conceded a causal link between greenhouse gasses and global
warning, but argued that EPA’s failure to regulate new car emissions contributed very little to
the asserted injuries and that regulation would not help global warming because of greenhouse
gas emissions from other countries. The Court held that causation is present even if there is a
tentative or incremental link between the challenged action (or inaction) and asserted
injury./81/ The earlier cases measured causation in terms of the degree to which the link
between conduct and injury was clear or certain. In a sense, causation was clear and certain in
Massachusetts; the issue was, instead, the extent to which the link must be quantitatively
significant. On that point, the Court was rather forgiving, although it suggested that a more
relaxed standard was in order when a state is the plaintiff.
3.1.B.5. Relief Sought to Redress Injury
A corollary to the Supreme Court’s requirement for standing—that the injury alleged be fairly
traceable to the challenged conduct—is the separate requirement that the relief sought must
redress the injury. In the great majority of cases the inquiry into causation and redressability
are indistinguishable. Thus, in Warth the Court held that there was no reason to suppose that
the elimination of exclusionary zoning would enable the plaintiffs to obtain housing in Penfield.
In Eastern Kentucky Welfare Rights Organization, the Court held that there was no reason to
think that revoking the IRS Revenue Ruling at issue would assure the next ill or injured poor
person would be admitted to a hospital. Furthermore, in Allen, the Court held it was entirely
speculative that revoking tax-exempt status for allegedly discriminatory private schools would
serve to foster public school integration. What is peculiar about the Court’s concern for
redressability is the elevation of the question of remedial efficacy to constitutional status.
While the scope of equitable relief to redress unlawful governmental action has long been a
matter of controversy, not until City of Los Angeles v. Lyons did the Court clearly articulate the
requirement of remedial efficacy as a constitutional component of standing./82/ The plaintiff in
Lyons sought damages and injunctive relief after being choked by city police officers. He alleged
that the city permitted the police department to use unnecessary choke holds indiscriminately.
The Court conceded that Lyons had standing to sue for damages./83/ However, the Court held
that he lacked standing to seek injunctive relief. An injunction would not redress his injury
because it was unlikely that he would be arrested and choked again.
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Lyons differs dramatically from Warth and Eastern Kentucky Welfare Rights Organization. In the
earlier cases, the Court’s concern for remedial efficacy was a corollary to the requirement that
the plaintiff establish that the injury was fairly traceable to defendant’s unlawful conduct. If the
causal link between the defendant’s conduct and the plaintiff’s injury was tenuous, then it
followed that injunctive relief against that conduct was unlikely to remedy the injury. Thus, the
requirement of remedial efficacy grew out of the focus upon causation; whenever causation
was in doubt, so too was remedial efficacy.
The notion of uncertainty in redressability arose in a different context in Defenders of Wildlife.
In that case, plaintiffs challenged a regulation that did not require funding agencies to consult
with the government before granting funds to projects that might harm endangered species.
The Court found that plaintiffs had not demonstrated redressability because the funding
agencies were not otherwise bound by any consultation requirement and because the funding
agencies supplied only a small percentage of the financing for certain projects./84/ Even if
those funds were withdrawn, the plaintiffs did not show that the project would be suspended
or cause less harm to the endangered species, a showing that would be formidable, if not
impossible.
The ability of prospective injunctive relief to remedy past wrongs dealt with in Lyons has echoes
in Steel Company v. Citizens for a Better Environment./85/ In Steel Company, plaintiff sued a
manufacturing firm for past violations of a federal statute requiring users of certain toxic and
hazardous chemicals to file forms with the Environmental Protection Agency (EPA) that detail
the name, quantity, and disposal methods of various chemicals. The EPA alerted the firm that it
had failed to file the forms for several years. The firm then did so. Suing the firm for violating
the statute, plaintiff asserted that the company’s failure to file these forms precluded plaintiff
from learning about its operations. Plaintiff sought declaratory, injunctive relief and civil
penalties.
The Court found that plaintiff failed the redressability prong of the standing test. With respect
to injunctive relief, plaintiff sought an order permitting plaintiff to inspect the firm’s facilities
and records and requiring the firm to submit future forms to the EPA. The Court held that such
relief would not redress the injury previously caused when the firm failed to file the forms.
Plaintiff did not allege that such a violation was going to happen again, and, without it, there
was no basis for prospective injunctive relief.
In contrast, the Court’s approach to redressability in Massachusetts v. EPA was somewhat
more forgiving./86/ There, the Court emphasized that the relief requested need not remedy
the entire injury suffered by the plaintiff; regulation of greenhouse gas emissions from new cars
will not solve the global warming problem./87/ The Court, though, seized on EPA statements
underscoring the need to address the problem, including voluntary measures. These
statements suggested EPA’s recognition that some regulation must offer some prospect for at
least slowing global warming. Holding that the redressability prong can be satisfied even if
relief only promises modest reductions in remote risk, the Court held that:
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In sum —at least according to petitioners’ uncontested affidavits—the rise in sea levels
associated with global warming has already harmed and will continue to harm Massachusetts.
The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to
some extent if petitioners received the relief they seek./88/
The clear message of Lyons and Steel Company is to choose plaintiffs with care and, whenever
possible, to choose plaintiffs who have suffered recurrent application of the practice or policy
at issue. In preparing a claim seeking injunctive relief based upon past conduct, the attorney
must therefore articulate in the complaint the reasons why the risk of recurrence is more than
speculative. When the acts or omissions promise to continue into the future, the less
demanding perspective of Massachusetts offers potentially valuable support for creative
redressability arguments./89/
R econciling these standing cases is not realistically possible. However, the Court seems far
more likely to find standing in cases pursuant to a specific federal statute which
reflected Congress' intent and desire for judicial intervention./90/ Such statutes evidence a
legislative judgment that certain classes of plaintiffs suffer injury in fact when the statute is
violated, that the violation causes the injury, and that such injury is redressable by the statutory
remedies provided. These statutes also explicitly reflect Congress’ desire that courts intervene
to resolve disputes arising from the statutes. As the Court recently put it, “Congress [can]
define new legal rights, which in turn will confer standing to vindicate an injury caused to the
claimant.”/91/ With the exception of Defenders of Wildlife, the Court found standing in each
case arising from such statutes. When, however, the action does not arise from such statutes
and there is no explicit legislative mandate for intervention, the Court takes a much narrower
view of standing. This is particularly true in cases, often involving constitutional questions, that
pose challenges to the judicial function when standards of decision are not readily available or
discernible./92/
3.1.C. Associational Standing
Groups may have standing in a representative capacity, in an individual capacity, or in both. A
group has standing in a representative capacity when it represents the rights of its members.
Such standing is an exception to the general prohibition on third-party standing. An association
has standing in an individual capacity (or qua group) when it asserts its own rights as an
organization.
3.1.C.1. Representative Capacity
The leading case articulating the standing requirements for groups that sue in a representative
capacity is Hunt v. Washington Apple Advertising Commission./93/ The Court stated in Hunt:
Thus we have recognized that an association has standing to bring suit on behalf of its members
when:
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(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit./94/
The first prong of the Hunt test establishes a traditional standing inquiry grounded in Article III’s
case or controversy requirement. The second prong is also constitutionally based and is
designed to ensure that the association has both a concrete stake in the outcome of the
litigation and will approach it with adversarial vigor. In contrast, the Supreme Court has ruled
that the third prong is a prudential limitation in the same sense as is third-party standing (see
infra)./95/
With respect to the first element, when an organization asserts standing in a representative
capacity, Hunt does not require the organization to allege that it has suffered any injury.
Rather, the organization must establish that those whom it represents have suffered an injury
sufficient to confer standing./96/ The organization need not establish that a substantial number
of its members have suffered injury. Injury to a single member will do./97/ However, that
member must be specifically identified. In Earth Island Institute, the Supreme Court rejected
the sufficiency for standing purposes of an assertion that some members of a large
membership organization probably will experience harm./98/
An issue commonly litigated relating to the first prong is whether the plaintiff is the sort of
association entitled to avail itself of associational standing. Voluntary membership
organizations, such as trade organizations, plainly qualify./99/ Organizations whose members
are compelled to join, such as some trade unions and bar associations, may qualify as
well./100/ Matters become more difficult when the association is not a traditional membership
organization. The association may have standing if the association is “the functional equivalent
of a traditional membership organization.”/101/ That is, if the individuals in the organization
select its leaders, guide its activities, and finance its efforts, the association may have
standing./102/ If not, the association lacks standing./103/
Second, Hunt also requires some community of interest between the group and the injured
member. By requiring the interests that the suit seeks to protect to be germane to the
organization’s purpose, Hunt limits the capacity of groups to define their purpose in terms
sufficiently broad to permit the group to represent whoever’s interests happen to suit it at a
given moment./104/ This requirement has been described as “undemanding.”/105/
Third, Hunt permits representative standing only when neither the claim nor the relief sought
require the participation of an injured individual. This element is typically satisfied when the
plaintiff association seeks injunctive or declaratory relief generally benefiting the association
and its members,/106/ even when there is a need for some association members to participate
in fact discovery or at trial./107/ The application of the third prong in cases with a conflict
among an association’s membership resulted in an interesting split in the circuits./108/ Unless
Congress eliminates the third element of the Hunt test by statutorily authorizing suit for
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damages,/109/ associational claims for damages run afoul of this third prong because the
claims require individualized proof of damage and representative standing is therefore
inappropriate./110/ Because Hunt vests trial courts with some discretion in resolving claims of
associational standing, the better practice when group standing appears tenuous is to join at
least one named individual as plaintiff in litigation brought by a group asserting associational
standing. The presence of an individual with standing should discourage the court—and
opposing counsel—from delving deeply into the question of the group’s associational standing.
3.1.C.2. Advantages and Disadvantages of Associational Standing
Given that a group asserting representative standing will fare no better than its individual
members in establishing the requisite injury, one can fairly ask why associational standing is
worth pursuing. The principal advantage of group standing lies in its use to obtain the benefits
of a class action without the bother of class certification. Those benefits include the
opportunity to obtain a judgment in favor of everyone adversely affected and to avoid
mootness.
Including a representative organization as a plaintiff may justify broader relief than would
otherwise be available in a single plaintiff action. It also may avoid mootness questions tied to
the passing stake in the controversy of individual members. Representative claims thereby
effectively shift the case and controversy focus from whether a particular individual has a live
claim to whether any group member has a live claim. In this sense, representative standing
resembles a class action without the problems posed by the requirement of class certification.
Indeed, the Supreme Court recognized the propriety of representative group standing as an
appropriate alternative to class action litigation for injunctive relief in International Union,
United Automobile, Aerospace and Agricultural Workers./111/ In that case, the government
argued that the Court should modify Hunt to require representative groups to proceed under
Rule 23. Rejecting that argument, the Court reaffirmed Hunt. Representative groups, the Court
held, may be superior to an “ad hoc union of injured plaintiffs” proceeding as a class
action./112/ Because associations are often borne of a desire to vindicate common interests,
they are likely to be adequate representatives of their members and “can draw upon a
preexisting reservoir of expertise and capital.”/113/ The Court’s reaffirmation of associational
standing suggests the potential value of such standing as an alternative to the vagaries of class
certification.
Representative group standing also may enable an individual member who does not wish to
appear as a named plaintiff, or does not have the resources to do so, to avoid direct
participation in the lawsuit. For a variety of reasons, some individuals are reluctant to sue in
their own name. However, their membership in a group can confer representative standing on
the group. On the other hand, damages are not available in cases involving associational
standing.
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An organization may also see representative group standing as a device to strengthen the
organization within a community./114/ By appearing as the lead plaintiff in a major lawsuit, the
group acquires visibility; when it wins, it acquires clout. While these considerations may appear
irrelevant to the development of a successful lawsuit, they may matter greatly to a fledgling
organization.
3.1.C.3. Organizational Standing
An organization that suffers injury in its own right—rather than, or in addition to, an injury to
the rights of its members—has individual standing as a group./115/ When the group asserts an
injury to its own interests, the group has standing qua group, irrespective of any injury to
members./116/ Thus, a group that suffers or will suffer economic harm,/117/ or diminution in
membership attributable to unlawful conduct, has an individual injury sufficient to confer
standing./118/ So would an organization claiming that an agency violated its statutory right to
information./119/ However, the facts relating to this harm are subject to discovery./120/ Prior
to litigation, prospective organizational plaintiffs should be advised to keep careful records of
membership loss or diversion of resources./121/
Only in limited circumstances, absent economic harm or diminution in membership, do courts
uphold the assertion of standing for groups that suffer an injury to their organizational
goals./122/ While Havens Realty and Arlington Heights, discussed above, expand marginally the
opportunity for an organization to establish individual standing based upon injury to its noneconomic agenda, they do not undermine Sierra Club, Schlesinger and Allen v. Wright, all of
which prohibit standing based upon a general injury to a group’s ideological interests./123/
Thus, group standing deriving from injury to the group’s non-economic interests offers only
limited possibilities for litigation.
In structuring a claim by a group suing qua group, every effort should be made to identify and
plead some kind of economic harm or threat to membership flowing from the challenged
conduct. Because combining individual group standing with associational group standing
increases the likelihood of success in establishing standing, a group asserting injury to its own
interests should, whenever possible, also plead representative standing.
3.1.D. Prudential Limitations on Standing
As a matter of judicial self-governance, the Court has also held that prudential considerations
counsel against standing even in cases in which the Article III case or controversy requirement
has been satisfied. These considerations are motivated by the Court’s reluctance to decide
matters of national significance that it regards as being more appropriately resolved by other
branches of government and unlikely to protect the interests presented./124/ The Court has
identified three prudential doctrines: (1) the limitation on taxpayer or generalized grievance
standing, discussed above, (2) the zone of interests test and (3) limitations on third-party
standing.
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3.1.D.1. The Zone-of-Interests Test
Beginning in Association of Data Processing Service Organizations Inc. v. Camp/125/, the Court
has required that plaintiffs establish that their grievance “must arguably fall within the zone of
interests protected or regulated by the statutory provision or constitutional guarantee invoked
in the suit.”/126/ This prudential limitation on standing is “founded in concern about the
proper—and properly limited—role of the courts in a democratic society.”/127/ The limitation
may be set aside by Congress./128/ The zone-of-interests test originally arose from an
interpretation of the standing provision in the Administrative Procedure Act./129/ The Court,
however, has expanded it to apply to any provision of law./130/
In Block v. Community Nutrition Institute, the Court suggested a liberal standard for applying
the zone-of-interests test./131/ A plaintiff fails the test when there is express legislative intent
to preclude review./132/ The presumption is in favor of judicial review, which may be
overcome only by clear and convincing evidence found in the legislative scheme./133/
Subsequently, the Court expressly stated that the zone-of-interest test “is not meant to be
especially demanding,” precluding standing only when “the plaintiff’s interests are so
marginally related to or inconsistent with the purposes implicit in the statute that it cannot be
assumed that Congress intended to permit the suit.”/134/
The Court has more recently continued to adhere to a relaxed interpretation of the zone-ofinterests test. In National Credit Union Administration v. First National Bank and Trust Co., for
example, the Court allowed a competing bank to challenge an order which was issued by the
National Credit Union Administration and enlarged the charter of a credit union./135/ The
Court reasoned that the underlying Act’s purpose was to limit the scope of memberships in
credit unions—an interest shared by competing banks. Nonetheless, the Court has applied the
test to deny standing. In Air Courier Conference v. American Postal Workers Union, the Court
held that the postal worker’s union did not have standing to challenge the suspension of the
monopoly over extremely urgent letters under the Postal Express Statutes, noting that those
statutes were not intended to protect jobs./136/
3.1.D.2. Third Party Standing
Third-party standing issues arise when a party seeks relief by asserting the rights of third parties
not before the court. Generally, parties may seek only to vindicate their own legal rights rather
than those of others./137/ The presumption against third-party or jus tertii standing rests on
prudential principles rather than an application of Article III limitations on standing./138/ Those
prudential limitations, in turn, are grounded upon concerns that third parties may not wish to
have their rights asserted, that parties are less likely to advocate vigorously the rights of others,
and that the quality of judicial decision making may suffer when concrete evidence of harm is
not presented by those suffering it./139/ The Supreme Court has generally permitted thirdparty standing in cases when enforcement of the challenged law or conduct affects third parties
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indirectly, but has been somewhat less willing to sanction use of third-party standing in other
contexts./140/
The Court developed a three-part test, each prong of which must be satisfied in order to bring
third-party claims: “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a
‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a
close relationship to the third party; and there must exist some hindrance to the third party’s
ability to protect his or her own interests.”/141/ As this test has been applied, however, the
Court has found standing even in cases in which the second or third prong has not been clearly
established.
The first prong of the test has been rigorously enforced. The plaintiff must satisfy traditional
constitutional standing requirements; the challenged law or conduct must injure the party in
order for that party to assert the rights or interests of third parties. These requirements have
been found to be satisfied when, for example, the plaintiff challenges laws that cause it
economic harm,/142/ or a criminal defendant challenges jury selection procedures./143/
With respect to the second prong, the Supreme Court has not articulated specific standards for
the degree of the closeness of the relationship between the plaintiff and the third party whose
rights are asserted, or the nature of the relationship which satisfies this criterion. Nonetheless,
a number of cases offer significant guidance.
In Singleton v. Wulff, a leading case in this area, the Supreme Court held that a physician had
standing to assert the rights of patients in challenging a state statute limiting Medicaid-covered
abortions. The Court noted the close relationship between doctor and patient and stated that
the relationship was directly implicated by the law challenged. Similarly, the Court permitted an
attorney to challenge a statute limiting the ability to recover attorney fees in black lung benefit
cases on the ground that the statute violated his client’s due process right to legal
representation./144/ In so doing, the Court observed that third-party standing was appropriate
in cases in which the limitation or restriction challenged by the plaintiff prevented the third
party from establishing a lawful relationship with the plaintiff./145/
This notion explains a number of cases in which the Court held that suppliers of products may
challenge restrictions on sales by asserting the rights of customers to obtain the product. In
Craig v. Boren, for example, a seller of beer was permitted to challenge on equal protection
grounds an Oklahoma law that prohibited sales of 3.2 percent beer to men under 21, while
allowing the sale to women aged 18 to21./146/ While the relationship between a tavern and
customers seems more tenuous than that between a doctor and patient or an attorney and
client, the Court justified its holding on the ground that the seller “is entitled to assert those
concomitant rights of third parties that would be ‘diluted or adversely affected’ should her
constitutional challenge fail and the statutes remain in force.”/147/ Similarly, the Court has
permitted booksellers to assert the First Amendment rights of book buyers/148/ and sellers of
contraceptives to assert the privacy rights of customers./149/
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With respect to the third prong of the test, the Supreme Court frequently permits third-party
standing when the third party is unlikely to assert its own interests. Most recently, the Court
permitted third-party standing in jury selection cases. In Powers v. Ohio, a white criminal
defendant appealed his conviction on the ground that the prosecutor’s use of peremptory
challenges violated the equal protection rights of prospective African American jurors./150/
The Court first found that discriminatory use of peremptory challenges caused the defendant
injury in fact, regardless of race, because such use called into question the fairness of the
trial./151/ Second, the Court held that the connection between the defendant and excluded
jurors was “as close as, if not closer than” those in cases such as Triplett because “[v]oir dire
permits a party to establish a relation, if not a bond of trust, with the jurors.”/152/ Somewhat
more convincingly, the Court further noted that the defendant was likely to advocate vigorously
on behalf of the excluded jurors in order to secure a reversal of his conviction./153/ The Court
held that excluded jurors were unlikely to challenge their exclusion since the costs were high
and potential benefits low, but that, even if they did, they would be unable to obtain
declaratory or injunctive relief./154/ The Powers rationale has been extended to civil
cases/155/ and challenges to the selection of grand jurors./156/
The question of barriers to third parties enforcing their own rights has also featured
prominently in cases involving unlawful racial covenants and the distribution of contraceptives.
In Barrows v. Jackson, for example, whites who sued for violating racially restrictive covenants
in their deeds were permitted to assert the equal protection rights of African Americans, who
could not sue as they were not parties to the covenant./157/ In Eisenstadt v. Baird, a doctor
who was prosecuted for distributing contraceptives to unmarried persons was permitted to
assert the rights of such persons./158/ Such persons were not subject to prosecution and were
thereby “denied a forum in which to assert their own rights.”/159/
At the same time, one can imagine scenarios in which young males interested in buying 3.2
percent beer, Medicaid beneficiaries, individuals wishing to obtain contraceptives, and African
Americans seeking to purchase property encumbered by a racially restrictive covenant could
assert their rights in litigation that they would initiate. This suggests a reasonably relaxed
approach to the third prong of the test. However, this may be more reflective of the Court’s
more generally forgiving approach to standing in the 1970s. The more recent cases in the jury
selection area did not raise significant third-prong problems. However, the Court’s most recent
third-party standing case struck a more cautionary note, focusing more on legal barriers to
third-parties bringing claims than their likelihood of success in doing so. In Kowalski v. Tesmer,
the Court held that pro se criminal defendants who plead guilty were not hindered in
challenging a state statute forbidding the appointment of appellate counsel./160/
At least two justices have suggested that the Supreme Court revisit and clarify the law of thirdparty standing. In Miller v. Albright, a woman born abroad and out of wedlock to an American
father and a foreign mother challenged, along with her father, a provision in the Immigration
and Nationality Act that created different citizenship requirements for those born abroad of an
alien father and American mother as opposed to those born abroad to an alien mother and
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American father./161/ The lawsuit asserted that the father’s equal protection rights were
violated. Nonetheless, the district court dismissed the father’s claim for lack of standing. The
father did not appeal.
Citing only Craig, the plurality opinion written by Justice Stevens and joined by Chief Justice
Rehnquist held that third-party standing was appropriate. Addressing the issue in more detail,
Justice Breyer, on behalf of Justices Souter and Ginsburg, who dissented on other grounds,
agreed. Justice O’Connor, joined by Justice Kennedy, would have denied third-party standing on
the ground that the father did not face sufficient barriers to asserting his own rights. Justices
Scalia and Thomas expressed agreement with Justice O’Connor, but cited Craig to suggest that
the third prong of the test was not especially demanding. Justice Scalia concluded that “[o]ur
law on this subject is in need of what may charitably be called clarification.”/162/
The most sensible approach to litigation in the face of uncertainty is to avoid third-party
standing problems by joining appropriate additional plaintiffs. Creating a complex and
unnecessary obstacle to the assertion of a claim by attempting to have one plaintiff assert the
rights of others makes no sense. Simply join representative individuals whose rights are at issue
as named plaintiffs.
Third-party standing rules are more clearly developed in the context of overbreadth claims. The
prototypical overbreadth claim arises when regulation of activity protected by the First
Amendment is challenged on the ground that the regulation sweeps substantial protected as
well as unprotected conduct or expression within its prohibition. When plaintiff is engaging in
expression clearly subject to permissible regulation under a properly drawn restraint, the
overbreadth challenge raises third-party standing issues.
The leading case is Secretary of State of Maryland v. Joseph H. Munson Co./163/ The Court held
that a plaintiff invoking third-party standing in an overbreadth case must establish only that he
had suffered injury in fact and that he would adequately frame the issues./164/ To
demonstrate injury in fact in an overbreadth case, the plaintiff must demonstrate “a genuine
threat of enforcement” of the statute against his future activities./165/ Underlying the special
third-party standing rule for overbreadth cases is the risk that the absent party whose rights are
at issue may refrain from the protected activity rather than sue to vindicate First Amendment
rights. Should that happen, society loses the views of those who are silenced.
______________________________________________________________________________
___
1. Summers v. Earth Island Institute, 129 S.Ct. 1142, 1148-49 (2009); DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 340-41 (2006).
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2. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers, 129 S.Ct. at
1149.
3. Ass’n of Data Processing Serv. Org. Inc., v. Camp, 397 U.S. 150, 151 (1970).
4. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (relying on principles of
prudential standing to deny standing to a student’s father who sought to challenge the
requirement that his daughter recite the Pledge of Allegiance, when the father’s right to act on
his daughter’s behalf was founded on disputed issues of state family law).
5. DaimlerChrysler Corp., 547 U.S. at 342, n.3; FW/PBS Inc. v. Dallas, 493 U.S. 215, 231 (1990).
6. Defenders of Wildlife, 504 U.S. at 561.
7. Davis v. F.E.C., 128 S.Ct. 2759, 2768 (2008).
8. While the Supreme Court reviews standing sua sponte “where [it] [has been erroneously
assumed below,” it does not examine standing “simply to reach an issue for which standing has
been denied below. …”, a conclusion not challenged in the appellant’s petition for
certiorari. Adarand Constructors Inc. v. Mineta, 534 U.S. 103, 110 (2001). By contrast, courts of
appeal are obliged to examine standing under all circumstances. See, e.g., Wyo. Outdoor
Council v. U.S. Forest Serv., 165 F.3d 43, 47 (D.C. Cir. 1999).
9. Davis, 128 S.Ct. at 2769; City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
10. DaimlerChrysler, 547 U.S. at 353.
11. Clinton v. New York, 524 U.S. 417, 432 (1998). See also Vt. Agency of Natural Resources v.
U.S., 529 U.S. 765 (2000) (relator in qui tam action has standing to challenge injury suffered by
government because Congress assigned relator an entitlement to a percentage of any monetary
recovery).
12. Clinton, 524 U.S. at 432-34 (finding cooperative has standing to challenge veto of tax benefit
enacted to foster ability to purchase processing plants); Ass’n of Data Processing Serv. Org. v.
Camp, 397 U.S. 150, 154-56 (1970) (data processing service providers have standing to
challenge decision to permit banks to provide such services to other banks)
13. Clinton, 524 U.S. at 432-33.
14. Id. at 431.
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15. Massachusetts v. EPA, 549 U.S. 497, 520 (2007).
16. Id. at 522.
17. Id. at 523.
18. Sierra Club v. Morton, 405 U.S. 727 (1972).
19. See Sierra Club v. Morton, 348 F. Supp. 219 (N.D. Cal. 1972).
20. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669
(1973).
21. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990).
22. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978).
23. Id. at 73. The Supreme Court suggested that the threat of a core meltdown and the present
consequences in terms of personal anxiety and decreased property values of that threat were
too speculative to confer standing.
24. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990).
25. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
26. Id. at 563 (citations omitted).
27. Id. at 564. The Supreme Court also disposed of alternative theories asserting standing by
those who use any part of a “contiguous ecosystem,” by those interested in seeing endangered
animals, and by those with a professional interest in animals. Id. at 565-66.
28. Friends of the Earth v. Laidlaw Envtl Serv., 528 U.S. 167 (2000).
29. Friends of the Earth, 528 U.S. at 174, quoting Clean Water Act, 33 U.S.C. § 1365(a), (g). Even
the dissent declined to conclude that this statute was unconstitutional in the sense that the
citizen-suit provision in the Endangered Species Act was in Defenders of Wildlife.
30. Id. at 183.
31. Id. at 183-84 (citations omitted).
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32. Friends of the Earth, 528 U.S. at 183-84.
33. Id. at 184.
34. Defenders of Wildlife, 504 U.S. at 576-78.
35. Id. at 578 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
36. Id. at 580.
37. Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3612 .
38. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972).
39. Id. at 208. Following Trafficante, the Supreme Court later held that cities and homeowners
had standing to challenge racial steering practices (Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 109-15 (1979)) and that “testers,” individuals posing as prospective buyers or
renters, had standing to sue for racially motivated misrepresentations that housing was
unavailable. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372-75 (1982).
40. Cf. Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 773 (2000) (concluding that
realtor has standing under False Claims Act as the Act may be regarded as partially assigning the
United States’ damage claims to third parties). For an interesting recent case holding that
emotional injury is not cognizable for standing, over a spirited dissent, see Chaplaincy of Full
Gospel Churches v. Navy, 534 F.3d 756 (D.C. Cir. 2008).
40a. Thompson v. North American Stainless, 131 S.Ct. 863, 869-70 (2011).
40b. Id. at 870 (employee fired after his fiancee filed an EEO claim can sue for retaliation under
Title VII).
41. Defenders of Wildlife, 504 U.S. at 572.
42. Id. at 573 n.7. The example used by the Supreme Court involved one who was living next to
a proposed dam and had standing to challenge the failure to prepare an environmental impact
statement even though there was no guarantee that such a statement would result in the dam
not being built. See also Earth Island Institute, 129 S.Ct. at 1151.
43. Defenders of Wildlife, 504 U.S. at 573 n.8; Earth Island Institute, 129 S.Ct. at 1151. Compare
Ctr. for Biological Diversity v. Dep't of Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (finding
standing) with Ctr. for Law and Educ. v. Dept. of Educ., 396 F.3d 1152 (D.C. Cir. 2005) (rejecting
Page 113 of 559
standing). Courts of appeal decisions applying “procedural rights” standing include
Wyo. Outdoor Council, 165 F.3d at 51 (holding that plaintiff may sue for the denial of procedural
rights in the Forest Service’s grant of authority to drill on federal lands even though there was
“no certainty” that the drilling would take place); Moreau v. F.E.R.C., 982 F.2d 556, 564 (D.C.
Cir. 1993) (plaintiffs had standing to contest the agency’s failure to give them notice of
proceedings and to hold an evidentiary hearing regarding the construction of a natural gas
pipeline notwithstanding the plaintiffs’ failure to show that such pre-deprivation safeguards
would have changed the outcome); see also Salmon Spawning and Recovery Alliance v.
Gutierrez, 545 F.3d 1220 (9th Cir. 2008); Defenders of Wildlife v. EPA, 420 F.3d 946, 957-58 (9th
Cir. 2005); Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 446-47 (9th Cir. 1994); Fla.
Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996); Banks v. Sec’y. of Ind. Family & Soc.
Serv. Admin., 997 F.2d 231, 238-39 (7th Cir. 1993) (plaintiffs eligible for Medicaid have standing
to challenge Medicaid agency’s failure to give notice and hearing before denying
reimbursement claims).
44. See, e.g. Bensman v. U.S. Forest Serv., 408 F.3d 945 (7th Cir. 2005) (rejecting, in Appeals
Reform Act case, informational injury as a sufficient substantive interest to warrant procedural
injury standing).
45. Massachusetts v. EPA, 549 U.S. 497 (2007).
46. Id. at 517-18.
47. Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009).
48. Earth Island Institute, 129 S.Ct. 1142 (2009).
49. Id. at 1152-53.
50. See Ctr. for Biological Diversity v. United States Dept. of Interior, 563 F.3d 466, 476-77 (D.C.
Cir. 2009) (rejecting traditional standing in challenge to approval of offshore oil and gas leasing
for failure to account to climate change on Outer Continental Shelf areas).
51. Massachusetts v. EPA, 549 U.S. 497 (2007).
52. Id. at 523 n.21.
53. Id. at 522.
54. The most recent Supreme Court case on this point is DaimlerChrysler Corp., 547 U.S. at 34146, in which the Court rejected state and municipal taxpayer standing for the same reasons that
Page 114 of 559
it had done so in prior federal taxpayer standing cases. The only area in which the Supreme
Court has approved of taxpayer standing is in certain suits challenging spending on grounds that
it violates the Establishment Clause. Flast v. Cohen, 392 U.S. 83 (1968), which established this
exception has between frequently distinguished and narrowed. See Ariz. Christian Sch. Tuition
Org. v. Winn, 2011 U.S. LEXIS 2612 (U.S. Apr. 4, 2011) (Arizona taxpayers have no standing to
challenge law permitting tax credits for contributions to organziations which provide
scholarships to students attending private and parochial schools, distinguishing tax credits from
government expenditures); Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007)
(finding taxpayers have no standing to challenge conferences sponsored by the President's
Faith-Based and Community Initiatives Centers because those offices were funded from general
Executive Branch appropriations, distinguishing Flast v. Cohen, 392 U.S. 83 (1968), in which
plaintiffs challenged the distribution of funds to religious schools pursuant to Congressional
spending power legislation); Bowen v. Kendrick, 487 U.S. 589 (1988); Grand Rapids Sch. Dist. v.
Ball, 473 U.S. 373 (1985), overruled in part on other grounds by Agostini v. Felton, 521 U.S. 203
(1997); Flast v. Cohen, 392 U.S. 83 (1968). In DaimlerChrysler, the Court expressly refused to
expand this exception to Commerce Clause challenges to state tax or spending
decisions. DaimlerChrysler, 547 U.S. at 347-48.
55. United States v. Richardson, 418 U.S. 166 (1974).
56. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).
57. Richardson, 418 U.S. at 172.
58. Schlesinger, 418 U.S. at 226.
59. Warth v. Seldin, 422 U.S. 490 (1975).
60. Id. at 500.
61. See, e.g., Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997).
62. Allen v. Wright, 468 U.S. 737 (1984).
63. Id. at 753-59. The Supreme Court found that the latter claim stated a cognizable injury – a
reduced ability to receive an integrated education. However, the Court held that the plaintiffs
failed to show that revocation of tax exemption of discriminatory private schools would
enhance the cause of integration. Such a showing required several layers of speculation: how
many schools actually received favorable tax treatment, the extent to which they discriminated,
whether they would change any policies if their tax exempt status were revoked, whether white
parents would leave the school if the school changed its policies, and whether sufficient
Page 115 of 559
numbers of white students would leave and attend public schools to meaningfully alter the
racial balance.
64. Id. at 755.
65. Lance v. Coffman, 549 U.S. 437 (2007) (per curiam).
66. F.E.C. v. Akins, 524 U.S. 11 (1998).
67. Massachusetts v. EPA presented a similar issue: everyone is affected by global warming. The
Court, however, held that just because climate risks are "widely shared" does not minimize
Massachusetts' interest in the litigation. Massachusetts, 549 U.S. at 522 (citing Akins). For
similar cases, see Heckler v. Mathews, 465 U.S. 728, 739 (1984) (men have standing to challenge
constitutionality of social security statute that treated men and women differently even though
prevailing could not possibly help them); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74
(1982) (tester has standing to challenge discrimination). For an explanation why the Supreme
Court finds standing in some cases presenting generalized grievances and not others, see
Richard Pierce, Administrative Law Treatise § 16.4 at 1152-53 (5th ed. 2010).
68. Duke Power Co., 438 U.S. at 59; SCRAP, 412 U.S. at 669. See also Bryant v. Yellen, 447 U.S.
352 (1980).
69. Professor Pierce opines that these cases reflect the Supreme Court’s use of causation to
preclude review of cases that pose difficult justiciability issues on other
grounds. Pierce, supra note 67, § 16.5 at 1165-66.
70. Linda R.S. v. Richard D., 410 U.S. 614 (1973).
71. Id. at 618.
72. Warth v. Seldin, 422 U.S. 490, 504 (1975).
73. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
74. Id. at 261-62.
75. Id. at 264.
76. Environmental litigants in Duke Power Co., 438 U.S. at 59, also overcame Warth’s stringent
causation requirement. By introducing the testimony of industry representatives before
congressional committees expressing their unwillingness to develop nuclear power without a
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liability cap, plaintiffs established that, but for the cap, the plants would likely not be built.
When the utility company asserted it could proceed without the cap, plaintiffs introduced the
company’s letter to Congress, which said that its suppliers and contractors would not proceed
without the cap. Thus, plaintiffs demonstrated that the cap caused the aesthetic injuries of
which they complained.
77. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).
78. Id. at 42-43.
79. Friends of the Earth v. Laidlaw Envtl. Serv., 528 U.S. 167, 183. In an interesting ADA case, the
Ninth Circuit held that a plaintiff who resided several hundred miles from a convenience store,
but who intended to return to the store when it became accessible had standing. Doran v. 7Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008).
80. Massachusetts v. EPA, 549 U.S. 497 (2007).
81 Id. at 523.
82. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
83. While Lyons and its progeny do not bar damage claims, those claims frequently are of only
uncertain value. Individual defendants assert the defense of qualified immunity, state agencies
assert immunity under the Eleventh Amendment, and local governmental bodies assert that the
challenged action is not attributable to the governmental body. See generally the discussion of
immunities and municipal liability in Chapter 8 of this MANUAL.
84. Lujan v. Defenders of Wildlife, 504 U.S. 555, 568-71 (1992).
85. Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83 (1998).
86. Massachusetts v. EPA, 549 U.S. 497 (2007). Again, caution is warranted because the
apparently unique standing analysis applicable when states are plaintiffs.
87. Id. at 546.
88. Id.
89. With regard to redressability, the Court rejected the notion that plaintiffs lacked standing to
seek a civil money penalty simply because the penalty was to be paid to the government rather
than to them. The Court deferred to Congress’ judgment that civil penalties deter unlawful
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conduct. Because civil penalties were seen as "likely" to discourage violators from continuing
their misconduct and deter future violations, plaintiffs would achieve redress even though they
would not pocket the money.
90. Pierce, supra note 67, §16.7. See also Akins, Havens Realty, and Trafficante, discussed infra.
91. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000).
92. Pierce, supra note 67 , § 16.7. This may explain cases like Warth, Eastern Kentucky, Linda
R.S., Allen, and certain taxpayer standing cases.
93. Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (1977).
94. Id. at 343. See also Friends of the Earth, 528 U.S. at 181 (association successfully
demonstrates standing of members through declarations).
95. United Food & Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 556-57 (1996)
(holding that the prong “may guard against the hazard of litigating a case to the damages stage
only to find plaintiff lacking detailed records or the evidence necessary to show the harm with
sufficient specificity. And it may hedge against any risk that the damages recovered by the
association will fail to find their way into the pockets of the members on whose behalf injury is
claimed”).
96. See, e.g., Ne. Fla. Chapter v. City of Jacksonville, 508 U.S. 656, 666 (1993) (injury-in-fact
requirement in equal protection case does not require plaintiff to prove that she would have
obtained benefit in absence of challenged barrier).
97. United Food & Commercial Workers, 517 U.S. at 555; ACLU of Ohio Found. v. Ashbrook, 375
F.3d 484, 489-90 (6th Cir. 2004) (identifying single member who appeared in a courthouse to
challenge display there on Establishment Clause grounds); Consumer Fed. of America v. FCC,
348 F.3d 1009, 1011-12 (D.C. Cir. 2003). Examples of a case in which a plaintiff could have
identified an injured member, but failed to so are Disability Rights Wisconsin v. Walworth
County Bd. of Supervisors, 522 F.3d 796, 802-03 (7th Cir. 2008) and Nat’l Alliance for the
Mentally Ill v. Bd. of County Commr’s, 376 F.3d 1292, 1296 (11th Cir. 2004).
98. Summers v. Earth Island Institute, 129 S.Ct. 1142, 1151-52 (2009).
99. Hunt, 432 U.S. at 342.
100. Id. at 345.
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101. Gettman v. D.E.A., 290 F.3d 430, 435 (D.C. Cir. 2002).
102. In Hunt, a state agency whose members were voted on by apple growers was found to
have standing. Hunt, 432 U.S. at 344. Even though not a membership entity, the agency served
the interests of a definable group of people, possessed “indicia” of membership organizations,
and had a financial nexus with its constituents. See also Ore. Advocacy Ctr. v. Mink, 322 F.3d
1101, 1110 (9th Cir. 2003) (federally authorized protection and advocacy organization would
have standing to sue on behalf of disabled constituents as an association, despite not having
membership, if one constituent had standing); Doe v. Stincer, 175 F.3d 879, 885 (11th Cir. 1999)
(same).
103. Gettman, 290 F.3d at 435 (magazine with readership lacks associational standing); Fund
Democracy v. S.E.C., 278 F.3d 21 (D.C. Cir. 2002) (one-person business which represents an
informal consortium of groups lacks standing); Ass’n for Retarded Citizens of Dallas v. Dallas
County Mental Health & Mental Retardation Bd. of Trs., 19 F.3d 241 (5th Cir. 1994) (public
interest advocacy group lacks standing based solely on resources directed toward representing
disabled persons in response to the actions of another party).
104. See, e.g., Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 415 F.3d 1078,
1103-1104 (9th Cir. 2005) (non profit association representing cattle producers on international
trade and market issues does not have standing to bring National Environmental Policy Act
claims).
105. Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988).
106. Int’l Union, United Auto., Aerospace and Agric. Workers of America v. Brock, 477 U.S. 274
(1986); Pennell v. City of San Jose, 485 U.S. 1, 7 (1988); Hosp. Council of W. Pa. v. City of
Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991).
107. Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310-311 (1st Cir. 2005); Retired Chicago
Police Ass’n v. City of Chicago, 7 F.3d. 584, 603 (7th Cir. 1993); Hosp. Council, 949 F.2d at 89.
108. Retired Chicago Police Ass’n, 7 F.3d at 603-07 (surveying circuit split); see also Note,
Associational Standing for Organizations with Internal Conflicts of Interest, 69 U. CHI. L. REV.
351 (2002).
109. United Food & Commercial Workers, 517 U.S. at 554-59.
110. See Warth v. Seldin, 422 U.S. 490, 515 (1975); Bano v. Union Carbide Corp., 361 F.3d 696,
714 (2d Cir. 2004) (noting that no Supreme Court or circuit court case has approved of
representational standing in cases seeking monetary relief, Indian organizations lack standing to
bring damage claims for Bhopal-related injuries on behalf of members).
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111. Int’l Union, United Auto., Aerospace and Agric. Workers, 477 U.S. at 274.
112. Id. at 289.
113. Id.
114. Legal Services Corporation (LSC) restrictions permit the representation of groups,
corporations, and associations which meet financial eligibility requirements. 45 C.F.R. §
1611.6(a) .
115. That injury can be one defined by Congress. For example, in Addiction Specialists v.
Township of Hampton, 411 F.3d 399, 405-07 (3d Cir. 2005), a methadone clinic had standing to
pursue ADA and Rehabilitation Act claims for injunctive and compensatory relief based on its
association with its clients. See also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d
37, 47 (2d Cir. 1997).
116. Representative and organizational standing must be distinguished. See Irish Lesbian and
Gay Org. v. Giuliani, 143 F.3d 639, 649 (2d Cir. 1998) (group had standing because of economic
harm to the organization, but organization did not have representative standing to seek
damages for individual members).
117. This economic harm may take the form of expenditures that would not be required but for
the challenged action. See Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp.,
418 F.3d 168, 174-75 (2d Cir. 2005); Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105-06
(9th Cir. 2004) (reversing dismissal of complaint by advocacy group for the disabled which
alleged that it diverted resources to monitor and publicize alleged discrimination).
118. See, e.g., NAACP v. Alabama, 357 U.S. 449, 459-60 (1958); Joint Anti-Fascist Refugee
Comm. v. McGrath, 341 U.S. 123, 157-59 (1951) (Frankfurter, J., Douglas, J., and Burton, J.,
concurring); M.O.C.H.A. Soc’y v. City of Buffalo, 199 F. Supp. 2d 40, 46 (W.D.N.Y. 2002) (finding
associational standing based on loss of membership); Wyoming Timber Indus. Ass’n v. U.S.
Forest Serv., 80 F. Supp. 2d 1245, 1253 (D. Wyo. 2000) (validating organizational standing based
on economic harm to a trade association). But see Minn. Fed’n of Teachers v. Randall, 891 F.2d
1354, 1359 (8th Cir. 1989) (holding that fear of potential loss of union membership is
insufficient to confer organizational standing).
119. See Friends of Animals v. Salazar, 626 F.Supp.2d 102, 111-13 (D.D.C. 2009).
120. Membership rolls, for example, may be discoverable depending on whether “good cause”
exists for a protective order pursuant to Federal Rule of Civil Procedure 26(c). See generally
Courier-Journal v. Marshall, 828 F.2d 361, 364-67 (6th Cir. 1987) (affirming the district court’s
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use of discretion in fashioning a protective order that recognizes the associational rights of
nonparty members of the Ku Klux Klan).
121. Failure to cite to such record evidence in the district court waives the assertion of
organizational standing on appeal. Nat’l Alliance for the Mentally Ill, 376 F.3d at 1295-96.
122. But see American Canoe Ass’n v. City of Louisa Water & Sewer Comm’n., 389 F.3d 536 (6th
Cir. 2004) (organizations have standing to challenge failure to comply with the reporting and
monitoring that the Clean Water Act requires because lack of such information impaired
organizations’ missions to monitor and report on environmental issues).
123. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372-80 (1982) (organization dedicated
to open housing has standing to challenge realty company’s discriminatory practices because
they injured the group’s ability to advance its purposes and caused a diversion of resources
responding to complaints about the company).
124. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004) (invoking principles of
prudential limitations to reject standing of father to challenge constitutionality of the Pledge of
Allegiance on behalf of his daughter when his right to do so was clouded by unsettled issues of
state family law).
125. Ass’n of Data Processing Serv. Org. Inc. v. Camp, 397 U.S. 150 (1970).
126. Bennett v. Spear, 520 U.S. 154, 162 (1997).
127. Warth, 422 U.S. at 498.
128. Congress must do so explicitly, such as through enactment of a citizen-suit provision. See,
e.g., Bennett, 520 U.S. at 164 n.2.
129. Administrative Procedure Act, 5 U.S.C. § 702.
130. Bennett, 520 U.S. at 163. See, e.g. Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368
F.3d 1053 (9th Cir. 2004) (minority-owned business falls within zone of interests of 42 U.S.C. §
1981 if it suffers racial discrimination or has an imputed racial identity).
131. Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984).
132. The Block Court unanimously held that consumers of milk lacked standing to challenge
milk marketing orders because there was evidence of congressional intent to deny consumers a
right to obtain judicial review of such orders. Id. at 347-48.
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133. Id. at 351.
134. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-400 (1987).
135. Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479 (1998).
136. Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 524-25 (1991).
137. The Supreme Court recently distinguished third party standing cases from cases in which
an assignee of a legal claim files suit. In such actions, the assignee asserts their own legal rights,
not those of another, even when the assignee has promised to repay the assignor money
recovered in the litigation. Sprint Communications v. APCC Services, 128 S.Ct. 2531 (2008).
138. See United Food & Commercial Workers Union v. Brown Group, 517 U.S. 544, 557 (1996).
139. See Singleton v. Wulff, 428 U.S. 106, 114-15 (1976); Erwin Chemerinsky, Federal
Jurisdiction 84-91 (5th ed. 2007).
140. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (attorneys lack standing to challenge state
process for appointing appellate counsel for indigent defendants who plead guilty).
141. Powers v. Ohio, 499 U.S. 400, 411 (1991) (citations omitted). See Kowalski, 125 S. Ct. at
567.
142. See Singleton, 428 U.S. at 119 (doctor suffers loss of Medicaid reimbursement income).
143. See Powers, 499 U.S. at 411 (discriminatory use of peremptory challenges harms criminal
defendant).
144. U.S. Dep’t. of Labor v. Triplett, 494 U.S. 715, 720-21 (1990). In its most recent third-party
standing case, the Supreme Court held that criminal defense attorneys did not have third-party
standing to assert claims of future clients. Kowalski, 543 U.S. at 130-31.
145. Triplett, 494 U.S. at 720. This principle might have been applied in Kowalski, but was not.
146. Craig v. Boren, 429 U.S. 190 (1976).
147. Id. at 195. Craig’s sweep is potentially quite broad. The articulated justification for the
decision admits of no logical limit, and how the third prong, discussed infra, was satisfied is
difficult to see. The Supreme Court observed that the law banned the sale, not the
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consumption, of 3.2 percent beer, but this hardly seems a substantial barrier blocking young
men from challenging the statute.
148. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392 (1988).
149. Carey v. Population Serv. Int’l, 431 U.S. 678, 682-83 (1977); Eisenstadt v. Baird, 405 U.S.
438, 443 (1972). But see Tileston v. Ullman, 318 U.S. 44, 45-46 (1943) (denying standing of
doctor to challenge laws prohibiting use of contraceptives on behalf of patients).
150. Powers, 499 U.S. at 400.
151. Id. at 411-12.
152. Id. at 413.
153. Id. at 413-14.
154. Id. at 415.
155. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991).
156. Campbell v. Louisiana, 523 U.S. 392, 397-98 (1998).
157. Barrows v. Jackson, 346 U.S. 249 (1953).
158. Eisenstadt v. Baird, 405 U.S. 438 (1972).
159. Id. at 446.
160. Kowalski, 543 U.S. at 131-32. Such a defendant subsequently did so successfuly. Halbert
v. Michigan, 545 U.S. 605 (2005) (due process and equal protection clauses require
appointment of counsel for defendants convicted on guilty pleas in appliying for leave to appeal
in intermediate court).
161. Miller v Albright, 523 U.S. 420 (1998).
162. Id. at 451 n.1; see also Kowalski, 543 U.S. at 134-36 (Thomas, J., concurring).
163. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984).
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164. Anyone who has suffered injury is unlikely to be unable to frame the issues
adequately. Thus, the only real requirement is the irreducible minimum requirement of injury
in fact.
165. City of Houston v. Hill, 482 U.S. 451, 459 (1987) (quoting Steffel v. Thompson, 415 U.S. 452,
475 (1974)). Thus, in Hill, an individual who had been arrested four times but never convicted
under an ordinance prohibiting interference with a police officer had standing to seek to enjoin
future enforcement on the ground of overbreadth.
Updated 2011
3.2 Ripeness
Updated 2011
The doctrine of standing determines who may properly sue in federal court while the doctrines
of ripeness and mootness deal with when such a suit is appropriate. Ripeness doctine intersects
with several related doctrines. In cases involving a challenge to government action, ripeness is
closely related to exhaustion of administrative remedies and the Administrative Procedure Act
requirement of a final agency action. In these and other contexts, aspects of the "injury in fact"
prong of standing analysis overlap with the ripeness inquiry. Both essentially turn on whether
the plaintiff’s injury, which is threatened but has not yet occurred, is sufficiently likely,
concrete, and imminent to be regarded as a “case or controversy./166/ As a result, such cases
may be decided either on standing or ripeness grounds./167/ The underlying concern is
whether the potential injury is too speculative, thereby offering the court an inadequate factual
record for review and raising the possibility that the court would, in essence, be doing nothing
more than issuing an advisory opinion./168/ So understood, it is easy to explain why many
ripeness cases deal with pre-enforcement review of civil or criminal statutes or
regulations./169/
Ripeness doctrine involves both constitutional and prudential limitations./170/ The Second
Circuit explained the distinction as follows:
Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the
judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from
constructing generalized legal rules unless the resolution of an actual dispute requires it. But
when a court declares that a case is not prudentially ripe, it means that the case will be better
decided later and that the parties will not have constitutional rights undermined by the delay. It
does not mean that the case is not a real or concrete dispute affecting cognizable current
concerns of the parties within the meaning of Article III. . . . But that, and its degree, is just one albeit important - factor the court must consider. Prudential ripeness is, then, a tool that courts
may use to enhance the accuracy of their decisions and to avoid becoming embroiled in
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adjudications that may later turn out to be unnecessary or may require premature examination
of, especially, constitutional issues that time may make easier or less controversial./171/
In general, the Supreme Court has held that ripeness requires a two-part inquiry. First, in cases
involving pre-enforcement review of agency regulations, the Court initially employed a
presumption in favor of review which would be overcome by clear and convicing legislative
intent to preclude it./172/ Second, in the absence of such preclusion and in cases that do not
involve challenges to government action, ripeness turns on two considerations: the fitness of
the issues for determination and the hardship to the parties if the court withholds review./173/
The Second Circuit has held that each consideration is relevant to both the constitutional and
prudential aspects of ripeness./174/ In contrast, the First Circuit has held that the first
consideration is grounded in constitutional and prudential limitations, while the second is solely
prudential in nature./175/ There is support for the notion that the factors should be considered
on a sliding scale, a strong showing with respect to one can compensate for a weak showing on
the other./176/
The Supreme Court’s most recent case on ripeness, National Park Hospitality Association v.
Department of the Interior, illustratives an application of both inquiries./177/ In that case, a
trade association representing concessioners in national parks challenged a federal regulation
announcing the Department’s view that national park concession contracts were not subject to
the Contract Disputes Act. The Court found the claim unripe. First, it held that the Department’s
legal position on the applicability of the CDA did not impose any duties or obligations on the
concessioners, cause any change in their behavior or even prohibit them from resorting to the
CDA./178/ The uncertainty over the applicability of the CDA, which affected the concessioners'
willingness to bid on contracts, was not sufficient hardship./179/ Second, the Court held that,
although the issue was purely a legal one, the applicability of the CDA may depend on the type
of contract at issue, suggesting that review should wait until there was a concrete dispute over
a specific contract./180/
3.2.A. Fitness of Record for Review
If the issue presented involves purely a question of law or a concrete factual context that would
not be enhanced by further factual development, there is a greater chance of finding the claim
to be ripe./181/ In contrast, ripeness is less likely when the factual record does not permit
necessary interest balancing or a necessary assessment of the effect of the challenged law on
the plaintiff’s conduct. For example, in Socialist Labor Party v. Gilligan, the Court found unripe a
challenge to a law alleged to have made it more difficult to place the name of a candidate on
the ballot for election./182/ The Court noted that the record was “extraordinarily skimpy” and
offered insufficient evidence of the effect of the law on plaintiff’s efforts./183/ In these cases, it
is wise to develop in advance of filing as detailed a factual record as possible so that
declarations can be offered in response to a motion to dismiss on ripeness grounds.
3.2.B. Hardship from Denying Review
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In general, the greater the potential hardship from denying review, the greater the chance the
case is ripe. Significant hardship is often found in cases in which the plaintiff faces a decision
whether to comply with a statute or regulation at significant financial cost or not to comply and
face potential criminal or civil penalties./184/ In such cases, the plaintiff need not wait until a
prosecution for challenging the law as a defense. The Court has found there to be hardship
warranting review where a plaintiff is faced with foregoing arguably constitutional conduct or
facing prosecution./185/ The question in these pre-enforcement review cases generally turns
on the degree of certainty that the affected party intends to act imminently to violate a
challenged law and the certainty of prosecution if it does./186/ The certainty of enforcement is
informed by whether prosecuting authorities have warned of enforcement, disclaimed
enforcement or have a history of enforcement. Consequently, in cases raising potential
ripeness issues, an advocate is advised to detail the potential costs of compliance and noncompliance and the historical record of enforcement.
3.2.C. Final Considerations
Two more recent developments in the law of ripeness may be of particular interest to legal
services attorneys. First, the Court made it somewhat more difficult to challenge government
benefit rules prior to application for those benefits. In Reno v. Catholic Social Services, the Court
distinguished between rules that regulate behavior and rules that govern the potential receipt
of benefits, holding that challenges to benefit rules are generally not ripe until the agency
receives and denies the application, even though those rules may have deterred
applications./187/ Second, in Thunder Basin Coal Co. v. Reich, the Court held that Congress
impliedly precludes pre-enforcement review of rules when it provides for some other means of
review in the relevant statute./188/
166. Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009); Airline Prof. Ass'n v. Airborne,
332 F.3d 983, 987 (6th Cir. 2003). The Court has held that "[a] claim is not ripe for adjudication
if it rests upon contingent future events that may not occur as anticipated, or indeed may not
occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (internal quotation marks omitted)).
167. See, e.g., MedImmune v. Genentech, 549 U.S. 118, 127 n. 8 (2007); O’Shea v. Littleton, 414
U.S. 488 (1974) (decided on standing grounds).
168. See Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (ripeness doctrine is intended to
“prevent the courts, through avoidance of premature adjudication, from entangling themselves
in abstract disagreements.”).
169. The Declaratory Judgment Act, 28 U.S.C. § 2201, was intended as a vehicle to allow
plaintiffs to determine whether an intended course of conduct was legally permissible without
either violating the law and potentially suffering the consequences or forgoing the conduct that
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was in fact permissible. Nonetheless, the Act does not alter the constitutionally required
ripeness doctrine. See Calderon v. Ashmus, 523 U.S. 740 (1998); Aetna Life Ins. v. Haworth, 300
U.S. 227 (1937). At the same time, some pre-enforcement review cases are analyzed in terms
of standing, rather than ripeness. See, e.g., Ord v. District of Columbia, 587 F.3d 1136 (D.C.
2009).
170. Reno v. Catholic Soc. Servs., 509 U.S. 45, 58 n.18 (1993).
171. Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003).
172. Abbott Labs., 387 U.S. at 142. That approach was modified in Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994) in which the Court found implied intent to preclude pre-enforcement
review in a statute's provision for administrative review of adverse agency action.
173. Abbott Labs., 387 U.S. at 149; Devia v. Nuclear Regulatory Comm., 492 F.3d 421, 423-25
(D.C. Cir. 2007). For a case in which the Court applied these considerations and found various
challenges to a state statute dealing with agricultural workers to be either ripe and unripe, see
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979).
174. Simmonds, 326 F.3d at 359. See also N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122
(2d Cir. 2008) (Sotomayor, J.) (finding constitutionally ripe claim prudentially unripe for review).
175. McInnis-Misenor v. Maine Medical Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (both prongs must
be satisfied). The D.C. Circuit takes a slightly different approach. If there are no institutional
interests favoring postponement of review, the party seeking immediate review need not show
hardship. A.T. & T. v. FCC, 349 F.3d 692, 299 (D.C. Cir. 2003).
176. Id.
177. Nat’l Park Hospitality Ass’n. v. Dep’t of the Interior, 538 U.S. 803 (2003).
178. Id. at 809-10.
179. Id. at 811.
180. Id. at 812.
181. Compare Ruckleshaus v. Monsanto, 467 U.S. 986 (1984) (takings claim not ripe because of
insufficient factual development) with Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568
(1985) (claim that Article III prohibited Congress from selecting binding arbitration as a means
for resolving disputes in FIFRA registration scheme was ripe because it was purely legal). See
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also Nat'l Ass'n of Home Builders v. United States Army Corps of Eng'rs, 417 F.3d 1272, 1281-82
(D.C. Cir. 2005) (claim that agency action was arbitrary and capricious presented issues of law
that were presumptively reviewable); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431
(9th Cir. 1996) (challenge to Cuban travel ban was ripe even though plaintiffs had not applied
for available exemptions because it could firmly be predicted that such applications would be
denied).
182. Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).
183. Id. at 587-88.
184. Compare Abbott Labs., 387 U.S. at 152-53 with Toilet Goods Ass’n v. Gardner, 387 U.S. 158,
165 (1967). See also Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 709 (9th Cir.
2009) (environmental threat is hardship to environmental organization); Kreschollek v. S.
Stevedoring Co., 78 F.3d 868 (3rd Cir. 1996) (challenge to constitutionality of workers’
compensation termination procedures is ripe prior to termination, the hardship being
potentially years of lost income); Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995) (challenge
by 58 year old to state statute reducing benefits of some municipal employees when they turn
65 is ripe, the hardship being uncertainty in making future financial plans).
185. See Steffel v. Thompson, 415 U.S. 452 (1974) (pre-enforcement challenge to shopping
center’s refusal to permit handbilling is ripe); U.S. Civil Service Comm’n v. Nat’l Ass’n of Letter
Carriers, 413 U.S. 548 (1973) (challenge to Hatch Act); see also (challenge to state statute
criminalizing use of certain public records was ripe when association abandoned a specific plan
to use them).
186. Compare Reg’l Rail Reorg. Cases, 419 U.S. 102 (1974) (challenged reconveyances of rail
property was not imminent, but was inevitable) with Reno v. Catholic Soc. Servs., 509 U.S. 43
(1993) (speculative that a member of the plaintiff class who had not yet applied for legal
immigration status would be injured by INS rules); Poe v. Ullman, 367 U.S. 497 (1961) (challenge
to law preventing use of contraceptives was not ripe when there was only one prosecution in
eighty years). See also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122-25 (9th Cir. 2009); R.I.
Ass’n. of Realtors v. Whitehouse, 199 F.3d 26 (1st Cir. 1999).
187. Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993).
188. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994); Nat'l Taxpayers Union v. Social
Security Administration, 376 F.3d 239 (4th Cir. 2004); see also Shalala v. Ill. Council on Long
Term Care, 529 U.S. 1 (2000).
Updated 2011
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3.3 Mootness
Updated 2011
Both the law of standing and the law of mootness derive from Article III’s requirement that the
judicial power of the United States extends only to cases and controversies./189/ While the law
of standing involves whether the plaintiff had suffered or is threatened with injury in fact at the
time of the filing of the complaint, the law of mootness inquires whether events subsequent to
the filing of suit have eliminated the controversy between the parties. Generally, the burden of
showing standing rests with the plaintiff, while the burden of demonstrating mootness lies with
the defendant./190/ Like standing, because mootness implicates the court’s jurisdiction, it can
be raised at any time and cannot be resolved by stipulation./191/ Moreover, counsel for the
plaintiff has a duty to bring to the court’s attention facts which may raise an issue of
mootness./192/ Advocates can expect to encounter mootness issues in light of the Supreme
Court’s decision in Buckhannon, because governmental defendants often try to moot out cases
in order to avoid paying attorney fees./193/
3.3.A. Considering Mootness
Mootness issues can arise in cases in which the plaintiff challenges actions or policies which are
temporary in nature, in which factual developments after the suit is filed resolve the harm
alleged, and in which claims have been settled.
Generally, a case is not moot so long as the plaintiff continues to have an injury for which the
court can award relief, even if entitlement to the primary relief has been mooted and what
remains is small./194/ Put differently, the presence of a “collateral” injury is an exception to
mootness./195/ As a result, distinguishing claims for injunctive relief from claims for damages is
important. Because damage claims seek compensation for past harm, they cannot become
moot./196/ Short of paying plaintiff the damages sought, a defendant can do little to moot a
damage claim. The virtual impossibility that unpaid damage claims can become moot gives rise
to a technique for avoiding mootness: plead a claim for damages if the claim has a reasonable
basis./197/ Although later events may moot the claim for injunctive relief, the claim for
damages presents an opportunity to determine the legality of the conduct at issue./198/ An
interest in attorney fees, however, will not save a case involving nothing more from
mootness./199/ Similarly, in considering mootness, it is important to distinguish between
claims for different forms of injunctive relief. For example, claims for retroactive injunctive
relief are not moot simply because claims for prospective relief are.The past injury has not been
remedied.
In the absence of a claim for damages, a suggestion of mootness should not trigger a reflexive
response in opposition to dismissal./200/ Before investing substantial time and resources in an
attempt to resuscitate an apparently moot claim, consider carefully whether any benefit is to
be gained. Some cases are truly moot when no present consequences are traceable to the
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challenged conduct, and, for whatever reason, the conduct is unlikely ever to recur./201/ In
such cases, resisting dismissal without prejudice on the ground of mootness makes no
sense.The suggestion of mootness should be an occasion to reevaluate both the factual and
legal merits of a lawsuit. While the natural reaction during litigation is to resist, there are times
when it is better to fight another day with a different plaintiff.
If such a fight is appropriate, it will likely be over whether one of the well-established
exceptions to mootness applies or how the exception may apply in the class action context. We,
therefore, focus upon three issues: When does the voluntary cessation of unlawful conduct
render a case moot? When does the termination of an injury “capable of repetition yet evading
review” render a case moot? How are mootness principles applied in class actions?
3.3.B. Exceptions to Mootness
The Court has considered three principal exceptions to the mootness doctrine.
3.3.B.1. Voluntary Cessation of Unlawful Conduct
A defendant may not moot a claim for injunctive relief simply by ceasing the unlawful conduct.
A contrary rule would encourage the resumption of unlawful conduct following the dismissal of
litigation. In United States v. W.T. Grant Co., the Supreme Court held that the voluntary
cessation of illegal conduct would moot a case only if the defendant established that “there is
no reasonable expectation that the wrong will be repeated.”/202/ Unless the defendant meets
that “heavy” burden, the court has the power to hear the case and the discretion to grant
injunctive relief./203/
Two recent cases illustrate the relative difficulty in persuading a court to dismiss a case on
mootness grounds on the basis of voluntary cessation. In Friends of the Earth, the Court held
that a claim for civil penalties intended to deter a polluter from exceeding discharge limits in a
permit was not necessarily moot, even when the facility at issue had closed, because the
defendant retained the permit./204/ In City of Erie v. Pop’s A.M., the Court rejected the
suggestion of mootness filed by a prevailing plaintiff in a challenge to city restrictions on adult
dancing establishments./205/ Notwithstanding that the club had closed, the Court noted the
city’s continued stake in wishing to enforce the statute enjoined by the lower courts and the
possibility that the plaintiff would reopen a new club./206/
Mootness, then, requires a sensitive fact-based prediction of the probability of recurrence, an
analysis of the plaintiff’s continued need for relief, /206a/ the defendant’s representations of
future intent, and the public interest in resolution of the dispute. The burden of demonstrating
mootness rests on the defendant, and the essential inquiry is the genuineness of the
defendant’s claim of self-correction./207/ At the same time, the plaintiff should be prepared to
explain why, as a prudential matter, the court should issue declaratory and injunctive
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relief despite the defendant’s representations./208/ When, as in City of Erie, the claim
implicates public rather than private interests, a reduced risk of recurrence is sufficient to avoid
mootness./209/
With respect to suits against governmental entities, mootness issues arise when the relevant
agency or official declares in some way that it will no longer follow the challenged policy or
when superseding or amending legislation is enacted. Courts generally look favorably on
assertions of discontinuance by public officials./210/ However, if the assertion of
discontinuance is not complete or permanent, the suggestion of mootness is likely to be
denied./211/ Moreover, the defendant who discontinues the challenged conduct while
proclaiming its legality is particularly unlikely to succeed in mooting a case./212/
Public officials routinely discontinue challenged conduct in response to changes in legislative
and administrative provisions governing that conduct. The voluntary cessation of illegal conduct
because of the enactment of superseding or repealing legislation ordinarily moots a claim for
injunctive relief unless there is a “substantial likelihood” that the statute will be
reenacted./213/ There is little risk of recurrence absent further legislation. If, however, the
prior statute remains enforceable, challenged implementing regulations remain in effect, or the
statutory amendment does not fully resolve the plaintiff’s claim, the case is not moot./214/ For
example, in City of Mesquite v. Aladdin’s Castle Inc., the Court held that repeal of a challenged
ordinance did not moot the claim for injunctive relief given the city’s stated intention to reenact
the ordinance should the suit be dismissed./215/ From an advocacy perspective, establishing
the defendant’s belief in the legality of the conduct at issue early in the litigation is, therefore,
useful. Probing in discovery facts relevant to the possibility of resumption of the challenged
policy is also advisable. Courts frequently reject suggestions of mootness when the defendant
fails to offer some assurance that the challenged policy will not be resumed./216/
3.3.B.2. Conduct Capable of Repetition Yet Evading Review
Challenges to recurrent conduct of short duration often avoid mootness under the exception
for acts “capable of repetition yet evading review.” Conduct is capable of repetition but evading
review when (1) the duration of the challenged action is too short to be litigated fully before
the cessation or expiration of the challenged conduct, and (2) the plaintiff is reasonably
expected to be subject to the same action in the future./217/ Determining whether this
exception applies therefore requires an assessment of the probability of repetition or
recurrence, the risk that repeated harm will be of sufficiently short duration so as to evade
review and remedy, and the extent to which repetition may affect the plaintiff./218/
This branch of the mootness doctrine frequently overlaps with voluntary cessation. The
choice between the two is significant because of the differing burdens. The defendant has the
heavy burden of showing that voluntary cessation of unlawful conduct moots a case, while the
plaintiff has the burden of showing that conduct is capable of repetition yet evading
review./219/
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First, actions evade review when they are “too short to be fully litigated prior to cessation or
expiration.”/220/ The question is whether the action is inherently of brief duration or whether
it can be reviewed in sufficient time for the plaintiff to obtain a meaningful remedy if
she prevails./221/ Therefore, if circumstances suggest that a possible recurrence of challenged
conduct could be litigated should it arise, courts decline to invoke the exception. Such
circumstances include the possible use of motions for preliminary injunction, emergency stays,
and expedited appeals. Should a plaintiff fail to attempt to avail itself of these procedural
opportunities, courts are disinclined to regard the matter as evading review./222/ Advocates
are, therefore, advised first to pursue these avenues for relief when appropriate.
Second, the Supreme Court has been inconsistent in its treatment of the requirement that the
conduct be shown to be capable of repetition; the Court wavered between the more stringent
requirement of a “demonstrated probability” and the less stringent requirement of a
“reasonable expectation” of repetition./223/ In City of Los Angeles v. Lyons, a challenge to a
city policy of using choke holds to subdue suspected criminals, the Court held that a generalized
showing that conduct might recur was not sufficient to trigger the exception./224/ The Court
stated that the “doctrine applies only in exceptional situations, and generally only in those
cases in which the named plaintiff can make a reasonable showing that he will again be
subjected to the alleged illegality.”/225/
However, in Honig v. Doe, the Court limited Lyons./226/ The Court stated that Lyons held only
that the Court was “unwilling to assume that the party seeking relief will repeat the type of
misconduct that would once again place him or her at risk of that injury.”/227/ The Court held
that a “reasonable expectation” of recurrence was sufficient to overcome a suggestion of
mootness: “in numerous cases ... we have found controversies capable of repetition based on
expectations that, while reasonable, were hardly demonstrably probable.”/228/ Such a
reasonable expectation may be found in the history of the plaintiff’s relationship with the
defendant./229/
Third, the plaintiff must show that he, rather than simply anyone, “will again be subjected to
the alleged illegality.”/230/ Despite this restrictive language, the Court has invoked the
exception in circumstances in which the probability of recurrence to the plaintiff is not obvious.
Litigation involving the regulation of abortion,/231/ elections,/232/ and press access to
trials/233/ has proceeded despite claims of mootness without any apparent basis for a finding
of probable recurrence./234/ The public importance of the issue may explain the more relaxed
approach in these narrow categories of cases./235/ At the same time, the nature of the
recurrent action need not be exactly the same as the first, at least in as-applied election law
cases./236/
3.3.C. Mootness and Class Actions
Class actions raise the question of whether the claims of the class become moot when the
individual claims of the class representatives are moot. In litigation involving recurrent conduct
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of short duration, pleading a claim as a class action before the conduct terminates may offer a
greater likelihood of avoiding mootness. Once certified, the case does not become moot as long
as the challenged conduct threatens a member of the class. Thus, class actions shift the
mootness inquiry from whether there is a reasonable likelihood that the conduct will again
affect the plaintiff to whether there is a reasonable likelihood that the conduct will affect the
plaintiff class.
In Sosna v. Iowa, the first significant case dealing with the issue of mootness in class action
practice, plaintiff, on behalf of a class, challenged a state requirement that a petitioner for
divorce reside in the state for one year prior to filing the petition./237/ By the time the case
was argued before the Supreme Court, the year period had ended, the named plaintiff was
divorced, and the law would not again affect the plaintiff. The Court, nevertheless, found the
case not to be moot because the certified class had acquired a legal status separate from the
plaintiff and there were members of the class with live claims. Sosna suggests that this doctrine
applies only to cases in which the named plaintiff’s claim was of brief duration and would,
therefore, otherwise evade review.
In Franks v. Bowman Transportation Co., the Court appeared to relax the Sosna rule./238/
There, the named representative of a sub-class challenging racial discrimination in employment
selection was subsequently fired for cause and thus not entitled to relief. He did not, therefore,
present a claim capable of repetition, yet evading review. Nonetheless, the Court held that so
long as there were members of the certified class with live claims, the case was not moot./239/
The Court suggested that the Sosna requirement of claims capable of repetition, yet evading
review applies with greater force in constitutional litigation where the Court has a particular
duty to avoid unnecessary constitutional adjudication./240/ The Court, moreover, has not been
inclined to apply Sosna and Franks in cases in which an intervening act, such as passage of
corrective legislation, moots the claims not only of the named class representatives, but also of
a sizeable number of the class members as well./241/
The classes in Sosna and Franks were certified before the question of mootness arose. The rules
regarding mootness of uncertified classes is somewhat unsettled and seems to turn on the
nature of the interests of the class representatives, the nature of act mooting the class
representatives’ claims, and whether the claims are inherently transitory or capable of
repetition. In U. S. Parole Commission v. Geraghty, a leading case in this area, the plaintiff sued
on behalf of a class challenging parole release guidelines./242/ The district court denied
certification and entered judgment for the defendants. Although the plaintiff completed his
sentence while his appeal was pending, mooting his personal challenge to the guidelines, the
Supreme Court held that he could, nevertheless, pursue an appeal from the final judgment on
the ground that class certification was wrongly denied./243/
Geraghty specifically holds that a putative class action does not necessarily become moot when
the claim of the named plaintiff expires after denial of class certification. Rather, the plaintiff in
Geraghty retained a personal stake in his asserted right to represent a certified class, a stake
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sufficient to promote vigorous advocacy./244/ Moreover, in Deposit Guaranty National Bank v.
Roper, the defendant may not moot a proposed class action prior to certification by making a
full offer of judgment to the individual plaintiffs and receiving such judgment over the
objections of the plaintiffs./245/ Plaintiffs retained sufficient interest to appeal the denial of
class certification; otherwise, defendants could “pick off” named plaintiffs, thereby defeating
the purpose of the class action device./246/
Outside the appellate context, some courts have blanketly held that mootness of the class
representatives’ claims before class certification moots the case because there is no certified
class to have an identity apart from the proposed class representatives./247/ Yet, there are two
recognized exceptions to this general principle./248/ First, as described above, the class
representative may argue that the challenged conduct is capable of being repeated as to
her. Second, she may assert that others will be affected by the inherently transitory conduct.
Geraghty recognized that “[s]ome claims are so inherently transitory that the trial court will not
have even enough time to rule on a motion for class certification before the proposed
representative’s individual interest expires.” In such cases, certification can relate back to the
filing of the complaint./249/ To establish that a class should nevertheless be certified, the
plaintiff should show that the transitory nature of the claim is such that it will inevitably expire
before a class can be certified and that there is a constant group of people affected by the
challenged policy./250/ The plaintiff should also show reasonable diligence in filing the
complaint and seeking class certification./251/ Such diligence may be demonstrated by filing a
motion for class certification with the complaint and proceeding with class discovery
promptly./252/
Geraghty is not a foolproof defense to mootness. The Court left district courts with
considerable discretion in matters of class certification. Should a trial court dismiss before
ruling on certification, Geraghty allows appeal on the question of class certification, not the
merits. As a matter of practice, in certain cases the advocate may wish to consider avoiding the
mootness issue by moving to amend the complaint to add claims of “live” representative
plaintiffs./253/ Whether this is possible may turn on the nature and duration of the claim at
issue. Doing so requires the advocate to be vigilant in continuing to identify such plaintiffs
following the commencement of litigation. Choosing not to name identified class
representatives in a complaint in order to hold them in “reserve” for this purpose may raise
difficult ethical issues and should not be undertaken without exploration of these issues. In any
event, it is wise to move for class certification simultaneously with filing the complaint, or as
shortly thereafter as is possible, particularly in cases of inherently short duration.
189. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 180 (2000).
190. Id. at 190.
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191. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997) (Clearinghouse No.
52,194).
192. Id.
193. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598,
608-10 (2001) (Clearinghouse No. 53,373), discussed in Chapter 9 of this MANUAL. See also Gill
Deford, The Prevailing Winds After Buckhannon, 36 Clearinghouse Rev. 313 (Sept.-Oct. 2002).
194. A case is moot when the court cannot give any “effectual” relief to the party seeking it.
See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992); Firefighter’s Local 1784
v. Stotts, 467 U.S. 561, 571 (1984). See also Tory v. Cochran, 544 U.S. 734, 736-37 (2005) (death
of attorney Johnnie Cochran did not moot injunction enjoining plaintiff from defaming
Cochran); Gates v. Towery, 430 F.3d 429, 432 (7th Cir. 2005) (case is not moot simply because
defendant tenders all relief that it admits is due). A case can, of course, become moot when the
plaintiff has abandoned their claims, but such abandonment must be unequivocal. Pacific Bell
Telephone Co. v. Linkline Communications, 129 S. Ct. 1109, 1117 (2009).
195. See, e.g., In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005).
196. Bd. of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987), illustrates the use of a damage claim
to avoid mootness. Prisoners who were denied parole without a statement of reasons
challenged the denial. They claimed that the state statute mandating release under certain
circumstances created a liberty interest in eligibility for parole protected by the Fourteenth
Amendment. Plaintiffs sought damages as well as declaratory and injunctive relief. Although
plaintiffs were later released, mooting their individual claims for injunctive relief, their damage
claims remained alive. Because the immunity of defendants was not settled, the Supreme Court
reached the merits, holding that plaintiffs had a cognizable liberty interest in the processing of
their parole applications. The Court remanded the case for further proceedings. See also City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 478 n.l (1989). An inability to pay a damages
judgment at present does not moot a claim. See United States v. Behrman, 235 F.3d 1049, 1053
(7th Cir. 2000). However, if the judgment seemingly could never be paid, a claim might be
dismissed on prudential grounds. See, e.g., Fed. Deposit Ins. Corp. v. Kooyomjian, 220 F.3d 10,
14-15 (1st Cir. 2000).
197. See Alvarez v. Smith, 130 S.Ct. 576, 580 (2009) (finding case seeking declaratory and
injunctive relief moot when case was settled, noting that no request for damages was pled in
the complaint). One approach to avoiding mootness in due process and other cases is to
request nominal damages. Carey v Piphus, 435 U.S. 247, 254 (1978). See Morgan v. Plano Indep.
Sch. Dist., 589 F.3d 740, 748 n.31 (5th Cir. 2009) (collecting cases); Bernhardt v. County of Los
Angeles, 279 F.3d 862, 872 (9th Cir. 2002) (“A live claim for nominal damages will prevent
dismissal for mootness.”); Davis v District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) (“The
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violation of certain constitutional rights, characterized by the Supreme Court as ‘absolute,’ will
support a claim for nominal damages without any showing of actual injury.”); Hotel & Rest.
Employees Union Local 25 v. Smith, 846 F.2d 1499, 1503 (D.C. Cir. 1988); Beyah v. Coughlin, 789
F.2d 986, 988-89 (2d Cir. 1986); see also O’Connor v. Washburn Univ., 416 F.3d 1216, 1222
(10th Cir. 2005) (Establishment Clause claim); Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381,
387 (6th Cir. 2005); (First Amendment claim); Utah Animal Rights Coal. v. Salt Lake City Corp.,
371 F.3d 1248, 1257 (10th Cir. 2004) (First Amendment claim). But see Lister v. Lucey, 575 F.2d
1325, 1336 (7th Cir. 1978).
198. The use of damage claims to avoid mootness has limits. States and their agencies are
immune under the Eleventh Amendment; those who act in a judicial capacity enjoy absolute
immunity, and other officials enjoy qualified immunity. See Chapter 8 of this MANUAL. The
assertion of a damage claim against a defendant who clearly enjoys immunity does not save a
claim for injunctive relief from mootness. See Dean v. Blumenthal, 577 F.3d 60 (2d Cir.
2009). Before embarking on a damage claim of questionable validity, the attorney should
consider Federal Rule of Civil Procedure 11. See Chapter 4.2 of this MANUAL.
199. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990); Cornucopia Inst. v. United States
Dep't of Agric., 560 F.3d 673, 676 (7th Cir. 2009); Spirit of the Sage Council v. Norton, 411 F.3d
225, 229 (D.C. Cir. 2005).
200. A request for a declaratory judgment does not alone save a case from mootness when
claims for injunctive relief are moot. Green v. Mansour, 474 U.S. 64, 67-72 (1985); Cornucopia
Inst., 560 F.3d at 676 (finding request for declaratory relief moot when documents sought
under the FOIA were released); But see Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122-23
(1974) (finding request for declaratory judgment in labor case not moot after the end of strike
mooted claim for injunctive relief). Generally, the mootness inquiry is not diminished in
declaratory judgment actions. Gator.com Corp. v. L.L. Bean Inc., 398 F.3d 1125, 1129 (9th Cir.
2005).
201. Litigation challenging discontinued practices or policies that continue to produce collateral
harm is not moot. See, e.g., Reno v. Bossier Parish Sch. Board, 528 U.S. 320, 327 (2000)
(challenge to redistricting plan following election is not moot because prior plan represents a
baseline for evaluating future challenges); Firefighters Local Union No. 1784 v. Stotts, 467 U.S.
561, 568-72 (1984) (city’s challenge to injunction prohibiting layoffs based on seniority system
not mooted by recall of laid-off employees when injunction would require city to ignore
seniority rights in future layoffs and would affect its ability to recruit new employees by
precluding it from offering the protection of layoff by seniority); Jago v. Van Curen, 454 U.S. 14,
21 n.3 (1981) (challenge to procedures leading to rescission of forthcoming parole not mooted
by later release on parole when later release subject to restrictions not contemplated by
original grant of parole); Youakim v. Miller, 425 U.S. 231, 236 n.2 (1976) (challenge to reduction
in benefits for foster children related to foster parents not mooted by increase in benefits when
effect is to discourage acceptance of other family members awaiting placement); Super Tire
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Eng’g Co. v McCorkle, 416 U.S. 115, 127 (1974) (challenge to rule denying Aid to Families with
Dependent Children (AFDC) benefits to strikers not mooted by settlement of strike when rule
affects every labor dispute and collective bargaining agreement).
202. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). See also Friends of the Earth, 528
U.S. at 189, 193 (quoting and citing United States v. Concentrate Phosphate Export Ass’n, 393
U.S. 199, 203 (1968)) (“A case might become moot if subsequent events made it absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.”);
Adarand Constructors v. Slater, 528 U.S. 216, 222 (2000) (burden of showing non-recurrence
lies with party asserting mootness).
203. A different issue arises when a third party voluntarily discontinues conduct that is the
focus of the litigation. In Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67 (1983), the secretary of
the U.S. Department of Health, Education, and Welfare informed the University of Miami that
the university had violated Title IX by permitting a student organization that barred women
from membership to conduct its initiation ceremony on campus. The organization sued the
secretary to enjoin further enforcement of the interpretation of Title IX. During the litigation,
the university informed the organization that, irrespective of the outcome of the litigation, the
organization would not be permitted to return to campus until the organization stopped
discriminating. Because the university’s action effectively superseded the secretary’s action, the
Supreme Court held the challenge to the secretary’s interpretation of Title IX moot, reasoning
that the interpretation no longer could affect the organization. The Court did not decide
whether the W.T. Grant standard applied to the voluntary acts of third parties; the Court
reasoned that, even if it did, the public statement of the university president banning the
organization from campus established that the controversy between the organization and the
Department of Health, Education, and Welfare was unlikely ever to recur.
204. Friends of the Earth, 528 U.S. at 193-94.
205. City of Erie v. Pap’s A.M., 529 U.S. 277, 287-88 (2000).
206. Cf. City News & Novelty Inc. v. City of Waukesha, 531 U.S. 278, 284 (2001) (unsuccessful
challenge to city licensing ordinance is moot when adult-oriented business decided not to
renew license).
206a. For a recent case touching on this factor, see Camreta v. Greene, 2011 U.S. LEXIS 4016, at
*31-32.
207. Compare Sheely v. MRI Radiology Network, 505 F.3d 1173, 1187 (11th Cir. 2007)
(defendant's failure to admit to wrongdoing suggests that cessation was driven by desire to
avoid liability) and DeJohn v. Temple Univ., 537 F.3d 301, 309 (3rd Cir. 2008) (challenge to
sexual harassment policy not moot when policy changed well into litigation and university
Page 137 of 559
continued to defend it) with Larsen v. United States Navy, 525 F.3d 1, 4 (D.C. Cir. 2008)
(challenge to quota policy for chaplains moot when plaintiffs did not allege that replaced policy
would be reinstated) and Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 491-92 (7th Cir. 2004)
(accepting assertions of state election board that it would not enforce a campaign finance law
found unconstitutional, but not struck from the state code); 13A Charles A. Wright et al.,
Federal Practice and Procedure § 3533.7 at 353 (2d ed. 1984).
208. See Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005) (plaintiff did not show need
for injunctive relief against prior restraint policy when new supervisor disclaimed the policy as
only that of her predecessor), cert. denied, 547 U.S. 1004 (2006).
209. See W.T. Grant, 345 U.S. at 632; Desiderio v. Nat’l. Ass’n of Sec. Dealers, 191 F.3d 198, 20102 (2d Cir. 1999).
210. See, e.g., Coalition of Airline Pilots Ass’ns v. FAA, 370 F.3d 1184, 1190 (D.C. Cir. 2004);
Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744-45 (D.C. Cir. 1991);
Mosley v. Hairston, 920 F.2d 409, 419 (6th Cir. 1990); Saladin v. City of Milledgeville, 812 F.2d
687, 691 (11th Cir. 1987) (removal of city seal containing the word Christianity from water
tanks, vehicles, and uniforms and promise not to display it in the future moot challenge to
display).
211. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (“[i]nterim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.”); Demery v. Arpaio,
378 F.3d 1020, 1025-26 (9th Cir. 2004) (sheriff stated intent to again show challenged webcams
of jail facility on-line); Radio-Television News Directors Ass’n v. FCC, 229 F.3d 269, 270-72 (D.C.
Cir. 2000).
212. Sasnett v. Litscher, 197 F.3d 290, 291-92 (7th Cir. 1999); United States v. Laerdal Mfg.
Corp., 73 F.3d 852, 856 (9th Cir. 1995); Donovan v. Cunningham, 716 F.2d 1455, 1461-62 (5th
Cir. 1983). See Walling v. Helmerich, 323 U.S. 37, 43 (1944).
213. Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005) (zoning
ordinance). See Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d
1174, 1181-84 (10th Cir. 2000) (election law); Mosley v. Hairston, 920 F.2d 409, 413-15 (6th Cir.
1990) (AFDC statute); Fraternal Order of Police Lodge 121 v. City of Hobart, 864 F.2d 551, 553
(7th Cir. 1988) (wage and hour statute). See also Green v. Mansour, 474 U.S. 67-72 (1986)
(prospective challenge to AFDC benefit calculation rendered moot by superseding legislation
requiring claimed deductions); Princeton Univ. v Schmid, 455 U.S. 100 (1982) (per curiam)
(repeal of university regulations moots challenge to their validity); Wright et al., supra note 207,
§ 3533.6.
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214. See Allee v. Medrano, 416 U.S. 802 (1974) (superseding legislation mooted challenge to
prior legislation except to extent that pending criminal prosecutions subject to injunction for
bad-faith prosecution remain); Washington v. Daley, 173 F.3d 1158, 1164-65 (9th Cir. 1999);
Amoco Prod. Co. v. Fry, 118 F.3d 812, 815-16 (D.C. Cir. 1997).
215. City of Mesquite v. Aladdin’s Castle Inc., 455 U.S. 283, 288-89 (1982).
216. See Pederson v. La. State Univ., 213 F.3d 858, 874-75 (5th Cir. 2000); Norman-Bloodsaw v.
Lawrence Berkeley Lab., 135 F.3d 1260, 1274-75 (9th Cir. 1998); American Iron & Steel Inst. v.
EPA, 115 F.3d 979, 1006-07 (D.C. Cir. 1997).
217. Spencer v. Kemna, 523 U.S. 1, 17 (1996); Murphy v. Hunt, 455 U.S. 478, 482 (1982).
218. The Supreme Court in Renne v. Geary, 501 U.S. 312, 320 (1991), also suggested that the
capable-of-repetition doctrine “will not revive a dispute which became moot before the action
commenced.” The decision, criticized in Wright et al., supra note 207, § 3533.8 at 495 (Supp.
2003), has been repeated in Friends of the Earth, 528 U.S. at 191, and Steel Company, 523 U.S.
at 109. Taken literally, the holding may threaten to limit this branch of mootness doctrine.
219. Nonetheless, the Supreme Court found claims not to be moot on these grounds on many
occasions. See, e.g., Int’l Org. of Masters v. Brown, 498 U.S. 466, 472-73 (1991) (challenge to
union election rule); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (challenge to state law on
electoral initiatives); Honig v. Doe, 484 U.S. 305, 317-18 (1988) (claim under Education for the
Handicapped Act); Burlington N. R.R. v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 436 n.4
(1987) (labor dispute); United States v. N.Y. Tel. Co., 434 U.S. 159, 165 n.6 (1977) (challenge to
order requiring pen register surveillance).
220. The most recent case on point is Turner v. Rogers, 2011 U.S. LEXIS 4566 (U.S. Jun. 20,
2011), in which the Court held that a post-release challenge to the state's failure to provide a
non-custodial parent counsel in a civil contempt proceeding at which he sentenced for one year
was not moot because one year was too short a period to litigate the question and because he
was likely to subject to the same proceeding because he remained in arrears. See also Spencer
v. Kemna, 523 U.S. 1, 17 (1998); see Brock v. Roadway Express Inc., 481 U.S. 252, 258 (1987).
The D.C. Circuit held that “orders of less than two years’ duration ordinarily evade review.”
Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir. 1996); see also Fund for
Animals, Inc. v. Hogan, 428 F.3d 1059, 1064 (D.C. Cir. 2005); Pub. Utils. Comm’n of Cal. v. FERC,
236 F.3d 708, 714 (D.C. Cir. 2001) (holding that orders regarding two-year contracts evaded
review for purpose of mootness); Bourgeois v. Peters, 387 F.3d 1303, 1309 (11th Cir. 2004) (one
year); Irish Gay & Lesbian Organization v. Guiliani, 143 F.3d 638, 648 (2nd Cir. 1998) (a few
weeks between denial of march permit and march).
Page 139 of 559
221. See Davis v. FEC, 554 U.S. 724, 735 (2008); Del Monte Fresh Produce Co. v. United States,
570 F.3d 316, 321-22 (D.C. Cir. 2009).
222. See, e.g., Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C. Cir. 2008); Iowa Prot. & Advocacy
Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005); Minn. Humane Soc’y v. Clark, 184 F.3d
795, 797 (8th Cir. 1999); Freedom Party v. N.Y. State Bd. of Elections, 77 F.3d 660, 662-63 (2d
Cir. 1996); United States v. Taylor, 8 F.3d 1074, 1076-77 (6th Cir. 1993).
223. FEC v. Wisconsin Right to Life, 551 U.S. 449, 463 (2007) (referring to both formulations);
see Buckley v. Archer-Daniels-Midland Co., 111 F.3d 524, 527-28 (7th Cir. 1997) (applying
various standards of the possibility of recurrence, such as “reasonable expectation,”
“demonstrated probability,” and not “highly unlikely”).
224. City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Buckley, 111 F.3d at 527-28
(“demonstrated possibility” required) (quoting Bd. of Educ. v. Steven L., 89 F.3d 464, 468 (7th
Cir. 1996)).
225. Lyons, 461 U.S. at 109; see also Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)
(challenge to state constitutional provision denying pretrial release in sexual assault case
mooted by conviction; no probability that plaintiff will again be arrested and detained pending
trial); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam) (challenge to procedures
governing release on parole mooted by unconditional release; no probability that plaintiff will
again be affected by procedures).
226. Honig, 484 U.S. at 305.
227. Id. at 320.
228. Id. at 319 n.6. See Alvarez, 130 S.Ct. at 581 (plaintiffs will "likely" not be subject to
challenged state procedures again). This does not mean that a showing of theoretical or even
possible recurrence is enough to avoid mootness. See Lillbask ex rel. Mauclaire v. Conn. Dep’t of
Educ., 397 F.3d 77, 86 (2d Cir. 2005).
229. See Olmstead v. L.C., 527 U.S. 581, 594 n.6 (1999) (Clearinghouse No. 52,203) (action to
require treatment for disabilities not moot even after plaintiffs were placed in requested
programs because they had many institutional placements in the past).
230. Lyons, 461 U.S. at 107-8; DeFunis v. Odegaard, 416 U.S. 312, 318-19 (1974). Typical
examples are when a student or youth challenges a policy but later graduates or matures to
adulthood before resolution of the case. See Stotts v. Cmty. Unit. Sch. Dist., 230 F.3d 989, 99091 (7th Cir. 2000); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000).
Cases seeking equitable relief involving prison conditions brought by inmates who are
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transferred or released are commonly moot for the same reason. See Rendelman v. Rouse, 569
F.3d 182, 186 (4th Cir. 2009); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Smith v.
Hundley, 190 F.3d 852, 855-56 (8th Cir. 1999); Kerr v. Farrey, 95 F.3d 472, 475-76 (7th Cir.
1996).
231. In Roe v. Wade, 410 U.S. 113, 124 (1973), the Supreme Court held that the conclusion of a
pregnancy did not moot a challenge to a statute prohibiting abortions without any showing that
the plaintiff was likely to suffer another unwanted pregnancy.
232. Litigation brought by candidates challenging ballot access restrictions does not become
moot when the election is complete. Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson v.
Celebrezze, 460 U.S. 780, 784 n.3 (1983); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). The
Supreme Court shows no interest in the question of whether the affected candidate is likely to
run for election again. See also Mandel v. Bradley, 432 U.S. 173, 175 n.1 (1977); Storer v Brown;
415 U.S. 724, 737 n.8 (1974); Brown v. Chote, 411 U.S. 452 (1973). But see Golden v. Zwickler,
394 U.S. 103, 109-10 (1969).
233. E.g., Press-Enter. Co. v. Superior Court, 478 U.S. 1, 6-7 (1986) (challenge to denial of access
to pretrial hearing not mooted by release of transcript because plaintiff could be assumed to be
subject again to exclusion from hearings); Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
602 (1982) (challenge to exclusion from portions of criminal trial involving testimony by minor
who claimed to be victim of sexual battery not mooted by completion of trial for same reason);
Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 563 (1980) (challenge to exclusion from
criminal trial not mooted by completion of trial for same reason); Neb. Press Ass’n. v. Stuart,
427 U.S. 539, 546 (1976) (challenge to restrictions on press coverage expiring when jury was
empanelled was not moot).
234. A recent interesting example of this proposition is found in United States v. Howard, 429
F.3d 843, 848 (9th Cir. 2005). There, the court found a challenge to a policy of shackling pre-trial
detainees for initial appearances was not moot after the plaintiffs had made their appearances,
even though it was unknown whether the particular plaintiffs would again be arrested, because
they challenged an on-going government policy.
235. See Alton & S. Ry. Co. v. Int’l Ass’n of Machinists & Aerospace Workers, 463 F.2d 872, 880
(D.C. Cir. 1972); accord United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (repetition or
review element, “together with a public interest in having the legality of the practices settled,
militates against a mootness conclusion”).
236. FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 463-64 (2007). See Del Monte Fresh
Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009) (the mootness question is not
whether the precise facts will recur, but whether the legal wrong is likely to recur).
Page 141 of 559
237. Sosna v. Iowa, 419 U.S. 393, 402-03 (1975).
238. Franks v. Bowman Transp. Co., 424 U.S. 747 (1976).
239. Id. at 755-57.
240. See Kremens v. Bartley, 431 U.S. 119, 133-37 (1977).
241. Id. at 131-32 (remanding case for substitution of new class representatives).
242. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 398-9 (1980).
243. Although Geraghty was allowed to challenge the denial of class certification on appeal, he
was not allowed to litigate the merits until a class was properly certified. The Supreme Court
noted that should an appellate court affirm denial of class certification, it would necessarily also
affirm dismissal on the ground of mootness. Because the court of appeals had ruled that the
class should have been certified, the Supreme Court remanded Geraghty to the district court
for consideration of whether Geraghty should represent the class or whether another class
representative should be appointed.
244. Id. at 403-04.
245. Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980).
246. Id. at 339.
247. See Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001); Lusardi v. Xerox Corp., 975 F.2d
964, 975 (3rd Cir. 1992).
248. For recent cases describing the two exceptions, see Olson v. Brown, 594 F.3d. 577 (7th Cir.
2010); Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1139 (10th Cir. 2009).
249. Geraghty, 445 U.S. at 399; see also County of Riverside v. McLaughlin, 500 U.S. 44, 50
(1991); See also Gerstein v. Pugh, 420 U.S. 103, 111 n. 11 (1975) (class action challenging state
practice of holding criminal defendants accused by information without a probable cause
hearing was not moot when the named class representatives were convicted because it was not
certain that any named plaintiff would be in pre-trial detention long enough for the judge to
rule on class certification). Even the pendency of a motion for class certification in a nontransitory case has been held to save a claim from mootness. See Zeidman v. J. Ray McDermott
& Co., 651 F.2d 1030, 1051 (5th Cir. 1981); Susman v. Lincoln American Corp., 587 F.2d 866,
869-71 (7th Cir. 1978).
Page 142 of 559
250. See County of Riverside, 500 U.S. at 51-52 (1991) (“That the class was not certified until
after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.... In
such cases, the `relation back’ doctrine is properly invoked to preserve the merits of the case
for judicial determination.”); Wade v. Kirkland, 118 F.3d 667, 669-70 (9th Cir. 1997); Robidoux v.
Celani, 987 F.2d 931, 938-39 (2d Cir. 1993) (class action challenging delays in processing welfare
applications; such delays are inherently transitory); Basel v. Knebel, 551 F.2d 395, 396 n.1 (D.C.
Cir. 1977). For cases in which plaintiffs did not establish this, see Cruz, 252 F.3d at 534-34; Egan
v Davis, 118 F.3d 1148, 1149-51 (7th Cir. 1997); Rocky v. King, 900 F.2d 864, 767-71 (5th Cir.
1990); Ahmed v. Univ. of Toledo, 822 F.2d 26, 27-28 (6th Cir. 1987).
251. See Banks v. Nat’l Collegiate Athletic Ass’n, 977 F.2d 1081, 1085-86 (7th Cir. 1992), cert.
denied, 508 U.S. 908 (1993); see also Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir.
1994) (claim found moot, noting that no class certification motion had been filed); Brunet v.
City of Columbus, 1 F.3d 390, 400 (6th Cir. 1993) (same). In Weiss v. Regal Collections, 385 F.3d
337, 342-49 (3d Cir. 2003), the court interestingly found, in the Rule 68 context, that plaintiff’s
claim was not moot even though he had not yet filed a motion for class certification, because
there was no apparent delay in his not doing so. See also Eckert v. Equitable Life Assur. Soc’y,
227 F.R.D. 60, 63-64 (E.D.N.Y. 2005).
252. See Christiano v. Courts of the Justices of the Peace, 115 F.R.D. 240, 244-47 (D. Del. 1987).
253. Advocates in LSC-funded programs may not file or participate in class action litigation. 45
C.F.R. § 1617.
Updated 2011
3.4 Exhaustion and Preclusion
Updated 2011
This section discusses the circumstances under which a prospective federal court plaintiff may
be required to exhaust judicial or administrative remedies before filing an action in federal
court, and the preclusion implications of having such remedies available or pursuing such
remedies when they are not statutorily mandated.
3.4.A. Overview
Page 143 of 559
To determine whether exhaustion is required, first examine the federal statute that provides
the right sought to be enforced for explicit or implicit exhaustion requirements. If exhaustion is
required, determine whether one of the recognized exceptions to exhaustion of
remedies applies to the circumstances of the case. When exhaustion of remedies is not
required, as in Section 1983 actions,/254/ consider whether to pursue, nevertheless, available
local or state administrative remedies./255/ This entails an assessment of the needs of the
client, the certainty and speed of such relief, opportunities to obtain useful information for a
subsequent judicial appeal, and the expense of litigation of a case through trial in federal court.
Furthermore, and of particular importance, assess the possibility that pursuing such remedies
will have claim or issue preclusive effect in any subsequent federal action. The prospect of
litigating multiple federal claims or combining federal and state law claims, which have
different exhaustion requirements, adds another layer of complexity to the assessment.
3.4.B. Statutory Exclusion
Exhaustion of federal or state administrative remedies is required when Congress explicitly
requires exhaustion as a prerequisite to bringing an action in federal court./256/ Such an
expression must be specific and clear./257/ For example, 42 U.S.C. § 1997e(a), part of the
Prison Litigation Reform Act, provides: “No action shall be brought with respect to prison
conditions … until such administrative remedies are exhausted.” The Supreme Court has held
that this language reflected Congress’ intent to require exhaustion in all cases and to eliminate
any discretion to permit exceptions./258/
The interpretive question in cases with an explicit exhaustion requirement is the breadth of the
statutory exhaustion provision./259/ For example, the Individuals with Disabilities Education
Act provides that, “before the filing of a civil action ... seeking relief that is also available under
[the Act], the procedures ...of this section shall be exhausted.”/260/ Most courts have held
that an IDEA plaintiff cannot avoid exhaustion simply by requesting relief, such as money
damages, that the IDEA cannot provide. As a result, many of these cases turn on subtle, factbased inquiries into whether a due process hearing could redress to some degree the injury
alleged./261/
When Congress has required exhaustion, the next inquiry is whether the requirement is
jurisdictional or non-jurisdictional./262/ When the exhaustion requirement is framed in
jurisdictional terms, the court lacks jurisdiction unless the plaintiff has exhausted its remedies.
It is presumed that the exhaustion requirement is not jurisdictional, but the presumption may
be overcome if the statute otherwise provides in "sweeping and direct" terms./263/
Jurisdictional exhaustion, which is rooted in Congressional control over the jurisdiction of the
federal courts, may not be waived and is not subject to any exceptions./264/ Non-jurisdictional
exhaustion, in contrast, is based on prudential considerations: "giving agencies the opportunity
to correct their own errors, affording parties and courts the benefits of agencies' expertise,
[and] compiling a record adequate for judicial review...."/265/ Exhaustion of administrative
Page 144 of 559
remedies is not required in cases of non-jurisdictional exhaustion when the interests in the
petitioner in prompt review outweigh the government's prudential interests./266/
Without an explicit statutory requirement for exhaustion, “courts are guided by congressional
intent in determining whether application of the doctrine would be consistent with the
statutory scheme.”/267/ Thus, implied exhaustion requirements are often determined by
resort to "sound judicial discretion," based on statutory interpretation and legislative
history./268/ In these circumstances, “courts play an important role in determining the limits of
an exhaustion requirement and may impose such a requirement even where Congress has not
expressly so provided.”/269/
Be careful when filing claims under several statutes. Exhaustion is sometimes excused when
there is a constitutional challenge to the agency's administrative process./270/ The agency may
also waive a non-jurisdictional exhaustion requirement./271/ Combining claims from a federal
statute that does not require exhaustion with one that does have an exhaustion requirement
can result in enforcement of an exhaustion requirement for both statutory claims./272/
3.4.C. Common-Law Duty of Exhaustion
When “Congress has not clearly required exhaustion, sound judicial discretion governs.”/273/
Exercise of this discretion involves balancing the interests of the plaintiff in accessing a federal
forum promptly against the institutional interests advanced when exhaustion is required./274/
The Supreme Court in McCarthy v. Madigan identified three circumstances which, if present,
would weigh against requiring exhaustion. The first occurs when requiring exhaustion would
unduly prejudice a subsequent court action, such as when the administrative process is either
delayed or does not otherwise allow the plaintiff to avert irreparable harm./275/ In Bowen v.
City of New York, for example, the Court found that a class of social security disability insurance
claimants would suffer irreparable injury if they were required to fully exhaust their
administrative remedies with the Social Security Administration./276/ Second, exhaustion is not
required when the administrative remedy is shown to be inadequate or would be futile./277/
Such might be the case when the agency is unable to grant an effective remedy or is unable to
consider the issues presented./278/ A number of cases, frequently in the IDEA context, hold
that administrative remedies are inadequate when the plaintiffs claim systemic failures and
seek system-wide relief./279/ Moreover, exhaustion is not required when the challenge is to
the agency procedures themselves./280/ Third, the Court found a waiver of exhaustion
appropriate when agency bias is shown./281/ Applying these factors, the Court in McCarthy
held that a federal prisoner did not have to exhaust the FBI's administrative remedy procedure
before filing a Bivens action in federal court./282/
3.4.D. Preclusion
Page 145 of 559
If exhaustion of judicial or administrative remedies is not required, the advocate has to assess
whether to pursue such remedies voluntarily or to proceed with federal litigation. The reality of
limited resources often strongly influences this decision. The cost of federal court discovery,
hiring expert witnesses, and preparing the case for trial is often too high for legal services
organizations. Administrative proceedings have financial advantages, such as free transcripts,
agency experts, and may make exhausting a voluntary remedy a compelling choice. Often, the
more complex decision is how the administrative proceeding can be utilized to best preserve an
opportunity for later federal court review of the legal issues underlying the claim or agency
action. Use of techniques such as the submission of Proposed Findings of Fact during the
hearing process may help when the relatively quick and inexpensive administrative forum offers
significant advantages, and the potential preclusion issues are deemed acceptable risks.
In some types of matters, it may be appropriate to proceed to federal court. For instance, it
may be necessary to first seek preliminary injunctive relief in federal court in order to preserve
the status quo or to resolve an issue about administrative process before going through a
voluntary administrative remedy. The deferential standard of review of agency decisions has to
be factored into the desirability of administrative proceedings in advance of federal court
litigation. Finally, because final state court judgments or administrative decisions may have
preclusive effect in subsequent federal litigation, voluntary exhaustion has potential dangers
when there is a fair likelihood of losing on the administrative level. Preclusion is an affirmative
defense that must be pled and proven by the defendant./283/
3.4.D.1. Claim Preclusion
In 28 U.S.C. § 1738, the full-faith and credit statute, Congress “required all federal courts to give
preclusive effect to state-court judgments whenever the courts of the State from which the
judgments emerged would do so.”/284/ Federal courts apply state preclusion law to determine
whether a state court judgment precludes a subsequent federal suit./285/ The Supreme Court
has since held that final state court judgments bar Title VII actions/286/ and actions brought
under 42 U.S.C. § 1983./287/ State court judgments affirming administrative decisions similarly
have preclusive effect under Section 1738./288/
The preclusive effect of unreviewed administrative decisions is not governed by Section
1738./289/ Section 83(1) of the Restatement (Second) of Judgments outlines the basic
principles:
If the administrative adjudication has the essential elements of an adjudication, and preclusion
is consistent with the scheme of remedies, then a valid and final administrative determination
by an administrative tribunal has the same effects under the rules of res judicata, subject to the
same exceptions and qualifications, as a judgment of a court./290/
The preclusive effect of administrative determinations raises three basic questions: (1) When
does administrative adjudication have the essential elements of adjudication?/291/ (2) What
Page 146 of 559
claim did the administrative agency resolve (and thus preclude from re-litigation)? (3) Did
Congress by statute direct courts to apply preclusion?
The first question—the required degree of formality to the administrative hearing—is relevant
to both claim and issue preclusion (discussed infra). When the agency engages in a trial-type
proceeding, the resulting findings of fact are likely to have preclusive effect. Features of a trialtype proceeding include the following safeguards:
(1) opportunity for representation by counsel; (2) pretrial discovery; (3) the opportunity to
present memoranda of law; (4) examinations and cross-examinations at the hearing; (5) the
opportunity to introduce exhibits; (6) the chance to object to evidence at the hearing; and (7)
final findings of fact and conclusions of law./292/
These safeguards go beyond the minimum due process requirements identified in Goldberg v.
Kelly./293/ There is little consistency as to whether proceedings with fewer safeguards may
have preclusive effect./294/
The second question concerns when a claim brought in a first action is sufficiently similar to one
sought to be brought later in federal court to require preclusion. Section 24 of the influential
Restatement of Judgments defines the “same” claim as one arising out of the same transaction
or series of transactions. “Transactions,” in turn, “are to be determined pragmatically, giving
weight to such considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their treatment as a unit
conforms to the parties’ expectations or business understanding or usage.”/295/ Put more
practically, whether a second lawsuit is based upon the same claim litigated in a prior action
“turns on the essential similarity of the underlying events giving rise to the various
claims.”/296/ To determine whether causes of action are sufficiently similar to apply
preclusion,“[c]ourts consider the similarity of the acts complained, the material factual
allegations in each suit and the witnesses and documentation required to prove each
claim.”/297/
The third question to apply in determining the preclusive effect of administrative
determinations is whether Congress has required courts to apply preclusion to implement a
particular statute. Congress may, by statute, overturn the presumptive application of preclusion
of administrative determinations./298/ The leading case on this point is University of Tennessee
v. Elliott./299/ In Elliott, the university fired an African American employee. He appealed the
decision administratively, claiming that the termination was racially motivated. The
administrative law judge disagreed. Elliott then filed a Title VII and Section 1983 suit in federal
court. The university argued that the administrative law judge’s findings precluded re-litigation
of the discrimination issue. The Court held that the language of the statute reflected Congress’
intent that unreviewed state administrative proceedings had no preclusive effect on Title VII
claims./300/ The Court, however, found no evidence of such intent in Section 1983. Moreover,
the Court found, giving preclusive effect to administrative fact-finding in Section 1983 actions
advances repose, conserves resources, and promotes federalism./301/
Page 147 of 559
Even when all the requirements for claim preclusion appear to be satisfied, some courts do not
apply it when important federal rights are at stake. For example, in Gjellum v. City of
Birmingham, a Medicaid case, the Eleventh Circuit decided that the federal common law of
preclusion did not require application of state claim preclusion rules to unreviewed state
administrative decisions in a subsequent Section 1983 suit:/302/
We conclude that the importance of the federal rights at issue, the desirability of avoiding the
forcing of litigants to file suit initially in federal court rather than seek relief in an unreviewed
administrative proceeding, and the limitations of state agencies as adjudicators of federal rights
override the lessened federalism concerns implicated outside the contours of the full faith and
credit statute. In addition, claim preclusion, unlike issue preclusion, does not create a risk of
inconsistent results in this context after Elliott because claim preclusion seeks to prevent
litigation of issues that were not adjudicated before the state agency./303/
In Dionne v. Mayor and City Council of Baltimore, a case challenging an adverse employment
decision on procedural due process grounds, the Fourth Circuit agreed with this
reasoning./304/ The court observed that the plaintiff could not have raised constitutional law
theories or sought broader remedies available under Section 1983 before the local
administrative agency./305/ The court concluded that the state court system could not have
served as an adequate and unitary alternative forum for the assertion of all theories and
remedies./306/ As a result, applying claim preclusion to unreviewed state agency
determinations would discourage plaintiffs from pursuing the generally cheaper and more
efficient route of seeking an administrative remedy in order to preserve their federal
rights./307/
The Seventh Circuit has agreed with the Eleventh Circuit’s analysis of the limits to enforcing
preclusion. In Waid v. Merrill Area Public Schools, the Seventh Circuit reviewed a teacher’s suit
brought under Section 1983 and Title IX of the Education Amendments Act of 1972 and held
that claim preclusion did not prevent bringing the Title IX claim after going through a state
administrative proceeding./308/ The Seventh Circuit concluded, based upon its examination of
the state agency’s limited jurisdiction, that claim preclusion did not apply because “it is clear
that she could not have consolidated all of her claims in a single lawsuit.”/309/ If the state
administrative forum were adequate in allowing all claims to be brought, state preclusion law,
the opinion suggests, could be applied. However, the Seventh Circuit also cited the Eleventh
Circuit’s decision in Gjellum for the proposition that deference to state administrative process
and state preclusion law is limited when that would impair enforcement of federal rights./310/
On the other hand, other courts have expanded application of the preclusion doctrine beyond
findings of fact to encompass preclusion of subsequent litigation of conclusions of law. In Miller
v. County of Santa Cruz, the Ninth Circuit held that unreviewed state agency determinations
were entitled to be given preclusive effect in subsequent Section 1983 litigation./311/ The
Ninth Circuit recognized that, based upon its assessment of the adequacy of the state
administrative forum, it was going farther than the Supreme Court required federal courts to go
in Elliott:
Page 148 of 559
Elliott requires us to give preclusive effect, at a minimum, to the fact finding of state
administrative tribunals. We have gone further, however, and held that “the federal common
law rules of preclusion described in Elliott extend to state administrative adjudications of legal
as well as factual issues, even if unreviewed, so long as the state proceeding satisfies the
requirements of fairness outlined in [United States v. Utah Construction and Mining Co., 384
U.S. 394, 422 (1966)].”/312/
The Eighth Circuit has followed the Ninth. In Plough v. West Des Moines Community School
District, the Eighth Circuit concluded that both claim and issue preclusion applied to an
unreviewed state agency determination./313/ The plaintiff opposed a defense of claim
preclusion in his Section 1983 action, contending that Elliott required issue preclusion only for
fact-finding, and the state agency’s determination of a legal question (that his due process
rights had not been violated) was not entitled to be given preclusive effect under federal law.
The court concluded that plaintiff had a full and fair opportunity to litigate his claims in the
administrative process, and, therefore, state law on claim preclusion should be applied to the
questions of law as well as the findings of fact.
3.4.D.2. Issue Preclusion
The Restatement (Second) of Judgments, Section 27, provides:
When (1) an issue of fact or law is (2) actually litigated and determined by (3) a valid and final
judgment, and (4) the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a different
claim.
The Supreme Court has approved application of the federal common law principle of issue
preclusion to litigation of federal claims between parties as well as expansion to non-mutual
defensive and offensive use of issue preclusion./314/ However, the Court has declined to
employ issue preclusion when the party against whom it was asserted did not have a “full and
fair opportunity to litigate the issue” in the earlier case./315/
Most recently, the Court explored this issue in a case involving "virtual representation," a
doctrine in tension with the notion that one is not bound by a judgment in a case in which they
have not been made a party./316/ Taylor v. Sturgell involved successive FOIA suits for the same
documents by two different plaintiffs. The Court identified six exceptions to the rule against
non-party preclusion: agreement to be bound, presence of a legal relationship between the
party to be bound and the party to the judgment, the party bound was "adequately
represented" by a party, the non-party assumed control over the litigation, relitigation by proxy
and when a statute precludes relitigation./317/ The Court rejected expansion of these
categories to include a seventh - virtual representation. Indeed the Court emphasized the
limited scope of the "adequate" representation to require 1) alignment of the interests of the
non-party and her representative; 2) the representative party or the court protected the
interests of the non-party and 3) sometimes notice of the original suit to those alleged to be
represented./318/
Page 149 of 559
Application of issue preclusion to federal litigation is probably most relevant to legal services
practice when the fact finding of an administrative agency is proposed to be given preclusive
effect in a subsequent Section 1983 action./319/ The Court in University of Tennessee v. Elliott
held that sound policy considerations warranted the application of issue preclusion to the factfinding of administrative bodies acting in a judicial capacity to the same extent as the findings
would receive in state court./320/ As discussed above, Congress has the authority expressly or
implicitly to limit the usual preclusive effect given to unreviewed agency decisions./321/ If
Congress does not limit enforcement of preclusion, the federal court applies state law
preclusion doctrine.
Such applications of preclusion are highly fact-dependent and not susceptible to generalization.
Typically litigated questions are whether the issues decided administratively are the same as
those at stake in the subsequent federal case, whether the applicable administrative process
afforded the party potentially subject to preclusion a full and fair opportunity to litigate,/322/
and whether the burden of proof in the administrative hearing is the same as that applied in a
subsequent Section 1983 case./323/
254. For further discussion of exhaustion in the § 1983 context, see Chapter 5.1.A.4 of this
MANUAL.
255. Patsy v. Bd. of Regents, 457 U.S. 496, 501 (1982).
256. McCarthy v. Madigan, 503 U.S. 140, 144 (1991).
257. Id.
258. See Jones v. Bock, 549 U.S. 199, 212-14 (2007) (failure to exhaust is an affirmative defense;
inmates need not plead exhaustion in their complaints); Porter v. Nussle, 534 U.S. 516 (2002);
Booth v. Churner, 532 U.S. 731 (2001). See also Woodford v. Ngo, 548 U.S. 81 (2006) (Prison
Litigation Reform Act’s exhaustion requirement is not satisfied by filing an untimely or
procedurally defective administrative grievance or appeal).
259. For example, in EEOC v. Lutheran Soc. Serv., 186 F.3d 959 (D.C. Cir. 1999), the D.C. Circuit
wrestled with the question whether a Civil Rights Act provision providing that a recipient of a
subpoena “may petition” the agency to revoke the subpoena required the recipient to so
petition. In a 2-to-1 decision, the Court concluded that it did not. Id. at 965.
260. Individuals with Disabilities Education Act, 20 U.S.C. §§1415(i)(2)A), (l).
261. Blanchard v. Morton Sch. Dist., 420 F.3d 918, 920-22 (9th Cir. 2005); Covington v. Knox
County Sch. Sys., 205 F.3d 912 (6th Cir. 2000); Witte v. Clark County Sch. Dist., 197 F.3d 1271
Page 150 of 559
(9th Cir. 1999); W.B. v Matula, 67 F.3d 484 (3d Cir. 1995) (no exhaustion); Payne v. Peninsula
Sch. Dist., 598 F.3d 1123, 1127-28 (9th Cir. 2010); S.E. v. Grant County Bd. of Educ., 544 F.3d
633, 642-43 (6th Cir. 2008), cert. denied, 129 S. Ct. 2075 (2009); Cave v. East Meadow Union
Free Sch. Dist., 514 F.3d 240, 246-47 (2d Cir. 2008); Frazier v Fairhaven Sch. Comm., 276 F.3d 52
(1st Cir. 2002); Charlie F. v. Bd. of Educ., 98 F.3d 989 (7th Cir. 1996); N.B. v. Alachua County Sch.
Bd., 84 F.3d 1376 (11th Cir. 1996) (requiring exhaustion).
262. Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004).
263. Id. at 1248.
264. Id.
265. Marine Mammal Conservancy, Inc. v. U.S. Dep't of Agric., 134 F.3d 409, 414 (D.C. Cir.
1998).
266. Avocados Plus, 370 F.3d at 1247 (finding exhaustion non-jurisdictional) For
cases wrestling with the distinction in situations where there are circuit splits, see Dawson
Farms, LLC v. Farm Serv. Agency, 504 F.3d 592 (5th Cir. 2007) and Ace Prop. & Cas. Ins. Co. v.
Fed. Crop Ins. Corp., 440 F.3d 992 (8th Cir. 2006). See also Hettinga v. United States, 560 F.3d
498 (D.C. Cir. 2009). The Supreme Court has also wrestled frequently with the scope of
exhaustion when 42 U.S.C. § 405(g), which governs judicial review of HHS benefit
determinations. See Shalala v. Ill. Council on Long-Term Care, 529 U.S. 1 (2000); Bowen v. Mich.
Academy of Family Physicians, 487 U.S. 667 (1986); Heckler v. Ringer, 466 U.S. 602 (1984);
Mathews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U.S. 749 (1975).
267. Patsy, 457 U.S. at 502, n.4.
268. McCarthy, 503 U.S. at 144.
269. Alacare Inc. v. Baggiano, 785 F.2d 963, 966 (11th Cir. 1986) (quoting Patsy, 457 U.S. at
501).
270. Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979); Kreschollek v. Southern Stevedoring Co., 78
F.3d 868, 875 (3d Cir. 1996).
271. Heckler v. Day, 467 U.S. 104, 110 n.4 (1984); Mathews v. Diaz, 426 U.S. 67, 72-73 (1970);
Weinberger v. Salfi, 422 U.S. 749, 765-77 (1975).
272. Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240 (2d Cir. 2009) (student with
Rehabilitation Act, ADA and § 1983 claims must exhaust IDEA remedies); Babicz v. Sch. Bd. of
Page 151 of 559
Broward County, 135 F.3d 1420 (11th Cir.), cert. denied, 525 U.S. 816 (1998) (student filing
claims under Rehabilitation Act, ADA and IDEA must exhaust IDEA remedies when IDEA relief is
available).
273. McCarthy, 503 U.S. at 144. Such is the case in which there is only a regulatory exhaustion
requirement. See EEOC v. Bashas' Inc., 2009 U.S. Dist. LEXIS 97736 at *12 (D. Ariz. Sept. 30,
2009).
274. Those interests were summarized in Weinberger v. Salfi, 422 U.S. 749, 765 (1975):
“Exhaustion is generally required as a matter of preventing premature interference with agency
processes, so that the agency may function efficiently and so that it may have an opportunity to
correct its own errors, to afford the parties and the courts the benefit of its experience and
expertise, and to compile a record which is adequate for review.”
275. McCarthy, 503 U.S. at 146-47; Coit Independence Joint Venture v. Fed. Sav. & Loan Ins.
Corp., 489 U.S. 561 (1989).
276. Bowen v. City of N.Y., 476 U.S. 467 (1986). The court noted that a “severe medical setback”
might result from the “trauma of having disability benefits cut off” and “the ordeal of having to
go through the administrative appeal process:” Id. at 483.
277. McCarthy, 503 U.S. at 147-48; Honig v. Doe, 484 U.S. 305, 327 (1988); Durand v. Hanover
Ins. Group, Inc., 560 F.3d 436 (6th Cir. 2008) (ERISA claim); Porter v. Board of Trustees of
Manhattan Beach Unified Sch. Dist., 307 F.3d 1064, 1070 (9th Cir. 2002) (IDEA claim).
278. See, e.g., Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 790 (2d Cir. 2002).
279. See McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 874-75 (10th Cir. 2007);
Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir. 2006); J.S. v. Attica Cent. Schs., 386 F.3d 107,
113-14 (2d Cir. 2004).
280. Gibson v. Berryhill, 411 U.S. 564, 575 (1973).
281. McCarthy, 503 U.S. at 148-49.
282. A common fourth exception is where the litigant raises a colorable constitutional claim
that is collateral to her substantive claim of entitlement. See Clarinda Home Health v Shalala,
100 F.3d 526 (8th Cir. 1996); see also Bowen, 476 U.S. at 483, 485; Mathews v. Eldridge, 424
U.S. 319 (1976).
283. Taylor v. Sturgell, 128 S.Ct. 2161, 2179-80 (2008).
Page 152 of 559
284. Allen v. McCurry, 449 U.S. 90, 96 (1980).
285. Marrese v. American Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985).
286. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982).
287. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984). In Migra, the Supreme
Court discussed the difference between two distinct branches of the res judicata doctrine:
“Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that
has been litigated and decided. This effect is referred to as direct or collateral estoppel. . . .
Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that
never has been litigated, because of a determination that it should have been advanced in an
earlier suit. Claim preclusion therefore encompasses the law of merger and bar.” Id. at 77. See
also Taylor v. Sturgell, 128 S. Ct. 2161, 2170-72 (2008).
288. Kremer, 456 U.S. at 461.
289. Univ. of Tenn. v. Elliott, 478 U.S. 788, 794 (1986).
290. The general rule of res judicata is found in Section 24 of the Restatement (Second) of
Judgments (1982). Generally, a final judgment on the merits precludes the same parties or
parties in privity with them from litigating the same claim in a subsequent lawsuit. Claim
preclusion bars the relitigation in federal court of both claims subject to a final state court
judgment and of claims which were not raised in state court.
291. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966) (putting the
question “whether the parties had an adequate opportunity to litigate”). In Haring v. Prosise,
462 U.S. 306, 317-18 (1983), the Supreme Court further held that, “as a general matter, even
when issues have been raised, argued, and decided in a prior proceeding, and therefore are
preclusive under state law, re-determination of [the] issues [may nevertheless be] warranted if
there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior
litigation.”
292. Taylor v. Messmer, 2010 U.S. Dist. LEXIS 11003, 2010 WL 607089 (W.D. Pa. Feb. 9, 2010),
citing Reed v. Amax Coal Co., 971 F.2d. 1295, 1300 (7th Cir. 1992). See also Kleenwell Biohazard
Waste v. Nelson, 48 F.3d 391, 394-95 (9th Cir.) cert. denied, 515 U.S. 1143 (1995); Hall v. Marion
Sch. Dist., 31 F.3d 183, 191-92 (4th Cir. 1994).
293. Goldberg v. Kelly, 397 U.S. 254 (1970).
Page 153 of 559
294. Johnson v. County of Nassau, 411 F. Supp. 2d 171 (E.D.N.Y. 2006) is a recent example of a
court struggling with this question in the context of the preclusive effect of a no discrimination
finding by the New York State Division of Human Rights on subsequent §§ 1981 and 1983
claims. See also Clark v. Alexander, 85 F.3d 146 (4th Cir. 1996), holding that implementation of
the Goldberg due process requirements ensured an adequate Section 8 certificate termination
hearing. However, rather than give the hearing fact-finding issue preclusive effect in a later
appeal to federal court, the court of appeals held that deference should be given to the
findings: the fact-finding should be reviewed under a substantial-evidence standard and not be
given preclusive effect.
295. Restatement (Second) of Judgments § 24 (1982).
296. Churchill v. Star Enters., 183 F.3d 184, 194 (3d Cir. 1999).
297. Lubrizol v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). The formulations used by the
courts differ somewhat from case to case. The Ninth Circuit, for example, looks at four factors
to determine the identity of claims: "(1) whether the two suits arise out of the same
transactional nucleus of facts; (2) whether rights or interests established in the prior judgment
would be destroyed or impaired by prosecution of the second action; (3) whether the two suits
involved infringement of the same right; and (4) whether substantially the same evidence is
presented in the two actions." ProShipLine Inc. v. Aspen Infrastructures, 594 F.3d 681, 688 (9th
Cir. 2010). In the Eleventh Circuit, "if a case arises out of the same nucleus of operative facts, or
is based upon the same factual predicate, as a former action. . .the two cases are really the
same 'claim' or 'cause of action' for purposes of res judicata." Griswold v. County of
Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010).
298. The Supreme Court directed the lower courts to assume that Congress intended the
presumption of preclusive effect of administrative findings to apply unless Congress indicated
otherwise. Astoria Fed. Sav. v. Solimino, 501 U.S. 104, 108 (1991). That indication, however,
need not be clear and precise. Id. (language of Age Discrimination in Employment Act implies
that Congress intended administrative findings not to have preclusive effect).
299. Univ. of Tenn. v. Elliott, 478 U.S. 788 (1986).
300. Id. at 795-96; see also Caver v. City of Trenton, 420 F.3d 243, 259 (3d Cir. 2005). Some of
the recent cases on this point deal with the preclusive effect of administration claims brought
under the Sarbanes-Oxley Act. See Stone v. Instrumentation Lab. Co., 591 F.3d 239 (4th Cir.
2009); Tice v. Bristol-Myers Squibb Co., 325 F. App'x 114 (3d Cir. 2009).
301. Id. at 798.
302. Gjellum v. City of Birmingham, 829 F.2d 1056 (11th Cir. 1987).
Page 154 of 559
303. Id. at 1064.
304. Dionne v. Mayor & City Council of Baltimore, 40 F.3d 677, 682 (4th Cir. 1994).
305. Id. at 683.
306. Id.
307. Dionne, 40 F.3d at 684. Edmundson v. Borough of Kennett Square, 4 F.3d 186, 192-93 (3d
Cir. 1993) (constitutional determinations by administrative agency have no preclusive effect).
308. Waid v. Merrill Area Pub. Sch., 91 F.3d 857 (7th Cir. 1996) (overruled in part on other
grounds in Fitzgerald v. Barnstable School Comm., 129 S.Ct. 788 (2009)).
309. Id. at 866.
310. Id. at 865.
311. Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir. 1994), cert. denied, 515 U.S. 1160
(1995).
312. Id. at 1032.
313. Plough v. W. Des Moines Cmty. Sch. Dist., 70 F.3d 512 (8th Cir. 1995).
314. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) (offensive); Blonder-Tongue Labs.
Inc. v. Univ. of Ill. Found., 402 U.S. 313 (1971) (defensive).
315. See Allen v. McCurry, 449 U.S. 90, 94-95 (1980).
316. Taylor v. Sturgell, 128 S.Ct. 2161 (2008).
317. Taylor, 128 S.Ct. at 2172-73.
318. Taylor, 128 S.Ct. at 2176.
319. See Univ. of Tenn. v. Elliott, 478 U.S. 788 (1986).
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320. Id. at 798-99. Federal courts give the same preclusive effect to the decisions of state
administrative agencies as the state itself would, subject to the procedural requirements of the
Due Process Clause. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481-82 (1982).
321. See, e.g., Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 728-29 (2d Cir. 2001)
(no evidence that Congress intended to limit preclusion under the Family and Medical Leave
Act).
322. See Burkybile v. Bd. of Educ., 411 F.3d 306, 312 (2d Cir. 2005) (since plaintiff had fair
opportunity to litigate in administrative proceeding, findings of fact are given preclusive effect
in subsequent § 1983 claim). Kosakow offers a particularly careful and thoughtful examination
of these issues with respect to the Family Medical Leave Act and New York preclusion law.
Kosakow concluded that the federal plaintiff did not have an adequate opportunity in the
administrative hearing to litigate whether the decision to terminate her employment was made
for legitimate business reasons. See also Swineford v. Snyder County, 15 F.3d 1258 (3d Cir.
1994) (unemployment compensation hearing). Unreviewed unemployment compensation
hearing decisions are ordinarily not given preclusive effect because of the limited legal issues
addressed and the particular nature of the forum.
323. See, e.g., Dias v. Elique, 436 F.3d 1125, 1129-31 (9th Cir. 2006).
Updated 2011
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4.1 Drafting the Complaint
Updated 2010
The complaint frames the scope of the litigation. As detailed in Chapter 1 of this MANUAL, the
complaint sets forth the facts, the legal theories, the relief requested, and advances the core
theory of the litigation. While the attorney’s pre-litigation memo and, later, trial notebook may
serve as her personal strategic guide, the complaint serves as the litigation map that will
determine the route the parties take as they navigate pre-trial motions, discovery, settlement,
and trial. It will also serve as the first public face of the litigation, describing the case to the
parties, the media, the judge, the clerks, and the opposing counsel and will set the tone for
future discussion and communication about the case.
While the complaint's role within a strategic framework remains as true as ever, two recent
Supreme Court cases, Bell Atlantic v. Twombly/1/ and Ashcroft v. Iqbal/2/, require the legal aid
attorney accustomed to liberal notice pleading to rethink her approach to complaint drafting.
Together, Twombly and Iqbal have entirely reinterpreted Federal Rule of Civil Procedure 8(a)
and impose a heightened pleading standard requiring that allegations of unlawful conduct be
plausible, rather than merely possible. Twombly and Iqbal have spawned an enormous volume
of academic commentary/3/ and caselaw, as well as bills in Congress to restore prior notions of
notice pleading./4/ Every legal aid attorney must become familiar with Twombly and Iqbal and
their circuit's evolving interpretations of the new "plausibility" standard./5/ When drafting
complaints, attorneys must anticipate motions for dismiss for failure to meet this standard.
Prior to drafting the complaint, the advocate must conduct a reasonable investigation under
the circumstances. We turn first to a complex aspect of that investigation - contacting
employees of the prospective adversary.
4.1.A. Pre-Litigation Investigation
Pre-filing investigation may include client interviews, interviews of witnesses, review of public
and other records, correspondence with opposing parties, and requests for information
pursuant to public records or Freedom of Information Act provisions. When possible, use prelitigation investigation rather than formal discovery to establish facts./6/ Even when the
investigation requires the cooperation of adverse parties, that cooperation is more likely to be
forthcoming before suit is filed.
A thorough investigation would often benefit from interviewing current or former employees of
a potentially adverse corporate entity or government agency. Rule 4.2 of the American Bar
Association Model Rules of Professional Conduct governs the permissibility of ex parte contacts
with represented persons by channeling most communications through counsel. Rule 4.2
specifies:
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In representing a client, a lawyer shall not communicate about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or a court order./7/
The primary concern behind the Rule 4.2 proscription “is to avoid overreaching caused by
disparity in legal knowledge; it is designed to protect lay parties.”/8/ A violation of your
jurisdiction’s ethical rules prohibiting ex parte contact with a represented party or person may
carry sanctions that include preclusion of the evidence obtained from the contact,
disqualification of counsel, or even dismissal of the action./9/ When the represented person is
an individual opposing party, application of the Rule’s no-contact provisions is relatively
straightforward. Its application to corporate or governmental employees that work for an
opposing party is less clear and has been the subject of a great deal of commentary./10/
The comments to Model Rule 4.2, significantly revised in 2002, provide some clarification on
the scope of the no-contact prohibition with respect to employees of an organizational party:
In the case of a represented organization, this Rule prohibits communications with a constituent
of the organization who supervises, directs or regularly consults with the organization’s lawyer
concerning the matter or has authority to obligate the organization with respect to the matter
or whose act or omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for
communication with a former constituent. . . ./11/
The comment thus establishes three situations in which ex parte contact with an organizational
employee is prohibited: (1) if the “constituent” is regularly working with the organization’s
attorney with respect to the matter being litigated; (2) if that person is authorized to “obligate”
the organization regarding the matter; or (3) if the person’s act or omission with respect to the
matter “may be imputed” for purposes of liability to the organization./12/
While a number of states have adopted ABA Model Rule 4.2, many, including the District of
Columbia, have not. Before contacting an employee of a potential corporate adversary, you
must consult your jurisdiction's rule of professional conduct, and cases and bar opinions
interpreting it. There are a wide range of applicable rules, from a blanket prohibition on
contact through rules that are quite permissive. Contacting employees of government entities
presents additional concerns: “[i]ndeed, while for most litigation purposes the law treats a
government entity just like any other party . . . unlike a corporate party, the government also
has a duty to advance the public’s interest in achieving justice, an ultimate obligation that
outweighs its narrower interest in prevailing in a lawsuit.”/13/ The comments to Model Rule 4.2
also reinforce the constitutionally protected right to petition the government: “communications
authorized by law may include communications by a lawyer on behalf of a client who is
exercising a constitutional or other legal right to communicate with the government.”/14/
The cases are generally more permissive with respect to former employees. The Model Rule 4.2
comments provide: “consent of the organization’s lawyer is not required for communication
with a former constituent.”/15/ Numerous decisions have held that an attorney may
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communicate ex parte with unrepresented former employees of a corporate party, even if they
were in a managerial position at the time of the incidents giving rise to the litigation. This rule
applies unless the former employees’ own conduct was involved in the disputed events, or they
had access to corporate confidences./16/ Once a managerial employee leaves the organization,
she no longer speaks for the corporation, her admissions no longer bind the corporation, and
she may, therefore, be interviewed ex parte without notice./17/ Other former employees may
also be interviewed, unless their act or omission in connection with the particular matter may
be imputed to the organization for purposes of civil or criminal liability./18/ No effort should be
made, however, to induce the former employee to violate the attorney-client privilege to the
extent his communications as a former employee with his former employer’s counsel are
protected by it.
Advocates should be aware of the case law in their jurisdiction regarding the ethical constraints
of contacting organizational staff of adverse parties. The practical difficulty of interpreting these
standards remains. First, a lawyer seeking an interview often cannot know in advance whether
the individual is covered by Rule 4.2 or not; often only the interview itself discloses the
interviewee’s relationship to the organization party and to the underlying transaction. Second,
the rules of respondeat superior and vicarious admissions against interest, if applicable, are
notoriously fuzzy, thus making it difficult to apply Rule 4.2 even when the facts are clear. Third,
these rules differ somewhat from state to state and as between state and federal law. At
bottom, if it turns out that the interviewee is covered by Rule 4.2, conducting the interview is
prohibited; if the interviewee is not covered, conducting the interview is part of the lawyer’s
duty of diligent representation, and she should actively seek whatever legitimate advantage
may be had by conducting the interview outside the presence of opposing counsel. Yet, it is
difficult to determine which path to take in situations where these principles are to be applied
are varied and often unclear before the interview./19/
4.1.B. Purposes of the Complaint
The complaint has at least five purposes: 1) to commence litigation, 2) to tell a persuasive story
to a varied audience, 3) to sufficiently set forth the jurisdictional, factual, and legal bases of the
case to avoid or limit the possibility of a motion to dismiss, 4) to enhance the usefulness of the
defendant’s answer to the complaint and the ability to obtain useful information though formal
and informal discovery and 5) to lay the groundwork for the resolution of the case through
settlement.
4.1.B.1. Commencing the Litigation
A civil action commences upon the filing of the complaint with the court clerk./20/ The filing
date of the complaint ordinarily determines whether the lawsuit is within the applicable statute
of limitations. The date of filing also sets the clock running for other dates, such as the deadline
for serving the defendant with the summons and complaint./21/ The date of service then
triggers the timing of a series of pretrial procedures./22/
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When to file the complaint is a decision to be made based on factors beyond the need to meet
the statute of limitations. Of course, if your client is facing an irreparable injury, you will need
to file the complaint promptly along with or immediately followed by a motion for temporary
and preliminary relief. If immediate harm is unlikely, the legal aid attorney may need to balance
the client’s interest in a prompt resolution of the matter with the risk that the quick filing of a
complaint may actually prolong the case in the long run. While complaints can be amended
fairly liberally,/23/ doing so takes time and may ultimately delay resolution of the case. Often,
the best approach is to spend the time needed initially to file a polished and thorough
complaint.
You must also bear in mind that litigation is like a chess match. While the complaint is your first
move, you must have subsequent moves in mind. Such tactics include filing a prompt motion
for class certification, a motion for summary judgment on cases involving little or no discovery,
or pressing for a prompt initial conference and discovery. Once you have contemplated your
subsequent moves, reexamine your complaint to make sure that it adequately supports
these strategies. These strategies may call upon you to begin drafting additional documents
before the complaint is filed.
4.1.B.2. Telling the Story
The complaint is the first opportunity that an attorney has to tell the client’s story and to
explain why the lawsuit has been filed. It is the first document that will be seen by the judge
and law clerks and will be referred to by them repeatedly throughout the case. The complaint
may also have an audience in the clients, the defendants, opposing counsel, the public, the
media, and other observers. The complaint must therefore be logically and narratively
compelling so that, when the reader reaches the final page, he feels that a wrong has been
committed, that your legal claims are sound, and that the relief you are requesting is
reasonable and deserved. In addition, the complaint is your first opportunity to present yourself
as the attorney for the plaintiffs; thus, you want it to be error-free, well-written, persuasive,
and reliable.
The best place to give a clear and concise summary (or core theory) of your client’s story is in
the complaint’s preliminary statement. It is the legal “sound bite” that introduces the more
technical and complex matters that follow and is what the judge and others rely most upon in
understanding what your case is about. It should be focused and written in plain language.
Drafting the preliminary statement is truly an art because although it is neither an argument
nor a detailed rehashing of the contents of the complaint, it must be convincing.
The balance of the complaint continues to tell the story of the case. The “facts” section is the
primary place where the story is fleshed out. As in an affidavit, each paragraph of the factual
allegations should set out a simple, objective statement of fact./24/ Every fact that is necessary
to plausibly support each of the legal claims, and the standing of the plaintiffs to advance them,
must be included. It should allege with some precision which legal requirements have been
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violated, what conduct defendants have done or have omitted, and what relief is sought. You
should “cross check” the complaint against your litigation and trial plan and, as you draft the
complaint, have an understanding of how each fact alleged will be proved. Thus, as both a
matter of style and strategy, you should generally avoid prefacing allegations with “upon
information and belief.” If, however, an allegation lacks evidentiary support but is “likely to
have evidentiary support after a reasonable opportunity for further investigation or discovery,”
it must be specifically identified in the complaint./25/ Once the factual portion of the story is
told, the sections on legal claims and relief should flow as logical extensions of the facts
bringing the reader along with you.
When drafting, never merely copy allegations from another complaint without clearly
understanding whether those allegations are appropriate in the case and verifying that the
allegations comport with the current law in your district or circuit. Ask colleagues in your office
to review the complaint as a double-check for factual clarity and legal sufficiency.
4.1.B.3. Protection Against Motion to Dismiss
The complaint must be sufficient to survive a motion to dismiss. Your thorough review of the
law in the substantive area involved should reveal to you the typical grounds for motions to
dismiss and the potential weaknesses in your case. It is helpful to imagine yourself as the
associate in the opposing counsel’s firm or office assigned to draft a motion to dismiss your
case; thus, providing yourself with an opportunity to identify and address your complaint’s
weaknesses before you file it.
Prior to 2007, the legal aid attorney could take comfort in the notion that all “the Rules require
is a ‘short and plain statement of the claim’ that will give the defendant fair notice of what the
plaintiff’s claim is and the ground upon which it rests.”/26/ For fifty years, the Court followed
the principle set forth in Conley v. Gibson that complaints that supplied such notice should not
be dismissed unless it is "beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief."/27/ The Supreme Court rejected efforts to impose
heightened pleading standards as recently as 2002. In Swierkiewicz v. Sorema,/28/ the Court
held that a plaintiff pleading Title VII and Age Discrimination in Employment Act claims was not
required to plead each element of a prima facie case of discrimination./29/ Noting that the
McDonnell Douglas standard was an evidentiary, not a pleading requirement, the Court held
that the complaint need only give “fair notice of the basis for [plaintiff’s] claim.”/30/
In Twombly, a 2007 Sherman Act case, the Court made it quite clear that the complaint must do
more than merely provide notice to the defendant. Rather, it held that a complaint must
contain facts that "plausibly suggest" a conspiratorial agreement rather than facts simply
alleging conduct consistent with such an agreement./31/ Burying the traditional Conley
formulation, the Court cautioned that "a plaintiff's obligation to provide the 'grounds' of his
'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do."/32/ The complaint must do more than simply
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leave open a possiblity that the plaintiff could prove its case. Instead, the pleading must contain
detail sufficient to create a reasonable expectation that discovery will surface evidence of
wrongdoing. The Court insisted that it was not imposing a heightened pleading standard, but
instead required allegations of sufficient detail to "cross the line from conceivable to
plausible."/33/ The Court's clear repudiation of the Conley "no set of facts" language and
extended discussion of the costs of discovery underscore a more rigorous pleading
standard./34/
In the Court's 2009 decision in Iqbal took plausibility pleading beyond antitrust cases and
imposed it quite rigorously. Iqbal was a Bivens case brought by a Pakistani arrested after 9/11
and housed a maximum security prison under allegedly harsh conditions. To prevail, Iqbal had
to plead and prove that the defendants at issue, the former Attorney General and the FBI
Director had adopted or approved of detention policies for the purpose of discriminating
against him on the basis of religion, race or national origin./35/ The Court explained that "the
pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."/36/
With respect to the "plausibility" standard described in Twombly, Iqbal explained that "[a] claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged."/37/ The Iqbal
Court noted that "[t]he plausibility standard is not akin to a 'probability requirement,' but it
asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line
between possibility and plausibility of 'entitlement to relief.'"/38/. Iqbal's significance lies in
operationalizing the plausibility standard.
The Court in Twombly acknowledged that a court must treat the complaint's factual allegations
as true, "even if doubtful in fact."/39/ But, in Iqbal, the Court cautioned that courts need not
accept as true "threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements."/40/ Such recitals are regarded as legal conclusions not subject to the
presumption of truth. The Court set out a procedure for separating legal conclusions from
factual allegations:
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief./41/
This procedure requires the court to engage in a two-step analysis that seems to go beyond
what was required in Twombly. First, the court should identify which statements in the
complaint or counterclaim are factual allegations and which are legal conclusions. Legal
conclusions should not be assumed to be true and may, essentially, be discarded for purposes
of the second step: assessing the factual assertions. Those assertions are not evaluated in
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overall context, but are stripped away from the discarded legal conclusions. "Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense."/42/ The
Court regarded the complaint's allegations in Iqbal as conclusory because, in context, the Court
discerned a more likely explanation for the detentions: Iqbal was rounded up as an
undocumented alien because of his possible connections to the perpetrators of 9/11 as part of
a terrorism investigation, rather than because of discriminatory animus.
The plausibility principle may have had particular impact in Twombly and Iqbal given the nature
of the claims asserted in those cases. In Twombly, there was no direct evidence of collusive
behavior in violation of the antitrust law. Rather, the plaintiffs alleged a scenario consistent
with such behavior when, at the same time, there existed another equally or more plausible
explanation for the scenario which was entirely innocent in nature. Without factual allegations
underlying an inference that the defendants’ behavior was collusive, the plaintiffs fell short of
offering allegations that made their theory a plausible one in light of the alternative. Similarly,
in Iqbal, the Court suggests that there was no direct evidence of unlawful discriminatory intent;
that intent must be inferred from other facts. The facts alleged by the plaintiffs, the Court
believed, were equally or more consistent with an explanation that the defendants acted
without discriminatory intent. In short, no facts were alleged to bring the inferential gap
between the behavior and the intent or motive for that behavior.
The Twombly/Iqbal standard may be particularly problematic in cases in which the defendant is
the custodian of most of the facts underlying the complaint or cases turning on mental states of
intent or motive. It is difficult to discern how to allege unlawful intent or purpose without using
language, like "knowingly" or "willfully," that is not conclusory in nature. Without discovery,
plaintiffs will have considerable difficulty unearthing support for such allegations, but such
allegations will not permit the plaintiff to proceed to discovery. Iqbal also portends a significant
expansion in judicial power and discretion. Rather than merely determining whether a
complaint was sufficiently detailed to afford the defendant notice, a fairly objective inquiry, the
federal judge must now use their "judicial experience and common sense" to determine
whether allegations are more subjectively "plausible." In a sense, "plausibility" is in the eye of
the beholder. Some judges may find challenges to the behavior of governments or corporations
implausible because the allegations do not conform with intuitive or expected
understandings./43/
For the legal aid attorney, Twombly and Iqbal have significant consequences./44/ They call for
more detailed and fact-specific complaints, which, in turn, may require more rigorous pre-filing
investigation and preparation. Lurking below the surface of Twombly and Iqbal are Rule 11
implications; how certain must the legal aid attorney be of the more detailed factual allegations
required to satisfy the plausibility standard?/45/ The judge drawn to hear the case may have an
immediate impact on the chances that the defendant will file a motion to dismiss and prevail on
that motion. An increased possibility of a motion to dismiss may alter settlement dynamics. For
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new legal services attorneys, close consultation with senior staff attorneys is necessary to
navigate through these more difficult and uncertain waters./46/
4.1.B.4. Enhancing Usefulness of the Answer and Discovery
The manner in which the complaint is drafted can enhance the usefulness of the opposing
party’s answer and facilitate initial disclosures. The defendant has a duty to answer factual
allegations affirmatively and in good faith, and a plaintiff’s factual assertion is deemed admitted
by the defendant when not specifically denied in the responsive pleading./47/ Hence, the more
specific and defined your factual allegations are, the less “wiggle room” your adversary has to
answer those allegations evasively. As in most legal drafting, particular potential pitfalls are the
use of compound statements, adjectives and adverbs, the conditional tense, and statements
that include assumptions or facts not yet admitted or proved.
Similarly, the scope of permissible discovery turns on relevance to the claims advanced./48/
The more complete your factual allegations are, the less room the defendant may have to
argue that the discovery you seek exceeds the bounds of relevance to the claims made. To be
sure, there may be cases in which strategy, timing, knowledge of the client or the degree of
available pre-filing investigation possible under the circumstances, combined with the dictates
of Rule 11, permit only general allegations to be made in the complaint. The presumptive goal
of specificity can legitimately be overridden in particular cases.
4.1.B.5. Basis for Settlement
You will be thinking about settlement from the moment you begin to prepare the litigation. The
complaint serves as the basis and framework for settlement throughout the case, especially if
prompt settlement is desired or possible. Although there are exceptions when settlement can
provide more relief than you can request from the court, in general, the relief portion of the
complaint serves as the outside boundaries of what you can request from the defendant in
settlement negotiations. Thus, consider including in the complaint not only what you want to
receive but also what your opponent does not want to provide. Relief that may be of relatively
little importance to you may be of great concern to your opponent. Giving up that relief may
prompt more significant concessions by the defendant. The quality of the complaint will also
serve to enhance your actual and perceived bargaining position as it reflects your skill as a
litigator, the thoroughness with which you are approaching the issue, and the factual and legal
strength of your case.
A detailed complaint may serve to the plaintiff’s benefit in court-ordered mediation
processes./49/ A well-drafted complaint followed by a typically boilerplate answer effectively
tells a story from the plaintiff’s perspective to the third-party neutral. Atmospherically or
substantively, this may create a measure of momentum for encouraging settlement on terms
more favorable to the plaintiff.
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4.1.C. Caption and Parties
All components of the complaint deserve thought, including the case caption. For instance, the
order in which the individual plaintiffs and defendants are listed may be important to the
participating organization or to advance a public relations objective which emphasizes the
compelling facts of the lead plaintiff. In the Lightfoot v. District of Columbia case, Elizabeth
Lightfoot was selected as the lead plaintiff because of the strength of her individual facts, her
commitment to the case, and capacity and willingness to serve the interests of the putative
class well, both in and out of court.
4.1.C.1. Individual, Group, and Class Plaintiffs
The first named plaintiff in a case involving more than one should be one best able to surmount
jurisdictional challenges, such as standing and mootness, and most likely to see the case
through to conclusion. Frequent changes to the case caption throughout the case can prove
confusing. You may also wish the first plaintiff to have a particularly compelling set of facts and
to be effective at articulating it publicly. At the same time, the concerns of other named
plaintiffs may suggest a neutral ordering system.
After the preliminary statement and statement of jurisdiction, the complaint should identify the
parties. The plaintiffs should be identified first, and in such a way that their standing and the
relief they seek seem self-evident. The defendants should then be identified, indicating either
the injury they inflicted or the role they played in the facts underlying the complaint.
The plaintiffs should include the people injured by the conduct that led to the litigation and
who may benefit from the relief sought or granted. That relief may be retrospective or
prospective in nature, or both. Whether a class action is appropriate will depend on the nature
of the challenged conduct, the relief sought, and difficulties of joinder./50/ If so, careful
selection of class representatives is required, and the complaint will include class allegations.
The complaint should be accompanied by a motion for class certification. That motion should
be heard as quickly as possible as the court must determine whether to certify a class “at an
early practicable time.”/51/
The plaintiff or plaintiffs may proceed anonymously where there is a good reason to do so. Such
reasons may include allegations about the mental health, medical, or sexual history of the
plaintiff or other sensitive information the revelation of which an association with the plaintiff
would cause harm or embarrassment. If you choose to file anonymously, you file a copy of the
complaint with the plaintiff’s name, a motion to the court explaining the reason for filing
anonymously, and a complaint with a substitute name (e.g., Jane Doe). The order you prepare
includes instructions for sealing the original complaint and permission to proceed henceforth
with the substitute name. The defendant will be served a copy of the original complaint—the
defendant is entitled to know who brought suit—and a copy of the signed order, which also
requires the defendant to keep the name of the plaintiff confidential. Only in rare
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circumstances does the defendant object to an order of anonymity. Check the local rules of
court for local practices regarding anonymous filing and redacting sensitive information.
4.1.C.2. Defendants
The defendants should be identified with a close eye toward relief. As a rule of thumb, if you
seek damages, seek them from the person who inflicted the injury leading to the claim for
damages. By contrast, if you seek injunctive relief, you must name the highest-level officials,
usually the department heads, since they can offer the most thorough and far-ranging relief.
Injunctive relief starts at the top; damages start at the bottom. The bedrock principle is to
include as defendants everyone necessary for relief.
The allegations as to the defendants should include not only their past, present, or future
conduct but also their authority. This is obvious when you are seeking injunctive relief since
officials may be enjoined only to act within their authority. But it is equally true when damages
are being sought. You must particularly allege an official’s authority if you are seeking damages
not only from that official but also from the official’s superior or the municipality or agency
employing the official. Misconduct beyond the scope of employment rarely leads to vicarious or
respondeat superior liability. Thus, allegations as to authority are important for both injunctive
relief and damages.
Defendant classes may be named under Rule 23. This is equally true in many state courts.
Naming defendant classes may be of considerable value when you bring an action against a city
or county in a state where similar practices are followed in a number of cities or counties. In
federal court, a state may not be sued in its own name. Since Ex parte Young, complaints for
injunctive relief are filed against a state official, not the state itself./52/ Suits against a state
official in federal court may not seek damages from that person in that person’s official capacity
if such damages ultimately would come from the state treasury.
4.1.D. Pleading Facts and Theories
For the strategic reasons outlined above, the facts should be drafted so that they tell a clear
and compelling story guiding the reader to believe in the obvious need for relief. Casting the
story in human terms makes it more immediate and, therefore, more compelling. As explained
above, this factual presentation must be made is sufficient detail to satisfy the new plausibility
standards and should be framed in terms that will resonate with the judge's experience and
common sense. Where possible, refer to the plaintiff by name rather than by legal designation.
Defendants can be personalized when you are emphasizing their acts as individuals, or they can
be depersonalized to remove sympathy for them and remind the reader of their essential
nature as an institution or bureaucracy. If possible, a non-attorney unfamiliar with the case
should review the facts to make sure the story is clear and convincing.
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A chronological framework may support the clarity of your presentation, but other narrative
devices may be effective as well./53/ Brevity and clarity may also be enhanced by attaching
supplementary materials, such as notices, and by incorporating them by reference. As in any
writing, pacing is an important element of your drafting. For instance, if the age and physical
condition of your plaintiff is critical to your case, you may devote separate paragraphs to stating
the plaintiff’s age, describing each physical or mental impairment, and the effect each
impairment has on the plaintiff. On the other hand, if these facts are irrelevant to your legal
claims, you may choose to include a range of identifying and background information in a single
paragraph, which introduces your client without distracting from the more important core of
the story you need to tell.
Although you are likely to have several claims, you will have one core legal theory—the legal
theme of the case. That theme should be sounded in the complaint’s preliminary statement in a
succinct but persuasive way. An example of a poor preliminary statement appears in the Jones
v. Clinton complaint: “Plaintiff Paula Corbin Jones, by counsel, brings this action to obtain
redress for the deprivation and conspiracy to deprive Plaintiff of her federally protected rights
as hereafter alleged, and for intentional infliction of emotional distress, and for defamation.”
The statement is written in overly stilted, legalistic language and is devoid of any mention of a
core theory or persuasive connection between the facts and the legal claims. Were this not a
case destined to capture the attention of the nation, the statement alone would not have
commended the continued reading of the complaint.
Following the chronology of facts, the complaint should set forth the legal theories that lead to
relief. These may be constitutional, statutory, or regulatory. They may include both federal and
state theories. You must draft the theories clearly and cite their statutory, regulatory, or
constitutional bases. In complex regulatory cases, the legal aid attorney should reduce legal
complexity to a minimum in the body of the complaint. The essential elements of the statutory
and regulatory scheme should be set out in the complaint, but a detailed discussion should wait
for briefing.
In drafting your legal claims, you are likely to have choices about grouping claims together or
listing them separately. For instance, a claim might be “Defendant engaged in unlawful
discrimination by denying plaintiff an apartment because of plaintiff’s national origin in
violation of” and then listing the various statutes, regulations, and other sources of law. Or a
claim might be stated as “Defendant violated the Fair Housing Act by (a) refusing plaintiff an
apartment and (b) giving plaintiff information different from other applicants.” The key to wellcrafted pleading of claims is to strive for clarity, to delineate them based on the themes of the
case, and to ensure the preservation of claims should any others be dismissed. If claims are
grouped incoherently, then a motion to dismiss may remove valid claims from your case. Clear
delineation of your claims helps in your ongoing case management as you plan and conduct
discovery and as you maintain time records for an application for attorneys’ fees.
4.1.E. Framing Relief
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The prayer or request for relief is a required part of the complaint. It forms the opening gambit
in any negotiations. It acts as the “ceiling” for what you can obtain either in settlement or from
the court. It colors the way others, including the court and the defendant, perceive the lawsuit
depending on whether they view what you want as reasonable or as overreaching. Thus, how
you frame your request for relief is a strategic decision.
Each type of relief you want must be listed. Your requested relief might include the following:

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Injunctive relief (prospective, retroactive or both)
Declaratory relief
Compensatory damages
Punitive damages
Pain and suffering
Statutory damages, such as treble damages or fines
Reimbursement of funds paid or lost
Class action certification, if applicable
Attorneys’ fees
Costs
Each type of relief must be supported by the factual allegations and legal claims that precede it.
If injunctive relief is sought, there should also be a routine allegation that equitable relief is
necessary because relief at law is inadequate. The request for relief should also contain a
catchall request for “such other and further relief as this court may deem just and proper.” This
clause is your protection if you seek to obtain more than or different relief from what you
contemplated when you drafted the complaint. When your client reviews the complaint, you
must explain the purpose of the request for relief; clients sometimes believe that the amount
of damages listed is what they will get if they win the case or settle.
The specificity of the relief requested depends on the complexity of the case and the degree to
which specifics are known at the time of filing. For example, if the relief requested is clear and
specific, it may be best to state it: “Provide plaintiff with the public assistance benefits to which
he was entitled from January 15, 2002, the date of his eligibility.” A request for systemic relief,
however, may be phrased more broadly, with details to follow in a consent decree or remedial
order. The important principle is to be broad and inclusive in the prayer for relief. Do not leave
anything out.
1. Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
2. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
3. See, e.g. Symposium, Pondering Iqbal, 14 Lewis & Clark L. Rev. 1 (2010); The Changing Shape
of Federal Civil Pretrial Practice, 158 U. Pa. L. Rev. 421 (Jan 2010).
Page 168 of 559
4. S. 1504, 111th Cong. (2009) (The Notice Pleading Restoration Act); H.R. 4115, 111th Cong.
(2009) (The Open Access to Courts Act of 2009). For an excellent analysis of the new pleading
standards, see the testimony of Professor Stephen Burbank, University of Pennsylvania David
Berger Professor for the Administration of Justice, before the Senate Judiciary
Committee. Appendix B of Professor Burbank's written testimony is a list of several recent
federal decisions interpreting and applying these standards..
5. See Jane Perkins, Pleading Standards after Twombly and Iqbal, 43 Clearinghouse Review 507
(Mar-Apr, 2010). This article contains a number of useful tips for meeting the challenges
presented by the new standards.
6. For more guidance on pre-litigation factual investigation, see Chapter 1 of this MANUAL.
7. Model Rules of Prof’l Conduct R. 4.2 (2004).
8. In re Grievance Proceeding, No. 3:01GP6 (SRU), 2002 U.S. Dist. LEXIS 18417, at *6, 2002 WL
31106389, at *2 (D. Conn. July 19, 2002) (Connecticut version of ABA Rule 4.2).
9. See Penda Corp. v. STK, No. Civ.A.03-5578, 2004 U.S. Dist. LEXIS 13577, at *14, 2004 WL
1628907, at *7 (E.D. Pa. July 16, 2004) (imposing sanction of preclusion of evidence obtained
from unauthorized ex parte contact, but denying request for disqualification of counsel).
10. See generally, Geoffrey C. Hazard, Jr. and Dana Remus Irvin, Toward a Revised 4.2 NoContact Rule, 60 Hastings L.J. 797 (2009); Susan J. Becker, Discovery of Information and
Documents From a Litigant’s Former Employees: Synergy and Synthesis of Civil Rules, Ethical
Standards, Privilege Doctrines, and Common Law Principles, 81 Neb. L. Rev. 868 (2003); Carl A.
Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 2), 70
Tenn. L. Rev. 321 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s
Revision of Model Rule 4.2 (Part 1), 70 Tenn. L. Rev. 121 (2002).
11. Model Rules of Prof’l Conduct R. 4.2 cmt. 7 (2004).
12. See, e.g., Paris v. Union Pac. R.R., 450 F. Supp. 2d 913 (E.D. Ark. 2006)
13. Frey v. Dept. of Health & Human Servs., 106 F.R.D. 32, 37 (E.D.N.Y. 1985) (citations omitted)
(allowing interviews of lower level SSA employees under “alter ego” test which only restricts
contact with employees with authority to bind the agency); see Rivera v. Rowland, No. CV95545629, 1996 WL 753943, at *5 (Conn. Super. Ct. Dec. 17, 1996) (allowing access to assistant
public defenders as fact witnesses and noting that government defendants “are public persons
and entities carrying on the public’s business. As such, they are compelled to strike a delicate
balance and play a difficult dual role – vigorously defending the case, yet ensuring all the while
that justice is done.”). See also NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d 1335, 1342 (M.D.
Page 169 of 559
Fla. 2000) (allowing contact with prison workers in wrongful discharge litigation, despite
contention that their actions and statements could be imputed to the defendant for liability
purposes); Brown v. Or. Dept. of Corr., 173 F.R.D. 265 (D. Or. 1997) (allowing interviews of
current non-management employees, employees whose conduct is not at issue, and all former
or transferred employees); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977)
(contact with welfare workers allowed in Medicaid EPSDT litigation).
14. Model Rules of Prof’l Conduct R. 4.2 cmt. 5 (2004); see id. cmt. 4 (“[T]he existence of a
controversy between a government agency and a private party . . . does not prohibit a lawyer
for either from communicating with nonlawyer representatives of the other regarding a
separate matter.”).
15. Model Rules of Prof’l Conduct R. 4.2 cmt. 7 (2004); see Frank v. L.L. Bean, Inc., 377 F. Supp.
2d 233, 236 (D. Me. 2005).
16. See, e.g., NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d at 1335; Olson v. Snap Prod., Inc., 183
F.R.D. 539 (D. Minn. 1998); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D. Conn. 1991); Clark
v. Beverly Health & Rehab. Servs., Inc., No. 990163B, 2001 WL 914195 (Mass. Jul. 5, 2001); Lang
v. Superior Court, 826 P.2d 1228 (Ariz. Ct. App. 1992); Strawser v. Exxon Co., 843 P.2d 613, 618
(Wyo. 1992). Some courts have declined to impose any limitations upon ex parte contacts with
former employees. E.g., P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind. Ct. App.
2002); H.B.A. Mgmt. v. Estate of Schwartz, 693 So.2d 541, 545 (Fla. 1997).
17. See, e.g., H.B.A. Mgmt., 693 So. 2d at 546; Fed. R. Evid. 801(d)(2)(D).
18. Lang, 826 P.2d at 1233 (“[F]or example, if an employee hired to drive a truck is involved in
an accident that occurs in the course and scope of employment, the fact that the employee
leaves her employment should not determine the propriety of ex parte communications.
Clearly, the employee’s acts or omissions in connection with any litigation that arises out of the
accident can be imputed to the former employer for purposes of civil liability.”).
19. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 38.6, at 38-10 (2004
Supp.); see IBM v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (emphasizing the importance of
informal fact-gathering, versus restrictions inherent in having to take witness depositions).
20. Fed. R. Civ. P. 3.
21. Id. 4(m). Filing and service are discussed infra.
22. See, e.g., Fed. R. Civ. P. 12(a), 16(b).
Page 170 of 559
23. Fed. R. Civ. P. 15.
24. Id. 10(b). Of course, as explained in Chapter 2.2 of this MANUAL, the federal complaint must
also allege the basis of jurisdiction. Fed. R. Civ. P. 8(a)(1).
25. Id. 11(b)(3).
26. Conley v. Gibson, 355 U.S. 41, 47 (1957); Fed. R. Civ. P. 8(a).
27. Conley, 355 U.S. at 45-46.
28. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
29. Id. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
30. Swierkiewicz, 534 U.S. at 514.
31. Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
32. Twombly, 550 U.S. at 555.
33. Id. at 570.
34. For a subsequent, although brief, opinion holding that a pro se prisoner's Section 1983
complaint based on deliberate indifference to medical needs was sufficiently pled, see Erickson
v. Pardus, 551 U.S. 89 (2007); see also Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) (assessing
pro se prisoner's complaint and finding some claims sufficiently pled and others not). More
recently, the Supreme Court found an inartful complaint sufficient and somewhat oddly did so
without citing either Iqbal or Twombly, but instead citing Swierkiewicz: "Because this case was
resolved on a motion to dismiss for failure to state a claim, the question below was "not
whether [Skinner] will ultimately prevail" on his procedural due process claim, but whether his
complaint was sufficient to cross the federal court's threshold. Skinner's complaint is not a
model of the careful drafter's art, but under the Federal Rules of Civil Procedure, a complaint
need not pin plaintiff's claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules
of Civil Procedure generally requires only a plausible "short and plain" statement of the
plaintiff's claim, not an exposition of his legal argument. See 5 C Wright & A. Miller, Federal
Practice & Procedure § 1219, pp. 277-278 (3d ed. 2004 and Supp. 2010)." Skinner v. Switzer,
131 S. Ct. 1289 (2011) (citations omitted). Skinner should not be interpreted as weakening
Iqbal and Twombly, which focus on the factual sufficiency of the complaint. The issue here
dealt with the clarity of the legal claim.
Page 171 of 559
35. Iqbal, 129 S. Ct. at 1949.
36. Id.
37. Id. For a recent Supreme Court case in the securities law context finding, without
substantial explanation, that the presence of medical reports showed a plausible causal link
between use of a drug and adverse reactions, see Matrixx Initiatives, Inc. v. Siracusano, 2011
U.S. LEXIS 2416 at *34-35 (Mar. 22, 2011).
38. Id. When a set of pleaded facts gives rise to two alternate reasonable inferences, one
tending to support liability and the other not, the plausibility standard is met. Fabian v. Fulmer
Helmets, Inc., 628 F.3d 278, 281 (6th Cir. 2010). Swanson v. Citibank, 614 F.3d 400 (7th Cir.
2010) is an interesting pro se lending discrimination case in which the majority, over Judge
Posner's dissent, took a rather gentle approach to applying Iqbal and Twombly, stating that,
"[a]s we understand it, the Court is saying instead that the plaintiff must give enough details
about the subject-matter of the case to present a story that holds together. In other words, the
court will ask itself could these things have happened, not did they happen. For cases governed
only by Rule 8, it is not necessary to stack up inferences side by side and allow the case to go
forward only if the plaintiff's inferences seem more compelling than the opposing
inferences." Id. at 404.
39. Twombly, 550 U.S. at 555.
40. Iqbal, 129 S. Ct. at 1949. For an interesting post-Iqbal decision authored by Justice Souter,
sitting as a Circuit Judge, see Sepúlveda-Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25 (1st
Cir. 2010). In Sepúlveda-Villarini, plaintiffs alleged that the defendants discriminated against
them by failing to reduce their class sizes to accommodate disabilities. The court reversed the
trial court's dismissal of their claims, holding that the facts pled in the complaint could infer a
causal connection between the larger class size and deterioration in the teachers' health.
Justice Souter wrote, "[a] plausible but inconclusive inference from pleaded facts will survive a
motion to dismiss, and the fair inferences from the facts pleaded in these cases point to the
essential difference between each of them and the circumstances in Twombly, for example, in
which the same actionable conduct alleged on the defendant's part had been held in some
prior cases to be lawful behavior." Id. at 30.
41. Iqbal, 129 S. Ct. at 1950.
42. Id.
43. See A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark
L. Rev. 185 (2010).
Page 172 of 559
44. See Jane Perkins, Pleading Standards after Iqbal and Twombly, 43 Clearinghouse Review 507
(Mar.-Apr. 2010). Ms. Perkins offers fifteen useful tips for drafting complaints in the wake of
Iqbal and Twombly.
45. See Fed. R. Civ. P. 11(b)(3). Note that Rule 11(b)(3) permits pleader to make factual
contentions "specifically so identified" when they "will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery." So far, there is little case law
dealing with the use of allegations made under Rule 11(b)(3) to satisfy Iqbal. See U.S. ex rel.
Folliard v. CDW Tech. Servs, 2010 U.S. Dist. Lexis 38233 (D.D.C. Apr. 19, 2010); Elan
Microelectronics Corp. v. Apple, Inc., 2009 U.S. Dist LEXIS 83715 (N.D. Cal. Sept. 14, 2009). In an
interesting case, Penalbert-Rosa v. Fortuño-Burset, 631 F.3d 592 (1st. Cir. 2011), a public
employee plausibly claimed that she was fired because of her political affiliation when a new
governor was elected. However, the complaint offered insufficient facts supporting her
contentions that one of the named defendants was involved in the firing. The First Circuit
affirmed the dismissal of the complaint against the named defendants, but allowed the
employee to amend the complaint to proceed against John Doe defendants.
46. At the time of this update, few federal appellate courts have had occasion to distinguish
Iqbal. Two of note are al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) and Smith v. Duffey, 576
F.3d 336 (7th Cir. 2009).
47. Fed. R. Civ. P. 8(b).
48. Id. 26(b)(1); see also id. 26(a)(1) (mandatory initial disclosures).
49. See Chapter 6.4 of this MANUAL.
50. See Chapter 7 of this MANUAL. Programs that receive funding from the Legal Services
Corporation (LSC) are prohibited from initiating or participating in class actions. 45 C.F.R. §
1617.
51. Fed. R. Civ. P. 23 (c)(1)(a).
52. Ex Parte Young, 209 U.S. 123 (1909). See Chapter 8.2 of this MANUAL.
53. Elizabeth Fajans & Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15
Legal Writing 3 (2009).
Updated 2010
4.2 Sanctions
Page 173 of 559
Updated 2010
Federal courts generally have three sources of power from which to impose sanctions:
1. Rule 11 of the Federal Rules of Civil Procedure;
2. 28 U.S.C. § 1927; and
3. The inherent power of the court.
These sources of power overlap and are not necessarily mutually exclusive./54/ The legal aid
attorney should consider all three carefully when asking for sanctions, or when faced with the
threat of sanctions. This chapter explores each of these grounds for imposing sanctions as well
as the ethical issues inherent in ghostwriting filings for pro se litigants.
4.2.A. Federal Rule of Civil Procedure 11
Federal Rule of Civil Procedure 11 authorizes federal courts to issue sanctions against parties or
their attorneys who file pleadings, motions, or other papers that are filed for an improper
purpose or lack a required level of evidentiary or legal support. The aim of Rule 11 is to deter
frivolous filings, to "curb abuses of the judicial system,”/55/ and to require litigants to refrain
from conduct that frustrates Rule 1’s goal of the “just, speedy, and inexpensive determination
of every action.”/56/
Rule 11 states that “[e]very pleading, written motion, and other paper must be signed by at
least one attorney of record in the attorney's name--or by a party personally if the party is
unrepresented."/57/ That is, counsel must sign every document filed with the court./58/ A
typed name is not a signature./59/ But, courts may by local rule establish electronic filing
policies consistent with technical standards adopted by the Judicial Conference of the United
States that permit electronic signature./60/ The signer’s address, e-mail address, and telephone
number must be included./61/ Additionally, local rules of court may require further identifying
information to accompany the signature, such as fax numbers./62/ In Business Guides Inc. v.
Chromatic Communications Enterprises, the Supreme Court noted that “[t]he essence of Rule
11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message
to the district court that this document is to be taken seriously."/63/
4.2.A.1 Standards for Making Representations to the Court
Rule 11(b) provides that,”[b]y presenting to the court a pleading, written motion, or other
paper--whether by signing, filing, submitting, or later advocating it--an attorney or
unrepresented party certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances” that the material
Page 174 of 559
presented is not filed for an improper purpose and has the requisite degree of evidentiary and
legal support./64/ This language raises two interpretive questions - what "later advocating"
means and what "a reasonable inquiry under the circumstances" entails.
The “later advocating” requirement was added to Rule 11(b) in 1993 to emphasize that Rule 11
obligations continue throughout the litigation process./65/ This amendment “subjects litigants
to potential sanctions for insisting upon a position after it is no longer tenable.”/66/ Although
an attorney must discontinue advocating a position that she later learns is invalid, Rule 11 does
not require a formal amendment of the initial filing./67/ Nor does Rule 11 cover contentions
made before the court at oral argument regarding matters not previously raised because
attorneys may have lacked time to research their validity./68/ However, oral statements that
advocate baseless assertions earlier made in writing are sanctionable./69/
The "reasonable inquiry" requirement imposes on the attorney a duty to stop and investigate
the legal and factual basis for a claim or defense before making it in writing./70/ How much
and what type of inquiry is required depends on the circumstances. As one might expect, an
important circumstance is the amount of time the attorney has to make the investigation./71/
A pending expiration of a statute of limitations or situation in which the client is facing
irreparable or grave harm may justify a less robust investigation. If there is sufficient time to
conduct a full investigation, an attorney is expected to interview relevant witnesses, review
pertinent documents, and discuss the case with prior counsel if the case has been referred./72/
Generally, an attorney may rely upon the reasonable representations of their client, but good
practice is to seek verification of those facts when it is possible to do so. /73/ An attorney may
also draw reasonable inferences from facts uncovered during the investigation. Lack of
experience is not a relevant factor, as inexperienced attorneys are expected to seek guidance
from seasoned attorneys.
Rule 11(b) enumerates four standards to which litigants and counsel must adhere when
presenting materials to the court. First, Rule 11(b)(1) requires that the papers not be presented
for an improper purpose. Prohibited improper purposes include harassment, unnecessary
delay, and the needless increase in the cost of litigation./74/ Despite the subjective connotation
of “improper purpose,” most courts agree that the test is an objective one based upon a totality
of the circumstances at the time the paper is filed./75/ Courts adhering to the objective test will
look to "objective indicators of purpose from which to infer improper purpose” and will not
consider or attempt to divine an individual litigant's subjective purpose./76/ Courts using this
test must identify specific “unusual circumstances” which show an improper purpose, such as
excessive filing of motions that are substantially similar to earlier, unsuccessful motions./77/
While most circuits addressing the issue agree that finding an improper purpose is a purely
objective task, a few courts disagree, leaving unresolved the question of whether, and to what
extent, subjective intent should be considered as a factor in determining the litigant's
purpose./78/
Page 175 of 559
Complicating the improper purpose standard has been how to evaluate cases involving a mix of
proper and improper purposes and cases involving the filing of non-frivolous documents which
may nevertheless be filed for an improper purpose. The language of Rule 11 plainly states that
papers presented for "any" improper purpose will be sanctionable./79/ However, the courts
have split on mixed motive cases./80/ The question of non-frivolous filings made for improper
purposes has also split the circuits. The Second, Ninth, and Tenth Circuits have held that
sanctions may not be imposed in connection with the filing of a non-frivolous complaint, even if
filed for an improper purpose./81/ These courts have found that that “[a] party should not be
penalized for or deterred from seeking and obtaining warranted judicial relief merely because
one of his multiple purposes in seeking that relief may have been improper.”/82/ Alternatively,
the Fourth, Fifth and Seventh Circuits have held that a non-frivolous complaint may be
sanctioned./83/ The Fourth Circuit has adopted a balancing test of sorts, stating that “the
purpose to vindicate rights in court must be central and sincere.”/84/ The Fifth Circuit has
adopted a “but for” test to determine when a party may be sanctioned for filing with an
improper purpose./85/ This test requires the movant to prove, through objectively
ascertainable evidence, that “but for” the improper motive, the filing would not have been
filed./86/
Second, Rule 11(b)(2) states that any claims, defenses, or legal contentions presented to the
court must be grounded in existing law, asserted to extend, modify, or reverse existing law,
or establish new law./87/ This requires attorneys to make an objectively reasonable inquiry
under the circumstances into the state of the law. The standard is not met when the legal
assertion is (1) objectively baseless and (2) the attorney has not made a “reasonable and
competent inquiry” before making it./88/ A court need not find bad faith to issue sanctions;
good faith is no defense./89/ Thus, an "empty head, pure heart" defense to a motion for
sanctions must fail. A legal position will be sanctionable only when it can be said that a
“reasonable attorney in like circumstances could not have believed his actions to be legally
justified.”/90/
When the prevailing law is unsettled, a well-supported but unsuccessful argument should not
be subject to sanctions. When the existing law is clear, but contrary to the position of the legal
aid attorney, court have held that plausible arguments to extend, modify, or reverse existing
law are not subject to Rule 11 sanctions./91/ Such arguments, though, should be grounded in
favorable precedent in other circuits or academic literature. Reliance on policy or logic alone
raises the risk of sanctions. The legal argument must have "absolutely no chance of success
under the existing precedent" to contravene Rule 11./92/ Nonetheless, advancing an argument
for the purpose of preserving it for appellate review is permissible, so long as the argument is
not frivolous./93/ Legal services attorneys should document the legal research performed and
consultations with other attorneys before filing because these efforts are subject to scrutiny
should a Rule 11 motion be filed./94/ When an argument is foreclosed by existing law, the legal
aid attorney should be careful to explain that he is advancing a novel legal arguments aimed at
reversing existing law or establishing new law./95/
Page 176 of 559
Third, Rule 11(b)(3) requires that any factual allegation either have evidentiary support or, if
identified as such, be “likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.”/96/ This requires attorneys to make an objectively
reasonable inquiry under the circumstances into the facts of the case. As noted above, to
determine whether factual assertions are supported by an objectively reasonable factual
inquiry, courts will look to several factors, including:
[W]hether the signer of the documents had sufficient time for investigation; the extent to which
the attorney had to rely on his or her client for the factual foundation underlying the pleading,
motion or other paper, whether the case was accepted from another attorney, the complexity of
the facts and the attorney’s ability to do a sufficient pre-filing investigation; and whether
discovery would have been beneficial to the development of the underlying facts./97/
The Second Circuit recently held that “[a] statement of fact can give rise to the imposition of
sanctions only when the particular allegation is utterly lacking in support."/98/ Such allegations
of fact may be supported by direct or circumstantial evidence. It is not a violation of Rule 11 to
rely on inferences to support facts or to fail to indentify the support for the fact as either based
on direct evidence or inference./99/ Generally, isolated factual errors are not sanctionable, so
long as the error was made in good faith and in a context in which the filing as a whole had
factual support./100/ However, courts have on occasion held such errors to be deserving of
sanctions./101/ Factual assertions should, at bottom, be made with extreme care and after
review by others in the legal aid office.
Fourth, Rule 11(b)(4) states that any denials of factual contentions must be either “warranted
on the evidence” or, if identified as such, “reasonably based on a lack of information or
belief.”/102/ Thus, denials of fact are treated like factual assertions and must be objectively
reasonable. The addition of this fourth requirement to the 1993 amended rule ensures an equal
application to both plaintiffs and defendants.
4.2.A.2. Sanctions
Rule 11(c) permits, but no longer requires, the court to issue sanctions to attorneys, law firms,
or parties in violation of the rule or responsible for the violation./103/ The 1993 amendments
made the issuance of sanctions, whether prompted by motion or by the court’s own initiative,
discretionary rather than mandatory./104/ The advisory committee’s notes list several factors
that the courts should consider in deciding whether to issue a sanction and, if appropriate, the
kind of sanction to impose:
Whether the improper conduct was willful, or negligent; whether it was part of
a pattern of activity, or an isolated event; whether it infected the entire
pleading, or only one particular count or defense; whether the person has
engaged in similar conduct in other litigation; whether it was intended to
injure; what effect it had on the litigation process in time or expense; whether
the responsible person is trained in the law; what amount, given the financial
Page 177 of 559
resources of the responsible person, is needed to deter that person from
repetition in the same case; what amount is needed to deter similar activity by
other litigants./105/
The 1993 amendments also stress that the purpose of sanctions is deterrence rather than
compensation and highlight the availability of non-monetary sanctions for the court's
consideration./106/ Consistent with this deterrence function, “if a monetary sanction is
imposed, it should ordinarily be paid into court as a penalty.”/107/ These amendments lessen
the incentive for a litigant to file a motion for sanctions because the litigant is less likely to
profit financially if a Rule 11 violation is found by the court. Rule 11, however, also authorizes
the direct payment of fees and expenses to the moving party when “warranted for effective
deterrence.”/108/ At bottom, “sanctions should not be more severe than reasonably necessary
to deter repetition of the conduct by the offending person or comparable conduct by similarly
situated persons.”/109/
Rule 11 authorizes the court to sanction both attorneys and their clients./110/ Rule 11(c)(1)(A)
further provides that, “[a]bsent exceptional circumstances, a law firm shall be held jointly
responsible for violations committed by its partners, associates, and employees.”/111/
Although this provision has apparently not been applied to a legal services organization, it does
suggest that such an entity could be regarded as a law firm and, therefore, subject to sanctions
when an attorney it employs violates Rule 11./112/ The advisory committee’s notes state that
the court may appropriately inquire whether “institutional parties” impose restrictions on the
discretion of individual attorneys./113/ To the extent that such restrictions minimize the risk of
institutional sanctions, legal aid organizations may wish to consider imposing them.
Rule 11(c)((1)(A) requires that a party seeking sanctions must serve a separate motion
identifiying the conduct that is alleged to have violated Rule 11 on the alleged offender twentyone days before filing the motion in court. /114/ During this twenty-one-day period, the party
served may withdraw or correct any challenged material, thus eliminating the need for the
motion to be filed with the court. This “safe harbor” period aims to decrease the volume of
Rule 11 motions that come before the court. Litigants may avoid potential sanctions by
withdrawing or amending improper materials without the court's involvement. The court in
Barber v. Miller discussed the rationale for the safe-harbor provision as follow:
These provisions These provisions are intended to provide a type of “safe harbor” against
motions under Rule 11 in that a party will not be subject to sanctions on the basis of another
party’s motion unless, after receiving the motion, it refused to withdraw that position or to
acknowledge candidly that it does not currently have evidence to support a specified allegation.
Under the former rule, parties were sometimes reluctant to abandon a questionable contention
lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely
withdrawal of a contention will protect a party against a motion for sanctions. /115/
A court may also levy sanctions sua sponte but may do so only after issuing a specific order
describing the perceived misconduct and allowing the possible offender an opportunity to show
cause why the sanction should not be issued./116/ The rule incorporates a measure of due
Page 178 of 559
process protection./117/ However, because a sua sponte order to show cause does not allow
an attorney the opportunity to withdraw the offending filing, courts are cautioned to “reserve
such sanction for situations that are akin to a contempt of court.”/118/ Furthermore, to
facilitate appellate review, the rule requires the court to describe the sanctionable conduct and
the basis for the sanction imposed./119/
While the matter may turn on particular facts, Rule 11 sanctions are not generally immediately
appealable under the collateral order doctrine./120/ On appeal,”[a]ll aspects of a district
court’s Rule 11 determination are examined under the abuse of discretion standard.”/121/
However, when sanctions are levied sua sponte, they will be reviewed with “particular
stringency” due to the “unusual position of the trial court in such circumstances, serving at
once as both prosecutor and judge . . . .”/122/
4.2.B. 28 U.S.C. § 1927
Another basis for sanctions lies in 28 U.S.C.§ 1927, which serves “to deter unnecessary delays in
litigation.”/123/ The statute authorizes sanctions in the form of “excess costs, expenses, and
attorneys fees” against any attorney who “multiplies the proceedings in any case unreasonably
and vexatiously.”/124/ While there are cases to the contrary, the emerging consensus is that
law firms (and, by extension, legal aid offices) are not subject to sanctions under § 1927; only
individual attorneys may be sanctioned under the statute./125/ Courts have resorted to § 1927
more frequently since the statute was amended to include attorneys’ fees./126/
The scope of authority to sanction under § 1927 is both broader and narrower than Rule
11./127/ Section 1927 is broader in that the attorney’s behavior is examined throughout the
entire litigation, as a “course of conduct,”/128/ while Rule 11 applies to individual filings./129/
The filing of a frivolous complaint, alone, may violate Rule 11, but not §1927 because such a
complaint does not "multiply" the proceedings./130/ Conversely, a course of conduct can be
sanctionable under § 1927 even though the individual filings during that conduct comport with
Rule 11 standards.
Section 1927 is narrower because, unlike Rule 11 requirement of objective reasonableness, §
1927 requires subjective bad faith./131/ Some jurisdictions, however, interpret § 1927 as
authorizing sanctions when attorney conduct, “viewed objectively, manifests either intentional
or reckless disregard of the attorney’s duties to the court.”/132/ For these courts, malicious
intent or bad purpose is not required. Thus, the "circuits are split as to whether §1927 requires
a showing of subjective bad faith or whether mere recklessness is sufficient."/133/
Since Rule 11 and § 1927 have different standards, courts deciding whether to issue sanctions
under both may conduct a separate inquiry into § 1927 and Rule 11, but a court proceeding sua
sponte under either rule must give the subject attorney notice and an opportunity to
respond./134/ Their “resulting findings must appear with reasonable specificity in terms of the
perceived misconduct and the sanctioning authority.”/135/ For example, since § 1927 sanctions
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are limited to costs associated with excess litigation, “blanket awards of all fees” may not
withstand appellate scrutiny./136/
4.2.C. The Inherent Power of the Court
The sanctioning power of the federal courts "is not limited to what is enumerated in statutes or
in the rules of civil procedure."/137/ Federal courts have the inherent power to punish persons
who abuse the judicial process. The inherent power of the court is an "implied power squeezed
from the need to make the courts function."/138/ Rule 11 and § 1927 do not displace the
court's inherent power, but instead they exist concurrently./139/
The inherent power to sanction is broad./140/ The scope of the power reaches "any abuse" of
the judicial process./141/ This includes the authority to sanction for conduct which occurs
outside of the courtroom, and is not limited to attorneys or parties./142/ Courts also have
broad discretion to determine the appropriate sanction to be imposed./143/ Where
appropriate, courts may impose attorney's fees representing the entire cost of litigation./144/
However, the courts inherent power to "impose attorney's fees is limited to those cases where
the litigant has engaged in bad-faith conduct or willful disobedience . . . ."/145/
Given the broad authority granted, a court's use of the inherent power should be used
cautiously./146/ Any use must comply with due process./147/ Use of the power will be
reviewed under the abuse of discretion standard./148/
Table of Comparison:
Applicable
Conduct:
Legal
Standard
Triggering
Liability:
Rule 11
28 U.S.C. §1927
Inherent Power
Pleadings, written motions,
and other papers filed in a
civil action for an improper
purpose or without a
reasonable inquiry into the
facts and law.
Any conduct which so
multiplies the
proceedings in any
case unreasonably
and vexatiously.
Any abuse of the
judicial process.
Objective reasonableness
Circuit Split:
Subjective bad faith
or mere recklessness.
Bad faith required to
award expenses
including attorney's
fees.
Page 180 of 559
Who Can Be
Sanctioned:
Attorneys, their law firms,
parties, and pro se litigants.
Must be in separate
motion, which must be
served on the offending
party 21 days before filing
with the court. If offending
Procedural
filing is withdrawn, the
Requirements: matter is concluded. Court
may demand attorney, law
firm, or party show cause
why conduct does not
violate Rule 11(b) of its own
initiative.
Attorneys only.
Broad authority.
No specific
requirements. Must
comport with due
process.
No specific
requirements. Must
comport with due
process.
4.2.D. Ghostwriting
As increasing numbers of litigants proceed pro se, many lawyers and legal offices
offer "unbundled legal services" also known as limited scope representation./149/ Limited
representation is permissible if reasonable and the client consents./150/ In such
representation, the attorney and client agree that the attorney will provide discrete and limited
services for the client as part of the client's effort to represent themselves. One such service is
ghostwriting, which occurs when an attorney prepares documents for filing by a party
who otherwise appears unrepresented in the litigation./151/
Initially, the attorney must consider what amount of assistance constitutes ghostwriting in their
jurisdiction. Courts generally find "that an attorney must play a substantial role in the
litigation" to be considered a ghostwriter./152/ Petitions and briefs which are "manifestly
written" or prepared in "any substantial way" by an attorney will cross this threshold./153/
Ghostwriting has been defended as a practice which improves client satisfaction, helps parties
advance meritorious claims or defenses that would otherwise not be made, and increases
access to civil representation for clients who would otherwise be unable to afford full-service
representation./154/ However, courts and bar ethics committees have criticized the practice as
duping courts into giving pro se litigants undeserved leniency and allowing attorneys to avoid
procedural rules and ethical obligations./155/ Ghostwriting therefore raises both ethical and
procedural concerns./156/
4.2.D.1. Ethical Concerns
Page 181 of 559
Various courts and ethics committees have found the practice of ghostwriting to be in conflict
with the duty of candor owed to the court by giving a "false impression of the real state of
affairs."/157/ They regard ghostwriting as violating Model Rules of Professional Conduct Rule
3.3(a)(1) (candor to the tribunal) and/or 4.1 (truthfulness in statements to others)./158/
Additionally, ghostwriters may run afoul of Model Rule 8.4(c)'s admonition against "conduct
involving dishonesty, fraud, deceit or misrepresentation" by not disclosing their participation in
drafting the document./159/
In 2007 the ABA released a formal opinion finding that "[a] lawyer may provide legal assistance
to litigants appearing before tribunals 'pro se' and help them prepare written submissions
without disclosing or ensuring the disclosure of the nature or extent of such assistance."/160/
The ABA committee therefore found that providing undisclosed legal assistance to pro se
litigations does not violate the Model Rules of Professional Conduct so long as the assisting
lawyer does not violate rules that otherwise apply to their conduct./161/ The ABA committee
was not persuaded that undisclosed assistance gives an advantage to pro se litigants whose
filings are generally construed liberally since the background help by a lawyer should be clear if
the document is drafted effectively. Nor did the committee view ghostwriting as a violation of
Model Rule 8.4 or of rules, like Rule 11, that requires attorneys to assume responsibility for
documents filed with a court. Somewhat begging the question, the committee concluded that
such a duty is assumed only when the attorney signs the document as counsel.
State ethics committees continue to reach divergent conclusion about the propriety of
ghostwriting./162/ Some state committees have adopted the ABA position and state that no
disclosure is ethically required./163/ Others have taken a more moderate view, requiring
attorneys only to inform the court that the pro se litigant received professional help, for
example, by the including the statement "prepared by counsel" in the ghostwritten filing./164/
Other committees go further, demanding the ghostwriting attorney reveal their full
identity./165/ There is some academic support for the notion that attorneys should be required
to disclose their involvement, but that it should be regarded as a limited appearance that does
not require a subsequent motion to withdraw./166/
Before engaging in ghostwriting, it is strongly recommended that you review any ethics
opinions involving this practice in your jurisdiction or seek such an opinion if there is not one on
point.
4.2.D.2 Procedural Concerns
Federal courts have been hostile to the practice of ghostwriting, finding that it violates the spirit
of Rule 11 by circumventing the attorney's signature requirement./167/ Courts have specifically
interpreted the purpose of Rule 11(a) as requiring attorneys to sign court documents that they
prepared “in any substantial part.”/168/ However, one court acknowledged that if a
ghostwriter no longer represented a litigant when the complaint is filed, the author’s failure to
sign a complaint “is not at odds with the plain language of Rule 11.”/169/ Advocates should be
Page 182 of 559
especially wary in jurisdictions that have already addressed ghostwriting since some courts
served notice that it will be sanctionable./170/ For example, a particularly detailed and recent
opinion finding that ghostwriting in New Jersey violated state ethics rules and the spirit of Rule
11 is Delso v. Trs. for the Ret. Plan for the Hourly Employees of Merck./171/
Even though most federal courts addressing ghostwriting concluded that it violates Rule 11, the
same courts declined to sanction the anonymous authors. The courts cited insufficient
evidence,/172/ or a lack of clearly defined precedent./173/ Courts have, however, ordered pro
se litigants to disclose the source of their assistance./174/ However, as more jurisdictions
confront ghostwriting, attitudes are changing. Some courts have adopted the policy of strikting
ghostwritten submissions and indicated their willingenss to levy sanctions./175/ Although
nascent in development, the authority to sanction ghostwriting includes:

the inherent power of the court,/176/

local rules governing withdrawal of representation,/177/

the ethical rules,/178/ and

the signature requirement of Rule 11./179/
At least one court offered a preventive approach for attorneys caught between protecting a pro
se litigant from default and not being bound to represent the litigant throughout the entire
case./180/ The suggested remedy is simply to sign and file the pleading and “simultaneously
fil[e] a motion to withdraw as counsel accompanied by an appropriate explanation and
brief.”/181/ However, this theoretical escape hatch poses unique problems for legal aid
attorneys, who often provide limited service arrangements to clients. In such cases, withdrawal
may run afoul of the duty not to withdraw if it would cause a “material adverse effect on the
interests of the client.”/182/
____________________________________________________________
54. See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (finding that, despite Rule 11 and 28
U.S.C. § 1927 both being potentially applicable, the court was not required to resort to using
them when the inherent power of court was best suited to the facts); see also Danielle Kie
Hart, And the Chill Goes on--Federal Civil Rights Plaintiffs Beware: Rule 11 Vis-À-Vis 28 U.S.C. §
1927 and the Court's Inherent Power, 37 Loy. L.A. L. Rev. 645 (2004) (exploring the interaction
of Rule 11, § 1927, and the inherent power of the court, and their chilling effect on the
development of the common law).
55. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990).
Page 183 of 559
56. Fed. R. Civ. P. 1; Fed. R. Civ. P. 11 advisory committee’s notes (1993).
57. Fed. R. Civ. P. 11(a).
58. “Other papers” is broadly interpreted. See, e.g., Becker v. Montgomery, 532 U.S. 757, 763
(2001) (notice of appeal); Apolistic Pentecostal Church v. Colbert, 169 F.3d 409, 417 (6th Cir.
1999) (garnishee disclosure). However, Rule 11 does not apply to discovery. See Fed. R. Civ. P.
11(d) ("This rule does not apply to disclosures and discovery requests, responses, objections,
and motions under Rule 26 through 37.").
59. Becker v. Montgomery, 532 U.S. 757, 763 (2001). Should a filing be made without a
handwritten signature, the clerk’s office should return it and a substitute promptly filed.
See Fed. R. Civ. P. 11(a) .
60. Fed. R. Civ. P. 5(d)(3); see also Fed. R. Civ. P. 5 advisory committee’s notes (1996) (“An
electronic filing that complies with the local rule satisfies all requirements for filing on paper,
signature, or verification.”).
61. Fed. R. Civ. P. 11(a).
62. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
63. Bus. Guides Inc. v. Chromatic Communications Enters., 498 U.S. 533, 546 (1991).
64. Fed. R. Civ. P. 11(b).]
65. See e.g., Buster v. Greisen, 104 F.3d 1186, 1190 n.4 (9th Cir. 1997) (holding that district
court could impose sanctions on plaintiff for continuing to argue frivolous contentions asserted
in complaint even when action was filed in state court and removed).
66. Fed. R. Civ. P. 11 advisory committee’s notes (1993). At the same time, a voluntary dismissal
of a complaint does not divest the trial court of jurisdiction to issue Rule 11 sanctions. Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990).
67. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
68. Id. (Rule 11 "does not cover matters arising for the first time during oral presentations to
the court, when counsel may make statements that would not have been made if there had
been more time for study and reflection."). See also Columbia Venture LLC v. FEMA (In re Bees),
562 F.3d 284, 289 (4th Cir. 2009) (the court could not sanction an attorney for her erroneous
statements which were not advocated previously in a written submission).
Page 184 of 559
69. Phonometrics, Inc. v. Econ. Inns of Am., 349 F.3d 1356, 1361 (Fed. Cir. 2003), cert. denied, 541 U.S. 1010
(2004).
70. Coonts v. Potts, 316 F.3d 745, 753 (8th Cir. 2003).
71. Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 447 (5th Cir. 1992).
72. Wigod v. Chicago Mercantile Exch., 981 F.2d 1510, 1523 (7th Cir. 1992) (sanctioned attorney
in antitrust case failed to interview prior counsel and available witnesses).
73. Dubois v. U.S. Dep't. of Agriculture, 270 F.3d 77, 82-83 (1st Cir. 2001).
74. Fed. R. Civ. P. 11(b)(1). This list is not exclusive. Actions intended to embarrass an opposing party may, for
example, be sanctionable under Fed. R. Civ. P. 11(b)(1). See Whitehead v. Food Max of Miss., 332 F.3d 796,
807 (5th Cir.) (en banc), cert. denied, 540 U.S. 1047 (2003). So may actions filed to make a political point. See
Saltany v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989).
75. See FDIC v. MAXXAM, Inc., 523 F.3d 566, 581 (5th Cir. 2008); G.C. & K.B. Investments, Inc. v. Wilson, 326
F.3d 1096, 1109 (9th Cir. 2003); Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000).
76. See Jerold S. Solovy et al., Sanctions Under Rule 11: A Cross-Circuit Comparison, 37 Loy. L.A. Rev. 727, 729
(2004); MAXXAM, 523 F.3d at 581.
77. See MAXXAM, 523 F.3d at 585-86; G.C. & K.B. Investments, 326 F.3d at 1110; see also Solovy, supra note
76, at 729-30.
78. In Szabo Food Serv. v. Canteen Corp., 823 F.2d 1073, 1083 (7th Cir. 1987), cert. dismissed, 485 U.S. 901See
e.g., Clark v. UPS, 460 F.3d 1004, 1010 (8th Cir. 2006) (referring to the district court’s finding of subjective
motivation); see also In re Kunstler, 914 F.2d 505, 519 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991)
(holding that subjective beliefs revealed through admission can be viewed as objective evidence of an
improper purpose). (1988), the Seventh Circuit referred to the improper purpose prong as the “subjective
component” of Rule 11 and stated that subjective bad faith was part of the analysis. At least two other
circuits also claim to use an improper purpose test with at least some subjective component.
79. Fed. R. Civ. P. 11 .
80. See Silva v. Witschen, 19 F.3d 725, 730 (1st Cir. 1994) (upholding sanctions when proper
motive was mixed with improper objective of pressuring defendants); Sussman v. Bank of
Israel, 56 F.3d 450, 459 (2d Cir. 1995) ("A party should not penalized for or deterred from
seeking and obtaining warranted judicial relief merely because one of his multiple purposes in
seeking that relief may have been improper."); In re Kunstler, 914 F.2d at 518 ("if a complaint is
filed to vindicate rights in court, and also some other purpose, a court should not sanction
counsel for an intention that the court does not approve, so long as the added purpose is not
Page 185 of 559
undertaking in bad faith and is not so excessive as to eliminate a proper purpose. Thus, the
purpose to vindicate rights in court must be central and sincere.").
81. Sussman, 56 F.3d at 459 (“[W]hatever the analysis applicable to motions and other papers
filed after the commencement of the litigation, special care must be taken to avoid penalizing
the filing of a nonfrivolous complaint, for otherwise a plaintiff who has a valid claim may lost his
right ‘to vindicate his rights in court.’”); Townsend v. Holman Consulting Corp., 929 F.2d 1358,
1362 (9th Cir. 1990) (en banc) (“With regard to complaints which initiate actions, we have held
that such complaints are not filed for an improper purpose if they are non-frivolous . . . . The
reason for this rule regarding complaints is that the complaint is, of course, the document
which embodies the plaintiff’s cause of action and it is the vehicle through which he enforces
his substantive legal rights.”) (citations omitted); Burkhart v. Kinsley Bank, 852 F.2d 512, 515
(10th Cir. 1988) (If counsel filed [a complaint] which was [non-frivolous] “then any suggestion of
harassment would necessarily fail.”).
82. Sussman, 56 F.3d at 459.
83. See In re Kunstler, 914 F.2d at 518 (finding that a court may sanction an otherwise colorable complaint if
the purpose to vindicate rights in court is not “central and sincere.”); MAXXAM, 523 F.3d 566, 583-84 (5th Cir.
2008) (the court considered, and then rejected, a balancing inquiry suggesting that such a test would be too
vague); Senese v. Chicago Area I. B. of T. Pension Fund, 237 F.3d 819, 823-24 (7th Cir. 2001) (Rule 11 may be
violated when a complaint with a legal and factual basis is filed for an improper purpose).
84. In re Kunstler, 914 F.2d at 518 (“finding that “the purpose to vindicate rights in court must be central and
sincere” and that “filing a motion or pleading without a sincere intent to pursue it will garner sanctions”).
85. MAXXAM, 523 F.3d at 583-84.
86. Id.
87. Fed. R. Civ. P. 11(b)(2).
88. See ICU Med., Inc. v. Alaris Med. Sys., 558 F.3d 1368, 1381 (Fed. Cir. 2009); see also Holgate v. Baldwin,
425 F.3d 671, 676 (9th Cir. 2005) (failure to allege essential elements of a Section 1985(3) claim is
sanctionable).
89. Jenkins v. Methodist Hospital, 478 F.3d 255, 264 (5th Cir. 2007); Young v. City of Providence, 404 F.3d 33,
40 (1st Cir. 2005). Fed. R. Civ. P. 11 advisory committee’s notes (1993) (The Rule “establishes an objective
standard, intended to eliminate any empty-head pureheart justification for patently frivolous arguments.”).
See also Bus. Guides Inc., 498 U.S. 533, 549-51 (1991) (objective reasonableness standard applies to both
attorneys and represented parties); but see In re Pennie & Edmonds, 323 F.3d 86 (2d Cir. 2003) (Second
Circuit is alone among the circuits holding that subjective bad faith is required when the court issues
sanctions sue sponte, thereby not permitting the attorney to withdraw the filing under the safe harbor
provision).
Page 186 of 559
90. Morris v. Wachovia Secs., 448 F.3d 268, 277 (4th Cir. 2006) (quoting Hunter v. Earthgrains Co. Bakery, 281
F.3d 144, 153 (4th Cir. 2002)).
91. See, e.g., Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 156-57 (4th Cir. 2002) (reversing sanction of
attorney who inartfully argued for reversal of Circuit precedent). Gibson v. Chrysler Corp., 261 F.3d 927, 949
(9th Cir. 2001) (reversing the award of Rule 11 sanctions because “we recognize the difficulties faced by
parties who seek to advance novel legal arguments”); Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998)
(“[T]he purpose of Rule 11 is to deter frivolous lawsuits and not to deter novel legal arguments or cases of
first impression.”); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir. 1994) (dismissed
complaint was not sanctionable as it raised important questions of first impression); United States v.
Alexander, 981 F.2d 250, 253 (5th Cir. 1993) (“Parties who argue points of first impression in a circuit are not
ordinarily the recipients of Rule 11 sanctions order,”); Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990)
(“[T]o constitute a frivolous legal position for purposes of Rule 11 sanction, it must be clear under existing
precedents that there is no chance of success and no reasonable argument to extend, modify or reverse the
law as it stands.”).
92. Morris, 448 F.3d at 277 (internal quotations omitted).
93. Gilmore v. Shearson/Am. Express, Inc., 811 F.2d 108, 111-12 (2d Cir. 1987).
94. Fed. R. Civ. P.11 advisory committee’s notes (1993). See Savino v. Computer Credit Inc., 164 F.3d 81, 88
(2d Cir. 1998).
95. See Fed. R. Civ. P. 11 advisory committee’s notes (1993) (“Although arguments for a change of law are not
required to be specifically identified, a contention that is so identified should be viewed with greater
tolerance under the rule.”); Margo, 213 F.3d 55, 64 (2d Cir. 2000).
96. Fed. R. Civ. P.11(b)(3). See, e.g. U.S. Bank Nat’l Assn. v. Sullivan-Moore, 406 F.3d 465, 469-70 (7th Cir.
2005) (sanctions upheld where law firm caused the eviction of tenant knowing that service address was
incorrect).
97. Divane v. Krull Elec. Co., 200 F.3d 1020, 1028 (7th Cir. 1999) (quoting Brown v. Fed’n of State Medical Bds.
of the U.S., 830 F.2d 1429, 1435 (7th Cir. 1987)). See also Jones v. Int’l Riding Helmets Ltd., 49 F.3d 692, 695
(11th Cir. 1995); Rodick v. City of Schenectady, 1 F.3d 1341, 1351 (2d Cir. 1993) (“Where an attorney is forced
to plead under exigent circumstances, her reliance on the affidavits of her clients should be sufficient to
constitute reasonable investigation for purposes of Rule 11.”).
98. Kiobel v. Millson, 592 F.3d 78, 81 (2d Cir. 2010) (finding that counsel's statements were possibly factually
wrong and overstated, but not utterly lacking support, and therefore not sanctionable).
99. Lucas v. Duncan, 574 F.3d 772, 778 (D.C. Cir. 2009).
100. Fed. R. Civ. P. 11 advisory committee’s notes (1993); see also Kiobel, 592 F.3d at 83.
101. Jenkins, 478 F.3d 255, 265 (5th Cir. 2007).
Page 187 of 559
102. Fed. R. Civ. P. 11(b)(4).
103. Fed. R. Civ. P. 11(c).
104. Id.
105. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
106. Id. (non-monetary sanctions include striking the offending filing, admonition, reprimand,
or censure; attendance at continuing legal education courses; or referral to disciplinary
authorities).
107. Id. See also Methode Elecs. v. Adam Techs., 371 F.3d 923, 926 (7th Cir. 2004) (court cannot
award attorney’s fees as a sanction sua sponte); Baffa v. Donaldson, Lufkin & Jenrette Sec.
Corp., 222 F.3d 52, 57 (2d Cir. 2000) (“[A]bsent a specific motion for attorneys’ fees, the court
only had authority to order sanctions payable to the court.”).
108. Fed. R. Civ. P. 11(c)(2). See Rentz v. Dynasty Apparel Indus., 556 F.3d 389, 400 (6th Cir.
2009) (“[I]t is clear that Rule 11 is not intended to be a compensatory mechanism in the first
instance, it is equally clear that effective deterrence sometimes requires compensating the
victim for attorney fees arising from abusive litigation.”); but see Massengale v. Ray, 267 F.3d
1298, 1302 (11th Cir. 2001) (Rule 11 does not allow for an award of attorney fees to a pro se
litigant as a sanction). At the same time, the court may account for the attorney’s financial
condition in determining whether and the degree to which to issue monetary sanctions.
DiPaolo v. Moran, 407 F.3d 140, 145-46 (3rd Cir. 2005).
109. Fed. R Civ. P. 11 advisory committee’s notes (1993); see also Rentz, 556 F.3d at 402
(finding that while a sanction of $250 against the young and inexperienced attorney was
possibly enough to deter his repetition, it was insufficient to deter other attorneys).
110. Fed. R. Civ. P. 11(c). See also Bus. Guides, 498 U.S. 533, 544-48 (1991) (Rule 11 applies to
represented parties who sign court filings). A court may not, however, sanction a represented
party for advancing a frivolous legal argument. It is the solely the counsel’s responsibility to
ensure there is adequate legal support. Fed. R. Civ. P. 11(c)(2)(A). Rule 11 also applies to pro se
litigants, but may account for the pro se litigant’s financial situation in determining whether to
award monetary sanctions. See Moore v. SouthTrust Corp., 392 F. Supp. 2d 724, 736 (E.D. Va.
2005).
111. This 1993 provision effectively overturns Pavelic & LeFlore v. Marvel Entm’t Group, 493
U.S. 120 (1989). The advisory committee’s notes justify this expansion of potential liability on
the ground that the safe-harbor provision, discussed below, makes it appropriate to regard a
law firm as jointly responsible for the sanctionable conduct of its agents. Fed. R Civ. P. 11
Page 188 of 559
advisory committee’s notes (1993); but see Rentz, 556 F.3d at 397 (upholding district court’s
decision not to sanction law firm where attorney violated Rule 11 just after joining the firm in a
case the attorney brought with him and with which others at the firm had little to no
involvement).
112. While there are no decisions holding legal service organizations jointly accountable,
examples of government agencies being held jointly accountable may be instructive. See,
e.g., MAXXAM, 523 F.3d 566, 583-84 (5th Cir. 2008) (imposing sanctions against the FDIC as a
whole); see also Columbia Venture LLC v. FEMA (In re Bees), 562 F.3d 284 (4th Cir. 2009)
(sanctions had been imposed against FEMA as a whole, and against individual attorney); but see
1-10 Industry Associates LLC v. United States, 528 F.3d 859 (Fed. Cir. 2008) (sanctions levied
against individual attorney at the Department of Justice) (sanctions reversed on other grounds).
113. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
114. Fed. R. Civ. P. 11(c)(1)(A). Counsel is expected to give informal notice prior to drafting and
serving such a motion. Fed. R. Civ. P. 11 advisory committee’s notes (1993). While the Rule
encourages informal resolution, counsel must be sure to serve an actual copy of the motion for
sanctions twenty-one days prior to filing with the court. See Roth v. Green, 466 F.3d 1179 (10th
Cir. 2006) (the court found that an informal letter addressed to the offending party did not
suffice to satisfy the safe harbor requirements when the plain language of the Rule required a
copy of the actual motion). See also Gordon v. Unifund CCR Partners, 345 F.3d 1028, 1029 (8th
Cir. 2003) (reversing award of Rule 11 sanction when movant did not comply with safe harbor
provisions). However, the Seventh Circuit has held that a letter sent to an offending party can
constitute “substantial compliance” with Rule 11(c)(1)(A). See Nisenbaum v. Milwaukee County,
333 F.3d. 804, 808 (7th Cir. 2003). Additionally, the Fourth Circuit has held that the safe harbor
provisions are not jurisdictional and therefore waivable. Brickwood Contractors, Inc. v. Datanet
Eng’g. Inc., 369 F.3d 385, 393 (4th Cir. 2004) (en banc); Rector v. Approved Fed. Sav. Bank, 265
F.3d 248, 253 (4th Cir. 2001).
115. Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998).
116. Fed. R. Civ. P.11(c)(1)(B); see 1-10 Industry Associates LLC v. United States, 528 F.3d 859,
867 (Fed. Cir. 2008); Johnson v. Cherry, 422 F.3d 540, 551-53 (7th Cir. 2005); Plaintiffs' Baycol
Steering Committee v. Bayer Corp., 419 F.3d 794, 809-10 (8th Cir. 2005).
117. See In re DeVille, 361 F.3d 539, 549 (9th Cir. 2004; Margo v. Weiss, 213 F.3d 55, 64 (2d Cir.
2000).
118. See Columbia Venture LLC, 562 F.3d 284, 287 (4th Cir. 2009) (internal quotations omitted).
Additionally, because the Advisory Committee’s notes to Rule 11(c)(3) explained that “show
cause orders will ordinarily be issued only in situations that are akin to a contempt of court”
Page 189 of 559
and therefore do not require a "safe harbor" provision, at least one Circuit has required a
finding of subjective bad faith when the sanctions are imposed sua sponte and the lawyer has
no opportunity to withdraw or amend the filing. See In re Pennie & Edmonds LLP, 323 F.3d 86
(2d Cir. 2003) (“We conclude that where, as here, a sua sponte Rule 11 sanction denies a lawyer
the opportunity to withdraw the challenged document pursuant to the 'safe harbor' provision
of Rule 11(c)(1)(A), the appropriate standard is subjective bad faith.”); see also ATSI Commun.,
Inc. v. Shaar Fund, Ltd., 579 F.3d 143 (2d Cir. 2009) (stating that subjective bad faith should be
required if the sanctions proceeding is initiated “'long after' the lawyer had an opportunity to
amend or withdraw”). Other circuits have declined to follow. See, e.g., Jenkins, 478 F.3d at 264;
Young v. City of Providence ex rel. Napolitano, 404 F.3d 33, 40 (1st Cir. 2005) (declining to follow
Pennie). Some circuits have been careful to avoid the issue. See, e.g., Lucas, 574 F.3d 772, 776
(D.C. Cir. 2009); 1-10 Industry Associates, LLC, 528 F.3d at 866; Kaplan v. DaimlerChrysler, A.G.,
331 F.3d 1251, 1256 (11th Cir. 2003).
119. Fed. R. Civ. P.11(c)(3).
120. See, e.g., S. Travel Club Inc. v. Carnival Air Lines, 986 F.2d 125, 129-30 (5th Cir. 1993);
Cooper v. Salomon Bros. Inc., 1 F.3d 82, 84-85 (2d Cir. 1993); Click v. Abilene Nat’l Bank, 822
F.2d 544, 545 (5th Cir. 1987); cf. Morley v. Ciba-Geigy Corp., 66 F.3d 21, 22 n.1 (2d Cir. 1995);
Triad System Corp. v. Se. Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995); Transamerica
Commercial Finance Corp. v. Banton Inc., 970 F.2d 810, 814 (11th Cir. 1992); Burda v. M. Ecker
Co., 954 F.2d 434, 439 (7th Cir. 1992); Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893
F.2d 1109, 1113-14 (9th Cir. 1990); DeSisto College Inc. v. Line, 888 F.2d 755, 762 (11th Cir.
1989); Markwell v. County of Bexar, 878 F.2d 899, 901 (5th Cir. 1989); Ortho Pharmaceutical
Corp. v. Sona Distrib., 847 F.2d 1512, 1515 (11th Cir. 1988).
121. Nyer v. Winterthur Int’l, 290 F.3d 456, 460 (1st Cir. 2002); see also Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990).
122. See Lucas, 574 F.3d at 775.
123. Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986) (internal citations omitted).
124. Id. at 1276; see also Dreiling v. Peugot Motors of America, 768 F.2d 1159, 1165 (10th Cir.
1985).
125. BDT Prods. v. Lexmark Int'l, Inc., 602 F.3d 742 (6th Cir. 2010); Claiborne v. Wisdom, 414
F.3d 715 (7th Cir. 2005).
126. 28 U.S.C. § 1927 , amended by Antitrust Procedural Improvements Act of 1980, Pub. L. No.
96-349, § 3, 94 Stat. 1154, 1156. See generally Janet Eve Josselyn, The Song of the SirensSanctioning Lawyer Under 28 U.S.C. § 1927, 31 B.C. L. Rev. 477, 478 (1990). Additionally, courts
Page 190 of 559
may be using § 1927 more frequently as a result of the 1993 amendments to Rule 11, which
instituted the 21 day safe harbor provision. Since voluntarily withdrawn filings are not
sanctionable, parties may be attempting to "sidestep" Rule 11 in the hope of getting attorney's
fees under § 1927. See generally, Hart, supra note 54, at 653 (arguing that "sidestepping"
accounts for the increased use of § 1927, and that this phenomenon defeats the purpose of the
1993 revision of Rule 11, which was supposed to remove the chilling effect suffered by civil
rights litigants engaged in attempting good faith extensions of the law).
127. The court’s inherent power to sanction is broader still in that it permits sanctions for
conduct beyond the filing of documents or “multiplying” proceedings. Yet, it requires a finding
of bad faith for an award of attorney's fees. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991).
128. United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345-46 (2d Cir. 1991).
129. The filing of complaint is not sanctionable under Section 1927 because that section applies
only to activities occurring after the commencement of litigation. See Willis v. City of Oakland,
231 F.R.D. 597, 598 (N.D. Cal. 2005).
130. Jensen v. Phillips Screw Co., 546 F.3d 59, 65 (1st Cir. 2008).
131. See id.; Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995); Oliveri, 803 F.2d 1265, 1273 (2d
Cir. 1986). Although the matter is not free from doubt, law firms may not be sanctioned under
Section 1927. Claiborne v. Wisdom, 414 F.3d 715, 723 (7th Cir. 2005).
132. Lee v. L.B. Sales Inc., 177 F.3d 714, 718 (8th Cir. 1999). See also Claiborne, 414 F.3d at 721;
United States v. Knott, 256 F.3d 20, 31 (1st Cir. 2001); Braley v. Campbell, 832 F.2d 1504, 1512
(10th Cir. 1987) (en banc); Naegele v. Albers, 355 F. Supp. 2d 129, 145 (D.D.C. 2005).
133. See Hart, supra note 54, at 653.
134. Johnson v. Cherry, 422 F.3d 540, 551-52 (7th Cir. 2005).
135. Jones v. Pitt. Nat’l Corp., 899 F.2d 1350, 1359 (3rd Cir. 1990); see also Int’l Bhd., 948 F.2d
1338, 1346 (2d Cir. 1991); United States v. Shuch, 139 B.R. 57, 62 (D. Conn. 1992).
136. Matter of Yagman, 796 F.2d 1165, 1184 (9th Cir. 1986) (reversing the district court’s award
of fees under Section 1927).
137. See Hart, supra note 54, at 653.
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138. Chambers, 501 U.S. 32, 42 (1991) (quoting NASCO, Inc. v. Calcasieu Television & Radio, Inc.,
894 F.2d 696, 702 (5th Cir. 1990)).
139. Id. at 46, 49 ("The Court's prior cases have indicated that the inherent power of a court can
be invoked even if procedural rules exist which sanction the same conduct.").
140. Id.
141. See id. at 44.
142. See id. at 46, 57 ("As long as a party receives an appropriate hearing . . . the party may be
sanctioned for abuses of process occurring beyond the courtroom . . . .").
143. See id. at 44-45.
144. See id. at 45.
145. Id; Amlong & Amlong v. Denny's, Inc., 500 F.3d 1230, 1251 (11th Cir. 2007).
146. Chambers, 501 U.S. at44 ("Because of their very potency, inherent powers must be
exercised with restraint and discretion."); Methode Elecs., 371 F.3d at 927.
147. Chambers, 501 U.S. at 50 ("A court must . . . comply with the mandates of due process,
both in determining that the requisite bad faith exists and in assessing fees.").
148. Id. at 55.
149. See Jeffrey P. Justman, Capturing The Ghost: Expanding Federal Rule of Civil Procedure 11
To Solve Procedural Concerns With Ghostwriting, 92 Minn. L. Rev. 1246, 1252 (2008).
150. Id. at 1252.
151. Model Rules of Prof'l Conduct 1.2(c).
152. Compare Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (participating in drafting an
appellate brief constitutes “per se substantial assistance” in violation of Rule 11) with Ricotta v.
California, 4 F. Supp. 2d 961, 986-87 (S.D. Cal. 1998) (distinguishing ghostwriting from mere
“informal advice”).
153. See Ricotta, 4 F. Supp. 2d 961 at 987.
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154. See, e.g., Justman, supra note 149, at 1248; see also John C. Rothermich, Ethical and
Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil
Justice, 67 Fordham L. Rev. 2687, 2697 (1999).
155. See, e.g., Michael W. Loudenslager, Giving Up The Ghost: A Proposal For Dealing With
Attorney "Ghostwriting" of Pro se Litigants' Court Documents Through Explicit Rules Requiring
Disclosure And Allowing Limited Appearances For Such Attorneys, 92 Marq. L. Rev. 103 (2008).
156. Johnson v. Board of County Comm'rs, 868 F. Supp. 1226 (D. Colo. 1994).
157. See, e.g., Justman, supra note 149, at 1259 (2008) (quoting Conn. Bar Ass'n Comm. on
Prof'l Ethics, Informal Op. 98-5 (1998)).
158. See Loudenslager, supra note 155, at 110-12 (2008).
159. See id; see also Justman, supra note 149, at 1248 .
160. ABA Comm on Ethics & Prof'l Responsibility, Formal Op. 07-446 (2007) (the opinion
superseded ABA Inf. Op. 1414 (June 6, 1978) which "took a middle ground, stating that
disclosure of at least the fact of legal assistance must be made to avoid misleading the court
and other parties, but that the lawyer providing assistance need not be identified.").
161. Id. ("We conclude that there is no prohibition in the Model Rules of Professional Conduct against
undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules
that otherwise would apply to the lawyer's conduct.").
162. See Loudenslager, supra note 155, at 127-38 (discussing the range of positions taken by various ethics
committees).
163. See, e.g., Arizona Eth. Op. 05-06 (Limited Scope Representation; Candor to Tribunal; Fees)
("The attorney providing limited scope representation is not required to disclose to the court or
other tribunal that the attorney is providing assistance to a client proceeding in propria
persona.").
164. See, e.g., N.Y. City Bar Ass'n Comm. on Prof'l & Judicial Ethics, Formal Op. 1987-2 (1987)
(New York, when confronted with ghostwriting took the position that "[a]t the minimum, the
court and adverse counsel must be informed that the litigant is, or will be, 'receiving assistance
from a lawyer.' It would be appropriate to endorse the pleading, 'Prepared by Counsel.'").
165. See, e.g., Ky. Bar Ass'n, Ethics Op. E-343 (1991).
166. See Loudenslager, supra note 155, at 142-48 .
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167. See, e.g., Gordon v. Dadante, 2009 U.S. Dist. LEXIS 54147, 2009 WL 1850309, at *27 (N.D.
Ohio Jun. 26, 2009); Bittle v. Electrical Ry. Imp. Co., 576 F. Supp. 2d 744, 755 n.9 (M.D.N.C.
2008); In re Brown, 354 B.R. 535, 541-42 (Bkrtcy. N.D. Okla. 2006) (The court, interpreting the
bankruptcy court's equivalent to Rule 11 noted that "Ghostwriting is a practice which has been
met with universal disfavor in the federal courts."); Duran v. Carris, 238 F.3d 1268, 1272 (10th
Cir. 2001); Ellis v. State of Me., 448 F.2d 1325 (1st Cir. 1971) ("What we fear is that in some
cases actual members of the bar represent petitioners, informally or otherwise, and prepare
briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed
on members of the bar, typified by F.ed R. Civ. P. 11 . . . ." ); Laremont-Lopez v. Southeastern
Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79 (E.D. Va. 1997) ("The Attorneys'
reasoning, while not at odds with the plain language of Rule 11, undermines the purpose of the
signature certification requirement of the rule."); Johnson v. Board of County Com'rs, 868 F.
Supp. 1226, 1231-32 (D. Colo. 1994).
168. Johnson, 868 F. Supp. at 1232; see also Duran, 238 F.3d at 1273.
169. Laremont-Lopez, 968 F. Supp. at 1078.
170. See Duran, 238 F.3d at 1273 (threatening to sanction attorneys for future violations); Davis
v. Bacigalupi, 2010 U.S. Dist. LEXIS 42031 at *43-44 (E.D. Va. April 29, 2010); Kircher v. Township
of Ypsilanti, 2007 U.S. Dist. LEXIS 93690 at *11 (E.D. Mich. Dec. 21, 2007); Johnson, 868 F. Supp.
at 1232.
171. Delso v. Trs. Ret. Plan Hourly Emp., No. 04-3009, 2007 U.S. Dist. LEXIS 16643 at *37-56
(D.N.J. Mar. 5, 2007).
172. See Laremont-Lopez, 968 F. Supp. at 1077.
173. See Duran, 238 F.3d at 1273; Ricotta v. California, 4 F. Supp. 2d 961, 987-88 (S.D. Cal. 1998)
(suggesting that local rule, and bar associations should address ghostwriting directly); Johnson,
868 F. Supp. at 1227 (declining to impose sanctions despite a finding that attorney engaged in
inappropriate ghostwriting).
174. Johnson v. City of Joliet, 2007 U.S. Dist. LEXIS 10111 at *8 (N.D. Ill. Feb. 13, 2007).
175. See Gordon v. Dadante, 2009 U.S. Dist. LEXIS 54147, 2009 WL 1850309, at *27 (N.D. Ohio
Jun. 26, 2009) ("This Court will continue to strike ghostwritten submissions from any party and
will, in the future, entertain motions for contempt against a party submitting ghostwritten
material.").
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176. See Laremont-Lopez, 968 F. Supp. at 1077 n.2. See generally Young v. U.S. ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 795 n.7 (1987) (affirming the inherent authority of courts to punish for
contempt).
177. Laremont-Lopez, 968 F. Supp. at 1079 ("[T]he practice of ghost-writing pleadings or
motions for otherwise pro se litigants allows attorneys to circumvent Local Rule 83.1(G) which
provides that once an attorney has entered an appearance in a civil or criminal action,
withdrawal is permitted only by order of the court, and after reasonable notice to the party
represented.").
178. Johnson, 868 F. Supp. at 1232 (suggesting that ghostwriting constitutes extensive
undisclosed assistance to a pro se litigant in violation of then Model Code of Professional
Responsibility DR 1-102(A)(4)).
179. See Fed. R. Civ. P. 11; Wesley v. Don Stein Buick Inc., 987 F. Supp. 884, 886 (D. Kan. 1997);
Laremont-Lopez, 968 F. Supp. at 1078-79; Johnson, 868 F. Supp. at 1231 (focusing on the risk
that ghostwriting will enable attorneys to sidestep Rule 11’s certification requirement that
“allegations and factual contentions have evidentiary support”); Rothermich, supra note 154,
at 2716-18 (1999).
180. Laremont-Lopez, 968 F. Supp. at 1077 n.2.
181. Id.
182. Model Rule of Professional Conduct 1.16 (2007); See also Jona Goldschmidt, In Defense of
Ghostwriting, 29 Fordham Urban L.J. 1145,1175-78 (2002).
Updated 2010
4.3 Filing the Action
Updated 2010
4.3.A. Filing and Service
To file a complaint in federal district court, you must either pay the filing fee of $350 or file a
motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court
may also have a form “cover sheet” to be filled in by counsel when the complaint is filed. The
cover sheet seeks information about the nature of the case and the existence of any related
case or cases. Local rules typically define a “related” case. Counsel, not support staff, should
complete the cover sheet. Check your local rules and Clerk’s Office regarding policies and
procedures for the electronic filing and service of documents. Typically, counsel will provide the
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Clerk's Office with a CD-ROM containing the complaint, which the Clerk will upload to the
Electronic Case Filing system.
After the complaint is filed, the Clerk issues as many summonses as may be necessary./183/
Plaintiff’s counsel is responsible for effecting service of the summonses and complaint within
120 days of filing the complaint./184/ Service must be made by a nonparty older than 18./185/
Federal Rule of Civil Procedure 4 sets forth the rules for serving individuals, business entities
and governments. Note that following the state law of service is permissible when serving
individuals or minors or incompetent persons./186/
Federal Rule of Civil Procedure 4(d) encourages individuals, corporations, and associations to
waive formal service requirements by imposing the costs of service if they refuse to do so. The
request for waiver is initiated by the plaintiff. The plaintiff’s request must (1) be written; (2) in
conformity with the federal “Notice and Request for Waiver” form (Form 5), indicating dates
and consequences of noncompliance; (3) include a copy of the complaint; (4) contain a copy of
the notice; (5) include a prepaid method for the defendant to respond, and (6) be sent by firstclass mail or “other reliable means” directly to the individual subject to, or authorized to
accept, service./187/ Following receipt of the request for waiver, the defendant has thirty days
to respond (sixty days if outside the United States) or will be subject to a motion to recover
service expenses and costs. If the defendant returns the waiver (Form 6), proof of service is not
required, and the defendant has sixty days from the date of request to answer (or ninety days if
outside the United States)./188/ This extended time to answer may counsel against seeking
waiver in cases that are time-sensitive./189/ This procedure does not apply to cases against the
United States, it's officers, agents, or other government-related entities./190/
The complaint may be supplemented by documentary material. If the case involves regulations,
handbooks, or other administrative material that are not readily available to the judge,
reproduce that material in an addendum to the complaint. If is not typical to attach exhibits to
a complaint, but consider doing so if there is an unusually significant documents that you want
the court and the defendant to know of at the outset of the case.
4.3.B. In Forma Pauperis Status
Proceeding in forma pauperis allows your client to avoid service, filing, and transcript
preparation costs if the client can demonstrate inability to pay such fees./191/ The requisite
level of indigence is relatively fluid and within the discretion of the court./192/ As a baseline,
the Supreme Court has held that an applicant need not be "absolutely destitute" to qualify for
IFP status./193/ Several factors that may be relevant are (1) possible aid from friends or
relatives, (2) possible aid from charities, (3) regular employment, (4) earning power, (5)
unencumbered assets, (6) retention of counsel, and (7) the particular cost relative to the
applicant’s financial means. That the applicant is receiving free legal services should not be a
relevant factor./194/ When filing in forma pauperis, determine whether the district court has a
form in forma pauperis package, consisting of a motion, a statement of points and authorities, a
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declaration of the plaintiff, and a proposed order. If the form does not contain a section for
listing liabilities and expenses, and if such information is relevant to the court's consideration of
the petition, consider including such information./195/ If the court does not supply such forms,
you need to submit an affidavit stating your client’s assets and inability to pay, as well as the
nature of the action, defense, or appeal and belief that your client is entitled to redress./196/
In forma pauperis motions generally are ruled on by a designated judge without a hearing. The
complaint is only lodged, not filed, until the motion for leave to proceed in forma pauperis is
granted. The Clerk’s Office staff will tell you when to return for your summonses. The U.S.
Marshal performs service for plaintiffs proceeding in forma pauperis, but this usually involves
much delay./197/ Thus, seeking permission from the court to effectuate service yourself may
be advisable in cases that are time-sensitive. Only natural persons, not groups or associations,
may file motions for in forma pauperis status./198/ If the court later determines that the
allegations of poverty are untrue, the action is frivolous or malicious, fails to state a claim for
which relief can be granted, or monetary redress is being pursued against an individual immune
from such relief, the court will dismiss the case./199/ Costs may be taxed against an
unsuccessful plaintiff who proceeded in forma pauperis./200/ Denials of motion for in forma
pauperis status are immediately appealable./201/
183. Fed. R. Civ. P. 4(b).
184. Id. 4(c)(1), 4(m). See Lepone-Dempsey v. Carroll County Comm'rs, 476 F.3d 1277, 1281-82
(11th Cir. 2007) for a discussion of the circumstances in which good cause would permit and
extension of the 120 day service period and the discretion of the court to extend the period in
the absence of good cause. See also Coleman v. Cranberry Baye Rental Agency, 202 F.R.D. 106,
109 (N.D.N.Y. 2001).
185. Id. 4(c)(2).
186. Id. 4(e)(1), 4(g).
187. Id. 4(d)(2).
188. Id. 4(d)(3); 12(a)(1)(B).
189. If the plaintiff chooses not seek a waiver of service, the costs of service may nevertheless
taxed under 28 U.S.C. § 1920 if the plaintiff prevails. Powell v. Carey Int'l, Inc., 548 F. Supp. 2d
1351, 1357-58 (S.D. Fla. 2008).
190. Lepone-Dempsey, 476 F.3d at 1281 (11th Cir. 2007).
Page 197 of 559
191. See 28 U.S.C. § 1915.
192. See Lewis v. Center Market, 2009 U.S. Dist. LEXIS 114184 *7-9 (D.N.M. Oct. 29, 2009)
("[T]he federal standards for IFP are not a bright-line percentage rule, but rather, rely on the
discretion of the court.").
193. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40 (1948).
194. Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980).
195. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1308 (11th Cir. 2004).
196. 28 U.S.C. § 1915(a)(1). .While § 1915(a)(1) refers to a 'statement of all assets such prisoner
possesses,' the statement applies to non-prisoners as well. See Floyd v. United States Postal
Serv., 105 F.3d 274, 275 (6th Cir. 1997); Lewis, 2009 U.S. Dist. LEXIS 114184 at *6. Prisoners are
subject to additional requirements when proceeding in forma pauperis. For example, they must
submit a certified copy of the trust fund account statement for the preceding six-month period
and may be subject to a partial filing fee drawn from their prisoner's account. See 28 U.S.C. §
1915(a)(2), (b)(1). They are also subject to the "three strikes" rule set forth in 28 U.S.C. §
1915(g).
197. Garrett v. Miller, 2003 U.S. Dist. LEXIS 5248 at *6, 2003 WL 1790954 (N.D. Ill. Apr. 1, 2003)
(Plaintiff was granted significant extension of time for service of process in order to
accommodate the Marshall); Fed. R. Civ. P.4(c)(2).
198. Rowland v. Cal. Men’s Colony, 506 U.S. 194, 197 (1993).
199. 28 U.S.C. § 1915(e)(2). In addition, prisoners may not file a civil action or appeal a civil
judgment if the prisoner has previously filed three or more actions that were dismissed while
incarcerated unless the prisoner is “under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
200. Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993); 28 U.S.C. § 1915(f).
201. See Lister v. Dep't of Treasury, 408 F.3d 1309, 1310-11 (10th Cir. 2005) ("Although the
district court's ruling is not a final order, 'denial by a District Judge of a motion to proceed in
forma pauperis is an appealable order' under the Cohen doctrine."); see also Roberts v. United
States District Court, 339 U.S. 844, 844 (1950).
Updated 2010
Page 198 of 559
Page 199 of 559
5.1.A Express Causes of Action, Section 1983, Elements
of the Claim
Updated 2011
The two principal statutes creating general causes of action for the enforcement of rights
created by federal law are the Reconstruction Civil Rights Acts,/3/ particularly Section 1983,
and the Administrative Procedure Act (APA)./4/ Section 1983 authorizes a wide variety of suits
against state and local governments and officials for deprivations of federal rights under color
of state law, while other Reconstruction statutes authorize more limited claims against private
parties who violate federal rights. The APA authorizes a narrower variety of suits against federal
officials and agencies. Section 1983 litigation has vindicated constitutional and statutory rights
in the context of health, welfare, education, housing, employment, and prison law in litigation
against state, county, or municipal officials. The APA has vindicated similar rights by correcting
federal agency action or by forcing specific federal agency action.
5.1.A. Section 1983
The Reconstruction Civil Rights Acts, enacted during the 1860s and 1870s, provide the right to
bring an action in federal court for violations of federal civil rights by state or local officials, by
private parties acting in concert with the state, or, in more limited situations, by private parties
acting alone./5/ The most important of these statutes is Section 1983./6/ Section 1983 creates
no substantive rights. Rather, it creates a vehicle for enforcing existing federal rights. The
statute provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress.
The elements of a Section 1983 case are “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” by a “person”/7/ acting “under color” of state law. The
“laws” referred to include those statutes that confer individual rights on a class of persons that
include the plaintiff./8/ Because the purpose of Section 1983 is to vindicate federal rights, a
plaintiff suing under the statute is in most circumstances not required to exhaust state
procedures or remedies which would be otherwise required prior to filing suit./9/
A Section 1983 complaint filed in federal court must name a defendant who is not immune
under the Eleventh Amendment and who is acting under color of state law, and must seek relief
not barred by the Eleventh Amendment./10/ If the plaintiff establishes a violation of a federal
right,/11/ defendants may in certain circumstances avoid liability for damages by proving a
qualified immunity./12/
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5.1.A.1. Finding a Federal Right
By its terms, Section 1983 can be used to remedy the deprivation of “rights” granted to the
plaintiff under the Constitution, federal statutes, and regulations implementing these statutes.
Constitutional provisions that are enforceable by a private party under Section 1983 consist of
those which create personal rights and either explicitly apply to the states, or have been held to
apply to the states by operation of the Fourteenth Amendment./13/ In contrast to the relatively
straightforward expression of individual “rights” protected by the Constitution, whether a
statutorily created “right” exists has posed something of a challenge to plaintiffs.
Under the separation of powers doctrine, only the legislative branch has the power to create
statutory causes of action./14/ Hence, the ability of a private party to successfully sue to
enforce a statute depends on whether Congress, in enacting the statute, has given the plaintiff
a “private right of action.” As noted, these rights are sometimes expressly granted by statute.
All other rights are “implied,” and a court’s task is to discern the intent of Congress./15/ The
two avenues for enforcing implied rights of action are either to sue directly under the statute or
to litigate using the vehicle provided by 42 U.S.C. § 1983.
In Cort v. Ash,/16/ the Supreme Court enunciated a four-part test to determine whether
Congress intended to imply a right to sue directly under a federal statute. In general, a plaintiff
asserting the right is required to show that (1) membership in the class for whose benefit the
statute was enacted, (2) evidence of Congress’ intent to confer a private remedy, (3) that a right
to sue would be consistent with the statutory purpose, and (4) that the cause of action is not
one traditionally relegated to the states to a degree that implying a right to sue would be
inappropriate. In short, under this doctrine, the plaintiff must show that Congress intended to
grant both a private right and a private remedy./17/
In the years following Cort, the judiciary became less willing to find rights of action implied
directly under a statute, and plaintiffs began turning to Section 1983–the alternative path for
enforcing rights created by federal statute. In Maine v. Thiboutot,/18/ decided five years after
Cort, the Supreme Court held for the first time that Section 1983 could be used to remedy the
deprivation of rights created by a federal statute. Seven years later, in Wright v. Roanoke
Redevelopment & Housing Authority,/19/ it suggested that a regulation promulgated to
interpret a federal statute could also be a “law” which could be enforced under Section
1983./20/
Section 1983 generally provides a remedy so long as a right is shown to exist. The Supreme
Court stated: “Once a plaintiff demonstrates that a statute confers an individual right, the right
is presumptively enforceable by Section 1983.”/21/ However, not every federal law creates a
“right” enforceable by a private plaintiff. As the Supreme Court became increasingly hostile to
the use of Section 1983 to enforce federal statutes, it has continued to narrow its conception of
the term. For this reason, one should understand the Court’s principal objections to the use of
Section 1983 to enforce federal statutes.
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The initial three-pronged test for finding a right enforceable under Section 1983 was set forth in
Wilder v. Virginia Hospital Association./22/ It asks whether (1) Congress intended the particular
statutory provision to benefit the plaintiff, (2) the provision is so vague or amorphous as to
make judicial enforcement difficult or impractical, and (3) the statute imposes a binding
obligation on the government./23/ After these inquiries, a fourth arises: (4) did Congress create
a comprehensive mechanism for enforcing the statute which implies that it intended to deny a
private right of action?/24/ Each of these prongs emerged from a series of Supreme Court
decisions, with the first element undergoing something of a metamorphosis as it rose in
importance in comparison to the other prongs of the test. Indeed, resolution of this first
inquiry—the extent to which the plaintiff is “benefited” by the statute—will usually be the key
to whether Section 1983 can be invoked to enforce a federal statute./25/
5.1.A.1.a. Did Congress intend the law to so directly benefit the plaintiff, such that those in
his or her place are the “unmistakable focus” of the statute?
The seesaw battle between shifting Supreme Court majorities over what constitutes an
enforceable right led to a greater focus on the relationship between the aim of the statute and
its effect on the plaintiff. As formulated by Wilder, even if a statute imposes binding obligations
on the state which are capable of judicial enforcement, Section 1983 cannot be invoked unless
Congress intended the law to directly benefit the plaintiff. However, this only begins the
inquiry. The plaintiff must also point to evidence that Congress intended that he or she—and
not just the federal government—could sue to enforce the statute.
In years past, some courts understood the Wilder test to allow private enforcement when the
plaintiff was generally a beneficiary of the statute sought to be enforced. This made Section
1983 a friendlier avenue for enforcing a federal right than the implied right of action doctrine
announced in Cort v. Ash. The erosion of this interpretation was first suggested in Blessing v.
Freestone. Blessing involved a mandate requiring states receiving federal child-welfare funds to
“substantially comply” with federal requirements aimed at ensuring timely payment of child
support. The Court held that the mandate was not “an individual entitlement to services, …
[but] simply a yardstick for the [federal government] to measure the systemwide performance
of the State’s Title IV-D program.”/26/ Hence, parents who obviously benefited from the
collection of child support were nevertheless unable to enforce the child support statute as a
whole./27/ This is because, the Court held, the syntax used by Congress in enacting certain
state compliance and reporting provisions evidenced a focus on the government’s interest in
recouping public assistance benefits, rather than ensuring a continued income stream to
specific families.
Blessing placed a cloud over the first prong, raising the prospect of denying enforcement rights
to some people who had, at first glance, “benefited” under the statute. Indeed, a non- Section
1983 case, Alexander v. Sandoval, presaged the Court’s subsequent decision in Gonzaga
University v. Doe by placing great emphasis on the language used by Congress./28/ “[S]tatutes
that focus on the person regulated rather than the individuals protected create ‘no implication
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of an intention to confer rights on a particular class of persons.’”/29/ This view was imported
into Section 1983 jurisprudence when elements of the implied right of action test were fused
with Wilder’s “benefits the plaintiffs” test in Gonzaga./30/
In Gonzaga, the transformation of the “benefits” prong became manifest when the Court
clarified that Section 1983 cannot be invoked simply because “the plaintiff falls within the
general zone of interest that the statute is intended to protect.”/31/ Instead, the Court now
requires a showing that “an unambiguously conferred right” exists that is “phrased in terms of
the persons benefited.”/32/ “[I]t is rights, not the broader or vaguer ‘benefits’ or ‘interests,’
that may be enforced” under Section 1983./33/ In Gonzaga, the Court considered whether the
Family Educational Rights and Privacy Act (FERPA) conferred a right to sue on a student whose
privacy had been violated by the unauthorized release of educational records./34/ There, the
Court dismissed statutory language that seemingly granted individual students protection from
institutional invasions of privacy. It held instead that the statute was addressed more to the
entity regulated than to the students benefited.
The Court cited several factors suggesting that FERPA did not confer an enforceable right upon
students. First, the Court stated, “FERPA’s provisions speak only to the Secretary of Education,
directing that ‘no funds shall be made available’ to any ‘educational agency or institution which
has a prohibited ‘policy or practice’.”/35/ The Court approvingly quoted Cannon v. University of
Chicago, a non-Section 1983 decision which applied the Cort v. Ash test to find a right of action
implied under Title IX of the Civil Rights Act:
There would be far less reason to infer a private remedy in favor of individual persons if
Congress, instead of drafting [the statute] with an unmistakable focus on the benefited class,
had written it simply as a ban on [certain] conduct by recipients of federal funds or as a
prohibition against the disbursement of public funds to ... institutions engaged in [prohibited]
practices./36/
Second, because the statute barred the funding of institutions “which have a policy or practice
of permitting the release of education records”, FERPA was said to “speak only in terms of
institutional policy and practice, not individual instances of disclosure.”/37/ Citing Blessing v.
Freestone, the Court found FERPA’s provisions to have an “‘aggregate’ focus ... not concerned
with ‘whether the needs of any particular person have been satisfied,’ ... and ... cannot ‘give
rise to individual rights.’”/38/ Conflating the previously separate inquiries under Section 1983
jurisprudence and the Cort v. Ash “implied rights” analysis, the Court concluded that “the initial
inquiry [in a Section 1983 case] – determining whether a statute confers any right at all – is no
different from the initial inquiry in an implied right of action case, the express purpose of which
is to determine whether or not a statute ‘confers rights on a particular class of persons.’”/39/
An “unambiguously conferred right” that is “phrased in terms of the persons benefited” (rather
than in terms of the person or agency regulated) is now a central factor determining a plaintiff’s
ability to enforce a federal statute using Section 1983./40/ Reviewing its past cases to illustrate
the new standard, the Gonzaga Court noted that the rent ceiling provisions of the United States
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Housing Act of 1937 construed in Wright, as well as the reimbursement provisions of the
Medicaid Act interpreted in Wilder, “explicitly conferred specific monetary entitlements upon
the plaintiffs.”/41/ After Gonzaga, a plaintiff must now find a similar or analogous individual
“entitlement” expressed in the language of a statute sought to be enforced through Section
1983. Therefore, the first question a prospective plaintiff must answer is whether he or she is
the “unmistakable focus” of the statute in question./42/
With respect to a number of federal programs for low-income people, a strong argument can
be made that Congress’ mandates are, in Gonzaga’s terms, “phrased in terms of the persons
protected.”/43/ However, since many of these statutes were enacted under the Constitution’s
Spending Clause, specific provisions of the statutes are written in a form which directs a federal
agency to spend money so long as the state or other recipient complies with Congress’ rules
(e.g., “the state’s plan shall provide ...”). Not surprisingly, government attorneys have argued
with some success./44/ that such statutory provisions are “focus[ed] on the person regulated
rather than the individuals protected” and hence, “create ‘no implication of an intention to
confer rights on a particular class of persons.’”/45/ This sort of argument underscores the fact
that advocates need to find language in the statutory provision sought to be enforced indicating
that Congress “intended to confer individual rights upon a class of beneficiaries.”/46/ In
addition, the advocate must research carefully how that provision has been interpreted both
before and after Gonzaga./47/ Given the Supreme Court’s tendency to restrict further the
ability of private litigants to enforce federal laws, one should be very leery of the consequences
of exploring new ground on this issue.
5.1.A.1.b. Is the alleged “right” so vague or amorphous as to make it unenforceable?
Assuming the statute unambiguously confers a right on plaintiffs, the second issue a
prospective plaintiff must ask is whether the statute contains a standard by which to measure
the state or local agency’s compliance with the law. In Suter v. Artist M., the Court found that
the plaintiff could not enforce the requirement, found in the Adoption Assistance and Child
Welfare Act, that a state make “reasonable efforts” to avoid the removal of children from their
parents’ homes./48/ The Court held that the statute failed to set forth standards to judge the
“reasonableness” of the state’s compliance with the law and was, therefore, too vague and
amorphous to allow judicial enforcement./49/
By comparison, in Wright v. Roanoke Redevelopment and Housing Authority, plaintiffs prevailed
in a Section 1983 claim that an inadequate public housing utility allowance violated rent ceilings
imposed by the Brooke Amendment, even though the statute nowhere defined the
components of “rent.” In response to arguments that the provision was vague and amorphous,
the Court turned to United States Department of Housing and Urban Development (HUD)
regulations to fill the gap, noting that the agency had defined “rent” to include a reasonable
utility allowance./50/ Similarly, in Wilder,/51/ plaintiffs overcame a “vague and amorphous”
argument in their challenge to a state’s failure to provide “reasonable” Medicaid
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reimbursement rates to providers. The Court found that definitions found elsewhere in the
statute provided a standard for judicial enforcement./52/
5.1.A.1.c. Does the statute create a binding obligation?
In Pennhurst State School and Hospital v. Halderman, the first decision to limit the use of
Section 1983 to enforce a federal statute, the Supreme Court considered the ostensibly “rights
producing” language found in the Developmentally Disabled Assistance and Bill of Rights
Act./53/ The Court ruled that congressional rhetoric about a disabled “bill of rights” found in
the statute’s declaration of policy could not create enforceable rights since the law did not tie a
state’s receipt of federal funding to the state’s compliance with the purported bill of rights. The
statutory language was held to be “hortatory” rather than mandatory. Therefore, the third
question a prospective plaintiff must consider is whether the statute sought to be enforced
actually requires the state or local agency to do something.
5.1.A.1.d. Does the statute contain a comprehensive enforcement mechanism?
If the statute at issue passes muster under the prongs above, Section 1983 is presumed to
provide a remedy unless the defendant shows that the enactment contains a “comprehensive
enforcement mechanism” whose breadth or scope suggests that Congress viewed that
mechanism as the sole means for statutory enforcement. In Middlesex County Sewerage
Authority v. National Sea Clammers Association,/54/ environmentalists sought to use Section
1983 to enforce both the Federal Water Pollution Control Act and the Marine Protection,
Research and Sanctuaries Act, by enjoining the dumping of waste in the Atlantic Ocean. In
addition to providing a limited right to sue to private parties, these statutes provided an
elaborate alternative mechanism to address the pollution problem. The Supreme Court pointed
to those measures as indicating Congress’ intent to preclude enforcement of the legislation
outside of the procedures set forth in these laws.
Following National Sea Clammers, the Court ruled that the existence of a comprehensive
statutory remedy for aggrieved parties could also indicate Congress’ intent to preclude any
other private remedies, including the invocation of Section 1983, which were based on the
same “common nucleus of operative facts” giving rise to the statutory violation. Thus, in Smith
v. Robinson,/55/ a disabled child who had claimed that he was not receiving an appropriate free
education in violation of the Education for All Handicapped Children Act (EAHCA), the
Rehabilitation Act, and the Equal Protection Clause, won his EAHCA claim. He thereafter
pointed to his alternative Section 1983 claim to seek attorneys fees under 42 U.S.C. § 1988.
Holding that EAHCA’s “comprehensive scheme” suggested Congress’ intent that the EAHCA be
the exclusive vehicle for addressing an equal protection constitutional violation which was
“virtually identical” to the EAHCA claim, the Court reasoned that Sections 1983 and 1988 were
statutory remedies that Congress could implicitly repeal or replace with an alternate
remedy./56/
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In City of Rancho Palos Verdes v. Abrams, the Court found that, absent an explicit or implied
indication that the statutory remedy was meant to complement other available remedies, the
Telecommunications Act of 1996’s provision of a limited private remedy implied that a Section
1983 action was precluded./57/ In Sea Clammers, Smith and Rancho Palos Verdes, the statutes
required the plaintiffs to exhaust administrative remedies or to comply with other procedures
before bringing suit. As the Supreme Court subsequently explained in Fitzgerald v. Barnstable
School Committee,/58/ to permit a plaintiff to bypass these procedures and to sue directly
under § 1983 would have been incompatible with Congress' interest in creating these
procedures. In contrast, Title IX, at issue in Fitzgerald, had no similar enforcement scheme and
a private right of action directly under the statute has been implied./59/ Thus, in the absence of
exhaustion or alternative remedial measures, the Court held that concurrent Title IX and § 1983
claims was permissible./60/
The existence of developed enforcement mechanisms, moreover, is not enough to make them
“comprehensive.” Thus, in Wright, discussed earlier, the Court found that stringent federal
oversight of public housing authorities, and the federal government’s power to cut off funding
to non-complying agencies, did not preclude a Section 1983 remedy. On the one hand, the
Court noted that the “[statutory provision] and its legislative history [are] devoid of any express
indication that exclusive enforcement authority was vested in HUD”; on the other, “both
congressional and agency actions indicat[e] that enforcement authority is not centralized and
that private actions were anticipated.”/61/ Moreover, the Court observed, the statutory
mandate that housing authorities provide a grievance procedure to tenants and the
implementing regulation’s provision that the existence of a grievance procedure would not
preclude judicial review suggested Congress’ intent to allow tenants to sue./62/
5.1.A.1.e. Does the enactment of a statute by Congress under its Spending Power undermine
the enforceability of the statute under Section 1983?
Defendants have argued that legislation enacted under Congress’ spending power, Article I,
Section 8 of the Constitution, generally creates only voluntary programs which the states are
free to reject. Consequently, a state’s decision to participate in such a program results only in
contractual obligations that cannot rise to the level of being “the supreme law of the land.”/63/
Although the issue has not come before the Supreme Court, two circuit courts of appeal have
rejected this contention: Antrican v. Odom and Westside Mothers v. Haveman./64/
In Westside Mothers v. Haveman, the later of the two decisions, the Sixth Circuit ruled that the
obligations of the state under the Medicaid Act were more than a mere contract. It quoted
Bennett v. Kentucky Department of Education, which stated that, “[u]nlike normal contractual
undertakings, federal grant programs originate in and remain governed by statutory provisions
expressing desirable public policy.”/65/ Applying the three-prong Wilder/Blessing test--before
the Gonzaga decision--the appellate court found the Medicaid Act provision enforceable under
Section 1983./66/
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5.1.A.1.f. To what degree can a federal regulation create rights enforceable under Section
1983?
In Wright, the Supreme Court implied that a regulation implementing a rights-creating statute
(defining “rent” as including a reasonable amount to cover housing authorities’ tenants utility
costs) was a “law” that could be enforced under Section 1983./67/ Shortly thereafter, in Wilder
v. Virginia Hospital Association,/68/ it relied on the definition of “reasonable” contained in
Medicaid regulations, to flesh out the statutory requirement that the “reasonable cost” of
services be paid to providers. This blunted the argument that the statute was too vague or
ambiguous to be enforced. Drawing on these decisions and the somewhat analogous case of
Golden State Transit Corporation v. City of Los Angeles, it was generally believed that binding
regulations could themselves create enforceable rights./69/ Recent appellate court rulings,
however, question this view, suggesting that the private enforceability of a particular regulation
depends on (1) the extent to which the regulation directly implements congressional intent,
and (2) whether Congress also intended the governing statute to create a “right” enforceable
under Section 1983.
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court ruled that
“[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are arbitrary, capricious, or
manifestly contrary to statute.”/70/ Under this view, “a reviewing court has no business
rejecting an agency’s exercise of its generally conferred authority to resolve a particular
statutory ambiguity simply because the agency’s chosen resolution seems unwise, ... but is
obliged to accept the agency’s position if Congress has not previously spoken to the point at
issue and the agency’s interpretation is reasonable.”/71/
Nevertheless, Justice O’Connor posed the issue in her dissent in Wright: “it is necessary to ask
whether administrative regulations alone could create such a right.”/72/ Under the separation
of powers doctrine, the creation of causes of action is within the purview of Congress,/73/ and
the debate in the Supreme Court has involved the extent to which the enactment of Section
1983 evidenced the legislature’s intent to generally make actionable any deprivation resulting
from the violation of “the constitution and laws.” The Supreme Court’s recent decision
concerning the Title VI “disparate impact” regulations strongly suggests that private
enforceability of federal regulations is directly dependent on Congressional intent.
In Alexander v. Sandoval, the Court considered whether, outside of the Section 1983 context,
“disparate impact” regulations issued by the federal government to enforce Title VI of the Civil
Rights Act could create an implied right of action./74/ The Court held that they could not,
reasoning that: (1) one section of the statute had been interpreted as banning only intentional
discrimination; (2) a second section of the statute—allowing HUD to issue regulations to carry
out the intent of Congress—went beyond the first section and banned “disparate impact”
discrimination; hence (3) one could not infer an implied right of action to enforce the
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regulations, even though the court had earlier upheld the validity of the disparate impact
regulations./75/ The Court reasoned that “language in a regulation may invoke a[n implied]
private right of action that Congress through statutory text created, but it may not create a
right that Congress has not.”/76/
Although Sandoval was an implied private right of action decision that essentially explored the
contours of the first prong of the Cort v. Ash test,/77/ the Supreme Court’s decision in Gonzaga
equated that prong with the first element of the Wilder/Blessing test for determining whether a
statute creates rights enforceable under Section 1983: “[T]he initial inquiry [in a Section 1983
case] – determining whether a statute confers any right at all – is no different from the initial
inquiry in an implied right of action case, the express purpose of which is to determine whether
or not a statute ‘confers rights on a particular class of persons.’”/78/
Not surprisingly, several appellate decisions have anticipated the evolution of the Supreme
Court majority’s thinking on the enforceability of federal regulations, creating a split in circuits.
On the one hand, the pre-Sandoval/Gonzaga decision in Loschiavo v. City of Dearborn,/79/ and
the even earlier case of Samuels v. District of Columbia,/80/ interpreted Section 1983 in an
expansive manner, holding that valid regulations were “laws” that could be enforced
independent of whether the governing statute had actually addressed the subject of the
regulation. Citing Wright, the court in Loschiavo reasoned that because “federal regulations
have the force of law, they likewise may create enforceable rights” if the regulations otherwise
pass muster under the three-prong Wilder/Blessing test./81/
On the other hand, every recent appellate decision to address the issue has embraced the
Sandoval analysis, essentially holding that regulations cannot independently create rights, and
are enforceable under Section 1983 only to the extent that the regulations merely “flesh out” a
statutory provision which itself creates the right. Thus, in Harris v. James, the Eleventh Circuit
found that Medicaid regulations could not create a right to non-emergency transportation
absent an explicit provision in the governing statute./82/ Similarly, in South Camden Citizens v.
New Jersey Department of Environmental Protection, the Third Circuit relied on Sandoval to
reject the private enforceability of Title VI disparate impact regulations under Section 1983./83/
The First Circuit adopted this view in Rolland v. Romney, although went on to find that plaintiffs
had an enforceable right to certain specialized services under the Medicaid Act./84/ Most
recently, the Ninth Circuit cited Gonzaga to buttress its holding in Save Our Valley v. Sound
Transit that disparate impact regulations could not be enforced under Section 1983./85/ The
court found that the Wilder/Blessing test need not be invoked in the regulatory context until
after the plaintiff had first established that the governing statute had created an enforceable
right./86/
In light of Sandoval, Gonzaga, and the recent trend of appellate court decisions, an advocate
seeking to enforce a regulation should argue, when possible, that the governing statute, in
Gonzaga’s terms, grants an “unambiguously conferred right,” which is “phrased in terms of the
persons benefited,” and is merely “fleshed out” by the regulation./87/
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In sum, after Gonzaga, a plaintiff seeking to enforce a federal statute using Section 1983 must
be able to point to an “unambiguously conferred right” that is “phrased in terms of the persons
benefited.” However, once this hurdle is overcome, Section 1983 is presumed to provide a
remedy, absent a “comprehensive enforcement mechanism” or other evidence to suggest that
Congress withdrew this avenue.
5.1.A.2. “Persons” Acting “Under Color of State Law” Under Section 1983
A Section 1983 action can be brought only against a person acting “under color of [state]
law.”/88/ Liability lies against those “who carry a badge of authority of a State and represent it
in some capacity, whether they act in accordance with their authority or misuse it."/89/
Although the term “person” was originally thought to refer only to human beings, the concept
was broadened in Monell v. New York City Department of Social Services/90/ to include cities
and local governments whose custom, policy or practice caused the deprivation./91/ In any
event, when the defendant is a government employee doing his or her job and acting under
apparent government authority, she or he is very likely a “state actor./92/ When a private actor
is involved, as is increasingly the case with the trend towards “privatization” of government
services, the waters are somewhat murkier.
5.1.A.2.a. Under Color of State Law
State and local officials can interfere with federal rights in two distinct ways. By enforcing state
laws or policies that conflict with federal law, state and local officials deprive their victims of
federal rights. In such a case, the public officials obviously act under “color of state law.”/93/
State and local officials can also interfere with federally-protected rights by misusing power
entrusted to them under state law. In such a case, the official acts under color of state law only
at those times he or she is “clothed with the authority of state law.”/94/ Thus, a sheriff who
assaulted his wife did not act under color of state law even though he was a public official; his
status as a public official was not the source of his power to act./95/ In a closer case, the
Eleventh Circuit held that a city manager, who investigated a citizen by traveling to another
state with a city police officer to ask questions of various people, did not act as a state actor
because his conduct did not require state authority; a private citizen could have undertaken the
same activity./96/
Although misuse of power cases occasionally present difficult questions, the vast majority
involve defendants who were able to inflict injury only because they were clothed with state
authority. In such cases, defendants act under color of state law and can be sued under Section
1983. Moreover, defendants who enforce invalid state laws and regulations always act under
color of state law./97/ Thus, the color of state law requirement ordinarily poses no problem in
litigation against state and local officials, or against local governmental entities.
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A more difficult question is presented when a private party is considered to be acting under
color of state law so as to be suable under Section 1983./98/ Although closely related to the
Fourteenth Amendment’s state action requirement, Section 1983’s color of state law
requirement is conceptually distinct. Conduct that is state action under the Fourteenth
Amendment is always action under color of state law for purposes of Section 1983./99/
However, conduct under color of state law may not constitute state action under the
Fourteenth Amendment./100/ Because Section 1983 claims against private actors ordinarily
involve a claimed deprivation of a constitutional right flowing from the Fourteenth
Amendment, it is almost always necessary to establish state action under the amendment to
prevail under Section 1983. Therefore, the focus of this section will be Fourteenth Amendment
state action cases.
5.1.A.2.b. Private Parties as State Actors
Since the early 1970s, the Supreme Court has substantially narrowed the range of private
conduct that constitutes state action. In determining whether a private party has engaged in
“state action,” a court must weigh “whether the claimed ... deprivation resulted from the
exercise of a right or privilege having its source in state authority ” and “whether the private
party charged with the deprivation could be described in all fairness as a state actor.”/101/ In
doing so, a court looks at (1) the extent to which the actor relies on governmental assistance
and benefits, (2) whether the actor is performing a traditional governmental function, and (3)
whether the injury caused was aggravated in a unique way by the incidents of governmental
authority./102/ Because none of these factors is definitive, one can generalize that a
deprivation of federal rights by a private party can constitute “state action” if the government
has: (1) delegated its authority to the private actor, (2) participated in joint activity to a degree
that the actions of one party can be attributed to the other, (3) created the legal framework
necessary to carry out the private action, (4) compelled the private party to act in a certain way,
(5) knowingly accepted the benefits of an unconstitutional practice, or (6) the private entity is
carrying out a traditional “state function,” or (7) the government has created a “special
relationship” with the plaintiff.
5.1.A.2.b.i. Delegation of a Traditional State Function
Delegation of a state responsibility to a private party can make the party a state actor,
particularly if the function delegated is one traditionally performed by the state. This principle
is illustrated by West v. Atkins, which rejected an agency’s claim that no state action was
involved when the negligence of a private doctor, under contract to provide care for inmates,
injured the plaintiff in violation of the state prison’s constitutional duty to avoid “deliberate
indifference” to the medical needs of those in its custody./103/
5.1.A.2.b.ii. Joint Activity and “Pervasive Entwinement”
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Joint activity by a private party and a government agent can also transform the private party
into a state actor, where the purpose of the collusion is to violate the federal rights of the
plaintiff./104/ Similarly, in Dennis v. Sparks, the Court held that private parties who conspired
with a judge to fix a case acted under color of law./105/ A nominally private entity controlled by
the state is also a state actor./106/
However, in the absence of a conspiracy or governmental control, the applicability of the joint
activity test to find state action is problematic, as illustrated by National Collegiate Athletic
Association v. Tarkanian./107/ The case involved a private membership body of public and
private colleges that regulated intercollegiate athletics. The National Collegiate Athletic
Association (NCAA) determined that a member state university had violated NCAA rules and
required that the school suspend coach Tarkanian. When the school complied, the coach sued
under Section 1983, claiming that his firing violated due process. The Court held that the
school, a state actor, and the NCAA, a private party, were not joint participants in the
suspension of the coach. The Court reasoned that the school was free to cancel its agreement
with the NCAA, the disciplinary function had not been delegated to the NCAA by the state, and
the NCAA was actually acting on behalf of all other NCAA members against the efforts of the
state to forestall the suspension of its most successful coach.
Nevertheless, in Brentwood Academy v. Tennessee Secondary School Athletic Association, a case
whose facts seem very much to parallel Tarkanian, the Court did find state action./108/ In
Brentwood Academy, a private association which regulated high school sports throughout the
state was held to be a state actor because the overwhelming majority of its members were
public schools, the association received some public funds from dues and game proceeds, its
officers were drawn from public schools, association employees participated in the state
retirement fund, and the association was seen to regulate sports activity instead of the state
board of education. The Court stated that the “nominally private character of the Association is
overborne by the pervasive entwinement of public institutions and public officials in its
composition and workings.”/109/
5.1.A.2.b.iii. Governmental Creation of a Legal or Procedural Framework
A private party may be engaged in “state action” if the act which deprived federal rights could
not have occurred but for the existence of a governmental framework requiring government
approval or action. In North Georgia Finishing, Inc. v. Di-Chem, Inc.,/110/ the Court found state
action in a private party’s invocation of a court-ordered attachment that failed to afford due
process to the debtor. Similarly, in Lugar v. Edmondson Oil Company, the Court held that a
creditor who invokes prejudgment attachment remedies requiring the participation of a court
clerk and a sheriff, acts under color of state law./111/ In contrast, in Flagg Brothers v. Brooks,
involving a prejudgment attachment authorized by state law but not requiring the intervention
of a court, no state action was found./112/ Finally, in Edmondson v. Leesville Concrete
Company, the Court found that a private attorney using peremptory challenges in a jury trial in
a racially biased manner was a “state actor” because his act—use of peremptory challenges—
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could exist only in the judicial context and with the approval of a state judge./113/ The rule of
these cases is that a private party becomes a state actor if he or she uses a state procedure
requiring some state intervention.
However, in American Manufacturers Mutual Insurance Company v. Sullivan, the Supreme
Court found that a private workers’ compensation insurer was not a state actor when it
withheld payments without prior notice to a worker as part of a state “utilization review” of
certain medical costs./114/ The purpose of a utilization review is to assess the necessity for a
particular procedure to determine whether the costs should be borne by the workers’
compensation carrier. In Sullivan, even if it could be assumed that the state, by providing a
utilization review procedure, had “subtly encouraged” insurers to withhold payments pending
the review, invocation of the procedure was not seen as required or coerced by the state.
Given the move towards privatization of formerly state programs, a close look at Sullivan’s
analysis is warranted. The Court began by identifying the specific conduct complained of: the
insurance company’s withholding of payments. It then analyzed the state’s role to determine
whether “there is a sufficiently close nexus between the State and the challenged action ... so
that the action of the [private party] may be fairly treated as that of the State itself.”/115/
Having understood that the state’s role was simply to accept the insurer’s request for a
utilization review, checking the form for accuracy, and forwarding it to a private panel of health
care providers for a decision, the Court found no state action. The Court described the “State’s
decision to allow insurers to withhold payments” as “state inaction, or more accurately, a
legislative decision not to intervene in a dispute between an insurer and an employee over
whether a particular treatment is reasonable and necessary.”/116/
The Court, nevertheless, recognized that the utilization review panel’s subsequent affirmative
decision to uphold or reverse the insurance company would be state action because the panel
possessed authority delegated to it by state statute: “While the decision of a [Utilization Review
Organization], like any judicial official, may properly be considered state action, a private
party’s mere use of the State’s dispute resolution machinery, without the ‘overt, significant
assistance of state officials,’ ... cannot.”/117/
In the context of state-mandated procedures or programs carried out by private parties, the
distinction between state and private actions depends on (1) whether the state plays an active
role in furthering the act which allegedly caused the deprivation of federal rights, and (2) the
degree to which the procedure invoked is a core governmental function or institution. In short,
the inquiry turns on whether the state affirmatively furthers the action or merely authorizes it,
and, if the latter, how important the procedure is to the functioning of the state.
5.1.A.2.b.iv. Governmental Compulsion or Significant Encouragement to Act in a Particular
Way
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One of the most important Section 1983 issues for legal services advocates is the degree to
which one can imply “state action” from the fact that the defendant has received government
funding or is extensively regulated by the state. Generally, government funding or regulation
does not make a state actor of the recipient or the regulated party unless one can show such a
close connection between the government and the act complained of that the action taken
“may be fairly treated as that of the State itself.”/118/ A private landlord participating in the
Section 8 program is a “state actor” while taking actions required by federal regulations, but is
only a private actor if she unilaterally locks out her tenant in violation of those regulations. The
act of forcible eviction is analytically an expression of her private will and not compelled by
government fiat.
Several Supreme Court decisions have accordingly confirmed that, absent delegation, joint
activity, or a state created framework, state action is rarely found absent compulsion or
significant encouragement from the government to the private entity to act in a particular way.
For instance, in Jackson v. Metropolitan Edison Company, a highly regulated utility was not a
state actor when, without prior notice to its customer, it terminated her power for nonpayment
of a utility bill. The Court saw no “nexus” between government regulation and the company’s
action that would be sufficient to implicate due process. The decision to cut off power was
prompted by economic concerns and was made by the company with little relation to the fact
that its business was highly regulated./119/
A similar conclusion was reached in Blum v. Yaretsky, where a nursing home receiving Medicaid
funding decided to discharge particular patients without giving them a hearing./120/ Given that
Medicaid regulations did not specifically require any particular level of care, the nursing home’s
decision could not be imputed to the state. Indirect government involvement resulting from the
regulatory requirement that the state be notified of any change did not alter this conclusion.
The Court wrote: “A State normally can be held responsible for a private decision only when it
has exercised coercive power or has provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of the State.”/121/
Similarly, in San Francisco Arts and Athletics, Inc. v. United States Olympic Committee, the Court
held that the United States Olympic Committee’s refusal to license the use of the word
“Olympic” was not state action even though Congress granted it the exclusive right to license
the use of the word./122/ Once again, the Court distinguished authorization from compulsion,
finding the former insufficient to establish state action./123/
Most recently, as discussed above, the Court held in American Manufacturers Mutual Insurance
Company, v. Sullivan, that a private workers’ compensation insurer who used a state “utilization
review” of certain medical costs resulting in the withholding of payments without prior notice
to the worker, did not thereby become a state actor./124/ The Court concluded that because its
actions were not imposed or sanctioned by the state, it could not be a state actor.
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Nor does governmental funding give rise to “state action” absent state coercion or significant
encouragement of the act causing the deprivation. Thus, in Blum v. Yaretsky, the Court rejected
the contention that extensive public funding converted the nursing home’s decision to lower
the level of care into state action in violation of the Medicaid Act./125/ In essence, there was
no cause and effect relationship between the fact of public funding and the nursing home’s
allegedly unlawful act.
Finally, the Court addressed this issue in Rendell-Baker v. Kohn./126/ This case involved the
termination of teachers and counselors critical of management by a private school that was
primarily dependent on federal funding for the education of “troubled” children. In order to
ensure that school staff met certain minimum requirements, state regulations required the
government to be notified whenever the school hired or dismissed its counseling staff.
Nevertheless, the Court found no state action. The Court reasoned, first, that “the decisions to
discharge the petitioners were not compelled or even influenced by any state regulation.”
Second, the Court held that “[a]cts of such private contractors do not become acts of the
government by reason of their significant or even total engagement in performing public
contracts.”/127/
5.1.A.2.b.v. The “Symbiotic Relationship” Test
The Supreme Court has applied several other tests to find state action, although their
application now appears limited to the facts presented in the original cases. The first of these is
the “symbiotic relationship” test first broached in Burton v. Wilmington Parking Authority./128/
In Burton, a city agency leased facilities to a restaurant that engaged in racial discrimination.
Because the city gained parking revenue from the restaurant’s operation, and the restaurant
gained a good location and tax benefits from the city, the Court held that the restaurant acted
under color of state law, and, therefore, violated the Fourteenth Amendment when it refused
to serve black patrons./129/
The Supreme Court began narrowing Burton in Moose Lodge No. 107 v. Irvis, holding that the
grant of a state liquor license did not convert the discriminatory conduct of the licensee into
state action./130/ The Court specifically rejected the plaintiff’s claim of a Burton symbiotic
relationship, even though the license was of great value to the licensee and generated revenue
for the state./131/ According to the Court, the benefit to the state of liquor license revenues
was only remotely attributable, if at all, to the private party’s discriminatory conduct.
The Court further constricted Burton in Rendell-Baker v. Kohn./132/ Rendell-Baker, as noted
above, held that a private school that depended almost exclusively on government funding, was
extensively regulated, and contracted with governmental agencies to provide educational
services, did not act under color of state law when it fired an employee./133/ The Court
rejected the claim of a symbiotic relationship between the state and the school on the grounds
that the state neither owned the school property nor benefited from the firing./134/
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A plaintiff claiming state action on the basis of a “symbiotic relationship” between a private
party and state or local government must show that the government derives a financial benefit
that can be specifically attributed to the challenged conduct. In Burton, the benefit to the
government was the additional revenue resulting from the increased patronage given to a
whites-only restaurant. In contrast, the government received no specific benefit from the club’s
discriminatory conduct in Moose Lodge or the school’s decision to fire a schoolteacher in
Rendell-Baker. Only the combination of a symbiotic relationship and a specific financial benefit
to the government from the conduct at issue will create state action out of private conduct. For
these reasons, Burton is rarely applicable.
5.1.A.2.b.vi. The “Public Function” Test
The public function doctrine is another moribund test for state action, originating with Marsh v.
Alabama/135/ and the White Primary Cases./136/ Read broadly, they suggested that certain
responsibilities are so quintessentially governmental that private parties who perform them
necessarily act under color of state law. Thus, the private landowner who established the
company town in Marsh performed many of the public functions traditionally associated with
local government; like a local government, it could not bar handbilling on its streets./137/ In
the White Primary Cases, private organizations that barred black voters from participating in
primary elections performed a traditionally public function in holding an election, thereby
acting under color of law./138/
It is doubtful that the public function doctrine survives in the broad form suggested forty years
ago. In Hudgens v. NLRB, the Court held that a shopping center was not a first amendment
forum, reasoning that it was not the functional equivalent of a company town./139/ In so
ruling, the Court may have confined Marsh to its facts; the only contemporary analogue to a
company town may be a migrant labor camp. Similarly, the White Primary Cases rationale
probably retains force only because it involved the constitutionally protected right to vote and
the guarantee of a “republican form of government.”/140/
Jackson v. Metropolitan Edison Company provided the doctrinal foundation for further
narrowing the public function doctrine. Rejecting the claim that the provision of electricity was
a public function, the Court held that a public function must be one that traditionally was “the
exclusive prerogative of the state.”/141/ Thus, the Court has since found that the following are
not public functions: enforcement of a warehouseman’s lien,/142/ education of children with
special needs,/143/ the operation of a nursing home,/144/ control of the word “Olympic,”/145/
and establishment of disciplinary standards for intercollegiate athletics./146/ The atrophied
“public function” doctrine now can probably be collapsed within the “delegation of traditional
state function” test discussed above.
5.1.A.2.b.vii. The “Special Relationship” Test
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Unlike the above tests, which seek to use Section 1983 to sue private parties as state actors, the
special relationship test seeks to hold the government liable for the acts of a private party.
Section 1983 can be used to sue a government agency for injuries caused by a nongovernmental third-party if, as the result of the government’s “special relationship” with the
victim, the latter has been put in a position that severely hampers his or her ability to protect
themselves. Such a relationship most clearly exists when the victim has been incarcerated in jail
or prison or committed in a state institution./147/ However, it has on occasion also been found
where government action has placed the plaintiff in such obviously dangerous circumstances as
to make the government responsible for plaintiff’s well-being./148/
A non-custodial “special relationship” is found only in rare circumstances. Thus, in the case
creating this standard, DeShaney v. Winnebago County Department of Social Services, the victim
was a child who had been reported to the county as having been repeatedly abused by his
father, the custodial parent./149/ Despite these reports and a subsequent investigation, the
county did not remove the child from his home. After a severe beating that left the child
permanently injured, the county was sued by the non-custodial parent, who contended that the
failure to take action deprived the child of substantive due process rights. The Court found that
even though the county knew of the potential harm to the victim and continued to monitor his
situation, this did not create a “special relationship” with the county sufficient to make the
government liable:
[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that
it renders him unable to care for himself, and at the same time fails to provide for his basic
human needs – e.g., food, clothing, shelter, medical care, and reasonable safety – it
transgresses the substantive limits on state action set by the Eighth Amendment and the Due
Process Clause. [Citations omitted.] The affirmative duty to protect arises not from the State’s
knowledge of the individual’s predicament or from its expressions of intent to help him, but from
the limitation which it has imposed on his freedom to act on his own behalf./150/
An arrest, incarceration, involuntary commitment, or a foster care placement resulting from a
dependency proceeding would create a “special relationship” necessary to establish liability.
5.1.A.2.c. When Government Can Be a “Person” if the Deprivation of Federal Rights Stems
from a Government “Policy”
Legal services advocates regularly face the problem of individually vindictive or incompetent
government workers whose actions deprive clients of the level of public assistance or other
benefit to which they are entitled. These actions are often taken by agency employees in
violation of that agency’s own stated policies. In such cases, as more fully discussed in Chapter
8 of this MANUAL, only the employee is liable in a Section 1983 claim. Even if the employee’s
acts result in a violation of federal constitutional, statutory, or regulatory rights, they cannot
give rise to agency liability under Section 1983. Agency liability must be founded on a
deprivation caused by the institution’s “custom, policy or practice,” and not as the result of
aberrant behavior by a rogue employee.
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This rule was established by Monell v. New York City Department of Social Services, which held
that a municipality could be a “person” for purposes of Section 1983, but limited the scope of
the agency’s liability to only those instances where the deprivation resulted from that agency’s
custom, policy or practice./151/ Monell establishes the principle that the government should be
liable only for actions for which it is directly responsible. This holding gives a plaintiff several
options. She can sue the defendant employee in her personal or official capacity, or both.
Assuming the defendant is not a State and immune under the Eleventh Amendment from suit
in federal court, the plaintiff can name as an additional defendant – or even the sole defendant
– either the agency itself, or its titular head, who is sued in his or her official capacity./152/
Naming the entity or its head is particularly important when injunctive relief binding the entire
agency is sought. An order entered against the agency head in her or his official capacity will
bind any successor officer.
____________________________________________________________
3. Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1981-1988.
4. Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and 701 et seq.
5. 42 U.S.C. §§ 1981-88.
6. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). Although this MANUAL is
directed at cases filed in federal court, Section 1983 suits can also be heard in state court.
Indeed, the Supreme Court recently struck down, on Supremacy Clause grounds, a New York
state statute which divested its state courts of entertaining Section 1983 actions against state
correctional employees, holding that there is strong presumption of concurrent jurisdiction that
can be overcome only when the state adopts a neutral rule needed for judicial administration
of its court system. Haywood v. Drown, 129 S. Ct. 2108 (2009); Howlett v. Rose, 496 U.S. 356,
375 (1990); Martinez v. California, 444 U.S. 277, 283 n.7 (1980).
7. The Supreme Court has ruled that in passing § 1983, Congress did not intend to strip states of
sovereign immunity. Hence, while a state is not a “person” for purposes of § 1983 (Quern v.
Jordan, 440 U.S. 332, 345 (1979),) local governments – which cannot claim immunity – are.
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978). In Inyo County v. PaiuteShoshone Indians, 538 U.S. 701 (2003), the Court held that a sovereign Indian Tribe is not a
“person within the jurisdiction” of the United States, and cannot sue under § 1983.
8. Gonzaga Univ. v. Doe, 536 U.S. 273, 285-85 (2002) (Clearinghouse No. 54,643) (citing Cannon
v. Univ. of Chicago, 441 U.S. 677, 690, n.13 (1979)). The ability to use § 1983 to enforce a
statute was first established in Maine v. Thiboutot, 448 U.S. 1 (1980). See also King v. Smith, 392
U.S. 309 (1968) (in which the Court, by basing its decision on statutory rather than equal
Page 217 of 559
protection grounds, implied that § 1983 was a proper vehicle for raising a state’s violation of a
federal statute enacted under the Constitution’s Spending Clause).
9. Felder v. Casey, 487 U.S. 131 (1988) (state claims statute); Patsy v. Fla. Bd. of Regents, 457
U.S. 496 (1982) (state administrative proceeding); McNeese v. Bd. of Educ., 373 U.S. 668 (1963)
(state procedure for challenging school segregation); Monroe v. Pape, 365 U.S. 167 (1971) (no
need to resort to state causes of action). Although the law seems fairly clear in this area, one
consequence of the federal judiciary’s heightened concern for state’s rights has been greater
reliance on abstention doctrines to keep from hearing these cases. See, e.g., 31 Foster Children
v. Bush, 329 F.3d 1255, 1274-81 (11th Cir. 2003). See Chapter 2.7 of this MANUAL for a detailed
discussion of abstention.
10. Chapter 8.2 of this MANUAL discusses the limitations imposed by the Eleventh Amendment
on suits against a state.
11. See, e.g., Paul v. Davis, 424 U.S. 693 (1976) (allegation that police wrongfully circulated
damaging information about plaintiff did not state a Fourteenth Amendment violation and
hence did not state a § 1983 cause of action; plaintiff limited to state law remedies).
12. Chapter 8.3 of this MANUAL explores defendants and defenses in § 1983 litigation.
13. Constitutional provisions explicitly creating state obligations include the Reconstruction
Amendments (Thirteenth, Fourteenth and Fifteenth Amendments as well as those expanding
the franchise to women and eliminating the poll tax. Portions of the Bill of Rights, which
originally applied only to the federal government, now apply to the states by operation of the
Fourteenth Amendment’s Due Process Clause. For a list of these amendments, see generally,
Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968).
14. See Cannon v. Univ. of Chicago, 441 U.S. 677, 730 (1979) (Powell, J., dissenting).
15. In alleging a “right,” plaintiffs’ attorneys should be very specific, taking to heart the
Supreme Court’s dictum that “[o]nly when the complaint is broken down into manageable
analytic bites can a court ascertain whether each separate claim satisfies the various criteria we
have set forth for determining whether a federal statute creates rights.” Blessing v. Freestone,
520 U.S. 329, 342 (1997) (Clearinghouse No. 50,109).
16. Cort v. Ash, 422 U.S. 66, 78-79 (1975). Since Cort, the Supreme Court has become more
restrictive in finding rights of action implied directly under a statute. See, e.g., Touche Ross v.
Redington, 442 U.S. 560 (1979) and Alexander v. Sandoval, 532 U.S. 275 (2001) (Clearinghouse
No. 51,706).
Page 218 of 559
17. Sandoval, 532 U.S. at 286. Sandoval and the implied statutory causes of action will be
discussed further at Section 5.2 of this MANUAL.
18. Maine v. Thiboutot, 448 U.S. 1 (1980).
19. Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 420, n.3 (1987) (“[T]o us it is clear
that the regulations gave low-income tenants an enforceable right to a reasonable utility
allowance and that the regulations were fully authorized by the statute.”)
20. In hindsight, however, the Wright decision seems to have turned more on the absence of a
“comprehensive enforcement mechanism” which would have precluded the applicability of §
1983 than the ability of a regulation to create “rights.” While earlier decisions held that
regulations can create rights enforceable under § 1983, see, e.g., Loschiavo v. City of Dearborn,
33 F.3d 548 (6th Cir. 1994) (Clearinghouse No. 54,495), and Samuels v. Dist. of Columbia, 770
F.2d 184 (D.C. Cir. 1985), the more recent trend is to reject this view. See Harris v. James, 127
F.3d 993, 1007-08, 1009 (11th Cir. 1997) (Clearinghouse No. 50,797); S. Camden Citizens v. N.J.
Dept. of Envtl. Protection, 274 F.3d 771, 778 (3rd Cir. 2001) (Clearinghouse No.53,759); Save
Our Valley v. Sound Transit, 335 F.3d 932, 935-36 (9th Cir. 2003) (Clearinghouse No. 53,757).
For an extended discussion see infra, Chapter 5.1.A.2.f.
21. Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (Clearinghouse No. 54,643). Prior to
Gonzaga, a plaintiff invoking § 1983 to enforce a statute could presume that a private right of
action existed, with defendants having the burden to disprove the existence of the right. After
Gonzaga, the burden appears to have shifted to the plaintiff. However, once a right is shown to
exist, § 1983 is presumed to provide a remedy, while defendants have the burden to prove
otherwise. Id. at 284 n.4.
22. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990).
23. Id. at 509-512 (1990). Wilder actually lists these factors in reverse order. However, since
Blessing, 520 U.S. at 340-41, the factor which asks whether the statute benefits the plaintiff has
generally been listed first. This is appropriate because it has become the main battleground for
the use of § 1983 to enforce federal statutes. While some courts seem to think that Gonzaga
has entirely displaced the Wilder/Blessing inquiry, Gonzaga cites the latter decisions without
reservation.
24. Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981).
25.Much of the debate over private enforceability involves federal statutes enacted under
Congress’ Spending Clause, where the issue is whether the right to sue can be inferred from a
mandate to spend money in a particular way. See Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 28 (1981); Houston v. Williams, 547 F.3d 1357, 1361 (11th Cir. 2008) (Spending
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Clause legislation rarely confers a private right of action on funding beneficiaries); but see
Grammer v. John J. Kane Reg'l Centers, 570 F.3d 520 (3rd Cir. 2009); cert. denied, 130 S.Ct. 1524
(2010). In contrast, civil rights statutes, targeting individual discrimination, are more likely to
be interpreted as privately enforceable under § 1983. See, e.g., Wallace v. Chicago Hous. Auth.,
298 F. Supp. 2d. 710, 718 (N.D. Ill. 2003) (Clearinghouse No. 55,072) (allowing use of § 1983 to
sue for breach of the Fair Housing Act, (citing Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)) .
26. Blessing, 520 U.S. at 343.
27. “[T]he lower court’s holding that the [statute as a whole] ‘creates enforceable rights’ paints
with too broad a brush. It was incumbent upon respondents to identify with particularity the
rights they claimed, since it is impossible to determine whether [the statute], as an
undifferentiated whole, gives rise to undefined ‘rights.’ Only when the complaint is broken
down into manageable analytic bites can a court ascertain whether each separate claim
satisfies the various criteria we have set forth for determining whether a federal statute creates
rights.” Id. at 342. Courts have found enforceable and unenforceable certain provisions in the
same statute through a careful examination of statutory language. For instance, ASW v. Oregon,
424 F.3d 970, 976-77 (9th Cir. 2005) cited Blessing to find an enforceable right under one
provision of the Adoption Assistance Act even though a separate provision had earlier been
interpreted in 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) as not creating a right
to sue under § 1983. Similarly, in Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)
(Clearinghouse No. 54,800), the court held that while the relocation assistance provisions of the
Housing and Community Development Act created enforceable rights, the “one for one”
replacement housing mandate had an aggregate and not an individual focus and hence, could
not create rights enforceable under § 1983. As explained in Sanchez v. Johnson, 416 F.3d 1051,
1062 (9th Cir. 2005) (Clearinghouse No. 53,167), “[a]lthough [the Medicaid Act] sets out a
comprehensive list of requirements that a state plan must meet, it does not describe every
requirement in the same language. Some requirements ... focus on individual recipients, while
others are concerned with the procedural administration of the ... Act by the States and only
refer to recipients, if at all, in the aggregate.”
28. Sandoval, 532 U.S. at 275.
29. Id. at 289.
30. Gonzaga Univ., 536 U.S. at 273.
31. Id. at 283.
32. Id. at 283, 284 (the latter quoting in part Cannon v. Univ. of Chicago, 441 U.S. 677, 692
(1979).
Page 220 of 559
33. Id. at 283 (emphasis in original).
34. Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
35. Gonzaga, 536 U.S. at 287 (quoting 20 U.S.C. § 1232g(b)(1)).
36. Id. at 289 (quoting Cannon, 441 U.S. at 691 (emphasis added)).
37. Id. at 288 (emphasis in original).
38. Id. at 288 (quoting Blessing, 520 U.S. at 343).
39. Id. at 285 (citation omitted).
40. Enforceable rights may also be created by statutes that mandate governmental duties owed
to a class of beneficiaries. “Where a statute does not include this sort of explicit ‘right-or dutycreating language’ we rarely impute to Congress an intent to create a private right of action.”
Gonzaga, 536 U.S. at 284, n.3. (emphasis added, citing Cannon, 441 U.S. at 690, n.13.) Cannon,
in that footnote, stated that “the right- or duty-creating language of the statute has generally
been the most accurate indicator of the propriety of implication of a cause of action. With the
exception of one case, in which the relevant statute reflected a special policy against judicial
interference, this Court has never refused to imply a cause of action where the language of the
statute explicitly conferred a right directly on a class of persons that included the plaintiff in the
case. ” Because Spending Clause legislation is often written in a form that requires state
recipients to do something for members of a class, such “duty-creating” language suggests a
right enforceable under § 1983.
41. Gonzaga, 536 U.S. at 280.
42. Cannon, 441 U.S. at 691. The tendency of some courts to highlight the first Blessing prong at
the expense of the second and third prongs is illustrated by the Eleventh Circuit’s adoption –
with no mention of the other Blessing criteria – of its own three-part test for determining if
Congress intended to benefit plaintiffs: (1) Does the statute contain individually focused, rights
creating language? (2) Does it address the needs of individual persons instead of having a
systemwide or aggregate focus? (3) Does it lack an enforcement mechanism available to the
aggrieved individual? Arrington v. Helms, 438 F.3d 1336 (11th Cir. 2006) (citing 31 Foster
Children, 329 F.3d at 1272-73).
43. The Food Stamp Act, for example, provides that “... households [receiving] benefits under a
... program that complies with standards established by the Secretary ... shall be eligible to
participate in the food stamp program. Assistance ... shall be furnished to all eligible households
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...” 7 U.S.C. § 2014(a). Hence, specific statutory provisions spelling out eligibility standards
presumably create enforceable rights for those who apply and meet the standards. An example
of similar language in the Medicaid Act, but one focusing on a state plan, is the requirement
that “[a] State plan for medical assistance must ...(10) provide ... for making medical assistance
available ... to ... all individuals [meeting the following five pages of eligibility criteria].” 42
U.S.C. § 1396a(a). The latter language was cited in Sabree v. Richman, 367 F. 3d 180, 189 (3rd
Cir. 2004) (Clearinghouse No. 55,662) to find an enforceable right to certain services. Judge
Alito concurred, cryptically noting that the lower court’s reversed decision “may reflect the
direction that future Supreme Court cases in this area will take.” Id. at 194. See also Watson v.
Weeks, 436 F.3d 1152, 1159 n.8 (9th Cir.), ("section 1396a(a)(10) creates an individual right
enforceable under section 1983")., cert denied sub nom, Goldberg v. Watson, 549 U.S. 1032
(2006). See Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 37482 (7th Cir. 2010) (en banc) (PAIMI reflects Congress' intent to give state protection and
advocacy programs right to sue for records).
44. See, e.g., Banks v. Dallas Hsg. Auth., 271 F. 3d 605, 609-10 (5th Cir. 2001) (Clearinghouse
No. 54,253) (requirement that privately owned Section 8 units be kept in a “decent, safe and
sanitary” condition is principally aimed at property owners); Hill v. San Francisco Hsg. Auth., 207
F. Supp. 2d 1021, 1028-29 (N.D. Cal. 2002) (requirement that units be maintained in accord with
HUD housing quality standards was directed to public housing authorities and did not create
enforceable rights); Almendares v. Palmer, No. 3:00-CV-7524, 2002 U.S. Dist. LEXIS 23258, 2002
WL 31730963 (N.D. Ohio Dec. 3, 2002) (requirement that state Food Stamp agencies provide
access for limited English proficient (LEP) applicants and recipients was directed to the state,
and did not create a right to LEP services).
45. Gonzaga, 536 U.S. at 287 (quoting Sandoval, 532 U.S. at 289).
46. For example, in Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002) (Clearinghouse No.
54,939), Sabree v. Richman, 367 F.3d 180, 189 (3rd Cir. 2004) (Clearinghouse No. 55,662), S. D.
ex rel. Dickson v. Hood, 391 F.3d 581, 603-05 (5th Cir. 2004), and Watson v. Weeks, 436 F.3d
1152 (9th Cir. 2006), the courts focused on a Medicaid provision’s reference to “all eligible
individuals.” Dickson and Watson also cited the “Suter fix,” 42 U.S.C. § 1320a-2, in which
Congress indicated that certain statutory provisions could not be held to be privately
unenforceable simply because they were requirements of a state plan. Similarly, in Johnson v.
Hous. Auth. of Jefferson Parish, 442 F.3d 356 (5th Cir. 2006) (Clearinghouse No. 55,888), finding
that Section 8 voucher holders had an enforceable right to an adequate utility allowance, the
court focused on the reference in 42 U.S.C. § 1437f(o)(2)(A) to “the monthly assistance
payment for the family ....” The Johnson court also buttressed its holding by “tak[ing] the
entirety of the legislative enactment into account,” 442 F.3d at 362, something not often seen
when parsing statutes into “manageable analytic bites” is the order of the day.
47. An excellent reference is Jane Perkins, Using Section 1983 to Enforce Federal Laws, 38
Clearinghouse Review 720 (March-April 2005), containing an extensive table of court decisions
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addressing the enforceability of particular statutory provisions intended to benefit low income
clients.
48. Suter v. Artist M., 503 U.S. 347, 359-64 (1992).
49. Wary of Suter’s potential for undermining private enforcement of similar statutes requiring
“state plans” to carry out the various subchapters of the Social Security Act, Congress has
legislatively affirmed that a private right of action can exist to enforce such statutes to the
extent that the right to sue existed before Suter, limiting the latter’s effect to only the specific
provision of the Adoption Assistance Act addressed by the court. 42 U.S.C. § 1320a-2 (1994).
See Suter, supra note 48 .
50. Wright, 479 U.S. at 431.
51. Wilder, 496 U.S. at 499.
52. See al so Rolland v. Romney, 318 F.3d 42, 53 (1st Cir. 2003) (Clearinghouse No. 52,838)
(relying on Department of Health and Human Services regulations to find enforceable a
mandate to provide certain “specialized services" under the Medicaid Act). In contrast, in Banks
v. Dallas Housing Authority, 271 F.3d 605, 610 (5th Cir. 2001) (Clearinghouse No. 54,253), the
court found too vague to be judicially enforceable the “decent, safe, and sanitary” public
housing ostensible entitlement set forth in 42 U.S.C. § 1437f. See also Watson v. Weeks, 436
F.3d 1152, 1162, (9th Cir. 2006) (holding that Medicaid Act’s requirement that state plans
include “reasonable standards ... which shall be comparable for all groups” and “consistent with
the objectives of this subchapter” was vague and amorphous because it did not provide more
definite guidance linking “reasonable standards” to medical need.
53. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981).
54. Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n., 453 U.S. 1 (1981).
55. Smith v. Robinson, 468 U.S. 992 (1984).
56. Id. at 1009-13.
57. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (Clearinghouse No. 55,953).
Among the statutes cited in Rancho Palos Verdes as lacking a comprehensive enforcement
mechanism are Title IV-D of the Social Security Act, the Medicaid statute, the National Labor
Relations Act, the United States Housing Act and the Education of the Handicapped Act. Id.
(citing Blessing, Wilder, Golden Gate Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989),
Wright, and Smith v. Robinson.)
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58. Fitzgerald v. Barnstable School Comm., 129 S.Ct. 788, 795 (2009).
59. Id. at 795-96.
60. Id. at 797 (noting that Title IX was modeled after Title VI, which has been interpreted as
permitting concurrent claims as well).
61. Wright, 479 U.S. at 424-25.
62. Id. at 426. See also Wilder, 496 U.S. at 521-23 (existence of administrative appeal
procedures did not foreclose private enforcement) and Golden State Transit, 493 U.S.at 109
(existence of NLRB procedures). Although the National Sea Clammers test was not an
articulated basis for its decision, the Gonzaga Court also pointed to Congress’ mandate to the
Secretary of Education to “deal with violations” of FERPA through the establishment of a review
board, and the Secretary’s subsequent adoption of complaint and investigation procedures, as
evidence of a “federal review mechanism” which distinguished Gonzaga from Wright. Gonzaga
Univ. v. Doe, 536 U.S. 273, 289-90.
63. This contention is based on Justice Scalia’s concurring opinion in Blessing, 520 U.S. at 349,
analogizing the class of persons benefited by such federal-state cooperative programs to a
third-party beneficiary under a contract. The preclusion of a § 1983 remedy is said to flow from
Justice Rehnquist’s opinion in Pennhust State School and Hospital, 451 U.S. at 28, that “[i]n
legislation enacted pursuant to the spending power, the typical remedy for state
noncompliance with federally imposed conditions is not a private cause of action for
noncompliance but rather action by the Federal Government to terminate funds to the State.”
See also, Pharm. Research Mfrs. of America v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J.,
concurring).
64. Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002) (Clearinghouse No. 53,431) and Westside
Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002) (Clearinghouse No. 52,678) (construing the
enforceability, by private parties, of the dental care and early and periodic screening, diagnosis
and treatment provisions of the Medicaid Act, respectively).
65. Westside Mothers, 289 F.3d at 858 (quoting Bennett v. Kentucky Dept. of Education, 470
U.S. 656, 669 (1985)).
66. Westside Mothers, 289 F.3d at 863. In Barnes v. Gorman, 536 U.S. 181 (2002), addressing
whether the violation of two Spending Clause statutes – the Americans with Disabilities Act and
the Rehabilitation Act – could give rise to punitive damages, Justice Scalia’s majority opinion
denied such relief on the ground the Spending Clause statutes were analogous to contracts
between the federal government and the state, and that punitive damages were not
traditionally available in contract actions. Nevertheless, responding to the critique of the
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minority, Justice Scalia wrote that the Court “d[id] no[t] imply ... that suits under Spending
Clause legislation are suits in contract, or that contract-law principles apply to all issues that
they raise.” 536 U.S. at 188, n.2.
67. Wright, 479 U.S. at n.3 (“[T]o us it is clear that the regulations gave low-income tenants an
enforceable right to a reasonable utility allowance and that the regulations were fully
authorized by the statute.”)
68. Wilder v. Va. Hosp. Ass’n., 496 U.S. 498 (1990). For a recent example of a court relying on
regulations to find that a statute confers an enforceable right, see Rolland v. Romney, 318 F.3d
42, 50-51 (1st Cir. 2003) (Clearinghouse No. 52,838) (Medicaid specialized services to mentally
disabled nursing home residents).
69. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989) (“[a] rule of law that is
the product of judicial interpretation of a vague, ambiguous, or incomplete statutory provision”
could give rise to a “right” enforceable under § 1983).
70. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
71. United States v. Mead, 533 U.S. 218, 229 (2002) (Clearinghouse No. 53,894).
72. Wright, 479 U.S. at 437.
73. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001)( Clearinghouse No. 51,706).
74. Id.
75. Guardians Ass’n. v. Civil Serv. Comm’n, 463 U.S. 582, 590 (1983). Id. at 623-24 (Marshall, J.,
dissenting). Id. at 645 (Stevens, J., joined by Brennan, J. and Blackmun, J., dissenting).
76. Sandoval, 532 U.S. at 291. Hence, while 42 U.S.C. § 2000d (“No person in the United States
shall ... be subjected to discrimination under any program or activity receiving Federal financial
assistance [on the basis of race, color, or national origin]” clearly confers a personal right to sue
for intentional discrimination, 42 U.S.C. § 2000d-1 (federal agencies authorized “to effectuate
[2000d] ... by issuing rules, regulations, or orders ...”) speaks only of the powers of agencies.
According to Sandoval, “[i]t is clear now that the disparate- impact regulations do not simply
apply § 601 – since they indeed forbid conduct that § 601 permits – and therefore clear that the
private right of action to enforce § 601 does not include a private right to enforce these
regulations.” Id. at 285. This is because “[l]ike substantive federal law itself, private rights of
action to enforce federal law must be created by Congress. The judicial task is to interpret the
statute Congress has passed to determine whether it displays an intent to create not just a
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private right but also a private remedy. Statutory intent on this latter point is determinative.
Without it, a cause of action does not exist and courts may not create one, no matter how
desirable that might be as a policy matter, or how compatible with the statute.” Id. at 286-87
(citations omitted).
77. E.g., is plaintiff a member of the class benefited by the statute? See Cort v. Ash, 422 U.S. 66,
78 (1975).
78. Gonzaga, at 285 (citation omitted).
79. Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994) (Clearinghouse No. 54,495). See
also Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002), cert. denied, 539 U.S. 926 (2003),
upholding the invocation of § 1983 to enforce the disparate impact regulations against an
Eleventh Amendment objection, but without addressing the issue of the enforceability of
federal regulations under § 1983.
80. Samuels v. Dist. of Columbia, 770 F.2d 184, 188 (D.C. Cir. 1985).
81. Loschiavo, 33 F.3d at 551.
82. Harris v. James, 127 F.3d 993, 1007-1009 (11th Cir. 1997) (Clearinghouse No. 50,797). See
also Am. Ass'n of People with Disabilities v. Harris, 605 F.3d 1124, 1131-37 (11th Cir. 2010) (ADA
regulations are not enforceable).
83. S. Camden Citizens v. N.J. Dept. of Envtl. Prot., 274 F.3d 771, 778 (3rd Cir. 2001)
(Clearinghouse No.53,759).
84. Rolland v. Romney, 318 F.3d 42, 52 (1st Cir. 2003) (Clearinghouse No. 52,838).
85. Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir. 2003) (Clearinghouse No.
53,757).
86. The partial dissent in Save Our Valley contains an extensive analysis of how regulations can
create “rights,” opining that such rights are enforceable under § 1983 if the regulation meets
the Gonzaga standard of being written in “‘individually-focused,’ ‘rights-creating language[.]’”
335 F.3d at 963. However, because the Title VI regulations at issue were focused on the person
or agency regulated rather than the class benefited, Judge Berzon believed that no enforceable
right had been created.
87. See Three Rivers Ctr. for Ind. Living v. Hous. Auth., 382 F.3d 412, 430 (3rd Cir. 2004). The
case holds that HUD regulations implementing the Rehabilitation Act to require the creation of
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accessible housing could not create an enforceable right to compel compliance. Although the
statute conferred an enforceable right on plaintiffs to a “reasonable accommodation,” the
accessible housing regulation mandate was said to have only an aggregate focus and “not
concerned with ‘whether the needs of any particular person have been satisfied.’” Id. at 430
(quoting Gonzaga, 536 U.S. at 288).
88. “Like the state-action requirement of the Fourteenth Amendment, the under-color-of-statelaw element of § 1983 excludes from its reach ‘merely private conduct, no matter how
discriminatory or wrongful.’” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
89. Monroe v. Pape, 365 U.S. 167, 172 (1971) (police misconduct). Federal officials acting under
color of federal law are not subject to § 1983. Wheeldin v. Wheeler, 373 U.S. 647 (1963).
90. Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658 (1978). See Los Angeles Co. v.
Humphries, 131 S. Ct. 447 (2010) (Monell's requirement that a municipality's policy or custom
cause a deprivation in order to impose liability on the municipality applies in cases seeking
prospective injunctive relief as well as damages).
91. The issue of what constitutes a “custom, policy or practice” actionable under § 1983 is
discussed later in this chapter.
92. However, a government employee or subcontractor such as a public defender, whose
fundamental loyalties are owed to the criminal defendant and accordingly are adverse to the
government, is not a “state actor” whose alleged malpractice is actionable under § 1983. Polk
County v. Dodson, 454 U.S. 312 (1981); cf. Vermont v. Brillon, 129 S.Ct. 1283, 1291 (2009) (court
assigned counsel are not state actors for purposes of speedy trial claim). Compare Miranda v.
Clark County, 319 F.3d 465 (9th Cir.) (chief public defender is a state actor in devising
administrative procedures governing the allocation of lawyer resources to defendants based on
results of lie detector tests), cert. denied, 540 U.S. 814 (2003) This exception is very narrowly
construed. See West v. Atkins, 487 U.S. 42 (1988), in which a private doctor under contract to a
prison, who owed a professional obligation to his patient, did not as a result have interests
which were necessarily so adverse to the government as to preclude a § 1983 claim.
93. Where state officials act in violation of federal law, the official is said to have been stripped
of official authority for purposes of the Eleventh Amendment by acting illegally, but,
nevertheless, considered to be engaged in “state action” for purposes of the Fourteenth
Amendment if the action was taken “under color” of the apparent authority conferred by
official position. Home Tel. & Tel. v. Los Angeles, 227 U.S. 278 (1913).
94. Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (per curiam).
95. Id.
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96. Morgan v. Tice, 862 F.2d 1495, 1499 (11th Cir. 1989).
97. Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 (1982). Both an official who misuses power in
violation of federal law, and an official who enforces a state law which violates federal law, act
under color of state law. However, as discussed in Chapter 8.3 of this MANUAL, in the first
scenario, only the official who misused power, and not the agency that employs her, is liable,
because state or local governments are liable only if the deprivation is the result of the agency’s
custom, policy, or practice. Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658 (1978). In the
second situation, state law constitutes the “policy.”
98. In Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001), the
Court acknowledged the elusiveness of a comprehensive rule governing “state action”: “From
the range of circumstances that could point toward the State behind an individual face, no one
fact can function as a necessary condition across the board for finding state action; nor is any
set of circumstances absolutely sufficient, for there may be some countervailing reason against
attributing activity to the government.”
99. Lugar, 457 U.S. at 930-32, 935.
100. Id. at 935, n.8.
101. Id. at 937. In Lugar, the fact that a court had issued a warrant authorizing a private party to
attach plaintiff’s property converted the subsequent seizure – alleged to have been without
due process – into “state action.”
102. Edmondson v. Leesville Concrete Co., 500 U.S. 614, 624-25 (1991) (holding that a private
attorney exercising peremptory challenges in a civil jury trial to excuse African Americans from
the panel was a “state actor” given that the peremptory challenge could only exist in the
judicial context.)
103. West v. Atkins, 487 U.S. 42 (1988). Another example of delegation is the privatization of
the prison system. In Richardson v. McKnight, 521 U.S. 399 (1997), the Court assumed state
action in ruling that private prison guards were not entitled to qualified immunity from liability
for their unconstitutional practices.
104. Addickes v. S. H. Kress Co., 398 U.S. 144 (1970) (involving a conspiracy between a “dime
store” and local deputy sheriffs to prevent the integration of a southern lunch counter during
the Civil Rights Movement).
105. Dennis v. Sparks, 449 U.S. 24, 28-29 (1980).
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106. Pennsylvania v. Bd. of Dirs., 353 U.S. 230, 231 (1957) (Private college administered by a city
board a “state actor” in refusing to admit African Americans).
107. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988).
108. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001).
109. Id. at 298.
110. N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975).
111. Lugar, 457 U.S. at 934, 940-42. The creditor’s action is not state action if it is contrary to
state law. Id at 940.
112. Flagg Bros. v. Brooks, 436 U.S. 149 (1978).
113. Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991).
114. American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40 (1999).
115. Id. at 51-52 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
116. Id. at 53.
117. Id. at 54 (quoting Tulsa Prof’l Collection Servs. v. Pope, 485 U.S. 478, 486 (1988)).
118. Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).
119. Id. at 351; compare Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) (a
municipally owned utility was required to afford customers due process before terminating
utilities under a statute requiring utility shut-offs to be only for “cause”).
120. Blum v. Yaretsky, 457 U.S. 991 (1982).
121. Id. at 1004.
122. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542-47 (1987).
123. Id. at 546-47. See also Carlin Commc’n v. Mountain States Tel. & Tel. Co., 827 F.2d 1291,
1295, 1297 (9th Cir. 1987), cert. denied, 485 U.S. 1029 (1988) (finding that a telephone
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company’s decision to terminate an adults-only message service was state action because it
was the product of state coercion; holding, however, that the company’s later decision to bar
all adult entertainment services was not state action, since it was not coerced).
124. American Mfg., 526 U.S. at 53-54.
125. Blum, 457 U.S. at 1003.
126. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
127. Id. at 840-41. To be sure of finding state action in these types of circumstances, advocates
should ask whether the private actor is standing in for the government, or involved in what
amounts to “joint action,” either because it could not take place without government
involvement, or is compelled by government policy.
128. Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
129. Id. at 722-26.
130. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-78 (1972).
131. Id. at 175-77.
132. Rendell-Baker, 457 U.S. at 830.
133. Id. at 837-43.
134. Id. at 842-43.
135. Marsh v. Alabama, 326 U.S. 501 (1946) (state could not enforce trespass laws to bar
Jehovah’s Witness from distributing literature in company town).
136. Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944); Nixon v.
Condon, 286 U.S. 73 (1932) (collectively, the White Primary Cases).
137. Marsh, 326 U.S. at 505-10.
138. The White Primary Cases may be better understood as finding circumstantial evidence of
state-sponsored intentional racial discrimination from state regulation of every aspect of
primary elections but voter eligibility.
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139. Hudgens v. NLRB, 424 U.S. 507, 512-21 (1976) (overruling Amalgamated Food Employees
Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968)).
140. U.S. CONST. amends. XV, XIX, XXIV and XXVI; and art. IV, § 4. See also Bush v. Gore, 531
U.S. 98, 104-105 (2000).
141. Jackson, 419 U.S. at 353.
142. Flagg Bros., 436 U.S. at 155-66.
143. Rendall-Baker, 457 U.S. at 837-43.
144. Blum, 457 U.S. at 1002-12.
145. San Francisco Arts, 483 U.S. at 542-47.
146. Tarkanian, 488 U.S. at 194.
147. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994), alluding to government’s affirmative
duty to protect those in custody from injury caused by a third party.
148. An example of a decision finding such a “special relationship” outside of the typical
custodial situation is Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989), cert. denied, 498
U.S. 938 (1990). In this case, a woman formerly held in custody by a highway patrolman was
raped after being released in a high crime area without a car at 2:30 a.m.
149. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989).
150. Id. at 200.
151. Monell, 436 U.S. at 690-91, 692. See Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (the
policies, acts and practices of the government must be so widespread as to "practically have the
force of law"); Los Angeles Co. v. Humphries, 131 S. Ct. 447 (2010). Chapter 8.3 of this MANUAL
discusses municipal or agency liability and the parameters of a “custom, policy or practice” for
purposes of § 1983.
152. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989): “[A] suit against a state official in
his or her official capacity is not a suit against an official but rather is a suit against the official’s
office.”
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Updated 2011
5.1.B Express Causes of Action, Section 1983, Due
Process Claims and Procedural Issues
Updated 2011
5.1.B. Due Process Claims and Procedural Issues and Section 1983
5.1.B.1. Due Process Claims and Section 1983
In relevant part, the Fourteenth Amendment prohibits any state from depriving “any person of
life, liberty, or property, without due process of law.” Claims under this provision have been a
staple of Section 1983 legal services practice for many years. Procedural due process addresses
the right to notice and hearing before (or after) particular deprivations can take place.
Substantive due process concerns governmental deprivations of life, liberty, or property
stemming from particularly outrageous governmental actions. The Supreme Court has
developed a number of guidelines on the use of Section 1983 to raise claims founded on
alleged deprivations of due process, beginning with an analysis of interests protected by due
process.
5.1.B.1.a. Establishing a “Property” Interest
In Board of Regents v. Roth, the Supreme Court defined the property interest protected by the
Fourteenth Amendment as a “legitimate claim of entitlement” to the item or benefit in
question./153/ Such “entitlements” are “created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.”/154/
Plaintiff Roth, a teacher who had lost his job, was held not to have been terminated without
due process because, lacking tenure, he “surely had an abstract concern in being rehired, but
he did not have a property interest sufficient to require ... giv[ing] him a hearing.”/155/ In Perry
v. Sinderman, the companion case to Roth, the Court stated that an untenured teacher might,
nevertheless, have a property interest if he could show the existence of “such rules or mutually
explicit understandings that support his claim of entitlement to the benefit and that he may
invoke at the hearing.”/156/ Although “a mere ‘expectancy’” is not protected by due process,
the Court held that the aggrieved party “must be given an opportunity to prove the legitimacy
of his claim of such entitlement in light of the ‘policies and practices of the institution.’”/157/
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Congress’ reluctance to grant federal entitlements is evidenced by the increasing use of “block
grant” distributions of federal largess. Therefore, advocates seeking to establish a property
interest in certain federally funded benefits, such as Temporary Assistance for Needy Families
(TANF), must look for “rules or mutual understandings” under state or local statutes or
ordinances under which the client can claim an entitlement protected from deprivation by the
federal Due Process Clause. For example, many state Aid to Families with Dependent Children
(AFDC) statutes were amended to conform to the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996. Yet, despite the addition of time limits or “welfare to
work” requirements, the state statute may still mandate that an applicant receive a given
amount of benefits so long as basic eligibility is met, thereby creating a “legitimate claim of
entitlement” protected by the Due Process Clause./158/
5.1.B.1.b. Establishing a “Liberty” Interest
Outside of a custodial setting, deprivation of liberty interests usually presents substantive,
rather than procedural, due process issues. Such liberty interests were described in Board of
Regents v. Roth as follows:
Without doubt it denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long recognized ... as
essential to the orderly pursuit of happiness by free men./159/
Fundamental liberty interests, however, are limited to those that are “implicit in the concept of
ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed,” or
that are “deeply rooted in this Nation’s history and tradition."/160/ Advocates should not
neglect assertions of the liberty interest. For example, restrictive housing authority roommate
policies that hamper the right to live with relatives can present a deprivation of a liberty
interest./161/
5.1.B.1.c. Assessing the Adequacy of the Procedures Used
Procedural due process generally requires that governmental deprivations of life, liberty or
property be accompanied by notice and hearing. Pre-termination hearings are required where
the threatened property right consists of need-based benefits. This is because the recipient or
applicant “may be deprive[d] of the very means by which to live ....”/162/ The test for
determining the extent of the procedures required in a given case, including the right to a predeprivation hearing, balances three factors:
First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government’s interest,
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including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail./163/
Procedural due process continues to play a key role in legal services practice, as clients fail to
receive notice of adverse government action or receive notices that fail to adequately explain
the basis for a benefit denial, termination, suspension, or the imposition of sanctions. Clients
are often faced with hearing officers who fail to take evidence or gather evidence outside of a
hearing through ex parte phone calls, or who do not adequately explain their reasoning when
rendering a decision. In the world of devolution, health maintenance organizations with
Medicaid enrollees may not offer the opportunity for a fair hearing, for example, to contest the
denial of a request for a particular procedure or treatment whose only rationale is the financial
bottom line.
5.1.B.1.d. Section 1983 Cannot Be Used to Redress a Non-systemic, Random, and
Unintentional Deprivation of a Life, Liberty, or Property Interest
Given the breadth of the Due Process Clause, any government action that deprives a party of
life, liberty or property is conceivably actionable under Section 1983. The Supreme Court,
however, has narrowed the ability of plaintiffs to package a tort claim in the trappings of due
process. Parratt v. Taylor held that a Section 1983 remedy was not available to an inmate who
sued a prison for its negligent loss of a hobby kit mailed to the plaintiff./164/ The Supreme
Court ruled that the prisoner could not sue for the deprivation of procedural due process if an
alternative post-deprivation state damages remedy sounding in tort was available. Due process
was not implicated because the state could not be expected to anticipate a random and
unpredictable loss of property./165/
By contrast, in Zinermon v. Burch,/166/ a voluntary commitment case, the Court ruled that the
government’s failure to provide a pre-commitment hearing required by state law was
actionable under Section 1983. There, plaintiff, who had voluntarily committed himself to a
state mental institution, later sued arguing that he lacked the capacity to have consented to his
voluntary commitment. Unlike the unpredictable and random loss in Parratt, the Court found
that depriving the liberty of a person facing commitment was “predictable and systemic” in the
sense that the danger of an unwarranted loss of liberty is evident in all cases that pose the
potential for commitment. Hence, the possibility of post-commitment relief – a tort suit for
damages or habeas corpus – was not an adequate post-deprivation remedy that could
substitute for the failure to hold a pre-commitment hearing.
These principles can be applied to a legal services practice. Assume that a tenant has sought
your help after having been evicted from her apartment following a nuisance abatement
proceeding, notice of which was given only to the building owner and not to the tenants. In
response to your due process claim, the city relies on Parratt to argue that your client’s only
remedy is damages, and that because no administrative claim was made to the city, the suit
should be dismissed. Zinermon would support your client’s claim, because the deprivation of a
tenancy without due process is the inevitable and systemic result of a nuisance abatement
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proceeding in which notice is never given affected tenants. Because exhaustion of state
remedies is not required for Section 1983 claims, this suit should survive despite the failure to
file an administrative claim, even if the action were brought in state court.
5.1.B.1.e. Substantive Due Process Claims
The typical substantive due process claim brought under Section 1983 seeks redress for
government acts that violate “personal immunities” that are “fundamental,” that is, “implicit in
the concept of ordered liberty.”/167/ Rights protected at least in part by the Due Process
Clause include liberty interests not explicitly set forth in the Constitution, such as the right to
privacy./168/
A substantive due process claim can also be based on deprivations caused by the government’s
failure to train, supervise or adequately hire its employees. Such claims are very difficult to
prove. They require a showing that the government’s inaction was a custom, policy, or
practice, and that the government’s deliberate inaction caused the injuries. Since City of Canton
v. Harris, involving failure to identify and adequately treat a prisoner’s medical condition, the
court has basically required a plaintiff to show that the type of incident which resulted in injury
is so recurring as to tend to show that the government’s inaction was conscious or deliberate,
amounting to “deliberate indifference” to the consequences of its inaction./169/
Substantive due process claims involving incarcerated prisoners are often hybrid claims based
on both the Fourteenth Amendment and another substantive constitutional right. While City of
Canton v. Harris was based solely on due process, other cases, particularly those involving
injuries to prisoners caused by other prisoners, have been couched as a deprivation of the
Eighth Amendment bar on cruel and unusual punishment./170/ In both cases, the Supreme
Court has applied the “deliberate indifference” standard, although the requisite showing of
government knowledge of the danger appears somewhat higher when third-party-caused
injuries are involved. Moreover, the Supreme Court has more recently applied the “deliberate
indifference” standard to cases outside of the prison context, involving a public school’s failure
to do anything to control student sexual harassment./171/ It is hardly far-fetched to apply the
same standard where social service or housing benefits are denied as a result of government’s
“deliberate indifference” to the consequences of its failure to adequately train or supervise its
staff.
5.1.B.2. Procedural Issues and Section 1983
Procedural hurdles can arise in Section 1983 cases. Among the most important involve
exhaustion of state administrative remedies and when a federal court should “borrow” state
law.
5.1.B.2.a. Exhaustion of State Remedies Is Usually Not Required
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Under Monroe v. Pape, a plaintiff is not required to exhaust any available state court remedies
before invoking Section 1983, because the purpose of this statute is to open federal courts to
claims that federal rights were violated./172/ In Patsy v. Board of Regents, the leading case on
this issue, the Court excused plaintiff’s failure to raise an employment discrimination claim in a
state administrative proceeding./173/ Pointing to Section 1983's purpose of opening the
federal courts to plaintiffs seeking the vindication of federal rights, the Court ruled that
Congress had not intended that plaintiffs first exhaust any available state administrative
remedies. For the same reason, a Section 1983 plaintiff is not required to first file an
administrative claim for government reimbursement even when state law requires such a
submission prior to filing suit./174/
Because of the non-exhaustion rule, a Section 1983 plaintiff who sues directly in federal court
can avoid the pitfall of an adverse state judicial or administrative ruling that would preclude
subsequent litigation of the federal issue under the doctrines of issue or claim preclusion./175/
Moreover, under general administrative law principles, failure to exhaust would be excused if
the administrative tribunal lacked the authority to decide the federal constitutional or
preemption claim./176/
Some exceptions to the non-exhaustion rule exist; some of them having only passing relevance
to a civil legal services practice. Under Parratt, a Section 1983 remedy is not available to
address random tort claims based on the deprivation of due process if adequate state postdeprivation remedies are available. Although the Parratt rule generally does not apply to suits
based on the deprivation of substantive constitutional rights not involving due process, the
Supreme Court has, nevertheless, ruled that Fifth and Fourteenth Amendment “taking” claims
are not ripe in federal court until the local government agency has refused just
compensation./177/
Moreover, for reasons of comity, federal statutes require that challenges to state and local tax
schemes be first brought in state courts./178/ Federal courts rely on the same basic principle to
abstain from ruling on a claim that raises issues that can more appropriately be addressed by a
state court./179/
5.1.B.2.b. Exhaustion of Administrative Remedies and the Ripeness Doctrine
To circumvent the general non-exhaustion rule, defendants have argued for the dismissal
of Section 1983 actions on ripeness grounds. They argue that the claim is not ripe for review
because the issue could have been raised and resolved at the administrative level. While a
plaintiff can respond that such a ripeness argument is actually only a disguised exhaustion
claim, which should be rejected, resolution of the issue will turn on whether the challenged
action is “final” in its effect on the plaintiff.
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The rule requiring exhaustion of administrative remedies stems from the common-sense
proposition that only “final” administrative actions should be ripe for court review./180/ Thus,
in an administrative proceeding where plaintiff’s claims may be resolved with or without regard
to any federal issues, the agency may argue, with some justification, that the claims are not fit
for judicial review until the agency has had a chance to review its initial decision./181/ Absent a
final hearing decision, the agency might argue that it has not conclusively taken an adverse
position to the plaintiff./182/ In the Section 1983 context, however, an agency action is
nevertheless “final” for ripeness purposes when the agency’s action is so definitive as to have
resulted in a deprivation of federal rights, even if administrative remedies have not been
exhausted.
Williamson County Regional Planning Commission v. Hamilton Bank addressed the interplay
between the “finality” principle and the Section 1983 non-exhaustion rule./183/ In that case,
the court dismissed a challenge to a zoning rule on the ground that the lawsuit was not ripe
because the plaintiff bank, when faced with a rule that could have stripped its property of
economic value, sued the zoning agency instead of asking for a variance. Had the variance been
granted, the property loss would have been avoided or curtailed. If the variance had been
denied, resulting in a deprivation of economic value in violation of the Fourteenth Amendment,
the case would then have become ripe for review. In response to the argument that Section
1983 does not require exhaustion, the Court wrote:
The question whether administrative remedies must be exhausted is conceptually distinct,
however, from the question whether an administrative action must be final before it is judicially
reviewable While the policies underlying the two concepts often overlap, the finality
requirement is concerned with whether the initial decisionmaker has arrived at a definitive
position on the issue that inflicts an actual, concrete injury; the exhaustion requirement
generally refers to administrative and judicial procedures by which an injured party may seek
review of an adverse decision and obtain a remedy if the decision is found to be unlawful or
otherwise inappropriate. Patsy [v. Board of Regents] concerned the latter, not the former./184/
These principles apply in the legal services context. For instance, if a food stamp agency or
public housing authority issues a notice of action which affects an individual and, on its face,
violates federal law, an aggrieved plaintiff may sue without first invoking any available
administrative agency appeals. The agency’s action has “inflict[ed] an actual concrete injury.”
While an administrative proceeding could remedy the injury, so could a lawsuit. Because
Section 1983 does not require exhaustion, a plaintiff can go directly to court.
5.1.B.2.c. Borrowing State Law in a Section 1983 Action Brought in Federal Court
42 U.S.C. § 1988(a) requires that a federal court hearing a Section 1983 claim apply state law
where federal law is silent on the issue and state law is not inconsistent with federal law. The
court must first decide whether federal law is deficient or silent on the issue. If so, it must then
determine whether (1) a controlling statute applies or (2) state common law applies to the
claim./185/
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Using this analysis, the Supreme Court has applied state tort law to determine the survivability
of Section 1983 claims. For example, the Court has held that state tort law prescribing the
length of the statute of limitations govern Section 1983 actions./186/ However, federal law
"conforming in general to common-law tort principles" determines when a Section 1983 action
accrues./187/ Ordinarily, accrual occurs when the plaintiff has "a complete and present cause
of action."/188/
153. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
154. Id.
155. Id. at 578.
156. Perry v. Sinderman, 408 U.S. 593, 602 (1972).
157. Id. at 602, 603 (citation omitted). Some cases have held that the expectation of receiving a
benefit can be a property interest which supports a due process claim when the state deprives
the potential plaintiff of a procedure to vindicate that expectation. In Logan v. Zimmerman
Brush Co., 455 U.S. 422 (1982), a property interest was found in the expectation that the state
would provide a procedure for determining a plaintiff’s disability discrimination claim.
However, procedures alone and not tied to tangible benefits, are not property rights. Town of
Castle Rock v. Gonzales, 545 U.S. 748 (2005) (Clearinghouse No. 55,895). In that case, the Court
held that no property right inheres in something that the government provides or takes away at
its discretion. Moreover, even if the arrest of violators of domestic violence restraining orders
were mandatory, the Court held that the entitlement to enforcement was not a property right.
Enforcement of an order against a third party would, according to the Court, only incidentally or
indirectly create a benefit.
158. Entitlement to that benefit must be demonstrated. In American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 60-61 (1999), the Court found that workers’ compensation recipients do
not have a property interest in medical expense payments until the reasonableness and
necessity of the expense have been established.
159. Roth, 408 U.S. at 572 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). See Zinermon
v. Burch, 494 U.S. 113, 117 (1990) (liberty interest in avoiding confinement in mental hospital).
160. Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986) (overruled by Lawrence v. Texas, 539 U.S.
558 (2003), and quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) and Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977)). See District Attorney's Office v. Osborne, 129 S.Ct. 2308,
2319 (2009) (liberty interest in demonstrating innocence with new evidence).
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161. See Moore, 431 U.S. at 503; see also Wilkinson v. Austin, 545 U.S. 209, 221-24 (2005)
(inmates have a liberty interest in avoiding assignment to a “Supermax” facility).
162. Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (AFDC benefits); Wheeler v. Montgomery, 397
U.S. 280 (1970) (benefits under Aid to the Totally Disabled Program, the California precursor to
the Supplemental Security Income program).
163. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Wilkinson, 545 U.S. at 226-29
(emphasizing role of notice and “fair opportunity for rebuttal” in reducing risk of erroneous
deprivation). For a comprehensive examination of Due Process principles in administrative
hearings, see Robert P. Capistrano, Making the Fair Hearing More Fair, 44 Clearinghouse
Review 96 (July-Aug. 2010).
164. Parratt v. Taylor, 451 U.S. 527 (1981).
165. The Court later ruled that § 1983 was unavailable to redress an intentional property loss
framed as a deprivation of due process. Hudson v. Palmer, 468 U.S. 517 (1984) (intentional but
random destruction of property during prison cell search). Still later, it held that there could
never be a negligent random deprivation of due process, even if state law provided no postdeprivation remedy. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344
(1986). In these cases, reflecting the court’s antipathy to prisoner suits, injured prisoners were
denied a federal remedy even though they could not sue the prison for negligence under state
law.
166. Zinermon v. Burch, 494 U.S. 113 (1990). Zinermon also held that the Parratt v. Taylor rule
(that § 1983 is unavailable to redress random unauthorized deprivations of due process) applies
to deprivations of liberty as well as property interests, but cannot be used to bar claims based
on the deprivation of other substantive constitutional rights.
167. See Rochin v. California, 342 U.S. 165, 169, 175 (1952), the prototypical “police brutality”
case in which the violations were said to have “shock[ed] the conscience.”
168. See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972) (access to contraception); Roe v. Wade,
410 U.S. 113 (1973) (right to choose to have or not have an abortion); Moore v. City of E.
Cleveland, 431 U.S. 494, 503 (1977) (right to live with family members); and Cruzan v. Dir. of
Mo. Dept. of Health, 497 U.S. 261 (1990) (right to refuse medical treatment). This survey by no
means exhausts the scope of the interests protected by substantive due process.
169. Connick v. Thompson, 131 S.Ct. 1350, 1359-60 (2011); City of Canton v. Harris, 489 U.S.
378, 388 (1989) (failure to train police officers to identify medical emergencies). See also Board
of the County Commissioners v. Brown, 520 U.S. 397 (1997) (liability for failure to hire
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competent personnel requires a showing of “deliberate indifference” to the consequences in
light of the newly hired deputy sheriff’s propensity for violence).
170. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976). The government’s duty extends to
preventing custodial mental patients from harming themselves or others. Youngberg v. Romero,
457 U.S. 307, 315-16, 319 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983).
171. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
172. Monroe v. Pape, 365 U.S. 167 (1971); see also McNeese v. Bd. of Educ., 373 U.S. 668
(1963).
173. Patsy v. Bd. of Regents, 457 U.S. 496 (1982).
174. Felder v. Casey, 487 U.S. 131 (1988) (a plaintiff who files a § 1983 action in state court is
not required to comply with state pre-litigation “notice of claim” requirements.) Felder,
however, does not bar a state court from requiring that a § 1983 plaintiff comply with neutral
state court procedural rules. It does excuse compliance with those that would “frequently and
predictably produce different outcomes in federal civil rights litigation based solely on whether
that litigation takes place in state or federal court.” Id. at 141. Thus, in Johnson v. Fankell, 520
U.S. 911 (1997), the Supreme Court validated a state court’s application of a procedural rule
that prohibited interlocutory appeals, even though, contrary to the practice in federal court,
application of the rule forbade a government employee from immediately appealing the denial
of summary judgment based on qualified immunity. The Supreme Court reasoned that the state
rule was not “outcome determinative” in that “postponement of the appeal until after final
judgment will not affect the final outcome of the case.” Id. at 921.
175. As discussed in Chapter 3.4 of this MANUAL, the advocate should, nevertheless, consider
pursuing state judicial or administrative remedies as those may be faster and less expensive. As
noted, doing so may raise preclusion issues.
176. Administrative tribunals rarely have such broad power. See McKart v. United States, 395
U.S. 185 (1969) for a discussion of why exhaustion is preferred, and when failure to do so – as
where exhaustion would be futile – is excusable.
177. Zinermon, 494 U.S. at 113; Williamson County Planning Comm’n v. Hamilton Bank, 473 U.S.
172 (1985); San Remo Hotel v. San Francisco, 545 U.S. 323 (2005). San Remo Hotel reiterated
the rule even though the exhaustion requirement could mean that a plaintiff might be
collaterally estopped from litigating the federal claim.
178. 28 U.S.C. §§ 1341-1342.
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179. See Chapter 2.8 of this MANUAL, for a discussion of the abstention doctrine.
180. See Chapters 3.2 and 3.4 of this MANUAL for discussions of the ripeness and exhaustion
doctrines. The exhaustion doctrine under the Administrative Procedure Act is discussed in
Section 1.B.3.b. of this Chapter.
181. In the Ninth Circuit, for example, a case can be dismissed for failure to exhaust even in the
absence of a statutory administrative appeal when “(1) agency expertise makes agency
consideration necessary to generate a proper record and reach a proper decision; (2) relaxation
of the requirement would encourage the deliberate bypass of the administrative scheme; and
(3) administrative review is likely to allow the agency to correct its own mistakes and to
preclude the need for judicial review.” United States v. Cal. Care Corp., 709 F.2d 1241, 1248 (9th
Cir. 1983) (in a suit by the Department of Health and Human Services for recoupment of
Medicare payments received by providers, the providers’ objections to the suit were rejected
out of hand because they had not been first raised with Blue Cross). Similarly, in Affiliated Prof’l
Home Health Care Agency v. Shalala, 164 F. 3d 282, 286 (5th Cir. 1999), a suit for Medicare
payments, couched as a claim for violation of constitutional rights, was dismissed for failure to
exhaust administrative remedies.
182. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) (applying the Abbott Labs. v.
Gardner, 387 U.S. 136 (1967) test to deny pre-enforcement judicial review of a labor regulation
because of the availability of administrative review).
183. Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 192-93 (1985).
184. Id. at 192.
185. Robertson v. Wegmann, 436 U.S. 584 (1978).
186. Wilson v. Garcia, 471 U.S. 261, 276 (1985). However, while state law determines the
limitations period, federal law determines when a § 1983 action accrues. Chardon v. Fernandez,
454 U.S. 6 (1981) (holding that the claim accrued when plaintiff learned he was to be fired, not
when plaintiff was actually terminated).
187. Wallace v. Kato, 549 U.S. 384, 388 (2007).
188. Id., quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal.,
522 U.S. 192, 201 (1997). In Wallace, the Supreme Court held that the statute of limitations of
a § 1983 claim for unlawful arrest runs from when the plaintiff appeared before a magistrate
and was bound over for trial, not when charges were dropped against him.
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Updated 2011
5.1.C Express Causes of Action, Administrative
Procedure Act
Updated 2011
5.1.C. Administrative Procedure Act
Although some federal statutes that create rights include their own mechanisms for judicial
review of agency action affecting those rights, most are silent with respect to judicial review. In
the Administrative Procedure Act (APA), Congress expressly granted a private right of action to
enforce federal rights against federal agencies./189/ Because 5 U.S.C.§ 702 creates this right of
action expressly, there is no need to look for an implied right of action against the federal
government.
5.1.C.1. Suit for Judicial Review
With many exceptions, the APA generally requires federal agencies to act through adjudication
or rule making or both. Typical challenges to agency action contend that the agency
misinterpreted its governing statute or made erroneous conclusions of law; that the agency’s
rules or findings of fact were arbitrary or capricious; or that the agency used improper
procedures in its decision making. As discussed below, due to the courts’ substantial deference
to an agency’s interpretation of its governing statute and to its findings of fact, procedural
challenges to an agency’s decision-making process may offer greater prospects for securing
relief for your clients./190/ State administrative procedure statutes similarly should not be
overlooked as a potentially powerful tool against state actions that adversely affect your
clients. However, at least two significant hurdles to judicial review must first be overcome:
assertions that agency action is unreviewable and that the challenge was not filed at the
appropriate time.
5.1.C.2. Unreviewable Agency Discretion
Although the APA may provide a right to sue, agency action may escape judicial review either
under 5 U.S.C. § 701(a)(1), if it is exempted by statute from judicial review, or under § 701(a)(2),
if it is committed to agency discretion. Section 701(a)(1) applies when a statute is sufficiently
explicit and unequivocal to overcome the general presumption of reviewability first articulated
in Abbott Laboratories v. Gardner./191/ The First Circuit, for example, held that a hospital’s
challenge to the U.S. Department of Health and Human Services’ refusal to reclassify it
geographically was unreviewable in light of a provision of the Medicare Act that stated, “[T]he
decision of the [Administrator] shall be final and shall not be subject to judicial review."/192/
When the extent of preclusion of review is less clear, the Supreme Court tends to interpret the
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asserted limitation narrowly./193/ This approach is also commonly taken to avoid the very
thorny constitutional question presented where a statute is interpreted to preclude review of a
colorable constitutional claim./194/
Section 701(a)(2), which precludes judicial review “to the extent that ... agency action is
committed to agency discretion by law,” poses a more significant issue in APA litigation. Federal
agencies routinely assert the Section 701(a)(2) exception, arguing that its seemingly limitless
sweep precludes judicial review in all sorts of cases. As summarized below, early Supreme Court
decisions limited the breadth of Section 701(a)(2), but more recently the trend has moved
against the presumption of reviewability.
In Citizens to Preserve Overton Park Inc. v. Volpe, plaintiffs challenged a U.S. Department of
Transportation decision to assist the construction of a highway through a public park as a
violation of a federal statute requiring parks to be avoided when “feasible and prudent.”/195/
The Secretary argued that his decision was not subject to judicial review because the governing
statute vested him with broad discretion relating to highway routes, did not expressly provide
for judicial review and did not require the creation of a record for review. The Supreme Court,
rejecting that assertion, held that Section 701(a)(2) was applicable only when there was “clear
and convincing evidence” of legislative intent to bar review. Such is the case only in those rare
instances where “statutes are drawn in such broad terms that in a given case there is no law to
apply.”/196/ The “feasible and prudent” standard, in the Court’s view, supplied such a law.
By contrast, in Webster v. Doe, an agent who admitted that he was gay sought review of his
discharge and asserted that his discharge was contrary to agency regulations, that it was
arbitrary and capricious, and that it was unconstitutional./197/ Relying on the language of the
National Security Act, which authorizes the director of the Central Intelligence Agency to fire an
employee whenever he “shall deem such termination necessary or advisable in the interests of
the United States,” the Court held that the agency action was non-reviewable under the APA.
The Court reasoned that the statute, empowering the director to make personnel decisions, not
only provided no judicially manageable standards, but also seemed to vest the matter entirely
in his discretion./198/
Heckler v. Chaney elaborated on the “no law to apply” standard in the context of a challenge to
an agency’s refusal act./199/ The suit challenged the Food and Drug Administration’s refusal to
begin enforcement proceedings against the use of unapproved drugs in “lethal injection”
executions as a violation of the Food, Drug, and Cosmetic Act. The Court stated:
[E]ven where Congress has not affirmatively precluded review, review is not to be had if the
statute is drawn so that a court would have “no meaningful standard against which to judge the
agency’s exercise of discretion.” In such a case, the statute (“law”) can be taken to have
“committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids
conflict with the “abuse of discretion” standard of review in § 706—if no judicially manageable
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standards are available for judging how and when an agency should exercise its discretion, then
it is impossible to evaluate agency action for “abuse of discretion.”/200/
In applying the “meaningful standards” test to a claim challenging agency inaction, Chaney
reversed the Overton Park presumption of reviewability. Chaney established a strong
presumption against judicial review of an agency decision not to take enforcement action and
suggested that the presumption could be overcome by a showing that the statute to be
enforced specifically directed agency enforcement action and provided guidelines for doing
so./201/
Subsequent cases continued to chip away at the presumption of reviewability./202/ Yet, the
cases are very fact-specific, turning on a careful reading of the statute and its purpose./203/
Two cases are illustrative, the first employing the logic of Overton Park, and the second
following Chaney. They generally suggest a greater likelihood of reviewability when the case is
framed as a challenge to agency action or decision-making than as a challenge to inaction or
failure to enforce certain requirements.
In Beno v. Shalala, a group of AFDC recipients challenged as arbitrary and capricious an HHS
grant of a waiver of maintenance-of-effort requirements; the waiver permitted California to
embark on an experiment that reduced AFDC benefits./204/ The applicable statute authorized
the HHS secretary to grant waivers “to the extent and for the period [the Secretary] find[s]
necessary” and for projects that “in the judgment of Secretary [are] likely to assist in promoting
the objectives” of the Act./205/ The Ninth Circuit held that the secretary’s decision was
reviewable and noted that the granting of waivers was not traditionally unreviewable. The
statute “does not reveal a congressional commitment to the unfettered discretion of the
Secretary;”/206/ and judicial review did not interfere with the statutory scheme.
Despite the language of the statute, the court further held that it contained a meaningful
standard for review because the AFDC program’s objectives were specified in the statute./207/
Although not the case in Beno, where the Ninth Circuit vacated the waiver and remanded the
matter to the HHS for development of the administrative record, reviewability victories are
frequently short-lived as the deferential arbitrary and capricious standard makes reversal on
the merits difficult.
In American Disabled for Attendant Programs Today v. U.S. Department of Housing and Urban
Development, organizations advocating on behalf of the disabled sued HUD under the APA for
failing to ensure that multifamily housing was accessible to the disabled in alleged violations of
the Fair Housing Act Amendment and Section 504 regulations./208/ Plaintiffs alleged that HUD
received many complaints of noncompliance but failed to investigate or take enforcement
action against violators. Although HUD regulations state that HUD “shall” conduct a prompt
investigation upon receipt of a complaint, the Third Circuit held that HUD’s failure to do so was
unreviewable and that Congress established no guidelines limiting HUD’s discretion to
investigate alleged violations./209/ Despite the mandatory direction in the regulation, the court
found this case to be controlled by Chaney. Again, even if the court had found HUD’s failure to
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be reviewable, the general absence of controlling limitations on enforcement actions would
have made it very difficult to show that the agency behaved arbitrarily or capriciously.
Reviewability is but the first battle in an APA war.
5.1.C.3. Timing
Should an agency decision be reviewable under Section 701, a court may still decline to review
it on the ground that agency action is not final, that the plaintiff failed to exhaust administrative
remedies, or that the case is not ripe for review. There is considerable overlap among these
doctrines./210/ But each is discussed briefly, and separately, below.
5.1.C.3.a. Final Agency Action
In the absence of a substantive statute specifying the prerequisites for judicial review, or
deeming certain agency action to be final, the APA governs the timing of judicial review./211/
Section 704 limits judicial review to final agency action.
The Supreme Court most recently articulated a test for final agency action in Bennett v.
Spear./212/ There, the Court held that finality required satisfaction of two elements: (1) “the
action must mark the ‘consummation’ of the agency’s decision-making process—it must not be
of a merely tentative or interlocutory nature,” and (2) “the action must be one by which ‘rights
or obligations have been determined,’ or from which ‘legal consequences will flow.’”/213/ The
first element is satisfied when the agency offers its “last word” on the subject, even if that word
is expressed less formally than a rule making or adjudication, and is subject to continuing
agency review./214/ The second element is met when the agency action “imposes an
obligation, denies a right or fixes some legal relationship.”/215/ It is not satisfied when the
agency action is no more than a nonbinding recommendation./216/
Final agency action can include, as 5 U.S.C. § 551(13) provides, agency inaction which is the
failure to make an agency rule, order, license, sanction or relief. 5 U.S.C. § 706(1) requires a
reviewing court to compel agency action that is “unlawfully withheld or unreasonably delayed.”
In Norton v. Southern Utah Wilderness Alliance,/217/ the Court held that an APA inaction claim
must challenge an agency’s failure to take a legally required and discrete action. Legally
required acts are those that would have been remediable by mandamus prior to the APA/218/
The requirement that a court can only compel discrete acts forecloses broad challenges to
general agency inaction of the sort rejected in Lujan v. National Wildlife Federation./219/
5.1.C.3.b. Exhaustion of Administrative Remedies
Common law or statutes may require the exhaustion of administrative remedies./220/ Perhaps
the leading case discussing the rationale for the common-law exhaustion requirement and its
exceptions is McKart v. United States./221/ According to the Supreme Court in McKart, a
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Vietnam War draft case, exhaustion serves to permit the agency that is delegated authority by
Congress to make findings and conclusions based on its expertise to develop a full record for
future judicial review, to avoid disruption of administrative process, and to reduce judicial
appeals./222/ At the same time, the Court recognized that the rationale for exhaustion may be
outweighed by other considerations./223/ Exhaustion may not be required where it would
cause irreparable injury, the agency appears to lack jurisdiction over the matter, agency
expertise is not implicated, an administrative record would not assist the reviewing court, or
exhaustion would be futile./224/
The degree to which exhaustion is required by statute, of course, depends on the terms of the
statute. If required by statute, however, exhaustion may not be excused by a court or
agency./225/ Nevertheless, the Court frequently—but not consistently—excuses the
exhaustion requirement when the plaintiff challenges aspects of the agency’s decision making
on constitutional grounds./226/ Nor is exhaustion generally required in Section 1983
cases./227/ A court may not impose exhaustion requirements beyond that set forth in the
statute or agency rule./228/
5.1.C.3.c. Ripeness
While ripeness often overlaps with the doctrine of final agency action and exhaustion of
administrative remedies, ripeness does have independent significance. Ripeness issues
frequently arise when a challenge is made to agency rules before they are enforced and to
agency action announced informally./229/ In Abbott Laboratories v. Gardner, a preenforcement review case, the Supreme Court held that ripeness for review was presumed
unless Congress specifically provided otherwise./230/ The Court established a two-part
ripeness test: “the fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration.”/231/ Abbott Laboratories, therefore, suggests that, if
declining pre-enforcement review would visit harm upon the plaintiff and if the issue presented
is principally a legal one, or one that can be decided without factual development by the
agency, the matter is regarded as ripe for review./232/
This relatively forgiving standard was narrowed in a category of cases commonly encountered
by legal aid attorneys—cases involving challenges to rules governing government benefits. In
Reno v. Catholic Social Services, classes of undocumented aliens challenged Immigration and
Naturalization Service regulations which made it more difficult for them to realize the benefits
of an alien legalization statute on the ground that the regulations were inconsistent with the
statute./233/ The Court found the challenge distinguishable from Abbott Laboratories, in which
the plaintiffs were placed in the “immediate dilemma to choose between complying with newly
imposed, disadvantageous restrictions and risking serious penalties for violation.”/234/ The
Court reasoned that, by contrast, the regulations challenged in Catholic Social Services limited
access to a benefit rather than imposed penalties and required the applicant to satisfy
requirements other than those challenged./235/ As a result, challenges to the regulations
would be ripe only if the application for the benefit were formally or informally rejected on
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grounds contained in the rules at issue. Ripeness was not satisfied even if the invalid regulation
deterred applications for benefits./236/
The Court also barred pre-enforcement challenges to rules in cases in which Congress is
believed to have supplied sufficient and alternative administrative methods of review. In
Thunder Basin Coal Company v. Reich, a coal company filed a pre-enforcement challenge to a
mine safety rule that permitted non-employee union officials to serve as the employees’
representatives in statutorily required mine inspections./237/ Although silent on preenforcement claims, the Court held that the detailed and comprehensive administrative review
provisions of the Federal Mine Safety and Health Amendments Act suggested that Congress
intended to preclude pre-enforcement challenges. Moreover, the fact that the nature of the
claims presented was not “collateral to the administrative review provisions and within the
agency’s expertise” supported that conclusion. Noting that the ultimate administrative entity
was independent, had exclusive jurisdiction, had decided constitutional claims, and was subject
to judicial review in the court of appeals, the Court rejected the company’s assertion that the
constitutional nature of its claim required immediate judicial, rather than administrative,
review./238/
Courts generally find that challenges to informal agency action, such as the issuance of opinion
letters, interpretive rules, policy statements and the like, are not ripe for review or are not
reviewable agency action. As discussed below, such agency action is not subject to Chevron
deference and ordinarily lacks the binding force or effect of law. Nevertheless, if such action is
regarded as final and binding and the issue for review involves solely a question of law, or if
failure to review would result in hardship to the plaintiff, then the case may suggest ripeness.
5.1.C.4. Rulemaking
The APA prescribes three principal means for the adoption of agency regulations:



formal rulemaking,/239/
informal rulemaking, and
the issuance of interpretative rules, procedural rules, general statements of policy,
and other rules exempted from normal rule-making requirements.
We focus on the second and third means here./240/
Informal rulemaking is the three-step process governing the adoption of legislative
rules. Legislative rules are as binding as statutes as they must be followed by the public and the
agency issuing them. Agencies may issue legislative rules only if Congress has permitted them
to do so. Informal rulemaking begins with the publication of a notice of proposed rulemaking in
the Federal Register. The notice must describe the proposed rule or the subject and issues to be
considered and must be sufficient to alert interested parties of the subject matter of the
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regulations and their probable impact./241/ To assure public participation in the process, the
notice of proposed rulemaking must solicit comments. In the second step, the agency receives
and considers public comments. The process concludes with publication of final regulations and
a basis and purpose statement reviewing the reasons for rulemaking, the agency’s
consideration of comments received, and the rationale for the rule adopted./242/ The basis
and purpose statement must reflect that comments were considered in light of all factors that
Congress directed the agency to consider even if ultimately rejected. The result of informal
rulemaking is a set of legislative rules having the force and effect of law.
Each stage of the rulemaking process is subject to potential legal challenge. The rulemaking
notice must explain what the agency proposes to do and why./243/ The notice of proposed
rulemaking must be sufficiently detailed to offer the public a reasonable opportunity to
comment. When the final rule is sufficiently divergent from the proposed rule, it may be
challenged on the ground that the initial notice was inadequate to put the public on notice that
the resulting rule was contemplated by the agency and thus one that could have been
commented upon. In this regard, the notice of proposed rulemaking may be found insufficient
if the final regulations were not a "logical outgrowth" or not "sufficiently foreshadowed" in the
notice of proposed rulemaking./244/ In addition, the agency must disclose the technical data, if
any, relied upon in developing the proposed rule so that it may be subject to comment./245/ As
explained further below, the agency is required to consider the comments and explain why it
rejected plausible alternative approaches to the final rule as part of the general statement of
"basis and purpose" required by 5 U.S.C. § 553(c).
Whether an agency engages in the three-step process for informal rulemaking is significant in
two respects. First, if the agency issues a legislative rule without engaging in notice and
comment rulemaking, the resulting rule is procedurally invalid. Second, whether the agency
adopts a legislative rule through informal rulemaking, or an interpretative or other rule without
informal rulemaking, has implications for the extent of deference given to the agency
interpretation of its governing statute. The dividing line between rules requiring public
participation in notice and comment rulemaking and those not, therefore, is an important but
elusive one.
5.1.C.4.a. Exemptions from Rulemaking
The APA exempts certain rules from notice and comment rulemaking requirements./246/The
most significant of these exemptions are for interpretative rules and general statements of
policy./247/ For years, the courts have struggled with distinguishing between legislative rules,
which are required to be promulgated pursuant to notice and comment rulemaking, and
interpretative rules which are not. In American Mining Congress v. Mine Safety and Health
Administration, the D.C. Circuit crafted a new test./248/ It was subsequently adopted by at
least seven other circuits:/249/
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Accordingly, insofar as our cases can be reconciled at all, we think it almost exclusively on the
basis of whether the purported interpretive rule has “legal effect,” which in turn is best
ascertained by asking (1) whether in the absence of the rule there would not be an adequate
legislative basis for enforcement action or other agency action to confer benefits or ensure the
performance of duties, (2) whether the agency published the rule in the Code of Federal
Regulations, (3) whether the agency explicitly invoked its general legislative authority, or (4)
whether the rule effectively amends a prior legislative rule. If the answer to any of these
questions is affirmative, we have a legislative, not an interpretive, rule./250/
Interpretive rules, in contrast, generally alert the public to the agency’s interpretation of the
laws and rules that it administers./251/ An agency could circumvent the public participation
requirements of the APA by issuing general and non-controversial legislative rules and, then,
issuing more substantive and potentially controversial interpretations of its vague legislative
rules. Courts of appeal have not taken kindly to this approach./252/ American Mining Congress
would regard such efforts as, in effect, amendments to legislative rules and, therefore,
legislative themselves. A subsequent D.C. Circuit case, Paralyzed Veterans of America v. D.C.
Arena, took this point one step further./253/ The D.C. Court suggested in dicta that, when an
agency significantly changes its interpretation of an interpretive rule that interprets a legislative
rule, the agency must do so after engaging in notice and comment rule making./254/ The
notion that an agency must adopt a legislative rule to substantively amend an interpretive one
opens a potentially important avenue for litigation/255/
Policy statements are exempted from notice and comment rule making by 5 U.S.C.§ 553(b). The
D.C. Circuit has recently offered two tests for determining whether agency action is an
unreviewable statement of policy or a reviewable agency action./256/ The first deals with the
effects of agency action: (1) whether it imposes rights or obligations and (2) whether the
agency remains free to exercise discretion. The second focuses on the agency’s intentions: (1)
its characterization, (2) whether it was published in the Federal Register or Code of Federal
Regulations (CFR) or (3) whether the action is binding on the agencies or outsiders. At bottom,
the central issue is whether the agency statement has a legally or “practically” binding effect on
members of the public./257/ If it has such an effect, particularly when the statement
announces a departure from prior practice, it is likely a rule subject to notice and comment rule
making, more likely to be regarded as ripe for judicial review and given a more deferential
standard of substantive review./258/ When, however, the agency issues a statement that
either restates existing interpretations or retains discretion to act beyond it, the statement is
likely not a rule./259/
5.1.C.4.b. Deference to Agency Interpretation of Statutes
Even if the agency’s rule or statement is promulgated lawfully, it may be challenged on the
ground that it exceeds the limits of the agency’s statutory authority or proceeds from a
misinterpretation of the statute. In Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., the Supreme Court articulated a two-step standard by which such claims should be
reviewed:
Page 249 of 559
When a court reviews an agency’s construction of the statute it administers, it is confronted
with two questions. First, always, is the question of whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress has not directly addressed the precise
question at issue, the court does not simply impose its own construction on the statute, as
would be necessary in the absence of an administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute./260/
In step 1, “the court’s job is to determine whether the scope of ambiguity of the relevant
language is sufficiently broad to invalidate the agency’s construction.”/261/ If the language of
the statute cannot bear the construction selected by the agency, the interpretation must be
overturned./262/ The Court typically consults dictionaries and prior judicial opinions for
guidance on the meaning of statutory language. If the agency interpretation of the statute is
supported by the statutory language in step 2, the court must uphold the interpretation if a
reasonable one./263/ If it is unreasonable, the policy decision implicit in the agency
interpretation is arbitrary and capricious and should be struck down./264/ Thus, as Professor
Richard Pierce explains:
[A] court’s task in applying Chevron step two is to determine (1) whether the agency adequately
discussed plausible alternatives, (2) whether the agency adequately discussed the relationship
between the interpretation and pursuit of the goals of the statute, (3) whether the agency
adequately discussed the relationship between the interpretation and the structure of the
statute, including the context in which the language appears in the statute, and (4) whether the
agency adequately discussed the relationship between the interpretation and any data available
with respect to the factual predicates for the interpretation./265/
Recent Court decisions concern the forms of agency interpretation to which the deferential
Chevron doctrine applies. Chevron plainly applies to legislative rules and formal
adjudications./266/ Informal announcements (such as opinion letters, policy statements, and
interpretive rules) that lack the force and effect of law, however, are not subject to Chevron
deference./267/ Instead, such interpretations are treated with “respect” only to the extent that
they have the “power to persuade.”/268/
The scope of Chevron was potentially broadened recently in United States v. Mead./269/ In
Mead, the Court considered an issue left unanswered in Christensen v. Harris County—whether
to give Chevron deference to informal adjudications. The Court noted that Chevron deference
was owed to formal adjudications and notice and comment rule making, but further noted that
such deference might also be afforded to less formal modes of interpretation. The Court held
that tariff classification ruling letters (at issue in Mead), which were not subject to notice and
comment rule making, were not entitled to Chevron deference. The Court held that “the terms
of the Congressional delegation give no indication that Congress meant to delegate authority to
Customs to issue classification rulings with the force of law.”/270/ However, Chevron deference
is owed when “it appears that Congress delegated authority to the agency generally to make
Page 250 of 559
rules carrying the force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.”/271/ The difficulty in the aftermath of Mead is
in determining when informal adjudications meet this standard./272/
Nonetheless, Chevron and Mead suggest an avenue for challenging agency policies or
interpretations that are not published through notice and comment rulemaking procedures or
informal adjudications. If the plaintiff contends that the policy or interpretation is contrary to
the statute or arbitrary and capricious, the government may argue that the interpretation
should be subject to Mead or Chevron deference. If the court disagrees, plaintiff may reap the
benefit of a less deferential standard of review./273/ If the court agrees, then the agency
interpretation must necessarily be a substantive or legislative rule that should have been
promulgated through notice and comment rule-making and can be challenged on the ground
that it was not./274/
When Chevron deference applies remains an important and controversial issue before the
Supreme Court. In National Cable & Telecommunications Association v. Brand X Internet
Services, the Court reviewed a Ninth Circuit decision striking down the Federal Communications
Commission’s (FCC) interpretation of the Communications Act of 1934, which was that cable
companies that sell broadband internet services do not provide telecommunications services
and are not, therefore, subject to common carrier regulation./275/ This interpretation was
asserted to be inconsistent with prior FCC rulings and foreclosed by a prior Ninth Circuit
decision, in which the FCC was not a party, holding that cable companies were subject to the
Act.
The majority held that unexplained inconsistency with prior agency interpretations may be a
ground for finding a new interpretation arbitrary and capricious, but is not a reason to withhold
Chevron deference./276/ More interesting, the majority held that the FCC was not bound to
follow Ninth Circuit precedent so long as the court did not hold that the statute was
unambiguous. Over Justice Scalia’s dissent, the Court put it this way:
… allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute
... would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for
agencies, not courts, to fill statutory gaps. (citation omitted) The better rule is to hold judicial
interpretations contained in precedents to the same demanding Chevron step one standard that
applies if the court is reviewing the agency’s construction on a blank slate: Only a judicial
precedent holding that the statute unambiguously forecloses the agency’s interpretation, and
therefore contains no gap for the agency to fill, displaces a conflicting agency
construction./277/
Applying Chevron deference, the Court went on to uphold the FCC’s interpretation./278/
5.1.C.5. Adjudication
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The APA requires federal agencies to employ trial-like formal adjudication procedures set forth
in 5 U.S.C.§§ 554–557 only when the “adjudication [is] required by statute to be determined on
the record after opportunity for agency hearing.”/279/ In the relatively rare circumstances in
which formal adjudications, or formal rule making, are required, agency finding of fact may be
overturned only if unsupported by substantial evidence./280/ The traditional and very
deferential formulation of substantial evidence is “such evidence as a reasonable mind might
accept as adequate to support a conclusion.”/281/ In Allentown Mack Sales and Service v.
National Labor Relations Board, however, the Supreme Court appeared to impose a
significantly more rigorous and less deferential sort of review on findings from a National Labor
Relations Board formal adjudication./282/ Such logic might be applied to other formal
adjudications, such as social security appeals, although language in Allentown suggests that the
Court’s approach in Allentown is confined to National Labor Relations Board hearings.
For informal adjudications and rule making, agency findings of fact are subject to an arbitrary
and capricious standard of review./283/ The Supreme Court recently described that standard of
review as “extremely narrow.”/284/ But the extent to which it is different, if at all, from the
substantial evidence test is unclear./285/ The standard formulation is that the court upholds an
agency’s findings, unless they are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.”/286/ Under this standard, “the [agency] must be able to
demonstrate that it has made a reasoned decision based upon substantial evidence in the
record,”/287/ or “reasonable [and] based upon factors within the [agency’s] expertise.”/288/
Yet, even if this demonstration is offered with “less than ideal clarity,” the Court will uphold it
“if the agency’s path may reasonably be discerned.”/289/ Rescissions of regulations and
decisions not to initiate rulemakings/290/ are also subject to the arbitrary and capricious
standard of review.
In addition, the Supreme Court recently held, in FCC v. Fox Television, that a more searching
review is not required in case in which an agency reverses policy. According to the Court, the
agency must supply the usual "reasoned explanation" for agency action and that explanation
must "display awareness that it is changing position."/291/ However, the court explained: "it
need not demonstrate to a court's satisfaction that the reasons for the new policy are better
than the reasons for the old one; it suffices that the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes it to be better."/292/ The Court
further held that arbitrary and capricious review is not applied more rigorously to agency
actions that may implicate the Constitution."/293/ As a result of Fox Television, arguments
premised on the need for more rigorous review of agency policy reversals or policies that have
constitutional overtones will not be successful.
189. 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial relief thereof.”). The Administrative Procedure Act (APA), and review under the APA,
applies only to federal agencies. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992)
Page 252 of 559
(President is not an agency under the APA); Reg’l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d
457, 462 (4th Cir. 1999) (Legal Services Corporation is not an agency).
190. For an excellent discussion of this issue, see Gary F. Smith, The Quid Pro Quo for Chevron
Deference: Enforcing the Public Participation Requirements of the Administrative Procedure Act,
30 Clearinghouse Review 1132 (March-April 1997).
191. Abbott Labs. v. Gardner, 387 U.S. 136 (1967). For the factors employed to determine
whether a statute precludes judicial review, see Block v. Community Nutrition Inst., 467 U.S.
340, 349 (1984).
192. See Jordan Hosp. v. Shalala, 276 F.3d 72, 75 (1st Cir. 2002) (interpreting 42 U.S.C. §
1395ww(d)(10)(C)(iii)(II)); see also Briscoe v. Bell, 432 U.S. 404 (1977); Nat’l Coal. to Save Our
Mall v. Norton, 269 F.3d 1092 (D.C. Cir. 2001) (finding statute bars judicial review), cert. denied,
537 U.S. 813 (2002).
193. See Gutierrez de Martinez v. Lamagno, 515 US. 417 (1995); Bowen v. Michigan Acad. of
Family Physicians, 476 U.S. 667 (1986); Adamo Wrecking Co. v. United States, 434 U.S. 275
(1978). See also Rodriguez v. U.S. Dep't of Homeland Security, 562 F.3d 1137, 1142-45 (11th Cir.
2009) (decision that immigrant is not eligible for temporary protected status is reviewable);
Alto Dairy v. Veneman, 336 F.3d 560 (7th Cir. 2003) (deciding not to infer from Congressional
silence an intent to preclude judicial review).
194. McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991); Webster v. Doe, 486 U.S. 592, 603
(1988); Johnson v. Robison, 415 U.S. 361, 366-67 (1974); Lepre v. Dep't of Labor, 275 F.3d 59
(D.C. Cir. 2001); cf. Dalton v. Specter, 511 U.S. 462 (1994) (ultra vires action is not alone
unconstitutional). See also cases collected in Richard Pierce, Administrative Law Treatise § 17.9
at 1663 (5th ed. 2010).
195. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402 (1971).
196. Id. at 410.
197. Webster v. Doe, 486 U.S. 592 (1988).
198. Id. at 600.
199. Heckler v. Chaney, 470 U.S. 821 (1985).
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200. Id. 470 U.S. at 830. Agency rules subject to notice and comment rule making and having
the force and effect of law are generally held to serve as “law to apply,” while policy statements
and interpretative rules are not. See Pierce, supra note 194, 1011-12.
201. Chaney, 470 U.S. at 832-35. Compare Massachusetts v. EPA, 549 U.S. 497 (2007)
(distinguishing between refusals to take enforcement action and refusals to initiate
rulemakings). The Court also suggested that the presumption could be overcome if it were
shown that the agency “has ‘consciously and expressly adopted a general policy’ that is so
extreme as to amount to an abdication of its statutory responsibilities.” Id. at 833 n.4 (citation
omitted). In Riverkeeper, Inc. v. Collins, 359 F.3d 156 (2d Cir. 2004), the Second Circuit held
exception not to apply in a case challenging the Nuclear Regulatory Commission’s refusal to
impose certain conditions on a license to operate two nuclear power plants.
202. Shalala v. Ill. Council on Long Term Care, 529 U.S. 1 (2000); Your Home Visiting Nurses
Services v. Shalala, 525 U.S. 449 (1999); see also Lincoln v. Vigil, 508 U.S. 182, 192 (1993)
(decision to reallocate funds from a lump-sum appropriation is committed to agency
discretion). An exception is Kucana v. Holder, 130 S. Ct. 827 (2010), which held that 8 U.S.C. §
1252(a)(2)(B)(iii) does not preclude judicial review of decisions to reopen removal proceedings
that a regulation, rather than a statute, places within the Board of Immigration Appeals'
discretion.
203. See, e.g. Ctr. for Policy Analysis on Trade and Health v. Office of the U.S. Trade Rep., 540
F.3d 940 (9th Cir. 2009) (Federal Advisory Committee Act's "fairly balanced" requirement is not
reviewable); Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) (Board of
Immigration Appeal's decision not to reopen removal proceedings sua sponte is unreviewable);
Port of Seattle v. FERC, 499 F.3d 1016 (9th Cir. 2007) (FERC's decision to deny refunds for
energy transactions after an adjudication that such refunds were warranted is reviewable), cert.
denied, sub nom. Puget Sound Energy v. California, 2010 U.S. LEXIS 494 (U.S. Jan. 11, 2010);
Ohio Pub. Interest Research Group v. Whitman, 386 F.3d 792 (6th Cir. 2004) (EPA decision not
to issue notice of deficiency under Clean Air Act is not reviewable); Colorado Envtl. Coalition v.
Wenker, 353 F.3d 1221 (10th Cir. 2004) (finding Federal Advisory Committee Act challenges to
advisory committees based on alleged violation of “inappropriate influence” provision nonreviewable but violation of “fair balance” requirement reviewable).
204. Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994).
205. 42 U.S.C. § 1315(a).
206. Beno, 30 F.3d at 1067.
207. Id.
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208. American Disabled for Attendant Programs Today v. U.S. Dep’t of Hous. & Urban Dev., 170
F.3d 381 (3d Cir. 1999).
209. Id. at 386.
210. Pierce, supra note 194, § 15.1 at 1217-19; John Doe, Inc. v. DEA, 484 F.3d 561, 567 (D.C.
Cir. 2007).
211. See U.S. Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999).
212. Bennett v. Spear, 520 U.S. 154 (1997).
213. Id. at 178 (citations omitted).
214. Fox Television Stations v. FCC, 280 F.3d 1027, 1038 (D.C. Cir. 2002), modified on reh’g by
293 F.3d 537 (D.C. Cir. 2002). See Potash Ass'n of N.M. v. U.S. Dep't of Interior, 2010 U.S. App.
LEXIS 4395 (10th Cir. Mar. 2, 2010) (agency opinion remanding matter is not fnal agency
action); Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 594 (9th Cir.
2008).
215. Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n., 324 F.3d 726, 731
(D.C. Cir. 2003).
216. See Dalton v. Specter, 511 U.S. 462, 469-71 (1994); Franklin v. Massachusetts, 505 U.S.
788, 797-800 (1992). See Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 16-17 (D.C. Cir.
2005) (no final agency action in issuing protocols which are recommended and non-coercive);
Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 426-27 (D.C. Cir. 2004) (letter which imposed
no new requirements is not agency action); Air Brake Sys. v. Mineta, 357 F.3d 632 (6th Cir.
2004) (agency letters not entitled to Chevron deference which do not have effect of law do not
satisfy this element).
217. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004).
218. Id. at 64.
219. Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990).
220. Examples of such statutes include the Social Security Act and 42 U.S.C. § 1997e(a), of the
Prison Litigation Reform Act. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532
U.S. 731 (2001).
Page 255 of 559
221. McKart v. United States, 395 U.S. 185 (1969).
222. Id. at 194-95.
223. See also McCarthy v. Madigan, 503 U.S. 140 (1992); Christopher S. v. Stanislaus County
Office of Educ., 384 F.3d 1205, 1212 (9th Cir. 2004).
224. See, e.g., United States v. Williams, 514 U.S. 527 (1995) (futility established); In Home
Health, Inc. v. Shalala, 272 F.3d 554 (8th Cir. 2001) (futility not established); Shawnee Trail
Conservancy v. U.S. Dep’t of Agric., 222 F.3d 383 (7th Cir. 2000) (futility requires certainty that
agency action will be adverse). A form of futility may occur when agency administrative
processes cannot provide the relief sought by the petitioner. Honig v. Doe, 484 U.S. 305, 327
(1988). This issue has, for example, divided the circuits in Individuals with Disabilities Education
Act litigation seeking money damages. See Frazier v. Fairhaven School Comm., 276 F.3d 52 (1st
Cir. 2002), and citations therein. M.Y. v. Special Sch. Dist. No. 1, 519 F. Supp. 2d 995, 1002 (D.
Minn. 2007). In addition, courts frequently hold that exhaustion is excused in class actions
seeking systemic relief because such relief is not available before administrative judges. See,
e.g., J.S. v. Attica Cent. Sch., 386 F.3d 107, 114-15 (2d Cir. 2004), cert. denied, 544 U.S. 968
(2005); W.B. v. Matula, 67 F.3d 484, 495-96 (3rd Cir. 1995); M.O. v. Ind. Dep't of Educ., 2008
U.S. Dist. LEXIS 66632 (D. Ind. Aug. 29, 2008); D.L. v. District of Columbia, 450 F. Supp. 2d 11, 1821 (D.D.C. 2006).
225. The extent to which 42 U.S.C. §§ 405(g)-(h) require exhaustion of remedies and to which
the agency waives the requirement is the subject of several arguably inconsistent decisions by
the Supreme Court, most recently Shalala v. Ill. Council on Long Term Care, 529 U.S. 1 (2000);
see Weinberger v. Salfi, 422 U.S. 749 (1975); Mathews v. Diaz, 426 U.S. 67 (1976); Mathews v.
Eldridge, 424 U.S. 319 (1976); Heckler v. Ringer, 466 U.S. 602 (1984); Mich. Acad. of Family
Physicians, 476 U.S. 667; Bowen v. City of New York, 476 U.S. 467 (1986). The issue is a
significant one for legal aid attorneys because it governs when a challenge to rules and actions
of the Social Security Administration and the U.S. Department of Health and Human Services
may be filed.
226. Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979).
227. See Chapter 3.4 of this MANUAL.
228. Darby v. Cisneros, 509 U.S. 137 (1993).
229. These issues are discussed further in Chapter 3.2 of this MANUAL.
230. Abbott Labs. v. Gardner, 387 U.S. 136 (1967).
Page 256 of 559
231. Id. at 149. See Nat’l Ass’n of Home Builders v. U.S. Army Corp. of Eng’rs, 417 F.3d 1272,
1281-84 (D.C. Cir. 2005).
232. See Nat’l Park Hospitality Ass’n v. U.S. Dep’t of the Interior, 538 U.S. 803 (2003) (applying
Abbott to find a challenge to an interpretive rule unripe for review); Lujan v. Nat’l Wildlife
Fed’n., 497 U.S. 871, 891 (1990) (challenge to regulation is ripe when there has been some
“concrete action applying the regulation to the claimant’s situation in a fashion that harms or
threatens to harm him”).
233. Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993).
234. Id. at 57.
235. Id. at 59.
236. For two post-Reno v. Catholic Social Services cases finding ripe challenges to restrictions on
government benefits prior to application, see Freedom to Travel Campaign v. Newcomb, 82
F.3d 1431 (9th Cir. 1996), and Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995).
237. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).
238. Courts entertained constitutional challenges when the claim was collateral to the
administrative review process, that process was not suitable for such claims, and preclusion of
review would cause irreparable injury. See, e.g., Kreschollek v. S. Stevedoring Co., 78 F.3d 868
(3d Cir. 1996).
239. Formal rule making is a procedure that resembles an adjudicatory hearing at which
testimony is taken subject to cross-examination. 5 U.S.C. §§ 553(c), 556-557. Formal rule
making rarely takes place and never occurs in the context of poverty law issues. For a discussion
of formal rule making, see Pierce, supra note 194, § 7.2.
240. A fourth, negotiated rulemaking, is set forth in 5 U.S.C. §§ 561-583.
241. 5 U.S.C. § 553(b).
242. Courts do not have the authority to require agencies to follow procedures beyond those
required under the APA, even when rule making requires resolution of contested issues of fact,
absent extremely compelling and so far undefined circumstances. Vt. Yankee Nuclear Power
Corp. v. Natural Res. Def. Council, 435 U.S. 519 (1978).
243. 5 U.S.C. § 553(b).
Page 257 of 559
244. CSX Transportation v. Surface Transportation Bd., 584 F.3d 1076 (D.C. Cir. 2009); Nat'l
Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d 520 (D.C. Cir. 1997).
245. American Radio Relay League v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008).
246. Among these are exemptions for rules relating to “military or foreign affairs” and to
matters relating to “agency management or personnel or to public property, loans, grants,
benefits, or contracts.” 5 U.S.C. § 553(a). The good-cause exception is generally invoked when
there is an urgent need to issue a rule, see, e.g., Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004)
(suspension of pilots' certificates in the wake of 9/11); Hawaii Helicopter Operators Ass’n v.
FAA, 51 F.3d 212 (9th Cir. 1995) (air safety rule) and when public notice of a proposed rule may
result in economic or other harm. See, e.g., Reeves v. Simon, 507 F.2d 455, 458-59 (Temp. Emer.
Ct. App. 1975) (finding good cause for regulation prohibiting preferential gasoline sales in light
of nationwide shortage).
247. 5 U.S.C. § 553.
248. American Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993). The
third criterion was abandoned in Health Ins. Ass’n of America v. Shalala, 23 F.3d 412 (D.C. Cir.
1994).
249. Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003); Warder v. Shalala, 149 F.3d
73 (1st Cir. 1998); Mission Group Kan. v. Riley, 146 F.3d 775 (10th Cir. 1998); Appalachian States
Low-Level Radioactive Waste Comm’n v. O’Leary, 93 F.3d 103 (3d Cir. 1996); Hoctor v. U.S. Dep’t
of Agric., 82 F.3d 165 (7th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995);
New York City Employees’ Retirement Sys. v. SEC, 45 F.3d 7 (2d Cir. 1995).
250. American Mining Cong., 995 F.2d at 1112.
251. Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995).
252. See Mission Group Kan., 146 F.3d at 775; United States v. Picciotto, 875 F.2d 345 (D.C. Cir.
1989). The Supreme Court narrowly upheld interpretive rules in two such challenges. See
Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87 (1995); Thomas Jefferson Univ. v. Shalala, 512
U.S. 504 (1994).
253. Paralyzed Veterans of America v. D.C. Arena, 117 F.3d 579 (D.C. Cir. 1997), cert. denied,
523 U.S. 1003 (1998).
254. Id. at 586; Alaska Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999). The
court observed in Paralyzed Veterans that the distinction between substantive and interpretive
Page 258 of 559
rules turns on how “distinctive” or “additive” the rule is to the statute. That is, if the
interpretation defines vague statutory terms, like “fair,” it is more likely to be substantive.
Paralyzed Veterans, 117 F.3d at 588.
255. See U.S. v. Hoyts Cinemas Corp., 380 F.3d 558, 568 (1st Cir. 2004).
256. Croplife Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003).
257. Nat'l Mining Ass'n v. Sec'y of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009); Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000). Compare Indep. Equip. Dealers Ass’n v.
EPA, 372 F.3d 420 (D.C. Cir. 2004) and Gen. Motors v. EPA, 363 F.3d 442, 450-51 (D.C. Cir. 2004)
(letters which restated interpretation and imposed no new regulatory requirements were not
reviewable) with Croplife, 329 F.3d at 883 (directive contained in press release stating, in
departure with prior policy, that agency would not consider certain studies in its decisionmaking, was a reviewable rule).
258. See Pac. Gas & Elec. v. Fed. Power Comm’n, 506 F.2d 33, 38-39 (D.C. Cir. 1974).
259. Ctr. for Auto Safety v. Nat'l Hwy Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir. 2006);
Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 600-601 (5th Cir. 1995); Rapp v.
Office of Thrift Supervision, 52 F.3d 1510 (10th Cir. 1995).
260. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Chevron
deference is not owed to agencies without rule-making power. Atchison, Topeka & Santa Fe Ry.
Co. v. Peña, 44 F.3d 437, 441 (7th Cir. 1994) (en banc).
261. Pierce, supra note 194, § 3.6 at 215.
262. Cases rejecting an agency interpretation on step 1 grounds are Carcieri v. Salazar, 129 S.
Ct. 1058, 1064-65 (2009); Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002). See also
Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421 (1987); cf. Environmental
Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (there is a rebuttable presumption that
the same term in two different sections of the same statute must be interpreted the same).
Recent cases upholding agency interpretations of unambiguous statues are Zuni Pub. Sch. Dist.
No. 89 v. Department of Educ., 550 U.S. 81 (2007); Nat’l Cable Telecomms. Ass’n v. Gulf Power
Co., 534 U.S. 327 (2002), and U.S. Dep’t of Housing and Urban Dev. v. Rucker, 535 U.S. 125
(2002) (Clearinghouse No. 52,806).
263. Recent cases so holding include Mayo Found. for Med. Educ. & Research v. United States,
131 S.Ct 704, 714-15 (2011); Entergy Corp. v. Riverkeeper, 129 S. Ct. 1498 (2009); United States
v. Eurodif, 129 S. Ct. 878 (2009) (upholding agency's new interpretation of ambiguous statue
when courts upheld agency's prior interpretation as reasonable); Global Crossing
Page 259 of 559
Telecommunications v. Metrophones Telecommunications, 550 U.S. 45 (2007); Household Credit
Servs. v. Pfennig, 541 U.S. 232 (2004); Barnhart v. Walton, 535 US. 212 (2002); SEC v. Zandford,
535 U.S. 813 (2002), Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467 (2002); Chevron U.S.A. Inc. v.
Echazabal, 536 U.S. 73 (2002); see also National Ass'n of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007) (deferring to reasonable agency regulation when agency was unable to
comply with two conflicting statutory commands simultaneously). Similarly, when the statutory
language leaves a "gap" for the agency to fill and it does so both reasonably and in compliance
with procedural requirements, the result is binding. Long Island Care at Home v. Coke, 551 U.S.
158, 164 (2007).
264. Motor Vehicles Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983); see
Negusie v. Holder, 129 S.Ct. 1159 (2009); Cuomo v. The Cleary House Ass'n, 129 S. Ct. 2710
(2009); Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002); Animal Legal Def. Fund v.
Glickman, 204 F.3d 229, 234 (D.C. Cir. 2000); cf. Strickland v. Comm’r, 48 F.3d 12 (1st Cir. 1995)
(upholding the secretary of agriculture’s decision to exclude depreciation from the cost of
producing self-employment income because it is not an unreasonable interpretation of the
Food Stamp Act).
265. Pierce, supra note 194, § 3.6 at 219. The Court in United States v. Mead, 533 U.S. 218
(2001) explained that the carefulness of the agency’s consideration of the interpretive question,
its consistency, formality, and persuasiveness and the expertise of the agency are factors in
determining the measure of deference owed to an agency interpretation. Id. at 228. The
duration of an agency's interpretation, reflecting the carefulness of its consideration, is also a
factor. The duration of an agency's interpretation, reflecting the carefulness of its
consideration, is also a factor. Kasten v. Saint-Gobain Performance Plastics Corporation, 131
S.Ct. 1325, 1335 (2011).
266. See Christensen v. Harris County, 529 U.S. 576 (2000). Auciello Iron Works v. NLRB, 517 U.S.
781 (1996). The Court has recently held that Chevron applies to the interpretation of tax
regulations. Mayo Found., 131 S.Ct at 714. Generally agency positions adopted for purposes of
litigation are not accorded deference. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212
(1988); Natural Res. Def. Counsel, Inc. v. Abraham, 355 F.3d 179, 201 (2d Cir. 2004).
267. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (compliance manuals and
internal directives); Ky. Retirement Sys. v. EEOC, 128 S. Ct. 2361, 2371 (2008) (same); Alaska
Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 487-88 (2004) (internal guidance memos do
not qualify for Chevron deference); Christensen, 529 U.S. at 587.
268. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
269. United States v. Mead, 533 U.S. 218, 231-32 (2001).
Page 260 of 559
270. Id.
271. Id. at 226-27. For a recent example of a case in which the Executive Branch office, here,
the Attorney General, lacked the authority to issue an interpretive rule, which therefore was
not entitled to Chevron deference, see Gonzales v. Oregon, 546 U.S. 243 (2006) (rejecting an
interpretive rule stating that the Oregon Death With Dignity Act, which permitted use of
controlled substances for physician-assisted suicides, was not a legitimate medical purpose
under the Controlled Substances Act).
272. The Supreme Court’s opinion in Mead offers some insight into the nature of the relevant
analysis. The Court examined the statute authorizing the tariff rulings (and noted that they
were subject to judicial review in the Court of International Trade) and agency practice (rulings
were not binding on third parties, generally lacked reasoning, and were issued in vast numbers
and by many offices). In contrast, the Court in Barnhart v. Walton, 535 U.S. 212, 222 (2002),
suggested that agency interpretations of its governing statute—interpretations which are not
the product of formal adjudication or notice and comment rule making—may be subject to
Chevron deference, depending on the “interpretive method and nature of the question at
issue.” Where, as in Walton, the agency has expertise, the issue is interstitial and important to
the administration of the program, the program is complex, and the agency studied the issue
carefully and consistently, Chevron deference is owed. Mead and Walton cast doubt on the
lower deference previously accorded to social security rulings. See Bunnell v. Sullivan, 947 F.2d
341, 346 n.3 (9th Cir. 1991) (en banc). At the same time, Mead has caused considerable
confusion. See Adrian Vermuele, Mead in the Trenches, 71 Geo. Wash. L. Rev. 347 (2003).
273. See, e.g., Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 129-35 (2d Cir. 2004).
274. Smith, supra note 190, at 1151 & n.191, citing Cerventez v. Sullivan, No. CIVS-89-529 LKK,
slip op. at 19 (E.D. Cal. Apr. 26, 1993); Cf. Nebraska v. Dep’t of Health & Human Servs., 340 F.
Supp. 2d 1 (D.D.C. 2004).
275. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
276. Id. at 2699-2700. See Mayo Found. 131 S.Ct. at 713.
277. Id. at 2700 (citations omitted).
278. Administrative rules or interpretations of an agency’s ambiguous regulation are entitled to
deference. Auer v. Robbins, 519 U.S. 452, 461-63 (1997). However, such deference is not due if
the regulation interpreted merely parrots the governing statute. Gonzales v. Oregon, 546 U.S.
243, 256-57 (2006). In the most recent Supreme Court decision on Auer deference, the Court
upheld an agency's interpretation of an ambiguous banking regulation because it was not a
post hoc rationalization, plainly erroneous or inconsistent with the language of the regulation.
Page 261 of 559
Chase Bank USA v. McCoy, 131 S.Ct. 871, 881 (2011). See also Talk America Incorporated v.
Michigan Bell Telephone Company, 2011 U.S. LEXIS 4375, at *15, 23-24 (U.S. Jun. 9, 2011)
(deferring to FCC's novel interpretation of a regulation expressed in an amicus brief).
279. 5 U.S.C. § 554(a).
280. Id. § 706(2)(E).
281. Interstate Commerce Comm’n v. Louisville & Nashville R.R., 227 U.S. 88, 91 (1913).
282. Allentown Mack Sales & Serv., Inc. v. Nat’l Labor Relations Bd., 522 U.S. 359 (1998).
283. 5 U.S.C. § 706(2)(A).
284. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7 (2001).
285. Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 n.3 (D.C. Cir. 1996); Aman v. FAA, 856
F.2d 946, 950 n.3 (7th Cir. 1983).
286. 5 U.S.C. § 706(2)(A).
287. Northern States Power Co. v. FERC, 30 F.3d 177, 180 (D.C. Cir. 1994).
288. AT & T Corp. v. FCC, 394 F.3d 933, 936 (D.C. Cir. 2005) (Roberts, J.).
289. Alaska Dep’t of Envtl. Conservation, 540 U.S. at 497 (citations omitted). See also National
Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (decision by higher office
within agency to change decision of lower level decisionmaker is not, in and of itself, arbitrary
and capricious).
290. Massachusetts v. EPA, 549 U.S. 497 (2007) (EPA's decision not to initiate a rulemaking to
address greenhouse gas emissions from new cars was arbitrary and capricious).
291. FCC v. Fox Television, 129 S.Ct. 1800, 1811 (2009).
292. Id. (emphasis in original).
293. Id.
Updated 2011
Page 262 of 559
5.2 Implied Causes of Action
Updated 2011
The 2006 Federal Practice Manual for Legal Aid Attorneys has been updated to include relevant
decisions from the Supreme Court’s 2006-07 term. Many subchapters have been edited and
updated starting in February 2010. Updated subchapters are indicated by revision dates
appearing at the bottom of the subchapter. The manual covers all stages of federal litigation,
from drafting and filing the complaint to trial practice and limitations on relief. Hyperlinks to
federal statutes, Supreme Court case citations, and case pleadings available through the Shriver
Center’s Poverty Law Library are included in the HTML version of the manual, which was edited
by Jeffrey S. Gutman, Professor of Clinical Law at George Washington University Law School. In
addition, the full text of the manual is searchable by keyword.
The concept of a cause of action originated in the common law's forms of proceedings and was
not based upon the federal Constitution or statutes. In 1938, the Federal Rules of Civil
Procedure were adopted and the forms of proceeding were abolished. The term "cause of
action" was intentionally not utilized. Instead, the rules substituted the concept of a "claim."
This change was sought, in part, due to the perception that the forms of proceedings were
inadequate to provide remedies for violations of substantive rights./294/ Nevertheless, courts
continue to require plaintiffs to demonstrate that they are entitled to sue to enforce a specific
duty owed by the defendant./295/ Thus, "the plaintiff must demonstrate both that the
defendant's conduct was wrongful (inconsistent with a duty resting on the defendant) and that
the plaintiff is within the category of persons entitled to judicial relief because of the wrongful
conduct.”/296/
In the 1960s and early 1970s, the Supreme Court was receptive to implying a cause of action in
the federal Constitution as well as federal statutes that lacked a private right of action./297/
While these decisions have not been formally overruled, the Court is now highly reluctant to
imply a cause of action for damages in the Constitution. Recently, in a case involving a
constitutional claim for damages, the Court stated that "implied causes of action are
disfavored."/298/ The Court has similarly imposed a nearly impossible standard for implying a
cause of action in a federal statute, requiring a plaintiff to supply evidence of congressional
intent to confer a right of action from the text and structure of a statute that does not expressly
specify access to enforcement in the federal courts./299/ However, if your client's claim is
covered by one of the earlier Supreme Court cases holding that a statute contains an implied
cause of action, the statute remains enforceable under the previously recognized implied cause
of action. The Court is, however, much more willing to permit claims for injunctive and
declaratory relief to determine whether state law conflicts with federal law under the
Supremacy Clause of the Constitution./300/
Page 263 of 559
5.2.A. Implied Constitutional Causes of Action for Damages
In 1971, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme
Court created a federal cause of action against federal officers for damages due to a violation of
the Fourth Amendment’s prohibition on unreasonable searches and seizures./301/ This cause
of action is not based on an express or implied statutory authorization to sue, but rather is
grounded in the Constitution. Such an action is often referred to as a “Bivens action,” a “cause
of action arising directly under the Constitution,” or a “constitutional tort.” This section
discusses the circumstances in which a Bivens action may be brought.
Bivens actions are not needed when a statute authorizes the relief sought. For example, Bivens
actions are not necessary to sue for claims under the Tucker Act and the Federal Tort Claims
Act, because those statutes authorize damages./302/ In contrast, the Administrative Procedure
Act does not authorize damages against persons acting under color of federal law, and
therefore, Bivens actions are necessary to support a damage claim against individual federal
actors for constitutional violations.
Although the Court has not overruled Bivens, recently the Court has disparaged Bivens and
refused to extend it. In Correctional Services Corporation v. Malesko, the Court expressly limited
Bivens actions to the narrow range of claims previously recognized, those arising under the
Fourth, Fifth, and Eighth Amendments to the U.S. Constitution./303/
5.2.A.1. Constitutional Torts
A Bivens action is a suit for damages against a federal actor who, acting in his or her individual
capacity under color of federal law, is alleged to have violated the plaintiff’s constitutional
rights. The claim is a judicially created mechanism to afford redress to plaintiffs who lack a
statutory cause of action or an adequate statutory remedy, or both./304/ The action may be
removed to federal court at the discretion of the defendant and administrative remedies need
not be exhausted before the claim is brought./305/ Generally, the basic elements of a Bivens
action are the following:
1. the plaintiff has a constitutionally protected right under the Fourth, Fifth, or
Eighth Amendments;
2. the defendant, a federal official, violated that right;
3. the plaintiff lacks a statutory cause of action, or an available statutory cause of
action does not provide monetary compensation against the defendant;
4. no “special factors” suggest that the court should decline to provide the judicial
cause of action and remedy, and
5. no appropriate immunity can be raised by the defendant./306/
In Bivens, the Court implied a damage remedy under the Fourth Amendment against individual
federal law enforcement officers who had allegedly arrested Bivens and searched his home
Page 264 of 559
without a warrant or probable cause, causing him mental suffering, humiliation, and
embarrassment. At that time, the Federal Tort Claims Act did not provide a remedy./307/ The
Court created a federal remedy by implication, reasoning that a state court tort claim would not
adequately redress the constitutional wrong suffered by Bivens because the state laws of
trespass and invasion of privacy were not intended to remedy the harms that result from a
federal agent’s abuse of authority./308/
The Court extended the implied cause of action principle to Fifth Amendment claims in Davis v.
Passman./309/ The female plaintiff alleged that then-Congressman Passman violated her Fifth
Amendment right to equal protection by replacing her with a man./310/ Because Congress had
excluded congressional employees from the reach of Title VII, the Court held that Davis had no
other viable remedy, that a damage remedy was judicially manageable, and that Davis could,
therefore, sue directly under the Fifth Amendment./311/
In both Bivens and Davis, the plaintiffs had no other available remedy; it was, therefore, a
question of “damages or nothing.”/312/ In each case, this factor weighed heavily in the Court’s
decision to imply a cause of action. However, the Court subsequently created a Bivens action in
a case in which the plaintiff clearly had a statutory cause of action and limited remedy under
the Federal Tort Claims Act. In Carlson v. Green, the Court allowed a Bivens action under the
Eighth Amendment by an asthmatic prisoner who died against individual federal prison officials
who allegedly failed to give him needed medical attention./313/ The Court decided that a
Bivens action was available because Congress had explicitly stated its intent to allow both the
Federal Tort Claims Act and Bivens actions to coexist as complements./314/ Carlson marks the
high-water mark for the Bivens cause of action; the Supreme Court has declined further
invitations to extend Bivens.
5.2.A.2. The Limitations on Bivens
Although Bivens, Davis, and Carlson initially seemed to suggest that Bivens actions for
constitutional violations would be broadly available to fill gaps in federal damage remedies, the
Court subsequently refused to extend Bivens actions beyond the scope of those earlier cases.
Presently, when Congress provides a statutory cause of action without expressly indicating its
intent to allow Bivens actions as well (as was the case in the legislative history examined in
Carlson), the Court is unlikely to imply a cause of action.
The Court began to limit Bivens in Bush v. Lucas, a suit by a NASA employee against his
supervisor for damages for emotional distress and mental anguish./315/ The plaintiff alleged
that he had been demoted and his salary decreased in retaliation for exercising his First
Amendment right to speak on a matter of public concern. Although the employee obtained
reinstatement and full back pay through the civil service administrative process, that process
did not allow damages for emotional distress or mental anguish. Acknowledging that “existing
remedies do not provide complete relief for the plaintiff,” the Court nevertheless refused to
create a Bivens action./316/ The Court concluded that the policy question of whether an
Page 265 of 559
employee should be permitted to recover damages from an employer was more appropriately
left to Congress./317/ Because Congress did not provide for individual liability within the
existing “elaborate” and “comprehensive” remedial civil service scheme, or elsewhere, the
Court refused to create an implied right of action. The Court stated:
When Congress provides an alternative remedy, it may, of course, indicate its intent—by
statutory language, by clear legislative history, or perhaps even by the statutory remedy itself—
that the Court’s power should not be exercised. In the absence of such a congressional directive,
the federal courts must make the kind of remedial determination that is appropriate for a
common-law tribunal, paying particular heed, however, to any “special factors counseling
hesitation” before authorizing a new kind of federal litigation./318/
Bush treated the existence of a congressionally designed remedial scheme as a “special factor
counseling hesitation” in the Court’s analysis of whether to imply a constitutional cause of
action. This suggests that the more comprehensive the remedial scheme, the less willing the
Court is to imply a Bivens action. Thus, the Court declined to imply a right of action in Chappell
v. Wallace, a case seeking damages from superior military officers for violating a constitutional
right to be free from racial discrimination./319/ The Court deemed the existence of a separate,
congressionally enacted, “comprehensive internal justice system to regulate military life” and
“the unique disciplinary structure of the Military Establishment,” to be “special factors”
weighing against an implied right of action./320/ In United States v. Stanley, this unwillingness
to create a Bivens action based on “special factors” was broadened to include any claims that
“arise out of or are in the course of activity incident to service.”/321/
In 1988, the Court confirmed that it would not create a Bivens remedy when Congress provided
other meaningful remedies unless Congress explicitly preserved a Bivens remedy. In Schweiker
v. Chilicky, the Court refused to imply a cause of action under the Due Process Clause of the
Fifth Amendment in favor of social security disability recipients whose benefits had been
terminated in a continuing disability review./322/ The plaintiffs sued federal and state officials
responsible for the review. The plaintiffs alleged that the officials terminated the recipients in
clear violation of the procedural requirements of the Fifth Amendment, a determination of
impropriety that Congress apparently agreed with in its enactment of legislation to stop the
terminations./323/ However, in language that reinforced the presumption against Bivens
actions unless Congress clearly provides for them, the Court stated:
In sum, the concept of “special factors counseling hesitation in the absence of affirmative action
by Congress” has proved to include an appropriate judicial deference to indications that
congressional inaction has not been inadvertent. When the design of a government program
suggests that Congress has provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its administration, we have not created
additional Bivens remedies./324/
As one district court subsequently put it,“[i]t may safely be said, therefore, that the dictum of
Carlson v. Green which urged the creation of constitutional torts unless Congress had provided
Page 266 of 559
a remedial scheme equivalent to Bivens and had expressly stated that the remedy was
exclusive, is not good law.”/325/
In 2001, the Supreme Court decided Correctional Services Corporation v. Malesko, which, again,
demonstrated the Court’s refusal to extend Bivens and, indeed, a potential willingness to
confine it./326/ In Malesko, the Court used strong language to reject a Bivens suit by a federal
inmate against a private corporation that operated a halfway house under contract with the
federal Bureau of Prisons. The Court referred to Bivens as a “limited holding” and noted that
the Bivens Court’s exercise of its authority to imply a constitutional tort had relied heavily on J.I.
Case Co. v. Borak,/327/ a case it had since “abandoned.”/328/ The Court noted that, in the
decades subsequent to Bivens, the Court had extended its holding only twice and that it had
otherwise “consistently refused to extend Bivens liability to any new context or new category of
defendants.”/329/
This language could be considered dicta because Malesko went on to emphasize that the
defendant was a private corporation, for which Bivens actions were inapplicable. The Court
compared the Malesko case to Federal Deposit Insurance Corp. v. Meyer, where it had refused
to extend Bivens to permit suits against a federal agency whose sovereign immunity Congress
had waived./330/ In Meyer, the Court reasoned that a damages suit against a federal entity
would not advance the core purpose of the Bivens remedy, which was to deter individual
federal officers from committing constitutional violations./331/ Similarly, the Malesko Court
held that a Bivens action against a private entity would also lack deterrent effect for individual
violations of the Constitution. Moreover, federal prisoners housed in private facilities enjoyed
possible alternative remedies (such as state tort remedies) unavailable to inmates in
government facilities. The Court asserted that a Bivens remedy had “never [been] considered a
proper vehicle for altering an entity’s policy”; rather, “injunctive relief has long been recognized
as the proper means for preventing entities from acting unconstitutionally.”/332/
Thus, the Court had several bases for distinguishing the Malesko facts from the Bivens situation
and could have reached its conclusion without using any of the strong limiting language quoted
above. The Court’s decision to go out of its way to cabin the Bivens remedy within very narrow
parameters signaled a refusal to extend Bivens to new constitutional claims./333/
In the 2009 case of Ashcroft v. Iqbal, the Court again expressed open hostility to extending
Bivens. The case held that the allegations pled in the complaint were insufficient to support a
claim of religious discrimination under the First Amendment. While Bivens was not central to
the Court’s holding or reasoning, the Court downplayed Bivens, stating: “[b]ecause implied
causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any
new context or new category of defendants.’”/334/
Indeed, relying on the “special factor” language in Chilicky, courts no longer afford plaintiffs a
Bivens remedy for violations of the Fourth, Fifth, and Eighth Amendments, even in the absence
of an adequate statutory remedy, if such absence is deemed to reflect a Congressional intent to
Page 267 of 559
preclude Bivens actions./335/ The Court itself has signaled the constriction of Bivens actions
under these amendments unless the case closely resembles Bivens, Davis, or Carlson./336/ In
one of its most recent Bivens cases, the Court held in Wilkie v. Robbins that allegations by a
ranch owner of organized efforts by federal officers to coerce an easement across his property
did not constitute Fourth and Fifth Amendment violations for the purposes of a Bivens
action./337/ For the Wilkie Court, the existence of “alternative, existing process[es]” for
protecting the infringed-upon interests of the ranch owner, counseled against inferring
constitutional causes of action under either amendment./338/ Furthermore, the Court held
that “special factors” weighed against authorizing a Bivens action, specifically the complexity of
the allegations./339/ As a result, a Bivens claim in this case was not a “workable cause of
action.”/340/
In essence, Bivens, Davis, and Carlson have been limited to their facts, and are unlikely to be
extended, at least for the foreseeable future./341/ While those cases remain good law, their
applicability has been severely restricted. For fact patterns closely resembling those cases,
therefore, courts may imply a cause of action under the Fourth Amendment right to be free
from unreasonable searches and seizures, the Fifth Amendment Due Process Clause’s equal
protection component, and the Eighth Amendment right to be free from cruel and unusual
punishment./342/
The Court has also clearly assumed, without so holding, the viability of Bivens claims under the
First Amendment./343/ The Court applied this assumption in Hartman v. Moore, where it held
that a Bivens plaintiff who claimed that government employees violated his First Amendment
rights by participating in a retaliatory criminal prosecution, must plead and prove the absence
of probable cause underlying the criminal case./344/ More recently, the Court repeated this
assumption in Ashcroft v. Iqbal, stating that it was “assum[ing], without deciding, that [a] First
Amendment claim is actionable under Bivens.”/345/ Thus, it remains possible to seek relief
under Bivens for violations of the First Amendment as well./346/
5.2.B. Implied Private Statutory Causes of Action
As discussed earlier in this Chapter, many federal statutes expressly provide a right for injured
individuals to sue to enforce the law. When an express right specific to a particular statute is
unavailable, advocates must determine whether a claim may be brought under the general
authority of statutes such as the Administrative Procedure Act or 42 U.S.C. § 1983. Those
statutes, of course, have their limitations, including a failure to extend to private parties who
are not state actors. Consequently, advocates may need to inquire whether a private right of
action may be implied in a particular federal statute. As explained below, beginning in the mid1970s, the Supreme Court sharply constricted the availability of implied private rights of action
for federal statutes and further restricted the enforceability of federal regulations in the 2001
case of Alexander v. Sandoval./347/
5.2.B.1. Limitation of an Implied Private Right of Action to Enforce Federal Statutes
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In the late 1960s, the Supreme Court held that private individuals could enforce federal antidiscrimination statutes to remedy explicit racial discrimination, based on an implied statutory
cause of action./348/ These decisions focused on the need to provide a remedy to correct racial
injustice when a federal statute establishes the right to be free from racial discrimination.
In 1975, in Cort v. Ash, the Court, however, unanimously limited the use of implied statutory
causes of action./349/ In an opinion by Justice Brennan, the Court set forth a four-prong test
for finding an implied cause of action. The test asks whether 1) the plaintiff is in the class for
whose especial benefit the statute was enacted; 2) there is any indication of legislative intent,
explicit or implicit, either to deny or to create a private right to enforce; 3) a private right to
enforce would be consistent with the underlying purpose of the statute; and 4) the cause of
action is traditionally in the purview of state law, such that a federal right to enforce would be
inappropriate./350/ The holding of the case was that there was no implied cause of action in
the Federal Election Campaign Act for stockholders to obtain damages from corporate
directors, because none of the four factors were met.
In Cannon v. University of Chicago, decided in 1979, the plaintiff alleged that she was denied
admission to medical school based on her gender, in violation of Title IX of the Education
Amendments of 1972. The Court found that Title IX met all four of the Cort v. Ash prongs./351/
With regard to legislative intent, the Court reasoned that in drafting Title IX, Congress relied
upon the Court's cases from the late 1960s which had implied a cause of action in statutes
designed to remedy racial discrimination, such as the Voting Rights Act. Title IX was also
modeled on Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by
recipients of federal funds, and had been found enforceable under an implied private right of
action by numerous courts of appeals./352/ Therefore, the Court concluded that Congress had
intended Title IX to be privately enforceable. The Court also stated that it was "decidedly
receptive" to an implied cause of action that was helpful to the statutory purpose./353/
However, the Court cautioned Congress against future reliance on the implied cause of action
cases from the 1960s. Justice Stevens, writing the majority opinion, stated, "When Congress
intends private litigants to have a cause of action to support their statutory rights, the far better
course is for it to specify as much when it creates those rights."/354/
The availability of an implied private right of action was sharply narrowed in two cases decided
just a few months later. Without rejecting the four-part test, the Court interpreted the test as
being most heavily focused on the second prong: evidence of congressional intent to create a
private right./355/ The Court looked for specific statutory language establishing a right to sue
and to obtain damages./356/ Since the statutes examined did not contain an express private
right of action, there was no such language, leading the Court to conclude that the statutes did
not contain an implied right of action. While citing Cannon with favor, the Court explicitly
rejected the emphasis in Cannon and other prior cases on implying a private right in order to
effectuate the purpose of the statute./357/
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In 1982, Justice Stevens authored an opinion finding an implied statutory right of action to
enforce the Commodity Exchange Act./358/ Stevens asserted that in earlier times, the common
law supplied a remedy for an individual injured by the breach of a duty. Yet, he explained, the
Court unanimously modified its approach in Cort v. Ash, due to the "increased complexity of
federal legislation and the increased volume of federal litigation." Presently, the Court requires
"more careful scrutiny of legislative intent" to imply a private right of action./359/ Because the
Commodity Exchange Act was amended in 1974, before the change in the Court's approach in
the 1975 Cort v. Ash case, the majority found that "Congress intended to preserve the
preexisting remedy" of an implied right of action. The Court concluded that the provision of
new remedies in 1974 was "intended to supplement rather than supplant the implied judicial
remedy."/360/ The Court specifically rejected the argument that the implication of a right of
action violates separation of powers, noting that judicial implication of a right turns on
congressional intent./361/
A year later, the Court was asked to decide upon the standard of proof needed to prevail in a
Title VI case, specifically whether proof of discriminatory intent was required to obtain
compensatory relief./362/ The Court splintered, producing six separate opinions. Nevertheless,
seven Justices accepted that, under the reasoning of Cannon, there was an implied private right
of action to enforce Title VI./363/
The Court has never overruled Cannon or cases based on it. As a result, claims under Title VI
and Title IX remain enforceable under an implied private right of action. The Rehabilitation Act
adopts the remedies of Title VI, and thereby also utilizes an implied private right of
action./364/
Nevertheless, for statutes enacted after Congress was notified that the Court expected it to
"specify" a cause of action, the Court has refused to permit enforcement of rights through an
implied statutory cause of action./365/ Lower court cases finding an implied private right of
action in such statutes are therefore extremely vulnerable to challenge. For instance, the Fifth
Circuit held in 1981 that language in the Housing and Community Development Act similar to
the language of Title IX is enforceable under a private right of action./366/ That holding was
explicitly rejected by several other courts, including the First Circuit./367/
Thus, by 2000, numerous cases held there was no implied private right of action to enforce
federal statutes, other than Title IX, Title VI, and the Rehabilitation Act, for which an exception
had been carved out by the Supreme Court. Even before Alexander v. Sandoval greatly limited
private enforcement of regulations, scholars proclaimed that obtaining relief for violations of
rights in federal statutes under an implied private right of action was "foreclosed."/368/
5.2.B.2. The Conflation of the Implied Private Right of Action with the Express Right
of Action in Section 1983
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In Wright v. City of Roanoke Redevelopment and Housing Authority,/369/ Justice O'Connor
wrote a dissent on behalf of four Justices which introduced the idea that the Cort v. Ash test for
an implied right of action should be utilized in determining whether a plaintiff may access the
express right of action in 42 U.S.C. § 1983. She suggested that each specific provision of the
statute, not the statute as a whole, be carefully scrutinized to "determine congressional intent
to create enforceable rights."/370/ This analysis imports into the § 1983 analysis the second
prong of the Cort v. Ash test—a search for legislative intent to create a private right of action in
a statute devoid of any express right to sue in federal court.
To the contrary, Justice Brennan subsequently argued in another 5-to-4 decision regarding §
1983 that an implied private right of action is completely different from the utilization of the
express right of action in § 1983./371/ Rather, he asserted that the § 1983 remedy is available
unless there is clear evidence of legislative intent to take away this express right of action.
However, after Justice Brennan left the Court, Justice O'Connor's vision became law. In
Gonzaga University v. Doe, the Court held that evidence of congressional intent to create
enforceable rights is a prerequisite to utilization of § 1983./372/ Gonzaga explicitly blurs the
distinction between an implied right of action and the express right of action in § 1983./373/
5.2.B.3. Sandoval Limits Enforceability of Federal Regulations
Alexander v. Sandoval involved a challenge to the Alabama Department of Safety’s refusal to
administer its driver’s examination in a language other than English./374/ The plaintiff was a
Mexican immigrant who did not have the English skills necessary to take a written examination.
She sued, arguing that the driver’s license rule violated the regulations implementing Title VI of
the Civil Rights Act of 1964. Section 601 of Title VI forbids discrimination based on race or
national origin in any program or activity receiving federal funds. Section 602 of the statute
authorizes the federal government to promulgate regulations to implement § 601. The
regulations interpret national origin discrimination to include actions that did not intend to
discriminate but had that effect because of factors having a disparate impact, such as an
individual’s limited ability to speak English.
The Supreme Court in Sandoval found it “beyond dispute that private individuals may sue to
enforce § 601” of Title VI utilizing an implied private right of action./375/ However, the Court
interpreted § 601 as applying only to intentional discrimination. The Court limited Cannon to
its facts, in which intentional discrimination was alleged to violate § 601. The "disparate
impact" regulations were found to be beyond the scope of § 601's prohibition on intentional
discrimination, and therefore not enforceable under § 601. The Court stated, “[l]anguage in a
regulation may invoke a private right of action that Congress through statutory text created,
but it may not create a right that Congress has not.”/376/
The Court further rejected the plaintiffs' claim that § 602, which authorizes regulations to
implement § 601, was enforceable utilizing an implied private right of action./377/ In analyzing
the implied right of action issue, the Court found the existence or absence of “rights-creating
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language” to be critical to the inquiry./378/ Sandoval suggests that congressional intent to
create private remedies is the determinative issue; that is, does the statute “display[] an intent
to create not just a private right but also a private remedy?”/379/ Congressional intent is to be
determined almost exclusively based on the text and structure of the statute. The Court
expressed disdain for inferring remedies necessary to effectuate congressional purpose./380/
The Court made clear that the statute's text and structure must evince a “congressional intent
to create new rights.”/381/
In future cases involving regulations, advocates are best advised to seek enforcement of a
statute, rather than regulations promulgated pursuant to the statute. In Jackson v. Birmingham
Board of Education, for example, the Supreme Court reversed the Eleventh Circuit’s holding
that Sandoval precluded enforcement of a Title IX regulation prohibiting retaliation./382/ The
Court held that Sandoval was irrelevant because such retaliation is prohibited by the statute’s
text./383/
Courts of appeal interpreting Sandoval, in conjunction with Gonzaga, have reversed their prior
caselaw and have held that "regulations alone cannot create rights enforceable through either
an implied right of action or § 1983.”/384/ Nevertheless, if a right is conferred through the
statute, then the regulations are relevant to the scope of the right conferred by Congress./385/
Even for statutes with a private right of action, however, Sandoval places limits on the
enforceability of accompanying regulations. Refusing to enforce a regulation under the ADA,
the Ninth Circuit stated that pursuant to Sandoval: "those regulations effectuating the statute's
clear prohibitions or requirements are enforceable through the statute's private right of action;
regulations that do not encapsulate the statutory right and corresponding remedy are not
privately enforceable."/386/ Therefore, only regulations within the clear mandate of a statute
with an express right of action remain enforceable and are not impacted by Sandoval./387/
5.2.C. The Preemption Claim
Like 42 U.S.C. § 1983, preemption is another vehicle for challenging state or local governmental
activities under federal laws that do not contain an explicit right of action. Preemption is
typically invoked by businesses trying to avoid state regulation, such as state consumer
protection statutes./388/ But preemption claims are also useful to public interest advocates
seeking to invalidate state or local laws that conflict with federal law.
Unlike § 1983, preemption claims do not provide damages or attorney's fees./389/ However,
preemption can be used to enforce statutory provisions that do not create “rights” enforceable
under § 1983, and to enforce regulations that are unenforceable through an express or implied
statutory cause of action. Therefore, preemption claims provide an important alternative when
§ 1983 is not available or is in question./390/
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5.2.C.1. Types of Preemption
The preemption doctrine arises from the Supremacy Clause of the Constitution./391/ If the
provisions of a state law are “inconsistent with an act of Congress, they are void, so far as that
inconsistency extends.”/392/ Although preemption is most often used defensively, the
Supreme Court has long entertained offensive preemption claims./393/
The three general categories of preemption are: (1) express (a federal statute explicitly
overrides state law); (2) field (a federal law “occupies the field” and ousts even consistent state
laws), and (3) conflict (state legislation is permissible but only if it does not conflict with federal
law)./394/ All three categories are theoretically available to public interest advocates, but
conflict preemption is most likely to be useful to enforce the statutes that protect low-income
persons, such as the Medicaid Act or federal housing laws.
Conflict preemption encompasses both direct conflicts and situations where state law stands
“as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.”/395/ Conflict preemption can occur even if federal and state laws have the same
goal or if the federal statute gives states the primary authority over an area./396/
5.2.C.2. Jurisdiction and the Cause of Action
The Supreme Court has repeatedly upheld federal question jurisdiction over preemption claims
without identifying the cause of action for such claims./397/ Indeed, the Court has rejected the
suggestion that jurisdiction over a preemption claim is defeated if the statute does not contain
an express private right of action. In Shaw v. Delta Air Lines, the Court stated in a footnote:
It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from
interfering with federal rights. A plaintiff who seeks injunctive relief from state regulation, on
the ground that such regulation is pre-empted by a federal statute which, by virtue of the
Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the
federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve./398/
After finding jurisdiction in Shaw, the Court proceeded to rule on the merits.
In Verizon Maryland Incorporated v. Public Service Commission, a preemption case, the
defendant argued that the plaintiffs did not have a cause of action under the
Telecommunications Act and therefore there was no federal jurisdiction over the complaint.
The Supreme Court unanimously reached the merits of the preemption claim, “express[ing] no
opinion” whether there was a private cause of action to enforce the law./399/ Quoting an
earlier case, the Court stated: “It is firmly established in our cases that the absence of a valid (as
opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the
courts’ statutory or constitutional power to adjudicate the case.”/400/ The Court explained
that if the statute does not strip federal question jurisdiction and plaintiff’s preemption claim is
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not frivolous, then the district court has federal question jurisdiction to determine whether a
state regulation is preempted by federal law, pursuant to the Supremacy Clause./401/
The Supreme Court subsequently reached the merits of two cases alleging that state laws were
preempted by the federal Medicaid statute, without addressing the cause of action. In
Pharmaceutical Research & Manufacturers of America v. Walsh,/402/ Justice Thomas's
concurrence suggested, although he did not explicitly conclude, that plaintiffs might have to
meet the Gonzaga requirements for a cause of action in order to bring a claim under the
Supremacy Clause for Spending Clause statutes./403/ Justice Scalia, writing separately, did not
address the cause of action but similarly inferred that in his view, neither § 1983 nor the
Supremacy Clause may be invoked to challenge alleged state violations of federal law in
Spending Clause cases./404/ The other seven Justices reached the merits of the preemption
claim, split 4-to -3 on whether the state law was preempted, and completely ignored the
concurrences of Justices Scalia and Thomas. By reaching the merits, seven Justices “assum[ed]
sub silentio that the plaintiff had a right of action for its claim that the Medicaid statute
preempted state law.”/405/
In the second recent Medicaid case, Arkansas Dept. of Health & Human Services v.
Ahlborn,/406/ the Court unanimously held that state law conflicted with Medicaid law and was
therefore unenforceable. Ahlborn contains no discussion whatsoever of a cause of action or
jurisdiction; it reaches the merits of the preemption claim without even mentioning the
Supremacy Clause./407/
Commentators have concluded that “the rule that there is an implied right of action to enjoin
state or local regulation that is preempted by a federal statutory or constitutional provision … is
well-established.”/408/ The applicable cause of action to bring preemption claims is implied in
the Supremacy Clause, just as causes of action are implied to enforce other constitutional
provisions./409/
The courts of appeals have uniformly held that when proceeding under the Supremacy Clause
to enforce a safety net statute, plaintiffs need not meet the requirements for a cause of action
set forth in Gonzaga./410/ Indeed, for a preemption claim, there is no need for a statutory
cause of action./411/ A claim that a federal law has preemptive force under the Supremacy
Clause is distinct from a statutory claim to enforce the federal law, and therefore, the absence
of a cause of action in the statute does not defeat the preemption claim./412/
Some courts of appeals have explicitly stated that there is an implied cause of action in the
Supremacy Clause for a preemption claim./413/ Other courts of appeals have simply followed
Verizon's lead and reached the merits of preemption claims, finding that there is federal
question jurisdiction under 28 U.S.C. § 1331 without identifying the cause of action./414/
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Many federal statutes that public interest advocates seek to enforce are passed under
Congress’ authority under the Spending Clause. In the § 1983 context, the Supreme Court has
generally indicated reluctance about private enforcement of spending legislation./415/ That
reluctance, however, does not extend to preemption cases. The Supreme Court has long held
that Spending Clause legislation is specifically entitled to supremacy just like other federal
legislation:
There is of course no question that the Federal Government, unless barred by some controlling
constitutional prohibition, may impose the terms and conditions upon which its money
allotments to the States shall be disbursed, and that any state law or regulation inconsistent
with such federal terms and conditions is to that extent invalid./416/
The Supreme Court reiterated this principle recently in a Spending Clause case, noting that once
a state chooses to take federal monies and participate in a federal program, the state “must
comply with [the federal statute’s] mandates.”/417/
The courts of appeal have also resoundingly rejected the argument that Spending Clause
statutes have less force under the Supremacy Clause than other statutes./418/ Two circuits
specifically noted that the concurrences of Justices Thomas and Scalia in Pharmaceutical
Research & Manufacturers Association v. Walsh, which allude to the Supremacy Clause, have no
precedential importance, since they did not command a majority of the Court./419/ Indeed, the
concurrences of Justices Thomas and Scalia not only conflict with considerable Supreme Court
precedent but also have no basis in the text of the Constitution./420/
5.2.C.3. Elements of a Preemption Claim
Certain federal laws can preempt various types of state action. Generally applicable only to
state governmental officials or entities, preemption provides limited relief.
5.2.C.3.a. Federal Laws That Have Preemptive Force
The Supremacy Clause expressly gives the federal Constitution and federal statutes preemptive
force. In addition, “a federal agency acting within the scope of its congressionally delegated
authority may pre-empt state regulation.”/421/ Indeed, “[f]ederal regulations have no less preemptive effect than federal statutes.”/422/ Federal agency orders, and possibly other forms of
agency action, can also preempt state or local action./423/ Therefore, preemption can be used
to enforce regulations that are unenforceable under § 1983 or an implied right of action./424/
In analyzing the preemptive effect of federal agency action, a “narrow focus on Congress’ intent
… is misdirected,” because an agency’s ability to preempt “does not depend on express
congressional authorization to displace state law.”/425/ Rather, the courts have applied
traditional, deferential Chevron analysis to determine whether the agency has acted within the
scope of its authority in issuing preemptive regulations./426/ Thus, agency action is treated
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quite differently here than in the context of implied rights of action or § 1983, where Congress’
intent to create rights or a right of action must be unambiguously shown in the statute
itself./427/
5.2.C.3.b. State Action that Can Be Preempted
State or local laws or regulations are clearly subject to federal preemption. The Supreme Court
has also applied preemption to invalidate state or local administrative orders./428/ Preemption
challenges to other forms of state action are less common. The Supreme Court and lower
courts have on occasion sustained preemption suits against official state policies, especially if
they are codified in writing./429/ Policies may also be challenged by seeking to invalidate a law
or regulation to the extent that it is interpreted to permit or authorize the challenged state
action or policy./430/
However, advocates should shy away from asserting preemption challenges based on unwritten
policies, practices, customs, usage, inaction or isolated violations, unless there is clear written
evidence of a policy./431/ The Fifth Circuit rejected a Supremacy Clause claim alleging that the
failure to set adequate reimbursement rates violated the reasonable promptness provision of
the Medicaid statute./432/ The court stated that the plaintiff "has no viable claim under the
Supremacy Clause because it failed to identify any state law or regulation with which the
Reasonable Promptness Provision conflicts and therefore preempts."/433/
One alternative way of challenging an unwritten policy is to challenge an agency determination
or order that reflects that policy. For example, if a state Medicaid agency or public housing
authority denies an individual’s benefits based on an unwritten policy, the order could be
invalidated as in conflict with and preempted by federal law. Of course, in those situations the
individual may also be able to administratively appeal the determination directly on the same
grounds.
In the telecommunications context, businesses have successfully utilized preemption to
challenge state agency determinations. The Tenth Circuit held that there was federal question
jurisdiction to decide whether a state agency determination was preempted by federal
telecommunications law./434/ Similarly, the Eighth Circuit held that "district courts have
jurisdiction to determine whether a state administrative agency correctly interprets federal law,
in this case the Telecommunications Act and the FCC regulations interpreting the Act."/435/
These decisions are fully applicable to cases brought under safety net and civil rights statutes.
5.2.C.3.c. Defendants Subject to Preemption
Like § 1983, preemption generally applies only to governmental officials or entities, although it
might be used in isolated situations in actions between private parties. In the defensive context,
preemption issues routinely arise in disputes between private parties when the defendant
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alleges that federal law preempts the plaintiff’s state law cause of action. Private cases could
arise in which the defendant justifies its conduct based on a state law or regulation that the
plaintiff asserts conflicts with federal law./436/
5.2.C.3.d. Relief Available
A drawback of preemption is that it only provides injunctive and declaratory relief and not
damages or attorney’s fees. Section 1983, of course, explicitly provides for damages,/437/ but
there is no source of authority to award damages under the Supremacy Clause./438/ Bivens is
the only context in which the Supreme Court has implied a damages remedy under the
Constitution, and, in recent years, the Court has been extremely reluctant to extend the
remedy./439/ Moreover, the general “American rule” is that parties bear their own litigation
costs./440/ For § 1983 actions, 42 U.S.C. § 1988 specifically permits attorney’s fees. There is no
analogous authority to award fees in preemption claims under the Supremacy Clause./441/
These limitations, however, may make preemption claims less vulnerable to attack. Although
the Supreme Court has restricted the use of implied rights of action, § 1983, and Bivens claims,
those claims are often controversial precisely because they permit damages and attorney’s
fees./442/ In a recent decision declining to extend Bivens, for example, the Court made clear
that “unlike the Bivens remedy, which we have never considered a proper vehicle for altering
an entity’s policy, injunctive relief has long been recognized as the proper means for preventing
entities from acting unconstitutionally.”/443/ Thus, the preemption claim’s weakness—lack of
damages—may also be its strength.
With respect to injunctive relief, the typical relief in a preemption case is an order invalidating
the state law or regulation and enjoining its enforcement./444/ If plaintiffs do not wish to
completely eliminate the state law, it can be invalidated “insofar as it violates the federal
statute.”/445/ Accordingly, advocates should attempt to phrase relief in typical, negative,
preemption terms and use caution when seeking affirmative injunctions. Nevertheless, the
power to invalidate a law, regulation, or administrative order may in the end give the plaintiffs
the affirmative relief they seek. For example, when the Supreme Court invalidates a state utility
commission rate order, the utility is not left without rates. Rather, the case is remanded and
the state agency will reform its order consistent with federal law./446/ Advocates should be
careful to phrase their pleadings in classic preemption terms so that courts will be comfortable
using this line of cases in public interest cases.
5.2.C.4. The Relationship Between 42 U.S.C. Section 1983 and Preemption Claims
Defendants attempting to avoid preemption claims often cite the Supreme Court’s holdings in
Golden State Transit Corporation v. City of Los Angeles (Golden State II) and Chapman v.
Houston Welfare Rights Organization that “the Supremacy Clause, of its own force, does not
create rights enforceable under Section 1983” and “is not a source of any federal rights.”/447/
Defendants also invoke the statement from Golden State II, that “a Supremacy Clause claim
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based on a statutory violation is enforceable under Section 1983 only when the statute creates
‘rights, privileges, or immunities’ in the particular plaintiff.”/448/
However, these statements merely indicate that the Supremacy Clause cannot be the source of
the constitutional “right” protected under § 1983 or its related jurisdictional statute./449/ In
Chapman, the plaintiffs were attempting to fit a preemption claim within the civil rights
jurisdictional statute in order to avoid the prior amount-in-controversy requirement for federal
question jurisdiction./450/ In Golden State II, the plaintiffs argued that their preemption claim
was also a § 1983 claim that entitled them to attorney’s fees. The holdings in those cases say
nothing about the scope of the Supremacy Clause itself or of an independent preemption claim.
The preemption claim is entirely distinct from § 1983, not a different way of using that statute.
Therefore, cases interpreting § 1983 or examining its requirements are not applicable to
preemption claims./451/
A federal statute may be enforced through preemption even if the statute does not create
individual “rights” within the meaning of § 1983./452/ The text of § 1983 protects only “rights,
privileges or immunities,” and courts, therefore, must consider whether Congress intended a
statute to create a “right” for that remedy. Preemption claims, however, arise from the
Supremacy Clause, which has a different purpose and contains no similar language: “In this type
of action, it is the interests protected by the Supremacy Clause, not by the preempting statute,
that are at issue.”/453/ Preemption under the Supremacy Clause “concerns the federal
structure of the Nation rather than the securing of rights, privileges, and immunities to
individuals.”/454/
The Supreme Court has made it clear that preemption claims may be brought even when the
plaintiff does not have a claim under § 1983. In Golden State II, the majority observed: “Given
the variety of situations in which preemption claims may be asserted, in state and federal court,
it would obviously be incorrect to assume that a federal right of action pursuant to § 1983
exists every time a federal rule of law pre-empts state regulatory authority.”/455/
The dissenters made the point even more clearly. Although they disagreed with the majority
about the plaintiff’s §1983 claim, Justice Kennedy wrote:
By concluding that [plaintiff] Golden State may not obtain relief under Section 1983, we would
not leave the company without a remedy. Despite what one might think from the increase of
litigation under the statute in recent years, Section 1983 does not provide the exclusive relief
that the federal courts have to offer…. [P]laintiffs may vindicate … pre-emption claims by
seeking declaratory and equitable relief in the federal district courts through their powers under
federal jurisdictional statutes. These statutes do not limit jurisdiction to those who can show the
deprivation of a right, privilege, or immunity secured by federal law within the meaning of §
1983./456/
The Supreme Court has also entertained numerous preemption claims on the merits under
statutes that do not confer “rights” on plaintiffs enforceable through § 1983. For example, in
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Pharmaceutical Research & Manufacturers Association v. Walsh (PhRMA), seven justices
considered the plaintiffs’ preemption claim on the merits—and three of the conservative
justices would have ruled in their favor—even though the Medicaid Act almost certainly does
not give drug companies a right enforceable under § 1983 to sell their drugs to Medicaid
recipients./457/ Indeed, the First Circuit’s opinion in PhRMA, which the Supreme Court
affirmed, explicitly held that the plaintiff was not attempting “to enforce rights under the
Medicaid Statute … but rather a preemption-based challenge under the Supremacy Clause….
[R]egardless of whether the Medicaid statute’s relevant provisions were designed to benefit
PhRMA, PhRMA can invoke the statute’s preemptive force.”/458/
Lower courts have expressly concluded that plaintiffs may pursue preemption claims absent a
statutory right of action under § 1983 or a claim directly under the federal statute at
issue./459/ As the Third Circuit stated:
We know of no governing authority to the effect that the federal statutory provision which
allegedly preempts enforcement of local legislation by conflict must confer a right on the party
that argues in favor of preemption. On the contrary, a state or territorial law can be
unenforceable as preempted by federal law even when the federal law secures no individual
substantive rights for the party arguing preemption./460/
The Fifth and Seventh Circuits have expressly held that the requirements for "rights-creating
language" in Gonzaga are inapplicable to a preemption claim./461/ Several circuits have
similarly held, subsequent to Gonzaga, that statutory provisions which do not meet the
requirements for a § 1983 cause of action may be enforced via preemption./462/
Policy reasons also underlie courts’ willingness to recognize preemption claims while rejecting
claims under § 1983 or under the statute directly. Because damages and attorneys’ fees are not
available, courts have less concern about imposing preemption claims on state actors. These
policy concerns are related to those that led the Supreme Court to adopt the Ex Parte Young
exception to sovereign immunity, /463/ allowing injunctive relief against state officers even
when damages directly against the state are not available: “the availability of prospective relief
of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to
end a continuing violation of federal law are necessary to vindicate the federal interest in
assuring the supremacy of that law.”/464/
5.2.C.5. Congressional Intent and the Presumption Against Preemption
Although the inquiry is different, Congressional intent is relevant to preemption claims, as it is
to § 1983 claims. Specifically, for a preemption claim, the question is what does the federal
statute mean and does state law interfere with it, not whether Congress intended to create an
enforceable right. Preemption claims thus have advantages over § 1983 in an analysis of
congressional intent, because they may be used to challenge state laws that conflict with the
broader purposes of a federal statute and not simply its specific provisions. Nevertheless, the
Page 279 of 559
presumption against preemption cautions advocates against bringing preemption claims based
on vague statutory provisions.
In the § 1983 context, plaintiffs may not claim rights in the statute “as an undifferentiated
whole,” but instead must focus on “the provision in question.”/465/ Claims based on Congress’
overall purpose, as expressed in the statute’s introductory provisions, generally fail./466/ In the
preemption context, however, the Court examines the broader question of whether a state law
presents an obstacle to federal objectives. The Court explained:
What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal
statute as a whole and identifying its purpose and intended effects: “For when the question is
whether a Federal act overrides a state law, the entire scheme of the statute must of course be
considered and that which needs must be implied is of no less force than that which is
expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within
its chosen field else must be frustrated and its provisions be refused their natural effect—the
state law must yield to the regulation of Congress within the sphere of its delegated
power.”/467/
That is, congressional intent is determined from the entire “undifferentiated” statute, and
preemption may be inferred from overall purposes and not simply from specific statutory
language./468/ Thus, preemption claims allow plaintiffs to go beyond narrow statutory
provisions and to show that a state law frustrates “the full purposes and objectives of
Congress.”/469/
Litigants should be careful not to base preemption claims solely on vague statutory language or
policies because the Supreme Court has at times applied a presumption against
preemption./470/ When the federal law does not pose a clear conflict with state law, courts
“have a duty to accept the reading that disfavors pre-emption.”/471/ The Supreme Court
stated, “[B]ecause the States are independent sovereigns in our federal system, we have long
presumed that Congress does not cavalierly pre-empt state-law causes of action.”/472/
Allegedly preemptive provisions must be "fairly but narrowly construed."/473/
However, the Supreme Court has not consistently applied this presumption against
preemption. In some recent cases, the presumption against preemption has been ignored by
the majority of the Court and cited only by dissenters./474/ For example, preemption has been
embraced by a majority of the Roberts Court in some cases to insulate businesses from suits
under state tort actions and consumer protection statutes./475/ The Court's reliance on
preemption in the business context has accordingly rendered court access under the
Supremacy Clause less vulnerable to challenge for public interest litigants as well.
5.2.C.6. Practice Tips
Page 280 of 559
The key to a successful preemption claim is to phrase it in classic preemption terms with which
courts are familiar. Advocates should strenuously avoid using language reminiscent of § 1983 or
implied right of action claims. The claim should be described as “preemption” rather than
“Supremacy Clause”—even though they are the same thing. Courts hear preemption claims
every day, without thinking twice about the source of the cause of action. An “implied cause of
action under the Supremacy Clause,” by contrast, sounds like a Bivens claim or a statutory
implied cause of action—doctrines that have met with significantly less favor in the Supreme
Court in recent years.
For example, this model claim follows the Supreme Court’s classic definition of conflict
preemption:
First Cause of Action
Preemption by Federal Law 45 U.S.C. § 678
1. State Law 123 conflicts with Federal Law 45 U.S.C. § 678 and stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress in that it
allows/prohibits _________ whereas federal law prohibits/allows ______. Therefore, State Law
123 is preempted by Federal Law 42 U.S.C. § 456 and is invalid pursuant to the Supremacy
Clause of the United States Constitution.
Discussions of the claim should use preemption terminology. Talk about how the state law
“frustrates,” “conflicts with,” “poses an obstacle to,” or “is preempted by” the federal law or “is
invalid.” Avoid using terms more common to Section 1983, such as an argument that the state
has “violated” federal law or that the plaintiffs’ “rights” have been violated. Relief should be
phrased in negative terms, seeking to invalidate the preempted state law, rather than in
affirmative terms, asking the state to do something. Focus on the particular state law,
regulation, written policy, or administrative order that is being preempted, rather than on the
state’s general actions or inactions.
Ultimately, the core principle of a preemption claim pursuant to the Supremacy Clause is to
focus on finding a state or local law, regulation, official written policy, or agency order, and
argue that is invalid because it conflicts with a federal statute or frustrates Congress’ objectives.
The court can then invalidate that law to the extent that it conflicts with federal law and enjoin
the state or local government from implementing it.
294. Anthony J. Belia, Jr., Article III and the Cause of Action, 89 IOWA L. REV. 777, 784, 793, 797
(2004). Part of the impetus for abolishing the forms of proceeding was that they were
perceived as inadequate to provide remedies to injured parties.
Page 281 of 559
295. Rochelle Bobroff, Section 1983 and Preemption: Alternative Means of Court Access for
Safety Net Statutes, 10 LOY. J. PUB. INT. L. 27, 32 (2009).
296. John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 GEO. L. J.
2513, 2520-21 (1998).
297. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426 (1964).
298. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
299. Bobroff, Section 1983 and Preemption, supra note 295.
300. Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635 (2002).
301. The term “Bivens action” refers to the case in which the Supreme Court first held that the
federal courts could create such a cause of action. Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
302. These statutes are discussed in Chapters 2.5.C. and 2.5.D. of this MANUAL.
303. Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001).
304. Procedurally, reasoning by analogy from § 1983 actions, all courts considering the issue
have held that state personal injury statutes of limitation should govern Bivens. Kelly v. Serna,
87 F.3d 1235, 1238 (11th Cir. 1996); Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004);
Papa v. United States, 281 F.3d 1004, 1009 n.11 (9th Cir. 2002); King v. One Unknown Fed. Corr.
Officer, 201 F.3d 910, 913 (7th Cir. 2000); Polanco v. U.S. Drug Enforcement Admin., 158 F.3d
647, 653 (2d Cir. 1998); Sanchez v. United States, 49 F.3d 1329, 1330 (8th Cir. 1995); Napier v.
Thirty or More Unidentified Fed. Agents, Employees, or Officers, 855 F.2d 1080, 1088 n.3 (3d Cir.
1988). Additionally, there is currently no express or implied statutory authorization for an
award of attorney's fees to prevailing plaintiffs in Bivens actions and the Supreme Court has
expressly declined to rule on the question. Bush v. Lucas, 462 U.S. 367, 372 n.9 (1983).
305. 28 U.S.C. § 1442(a)(1); McCarthy v. Madigan, 503 U.S. 140, 150 (1992).
306. The determination that a plaintiff has a Bivens cause of action does not necessarily mean
that the plaintiff may recover damages in the case. The additional, and distinct, question of
whether the defendants are entitled to absolute or qualified immunity must also be
adjudicated. Government officials performing discretionary functions are generally granted a
qualified immunity and are “shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
Page 282 of 559
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The immunity
analysis is the same under either a Bivens or a § 1983 cause of action. See, e.g., Wilson v. Layne,
526 U.S. 603, 609 (1999); Graham v. Connor, 490 U.S. 386, 394 n.9 (1989); Malley v. Briggs, 475
U.S. 335, 340 n.2 (1986). For a discussion of the circumstances in which government officials
sued in their individual capacities are entitled to either absolute or qualified immunity, see
Chapters 8.2.A. and 8.2.B. of this MANUAL.
307. The Federal Tort Claims Act was amended in 1974 to provide a remedy for intentional torts
committed by federal law enforcement officials. See 28 U.S.C. § 2680(h).
308. Bivens, 403 U.S. at 391-92, 394-95.
309. Davis v. Passman, 442 U.S. 228 (1979).
310. Id. at 230-31 n.3.
311. Id. at 245, 247.
312. Id. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring)).
313. Carlson v. Green, 446 U.S. 14 (1980). In Hui v. Castaneda, 130 S. Ct. 1845 (2010), the
Supreme Court distinguished Carlson and held that 42 U.S.C. § 233(a), a provision in the Public
Health Service Act, precludes Bivens claims against individual Public Health Service employees
and instead requires that the United States be substituted and a case brought under the
Federal Tort Claims Act.
314. Id. at 19-20. The Supreme Court relied on language in the Senate Report on the 1974
Federal Tort Claims Act Amendments, showing that “Congress views [the Act] and Bivens as
parallel, complementary causes of action.” The Court also noted that in several respects the
Bivens remedy was more effective. Unlike a Federal Tort Claims Act suit, a Bivens suit allows
recovery against individual officers (thus more effectively deterring unconstitutional conduct),
allows punitive damages, can be tried before a jury, and is not dependent on “the vagaries” of
state tort statutes and doctrines. Id. at 19-23. The 1988 Amendment to the Federal Tort Claim
Act’s exclusivity-of-remedy provision, 28 U.S.C. § 2679(b)(1)-(2), made clear that Congress had
maintained its position that the Act is not the exclusive remedy for a constitutional tort, and
thus that Congress declined to overturn Bivens, Davis, and Carlson.
315. Bush v. Lucas, 462 U.S. 367 (1983).
316. Id. at 388.
Page 283 of 559
317. The Court deferred to Congress’ greater familiarity with the appropriate remedial scheme
as reflected in the long history of legislative management of the civil service system. The
Supreme Court took a hands-off approach, even though Congress had not stated that it
considered the statutory civil service remedies to be exclusive, and even though the Court
assumed that a Bivens action would provide greater relief. See Bush, 462 U.S. at 378.
318. Id.
319. Chappell v. Wallace, 462 U.S. 296 (1983).
320. Id. at 302, 304.
321. United States v. Stanley, 483 U.S. 669, 684 (1987) (quoting Feres v. United States, 340 U.S.
135, 146 (1950)).
322. Schweiker v. Chilicky, 487 U.S. 412, 423-29 (1988).
323. Id. at 415-16 (“Finding that benefits were too often being improperly terminated by state
agencies, only to be reinstated by a federal administrative law judge (ALJ), Congress enacted
temporary emergency legislation in 1983.”).
324. Id. at 423.
325. Simpson v. McCarthy, 741 F. Supp. 95, 97 (W.D. Pa. 1990) (referring to Carlson, 446 U.S. at
18).
326. Malesko, 534 U.S. at 75 (Scalia, J., concurring).
327. J.I. Case Co. v. Borak, 377 U.S. 426 (1964).
328. Malesko, 534 U.S. at 67 n.3 (quoting Alexander v. Sandoval, 532 U.S. 275, 287 (2001)).
329. Id. at 68, 70.
330. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994).
331. Id. at 484-85.
332. Id. at 474.
Page 284 of 559
333. However, federal courts are divided on whether a Bivens remedy exists for Eighth
Amendment violations by private employees of such correctional agencies who act under color
of federal law. See Bender v. General Services Admin., 539 F. Supp. 2d 702 (S.D.N.Y. 2008)
(discussing split). In Peoples v. CCA Det. Ctr., 422 F.3d 1090, 1103 (10th Cir. 2005), the Tenth
Circuit, relying on Malesko, held that no Bivens remedy exists to remedy Eighth Amendment
violations by employees of a private detention facility housing federal prisoners if there exists a
state law cause of action even if that cause of action does not afford the plaintiff full relief. This
ruling, however, was affirmed by an equally divided court and was therefore vacated and lacks
precedential value. 449 F.3d 1097 (10th Cir.), cert. denied, 549 U.S. 1097 (2006). See also Holly
v. Scott, 434 F.3d 287 (4th Cir. 2006). But see Sarro v. Cornell Corr. Inc., 248 F. Supp. 2d 52, 6263 (D.R.I. 2003) (holding that the existence of state law remedies does not preclude a Bivens
action against private employees of a detention facility by prisoners claiming Eighth
Amendment violations).
334. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1947 (2009) (quoting Malesko, 534 U.S. at 68).
335. See Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (no Bivens remedy for federal employee
asserting Fifth Amendment violation in light of the comprehensiveness of the Civil Service
Reform Act); Thompson v. Pope, 397 F. Supp. 2d 28 (D.D.C. 2005) (no Bivens remedy for foreign
service officer asserting violations of the Fourth and Fifth Amendments in light of the
comprehensiveness of the Foreign Service Act);
336. See, e.g., Christopher v. Harbury, 536 U.S. 403 (2002) (Bivens claim under the Fifth
Amendment for alleged denial of access to the courts rejected).
337. Wilkie v. Robbins, 551 U.S. 537, 541, 548 (2007).
338. Id. at 551-54.
339. Id. at 550 (quoting Bush, 462 U.S. at 378).
340. Id. at 562.
341. See Wilkie, 551 U.S. 537 (declining to extend Bivens remedy to a series of complex
complaints against actions of federal actors, including pressure to dispose of property
interests). See also Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (no Bivens claim in
extraordinary rendition case), cert. denied, 2010 U.S. LEXIS 4750 (U.S. Jun. 14, 2010); Hudson
Valley Black Press v. Internal Revenue Serv., 409 F.3d 106 (2nd Cir. 2005) (refusing a Bivens
remedy for a Fourth Amendment violation by Internal Revenue Service employees in light of
comprehensiveness of Internal Revenue Service taxpayer remedies, even though no remedy
existed for plaintiff).
Page 285 of 559
342. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999) (both Bivens and § 1983 allow a
plaintiff to seek damages from government officials who violate plaintiff’s Fourth Amendment
rights); McCarthy v. Madigan, 503 U.S. 140, 152-56 (1992) (upholding plaintiff’s Bivens claim
even though he had failed to exhaust alternative administrative remedies that did not allow for
damages).
343. The Court first assumed a Bivens claim under the First Amendment in Bush. 462 U.S. at
372-73.
344. Hartman v. Moore, 547 U.S. 250 (2006).
345. Iqbal, 129 S. Ct. at 1948.
346. See, e.g., Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986), cert. denied, 479 U.S. 1054
(1987) (allegation that Federal Bureau of Investigation agents impermissibly curbed plaintiff’s
protected speech claim, properly cognizable as a Bivens-type action under the First
Amendment); Spagnola v. Mathis, 809 F.2d 16 (D.C. Cir. 1986) (reversing dismissal of Bivens
claim by federal employee who allegedly suffered harassment by supervisors for exercising his
First Amendment rights; and distinguishing Bush on grounds that remedial scheme is less
comprehensive than that of the Civil Service Reform Act, and remedies are less meaningful).
347. Alexander v. Sandoval, 532 U.S. 275 (2001) (Clearinghouse No. 51,706).
348. Sullivan v. Little Hunting Park, 396 U.S. 229, 238 (1969); Allen v. State Board of Elections,
393 U.S. 544, 556-57 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414-415, and 414
n.13 (1969).
349. Cort v. Ash, 422 U.S. 66 (1975).
350. Id. at 78.
351. Cannon v. Univ. of Chicago, 441 U.S. 677, 709 (1979).
352. Id. at 696-68.
353. Id. at 703.
354. Id. at 717.
355. Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S. 11, 24 (1979); Touche Ross & Co. v.
Redington, 442 U.S. 560, 575-76 (1979).
Page 286 of 559
356. Transamerica, 444 U.S. at 24.
357. Id. at 15-16. The dissent argued on behalf of four Justices that "courts may provide private
litigants exercising implied rights of action whatever relief is consistent with the congressional
purpose." Id. at 30 (White, J. dissenting). But the majority clearly rejected the dissent's
approach of focusing on overall congressional purpose.
358. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353 (1982).
359. Id. at 377.
360. Id. at 384-85. See also Herman & MacLean v. Huddleston, 459 U.S. 375, 386-87 (1983)
(express remedy not preclude enforcement of another statute which had previously been held
enforceable under an implied private right of action).
361. Id. at 375-76.
362. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983).
363. Id. at 607, n.27.
364. 29 U.S.C. § 794a(a)(2). See Lane v. Peña, 518 U.S. 187, 191-92 (1996).
365. See Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102 (1991); Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 812, n. 9 (1986) (collecting cases).
366. Montgomery Improvement Assoc. v. U.S. Dep’t of Hous. & Urban Dev., 645 F.2d 291, 295
(5th Cir. 1981).
367. Latinos Unidos de Chelsea En Accion (Lucha) v. Sec'y of Hous. and Urban Dev., 799 F.2d
774, 795 (1st Cir. 1986).
368. Lisa E. Key, Private Enforcement of Federal Funding Conditions under 1983: the Supreme
Court’s Failure to Adhere to the Doctrine of Separation of Powers, 29 U.C. DAVIS L. REV. 283, 286
(1996). See also Donald H. Zeigler, Rights, Rights of Action, and Remedies: An Integrated
Approach, 76 WASH. L. REV. 67, 91 (2001).
369. Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418 (1987).
370. Id. at 433 (O'Connor, J. dissenting). Prior to Justice O'Connor's Wright dissent, Justices
Powell and Rehnquist had objected to enforcement of civil rights and safety net statutes under
Page 287 of 559
§ 1983 on policy grounds, arguing that these cases were an undue burden on the state. Bobroff,
Section 1983 & Preemption, supra note 295, at 39-42.
371. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 n.9 (1990).
372. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (finding no right to suit under § 1983 where
plaintiff alleged a violation of the Federal Educational Right to Privacy Act, the federal statute
protecting the privacy of educational records).
373. Id. at 284-85.
374. Alexander v. Sandoval, 532 U.S. 275 (2001)(Clearinghouse No. 51,706).
375. Id. at 280.
376. Id. at 291.
377. Id. at 290-91.
378. Id. at 288.
379. Id. at 286.
380. Id. at 287-88.
381. Id. at 289.
382. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2004).
383. Id. at 178. Cf. Rolland v. Romney, 318 F.3d 42, 52-53 (1st Cir. 2003) (relying on same
Sandoval language and finding private right of action under § 1983 to enforce regulations
interpreting the Nursing Home Reform Amendments, 42 U.S.C. § 1396r, based on “rightscreating language” contained in statute).
384. Price v. City of Stockton, 390 F.3d 1105, 1112 n.6 (9th Cir. 2004); see Johnson v. City of
Detroit, 446 F.3d 614, 629 (6th Cir. 2006); Save Our Valley v. Sound Transit, 335 F.3d 932, 943
(9th Cir. 2003). See also S. Camden Citizens in Action v. N.J. Dep't. of Envtl. Prot., 274 F.3d 771,
784 (3d Cir. 2001) (finding disparate impact regulation unenforceable under § 1983 based on
Sandoval; decided before Gonzaga). Two circuits had held that regulations alone could not be
enforced under § 1983 prior to Sandoval. Harris v. James, 127 F.3d 993, 1008 (11th Cir. 1997);
Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987).
Page 288 of 559
385. Price, 390 F.3d at 1112 n.6.
386. Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir. 2009).
387. Ability Ctr. of Greater Toledo v. Sandusky, 385 F.3d 901, 906 (6th Cir. 2004) (“if the
regulation simply effectuates the express mandates of the controlling statute, then the
regulation may be enforced via the private cause of action available under that statute”);
Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003) (distinguishing Sandoval on this
basis and permitting enforcement of Americans with Disabilities Act regulations and guidelines
through a private action).
388. See, e.g., Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). In two recent cases, Justice
Stevens authored decisions for a 5-to-4 majority that included Justice Kennedy, limiting federal
preemption of state consumer protection laws and reestablishing the presumption against
preemption. Wyeth v. Levine, 129 S. Ct. 1187 (2009); Altria Group, Inc. v. Good, 555 U.S. 70
(2008).
389. See Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006)
(noting that plaintiff’s “right to bring an action seeking declaratory and injunctive relief from
municipal regulation on the ground that federal law preempts that regulation is undisputed,”
but holding that there is no statutory right of action under § 1983 and therefore no fee award);
Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1275 (10th Cir. 2004) (the plaintiff lost under the
§ 1983 claim, but partly prevailed under preemption, and claims for attorneys fees under 42
U.S.C. § 1988 were summarily dismissed); Segundo v. City of Rancho Mirage, 813 F.2d 1387,
1394 (9th Cir. 1987) (“preemption of state law under the Supremacy Clause-being grounded not
on individual rights but instead on considerations of power-will not support an action under §
1983, and will not, therefore, support a claim for attorneys' fees under § 1988”).
390. See generally, Bobroff, supra note 295.
391. “This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. “
U.S. Const. art. VI.
392. Gibbons v. Ogden, 22 U.S. 1, 31 (1824).
393. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941).
394. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001); Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 372 (2000).
Page 289 of 559
395. Crosby, 530 U.S. at 373 (quoting Hines, 312 U.S. at 67).
396. See, e.g., Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 103 (1992); Nw. Cent.
Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 515 n.12 (1989).
397. See David Sloss, Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev. 355, 366
(2004) (Supreme Court repeatedly "reached the merits of plaintiffs’ claims without considering
whether the allegedly preemptive federal statute accorded plaintiffs a private right of action,”
either directly under the statute or through Section 1983).
398. Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983) (citations omitted). See also Verizon
Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635 (2002).
399. Verizon, 535 U.S. at 642.
400. Id. at 642-43.
401. Id. at 643-4.
402. Pharm. Research & Mfrs. of America v. Walsh, 538 U.S. 644 (2003) (Clearinghouse No.
53,789) [hereinafter PhRMA].
403. Id. at 683 (Thomas, J., concurring). For a detailed discussion of Justice Thomas's
concurrence, see Bobroff, Section 1983 & Preemption, supra note 295, at 76-78.
404. Id. at 675 (Scalia, J., concurring). For a detailed discussion of Justice Scalia's concurrence,
see Bobroff, Section 1983 & Preemption, supra note 295, at 78-79.
405. Sloss, supra note 397, at 374.
406. Arkansas Dept. of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006).
407. The Court’s holding that Arkansas law is unenforceable because it conflicts with the
federal Medicaid Act is a preemption holding, although the Court did not use that term. The
Court affirmed the Eighth Circuit, which did frame its discussion in terms of preemption—again,
without discussing or questioning the cause of action. See Ahlborn v. Ark. Dept. of Human
Servs., 397 F.3d 620 (8th Cir. 2005), aff’d, 547 U.S. 268.
408. Richard H. Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal
System, 903 (5th ed. 2003); 13D Charles Alan Wright, et al., Federal Practice & Procedure §
3566 (3d ed. 2009) (concluding that “the Supremacy Clause creates an implied right of action
Page 290 of 559
for injunctive relief against state officers who are threatening to violate the federal Constitution
or laws”).
409. Sloss, supra note 397, at 363 n.36; Michael G. Collins, “Economic Rights,” Implied
Constitutional Actions, and the Scope of Section 1983, 77 Geo. L. J. 1493, 1510 (1989).
410. See Bobroff, Section 1983 & Preemption, supra note 295, at 69-70.
411. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004). Accord Puerto Rico
Tel. Co. v. Municipality of Guayanilla, 450 F.3d 9, 14-15 (1st Cir. 2006); Local Union No. 12004,
United Steelworkers of Am. v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004); Bud Antle, Inc. v.
Barbosa, 45 F.3d 1261, 1269 (9th Cir. 1994).
412. Burgio & Campofelice, Inc. v. New York State Dept. of Labor, 107 F.3d 1000, 1006-07 (2d
Cir. 1997); Wright Elec., Inc. v. Minnesota State Bd. of Elec., 322 F.3d 1025, 1028 (8th Cir. 2003).
413. See, e.g., Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 56-57 (1st Cir. 2005); Planned
Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-35 (5th Cir. 2005);
Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 & n.8
(1st Cir. 2004). See also, pre-Verizon cases, Joseph A. v. Ingram, 275 F.3d 1253, 1265 (10th Cir.
2002) (Clearinghouse No. 54,011); Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d
66, 73 (1st Cir. 2001), aff’d sub nom Pharm. Research & Mfrs. of America v. Walsh, 538 U.S. 644
(2003) (Clearinghouse No. 53,789); Burgio & Compofelice, Inc. v. N.Y. State Dep’t of Labor, 107
F.3d 1000, 1006 (2d Cir. 1997); Guar. Nat’l Ins. Co. v. Gates, 916 F.2d 508, 512 (9th Cir. 1990).
414. See, e.g., Independent Living Center of S. Cal. v. Shewry, 543 F.3d 1050, 1055-56 (9th Cir.
2008), cert denied, 129 S. Ct. 2828 (2009) (stating that the Supreme Court “has consistently
assumed—without comment—that the Supremacy Clause provides a cause of action to enjoin
implementation of allegedly unlawful state legislation”); Lankford v. Sherman, 451 F.3d 496 (8th
Cir. 2006) (reaching merits of preemption claim without addressing cause of action); Qwest
Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004) (since preemption claim not frivolous,
court had federal question jurisdiction); Verizon Maryland, Inc. v. Global NAPS, Inc., 377 F.3d
355, 369 (4th Cir. 2004) ("Because ... there is federal question jurisdiction over this claim under
28 U.S.C. § 1331, we need not inquire into whether [the federal statute] provides a cause of
action"); BellSouth Telecommunications, Inc. v. MCImetro Access Transmission Services, Inc.,
317 F.3d 1270, 1278 (11th Cir. 2003) (en banc) (“[f]ederal courts must resolve the question of
whether a public service commission’s order violates federal law and any other federal
question").
415. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 279-80 (2002).
416. King v. Smith, 392 U.S. 309, 333 n.34; accord Ivanhoe Irrigation Dist. v. McCracken, 357
U.S. 275, 295 (1958).
Page 291 of 559
417. Winkelman v. Parma City School District, 550 U.S. 516, 519 (2007).
418. Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324, 331-32 (5th
Cir. 2005); Westside Mothers v. Haveman, 289 F.3d 852, 858-60 (6th Cir. 2002), cert. denied 537
U.S. 1045 (2002) (Clearinghouse No. 52,678); Mo. Child Care Ass'n v. Cross, 294 F.3d 1034,
1040-41 (8th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 188-89 (4th Cir. 2002) (Clearinghouse
No. 53,431). See also Rochelle Bobroff, Ex Parte Young as a Tool to Enforce Safety Net and Civil
Rights Statutes, 40 Univ. of Toledo L. Rev. 819, 838 (2009).
419. Planned Parenthood, 403 F.3d at 332 n.34; Pharm. Research & Mfrs. of Amer. v. Thompson,
362 F.3d 817, 819 n.3 (D.C. Cir. 2004).
420. Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345,
392-93 (2008). See also, Bobroff, Section 1983 & Preemption, supra note 295, at 77.
421. Louisiana Public Service Comm’n v. FCC, 476 U.S. 355, 369 (1986).
422. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153-54 (1982); accord Capital
Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699-700 (1984).
423. See, e.g., Entergy La., Inc. v. La. Public Serv. Comm’n, 539 U.S. 39, 47-50 (2003); Verizon,
535 U.S. at 648; Elizabeth Blackwell Health for Women v. Knoll, 61 F.3d 170, 181-82 (3d Cir.
1995) (federal Medicaid Bureau Director’s letter interpreting Medicaid Act).
424. See, e.g., Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2d Cir. 2005). Indeed, the Title VI
regulation in Alexander v. Sandoval, 532 U.S. 275 (2001) (Clearinghouse No. 51,706), that could
not be enforced through an implied right of action should have been enforceable through
preemption.
425. Fidelity Fed., 458 U.S. at 154; accord City of New York v. FCC, 486 U.S. 57, 63-64 (1988).
426. New York v. Fed. Energy Regulatory Comm’n, 535 U.S. 1, 15-16, 18 (2002) (citing Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984)); City of New York, 486
U.S. at 63; Pharm. Research & Mfrs. of Amer. v. Thompson, 362 F.3d 817, 822 (D.C. Cir. 2004)
(Medicaid Act). Although, as discussed below, there is a presumption against preemption, the
presumption only applies to determining whether the state law conflicts with the federal
regulation, not to determining whether the federal agency had authority to preempt. See New
York v. Fed. Energy Regulatory Comm'n, 535 U.S. at 17-18.
427. See Sandoval, 532 U.S. 275; Gonzaga, 536 U.S. at 283, 284 n.3.
Page 292 of 559
428. See, e.g., Entergy La., 539 U.S. 39; Verizon, 535 U.S. 635; Nash v. Fla. Indus. Comm’n, 389
U.S. 235 (1967).
429. Livadas v. Bradshaw, 512 U.S. 107 (1994) (state policy not to enforce state labor law); see
also id. at 119 (characterizing Nash v. Fla. Indus. Comm'n, 389 U.S. 235, as “holding pre-empted
[a state] administrative policy interpreting presumably valid state unemployment insurance
law”); League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 827-28 (N.D. Ohio) (state
directive); Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 601 n.14 (E.D. Va. 2004) (noting
that a state attorney general policy memorandum “is subject to the same analysis as a statute”)
(citing Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir 1983), overruled on other grounds by
Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999)).
430. See, e.g., Nash, 389 U.S. 235.
431. In Livadas, 512 U.S. 107, the plaintiff challenged the state’s inaction: its refusal to act on
the employee’s unfair labor practice complaint. However, the state’s policy of refusing to
enforce state labor law when the employee was covered by a union arbitration agreement was
undisputed and was reflected in writing in a letter that the state sent to the plaintiff. Moreover,
the plaintiff sought typical preemption relief: an order invalidating the policy.
432. Equal Access for El Paso v. Hawkins, 562 F.3d 724 (5th Cir. 2009).
433. Id. at 730.
434. Qwest Corp. v. Pub. Utilities Comm'n of Colorado, 479 F.3d 1184, 1191 (10th Cir. 2007).
435. Rural Iowa Indep. Tel. Ass'n v. Iowa Utilities Bd., 362 F.3d 1027, 1030 (8th Cir. 2004).
436. See Golden State Transit Corp. v. City of Los Angeles (Golden State II), 493 U.S. 103, 113-14
(1989) (Kennedy, J., dissenting) (noting that a litigant has standing to contend that federal
supremacy “requires a particular outcome in a dispute, and this is so whether the dispute is
between individual parties … or the dispute involves a State or its subdivisions”) (citing cases);
compare Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (finding state action in § 1983 suit
between private parties).
437. See 42 U.S.C. § 1983 (providing liability “in an action at law”).
438. See Golden State Transit Corp. v. City of Los Angeles, 857 F.2d 631, 636 (9th Cir. 1988),
rev’d on other grounds, 493 U.S. 103 (1989). The Supreme Court’s decision on the § 1983 claim
in Golden State implicitly assumes that fees could only be obtained through § 1983, not through
the preemption claim that the Court had earlier upheld.
Page 293 of 559
439. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); see, e.g., Corr. Servs.
Corp. v. Malesko, 534 U.S. 61 (2001) (Clearinghouse No. 54,279).
440. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975).
441. See Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006)
(noting that plaintiff’s “right to bring an action seeking declaratory and injunctive relief from
municipal regulation on the ground that federal law preempts that regulation is undisputed,”
but holding that there is no statutory right of action under § 1983 and therefore no fee award);
Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987) (“preemption of state
law under the Supremacy Clause-being grounded not on individual rights but instead on
considerations of power-will not support an action under § 1983, and will not, therefore,
support a claim for attorneys' fees under § 1988”); Qwest Commc’ns Corp. v. City of
Greensboro, 440 F. Supp. 2d 480, 485 (M.D.N.C. 2006) (“the practical effect of a finding … that
Plaintiff has a private right of action under [a federal statute] that is in turn enforceable through
section 1983, is that Plaintiff may be able to recover attorneys fees, whereas a finding of
preemption alone will not allow for recovery of attorneys fees”).
442. See, e.g., Gonzaga Univ., 536 U.S. at 286 n.5; id. at 292 (Breyer, J., concurring); Maine v.
Thibotout, 448 U.S. 1, 24 (1980) (Powell, J., dissenting).
443. Malesko, 534 U.S. at 74; compare also id. at 75 (Scalia, J., concurring ) (decrying Bivens as a
“relic of the heady days in which this Court assumed common-law powers to create causes of
action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional
prohibition”) with Verizon, 535 U.S. at 642-43 (unanimous opinion by Justice Scalia upholding
jurisdiction over claim for injunctive relief under Supremacy Clause against state regulation preempted by federal law, despite argument that the federal statute does not create a cause of
action).
444. See, e.g., Verizon, 535 U.S. at 642; Crosby v. National Foreign Trade Council, 530 U.S. 363,
371 (2000); Shaw, 463 U.S. at 96, n.14.
445. See, e.g., Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 478 (1996) (remanding
case “for entry of an order enjoining the enforcement of Amendment 68 [of the Arkansas
Constitution] only to the extent that the amendment imposes obligations inconsistent with
federal law”); Engelman v. Amos, 404 U.S. 23 (1971).
446. Compare Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953 (1986) (invalidating state
commission rate-making order that misallocated costs and remanding case) with In re
Nantahala Power & Light Co., 87 P.U.R.4th 217, 1987 WL 257989 (N.C. Util. Comm’n Nov. 13,
1987) (recalculating utility rates in light of Supreme Court decision).
Page 294 of 559
447. Golden State II, 493 U.S. at 107; Chapman v. Houston Welfare Rights Org., 441 U.S. 600,
613 (1979). See also Equal Access for El Paso v. Hawkins, 562 F.3d at 730.
448. Golden State II, 493 U.S. at 107 n.4.
449. See Chapman, 441 U.S. at 613; Golden State II, 493 U.S. at 107 (characterizing Chapman).
450. See Chapman, 441 U.S. at 606, 612-13. In December 1980, Congress removed the $10,000
amount-in-controversy requirement for federal question jurisdiction under 28 U.S.C. §
1331. Pub. L. No. 96-486, 94 Stat. 2369 (1980).
451. See Bobroff, Section 1983 and Preemption at 69.
452. See Gonzaga, 536 U.S. at 283, 284 n.3 (holding that, to be enforceable under § 1983, a
statute must create “an unambiguously conferred right” as shown by “‘right- or duty- creating
language’”) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n.13 (1979)).
453. PhRMA, 249 F.3d at 73.
454. Golden State II, 493 U.S. at 117 (Kennedy, J., dissenting); see Western Air Lines, Inc. v. Port
Auth., 817 F.2d 222, 225 (2d Cir. 1987) (noting the “potential anomaly of rejecting a private
right of action to enforce a statute while allowing a claim under the Supremacy Clause,” but
observing the different function of a Supremacy Clause claim).
455. Golden State II, 493 U.S. at 107-08.
456. Golden State II, 493 U.S. at 119 (Kennedy, J., dissenting) (citations omitted) (emphasis
added).
457. PhRMA, 538 U.S. 644; see also Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272 (1987)
(considering on the merits employer’s claim that Pregnancy Discrimination Act preempted state
law requiring pregnancy leave).
458. PhRMA, 249 F.3d at 73. Similarly, in Crosby v. National Foreign Trade Council, 530 U.S. 363,
373-74 (2000), the Court allowed private companies to enforce the Burma sanctions provisions
of the Foreign Appropriations Act, which were not passed for the purpose of giving companies
an enforceable right to do business in Burma.
459. Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 331-35 (5th
Cir. 2005); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004);Local Union No.
12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004); Ill.
Page 295 of 559
Ass'n of Mortgage Brokers v. Office of Banks & Real Estate, 308 F.3d 762, 765 (7th Cir. 2002)
(Clearinghouse No. 54,339); PhRMA, 249 F.3d at 73 (in the context of rejecting the defendant’s
challenge to the plaintiff’s prudential standing); St. Thomas-St. John Hotel & Tourism Ass’n. v.
U.S. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000); Self-Ins. Inst. v. Korioth, 993 F.2d 479, 48283 (5th Cir. 1993); Western Air Lines, Inc. v. Port Auth., 817 F.2d 222, 225-26 (2d Cir. 1987)
(upholding claim of preemption by Airline Deregulation Act despite prior finding that the Act
could not be enforced through an implied right of action or § 1983), cert. denied, 485 U.S. 1006
(1988); see also Indian Oasis-Baboquivari Unified Sch. Dist. v. Kirk, 91 F.3d 1240, 1256-57 (9th
Cir. 1996) (Reinhardt, J., dissenting on other grounds) (“[A] plaintiff may sue directly under the
Supremacy Clause even if the assertedly preemptive federal statute does not provide a cause of
action or give rise to enforceable rights that could serve as the basis for a § 1983 suit on
preemption grounds.”); Wright Elec., Inc. v. Minnesota State Bd. of Elec., 322 F.3d 1025, 102829 (8th Cir. 2003); Wachovia Bank, 414 F.3d 305; Sprint Corp. v. Evans, 818 F. Supp. 1447, 1453
(M.D. Ala. 1993).
460. St. Thomas, 218 F.3d at 241; see also Qwest Corp., 380 F.3d at 1266 (“A federal statutory
right or right of action is not required where a party seeks to enjoin the enforcement of a
regulation on the grounds that the local ordinance is preempted by federal law. A party may
bring a claim under the Supremacy Cause that a local enactment is preempted even if the
federal law at issue does not create a right of action.”).
461. Planned Parenthood of Houston & Southeast Texas, 403 F.3d at 335; Illinois Ass'n of Mortg.
Brokers, 308 F.3d at 765.
462. Independent Living Center of S. Cal. v. Shewry, 543 F.3d 1050, 1062 (9th Cir. 2008);
Lankford, 451 F.3d at 509-10 (8th Cir. 2006); Qwest Corp., 380 F.3d at 1266.
463. Ex Parte Young, 209 U.S. 123 (1908).
464. Green v. Mansour, 474 U.S. 64, 68 (1985); see also Bd. of Trustees v. Garrett, 531 U.S. 356,
374 n.9 (2001) (Clearinghouse No. 52,744) (noting that injunctive relief is available against
states under Title I of the Americans with Disabilities Act even though damages are not); Nev.
Dept. of Human Res. v. Hibbs, 538 U.S. 721, 759 (2003) (Clearinghouse No. 54,329) (Kennedy, J.,
dissenting) (making the same argument for the Family and Medical Leave Act).
465. Blessing v. Freestone, 520 U.S. 329, 342 (1997) (Clearinghouse No. 50,109) (quoting Golden
State II, 493 U.S. at 106).
466. See, e.g., Blessing, 520 U.S. 329, 344; M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1306 (D. Utah
2003).
Page 296 of 559
467. Crosby, 530 U.S. at 373 (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)); accord Gade v.
Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992); PhRMA, 538 U.S. at 684-85 (O’Connor,
J., joined by Rehnquist, C.J., and Kennedy, J., concurring in part and dissenting in part).
468. In Nash v. Fla. Indus. Comm’n, 389 U.S. 235 (1967), for example, the Court held that a
Florida statute denying unemployment insurance to individuals who filed unfair labor practice
charges conflicted with the general objectives of the National Labor Relations Act (NLRA), even
though the NLRA is directed at employers, not states, and the Florida law did not conflict with
any specific provision of the NLRA.
469. Crosby, 530 U.S. at 373 (citation omitted). See also Independent Living Center of S. Cal. v.
Maxwell-Jolly, 572 F.3d 644, 653 (9th Cir. 2009) ("the first step in any conflict preemption
analysis is to determine the purpose of the federal law at issue").
470. See Altria Group, 129 S. Ct. at 543; Wyeth, 129 S. Ct. at 1195 n.3.
471. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005).
472. Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
473. Altria Group, 139 S. Ct. at 549.
474. See Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S. Ct. 999, 1013-14 (2008) (Ginsburg, J.,
dissenting). See also Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 256
(2004) (acknowledging that the Court did not invoke any “‘presumption against pre-emption’ …
[a] method[] on which not all Members of this Court agree”).
475. See Riegel, 128 S. Ct. at 1007-08; Rowe, 128 S. Ct. at 995-96.
Updated 2011
5.3 Third-Party Beneficiary Contract Claims
Updated 2011
Many government benefits are administered by private parties and local agencies. Health care
under Medicaid and Medicare is provided by hospitals, nursing homes, doctors, and managed
care organizations. Local housing agencies administer federal housing benefits, which are often
delivered by private landlords. Private contractors frequently provide services to
prisoners. Authorization for private parties and local agencies to manage public benefits is
conferred through detailed contracts with the federal or state government, and these contracts
Page 297 of 559
commonly contain many protections for beneficiaries. When private parties or local agencies
that are not state actors/476/ fail to provide the benefits mandated by the government
contracts, contract law may provide an avenue for relief. Injured individuals may be able to sue
the private party or local agency to enforce the contract as a third-party beneficiary of that
agreement./477/
The core of this claim is that the government and the private party have entered into a contract
for the benefit of the individuals for whom the government program was designed, and as a
result, those individuals may seek to enforce the contract if it is breached. In light of recent
Supreme Court cases emphasizing the need for detailed allegations in the complaint,/478/ it is
important to plead the specific contract provisions that benefit your client and that are not
being observed. If at all possible, before filing suit, acquire a copy of the specific contract at
issue, or at least a copy of any model contract upon which it may be based. An undifferentiated
reference in the complaint to the entire contract is unlikely to be sufficient./479/
Contract claims based on third-party beneficiary status have been successful in Medicaid and
Medicare, housing, and prisoner cases./480/ Nevertheless, such claims generally fail when
either the contract contains an express provision disavowing an intention to confer third-party
rights or when applicable state law utilizes a presumption against finding third-party rights. In
some housing cases, courts have distinguished between suits brought on behalf of housing
residents with well established rights to reside at the property and those brought by applicants
for housing benefits.
Most recently, the Supreme Court rejected a third-party beneficiary claim brought by a county
to enforce drug price limits set forth in contracts between pharmaceutical companies and the
federal government, suggesting that the federal courts are unlikely to be receptive to such
claims when the federal government asserts exclusive authority to enforce the contract./481/
Astra USA concerned Section 340B of the Public Health Services Act, which imposes limits on
the prices drug manufacturers may charge certain health facilities, generally those serving lowincome patients. To participate in sales to such entities, the Health Resources and Services
Administration (HRSA), an entity within the federal Department of Health and Human Services,
requires the drug makers to enter into standard Pharmaceutical Pricing Agreements which set
forth the statutorily-prescribed pricing limits. Santa Clara County conceded that there was no
private right of action to enforce the statutes containing the price ceilings, but argued that it
was a third party beneficiary to these Agreements. The Supreme Court rejected the claim,
holding that the Agreements were not subject to negotiation, contained only terms required by
the statute and that, as a result, a third-party beneficiary claim was no different than a private
right of action. The Court acknowledged that HRSA had lacked the oversight and authority to
enforce these Agreements, but that Congress responded by affording HRSA alternative
mechanisms for enforcement, including audits, dispute resolution procedures and refund and
civil penalty systems.
5.3.A. Standing
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The federal courts and most state courts follow the Restatement (Second) of Contracts in
determining the viability of any third-party beneficiary claim./482/ Section 302 of the
Restatement provides that:
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an
intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to
effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary;
or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised
performance./483/
The Restatement defines beneficiaries of a contract as being either intended or incidental. Only
an intended beneficiary has standing to enforce a contract between two other parties./484/
Whether a person is an intended beneficiary with the resulting right to sue depends upon the
intent of the parties to the contract. That intent may be articulated in the contract itself, or
discerned or imputed from the statutory context that prompted the contract to be
executed./485/
Generally, courts do not require that plaintiffs who contend they are third party beneficiaries
be expressly identified in the contract as third party beneficiaries, or that an express provision
grant them the right to sue to enforce the contract./486/ The Federal Circuit recently explained
that:
“Exceptional” though it may be, third-party beneficiary status is not reserved for those parties
who benefit expressly under a given contract. We note, too, that “the intended beneficiary need
not be specifically or individually identified in the contract, but must fall within a class clearly
intended to be benefited thereby.” Evidence of intent can be adduced. In short, it is sufficient to
ask in the typical case "whether the beneficiary would be reasonable in relying on the promise
as manifesting an intention to confer a right on him.”/487/
In two recent cases permitting third-party claims, the Alaska Supreme Court focused on the
intent of the state government to provide a benefit to third parties, minimizing the importance
of the intent of the private parties: a hospital and a private prison operator./488/ In another
recent case, the Virginia Supreme Court rejected the argument that a prisoner was only an
incidental beneficiary due to his transient presence in the prison. The Virginia court stated
that a third-party contract right “does not depend upon permanent membership in the class of
persons entitled to receive the benefit of the contract” but instead exists so long as the person
is a part of that class./489/
Courts have also found intent to benefit a third party when one of the contracting parties owes
the third party a pre-existing duty. This “duty owed” interpretation is drawn from the language
of § 302(1)(a) of the Restatement (Second). Consequently, in an action under a contract that
Page 299 of 559
has been executed in conjunction with a government benefit program, the complaint should
allege, when appropriate, that the recipient is the intended beneficiary of the contract between
the state and the private entity because the state had a pre-existing duty to provide coverage
to the recipient. A Tennessee appellate court, for example, upheld a third party claim based on
its finding that "a nursing facility which has entered into a provider agreement with the state
has a duty to assist a resident or applicant in applying for Medicaid eligibility."/490/
When examining the issue of intent, it is important to distinguish between the implied intent of
Congress when enacting federal law to create a cause of action and the implied intent of the
parties to a contract to benefit a third party under state law. Thus, courts have held that even
though there is no implied private right of action in the Medicaid or Medicare statutes, state
law permitting third party claims can be utilized to enforce them./491/ Nevertheless, courts
have relied upon the purpose of federal statutes, such as the purpose of the Medicaid statute
to provide medical care to needy people, in determining whether Congress intended to benefit
eligible third parties./492/
Despite the apparent breadth of § 302, several courts have denied third-party rights based
on Restatement (Second) § 313, which deals specifically with government contracts./493/ The
Rule provides:
(1) The rules stated in this Chapter apply to contracts with a government or governmental
agency except to the extent that application would contravene the policy of the law authorizing
the contract or prescribing remedies for its breach.
(2) In particular, a promisor who contracts with a government or governmental agency to do an act for or
render a service to the public is not subject to contractual liability to a member of the public for consequential
damages resulting from performance or failure to perform unless
(a) the terms of the promise provide for such liability; or
(b) the promisee is subject to liability to the member of the public for the damages and a direct action against
the promisor is consistent with the terms of the contract and with the policy of the law authorizing the
contract and prescribing remedies for its breach./494/
Section 313(2)(b) has been commonly interpreted to establish a presumption against thirdparty enforceability “unless the contract contains specific language providing [plaintiffs] with
the right” to enforce its terms./495/ Numerous commentators contend, however, that thirdparty claims for injunctive relief under government contracts should be analyzed solely under
Restatement (Second) § 302./496/ Indeed, Section 313 speaks only to claims for consequential
damages./497/
A line of decisions from the Federal Circuit holds that § 313(2) applies only to suits “against
promisors who had contracted with the government to render services to the general public
and, therefore, [is] not relevant to third-party beneficiary analysis.”/498/ Commentators
Page 300 of 559
explain that § 313(2) is intended to apply to commercial contracts with the government, not to
public-benefits programs such as subsidized housing, Medicaid, and Medicare./499/ This view is
supported both by § 313(1), which focuses on “the policy of the law authorizing the contract,”
and by the illustrations in § 313, which include contracts with mail carriers, utility companies,
railway companies, and construction firms./500/ Yet, while the prospect of money judgments
against commercial contractors might become an impediment to public works projects,
injunctive enforcement of public benefits contracts by individual beneficiaries may further the
goals of those programs./501/ In addition, it may be possible to argue that the contract at issue
is not intended to benefit the public generally, but a defined group of person, thus rendering §
313 inapplicable./502/
Some contracts between the government and a private entity specifically state that the
contract is not intended to create rights in third parties. In recent cases, courts have
overwhelmingly held that such provisions defeat third-party beneficiary claims./503/
5.3.B. Applicable Law
In general, state law governs third-party contract claims against private parties and local
agencies./504/ This is true even where the contract is with a federal agency under a federalstate program so long as no federal agency is a party to the suit. However, in the less common
situation where "substantial rights or duties of the United States hinge on [the case’s]
outcome,” federal common law applies./505/
State courts vary in their receptivity to third-party claims, with some applying a “strong
presumption” against finding third-party rights, and at the other extreme, others utilizing a
presumption in favor of third-party rights./506/ For example, in rejecting the third-party claims
of housing residents seeking to enforce relocation rights when their homes were demolished,
the court noted that Illinois law is “much more stringent” than federal law, and concluded that
the agreement did not show that the parties “unequivocally intended to confer a benefit
enforceable by Plaintiffs.”/507/
The Restatement (Second) of Contracts § 212(2) provides that the interpretation of contracts is
a question of law except where “it depends on the credibility of extrinsic evidence or on a
choice among reasonable inferences to be drawn from extrinsic evidence.” State courts,
however, vary widely as to whether third-party beneficiary status is a question of fact, law, or a
mixed question of law and fact./508/
5.3.C. Available Relief
Injunctive relief is available to remedy contract violations harming intended third-party
beneficiaries. Sections 357, 365 and 366 of the Restatement (Second) make clear that both
negative and mandatory injunctions (in the form of “forbearance”) are authorized as relief in
third party beneficiary actions.
Page 301 of 559
However, courts have split on the question of whether the Restatement (Second) § 313 bars
damages awards to third-party beneficiaries in suits involving government contracts. Section
313(2) provides that for damages claims involving government contracts, the plaintiff must
demonstrate that the contract evinces a specific intent to benefit the third party. Indeed, in a
recent case permitting third-party claims for injunctive and declaratory relief to proceed, the
Alaska Supreme Court stated that the Restatement (Second) § 313 does not subject
government contractors to "liability for consequential damages resulting from their
performance or failure to perform."/509/ Yet, several other recent cases, including one from
the Alaska Supreme Court, have permitted third-party damages claims to proceed, without
analyzing § 313./510/
____________________________________________________________
476. For a discussion of suits against state actors under 42 U.S.C. § 1983, see Chapters 5.1.A and
5.1.B.
477. Such contract actions should not be confused with the analogous, but separate, claim that
one’s client is the third-party beneficiary of various provisions of a federal statute, such as the
Medicaid Act, enacted pursuant to Congress’ spending power under the Commerce Clause.
Some courts have suggested that such statutes create a relationship between the federal and
state governments that is akin to a contract. See e.g., Pharmaceutical Research and
Manufacturers of America v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J., concurring).
478. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007).
479. See Zaborowski v. Hospitality Care Ctr. of Hermitage, Inc., 60 Pa. D. & C.4th 474, 499 n. 19
(Pa. Comm. Pl. 2002). The plaintiff did not submit a copy of the provider agreement, and this
may have contributed to the court’s conclusion that the complaint did not adequately allege
that the state intended the resident to be a beneficiary of the provider agreement.
480. See Rochelle Bobroff and Harper Jean Tobin, Third Party Beneficiary Claims: Recent Cases
Against Private Parties and Local Agencies, 42 Clearinghouse Review 99 (Jul.-Aug. 2008); Steve
Hitov and Gill Deford, The Impact of Privatization on Litigation, 35 Clearinghouse Review 590
(Jan.-Feb. 2002).
481. Astra USA, Inc. v. Santa Clara County, 2011 U.S. LEXIS 2592 (U.S. Mar. 29, 2011).
482. Restatement (Second) of Contracts § 302, Reporter’s Note (1981) (cases from forty states
citing or adopting Section 302). The advocate will have to determine whether applicable state
law adopts the Restatement. If not, further research is necessary to determine the applicable
legal standard.
Page 302 of 559
483. Restatement (Second) of Contracts § 302.
484. Nelson Const. v. United States, 79 Fed. Cl. 81, 95 (Ct. Cl. 2007); Fort Lincoln Civic Ass’n. v.
Fort Lincoln New Town Corp., 944 A.2d 1055, 1064 (D.C. 2008).
485. One court has suggested that if Section 8 tenants are not the intended beneficiaries of a
contract between HUD and a private landlord, then “the legitimacy of the multi-billion dollar
Section 8 program is placed in grave doubt.” Holbrook v. Pitt, 643 F.2d 1261, 1271 (7th Cir.
1981). A similar conclusion was reached in the Medicaid context. Smith v. Chattanooga Med.
Investors, Inc., 62 S.W.3d 178 (Tenn. Ct. App. 2001). Thus, the fact that one of the parties to the
contract, although not the one being sued, is a government entity, certainly does not foreclose
an enforcement action against the private entity, and may in some circumstances even
facilitate it.
486. Bowhead Info. Tech. Servs. v. Catapult Tech., 377 F. Supp. 166, 171 (D.D.C. 2005) (citing
Nortel Networks, Inc. v. Gold & Appel Transfer, S. A., 298 F. Supp. 2d 81, 90 (D.D.C. 2004) (citing
R.A. Weaver and Assoc. v. Haas and Haynie Corp., 663 F.2d 168, 175 (D.C. Cir. 1980)); see also
Restatement 2d of Contracts § 308 (“It is not essential to the creation of a right in an intended
beneficiary that he be identified when a contract containing the promise is made.”); County of
Santa Clara v. Astra USA, Inc., 540 F.3d 1094, 1101 (9th Cir. 2008) (third parties need not point
to “a provision expressly granting the third party the right to sue”). The expression of intent to
benefit the third-party beneficiary may be implied in the contract so long as the intent is
unequivocally to benefit the third parties directly. Heroth v. Kingdom of Saudi Arabia, 565 F.
Supp.2d 59, 65 (D.D.C. 2008), aff’d, 2009 U.S. App. LEXIS 9631 (D.C. Cir. Apr. 24, 2009); Fort
Lincoln, 944 A.2d at 1064.
487. Flexfab v. United States, 424 F.3d 1254, 1260 (Fed. Cir. 2005) (internal citations omitted).
488. Rathke v. Corrections Corp. of America, 153 P.3d 303 (Alaska 2007); Smallwood v. Cent.
Peninsula Gen. Hosp., 151 P.3d 319 (Alaska 2006).
489. Ogunde v. Prison Health Servs., Inc., 645 S.E.2d 520, 526 (Va. 2007).
490. Smith v. Chattanooga Med. Investors, Inc., 62 S.W.3d 178, 186 (Tenn. Ct. App. 2001).
491. Brown v. Sun Healthcare Group, Inc., 476 F. Supp. 2d 848, 853 (E.D. Tenn. 2007); Brogdon
v. Nat’l Healthcare Corp., 103 F. Supp. 2d 1322, 1334 (N.D. Ga. 2000).
492. Smallwood, 151 P.3d at 325. See also Holbrook v. Pitt, 643 F.2d 1261, 1271 (7th Cir. 1981).
Page 303 of 559
493. See, e.g., Deborah Zalesne, Enforcing the Contract at All (Social) Costs: The Boundary
Between Private Contract Law and the Public Interest, 11 Tex.Wesleyan L. Rev. 579, 603-04
(2005) (criticizing contrary cases); Michele Estrin Gilman, Legal Accountability in an Era of
Privatized Welfare, 89 Cal. L. Rev. 569, 636 (2001); Robert S. Adelson, Third Party Beneficiary
and Implied Rights of Action Analysis: The Fiction of One Governmental Intent, 94 Yale L. J.875,
879 nn. 21, 24 (1985); see also Restatement (Second) of Contracts § 313 cmt. A (1981) (noting
“excessive financial burden” as a chief reason for limiting claims under third-party contracts).
494. See Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 289 (D.C. Cir. 1993); Schuerman v. United
States, 30 Fed. Cl. 420, 429 (1994) (“The scope of section 313 is limited and applies only to suits
for consequential damages”).
495. See, e.g., Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003) (interpreting § 313 to apply to all
claims under government contracts and holding that no third-party claim lies under a
government contract unless the contract shows an intention to grant the third-party
enforceable rights); Briggs v. Oklahoma ex rel. Dep’t of Human Servs., 472 F. Supp. 2d 1288,
1293 (W.D. Okla. 2007) (invoking § 313 to reject a parent’s claim against a non-profit that
contracted to provide court advocates in family court cases); Fort Lincoln Civic Ass’n, Inc. v. Fort
Lincoln New Town Corp., 944 A.2d 1055, 1065 (D.C. 2008) (invoking § 313 to reject residents’
claims under urban redevelopment contract).
496. Jama v. U.S. I.N.S., 334 F. Supp.2d 662, 687 (D.N.J. 2004) ((following Nguyen v. U.S.
Catholic Conference, 719 F.2d 52 (3d Cir. 1983)).
497. Flexfab, LLC v. United States, 62 Fed. Cl. 139, 147 (2004), aff’d, 424 F.3d 1254 (Fed. Cir.
2005) (following Schuerman v. United States, 30 Fed. Cl. 420 (1994), and Montana v. United
States, 124 F.3d 1269, 1273 (Fed. Cir. 1997)). But see Fort Lincoln, 944 A.2d at 1068
(acknowledging Montana’s repudiation of “intent to give a right” test, but nevertheless
construing it to require “reasonable reliance” on an “intention to confer a right”).
498. See, e.g., Zalesne, supra note 493, at 603-4; Justin Massey, Applying the Third Party
Beneficiary Theory of Contracts to Enforce Clean Water Act § 404 Permits: A California Case
Study, 18 J. Envtl. L. And Litig. 129, 142-43 (2003); Adelson, supra note 493, at 879 n. 21.
499. Restatement (Second) of Contracts § 313.
500. Restatement (Second) of Contracts § 313 illus. 1-6.
501. See, e.g., County of Santa Clara v. Astra USA, Inc., 540 F.3d 1094, 1103 (9th Cir. 2008).
502. See Pressen v. Ceres Marine Terminals, Inc., 5 F.3d 734, 743 (4th Cir. 1993) (“It is sufficient
[for third-party beneficiary analysis] that the terms express a clear intent to extend benefits to
Page 304 of 559
a well-defined class of readily identifiable persons”) (emphasis in original) (citations omitted);
King v. Employers’ Nat’l Ins. Co., 928 F.2d 1438, 1442 (5th Cir. 1991) (third-party beneficiary
status arises where contract “confer[s] specific benefits” on third party); Beverly v. Macy, 702
F.2d 931, 942 (11th Cir. 1983) (holding that policyholders were intended beneficiaries of
government contract with insurance company “because the obligation referred to a specific
class of individuals clearly contemplated by the contract and identifiable at the time the
obligation arose”); Kawa v. United States, 86 Fed. Cl. 575, 588 (Fed. Cl. 2009) (“The intended
beneficiary need not be specifically or individually identified in the contract, but must fall within
a class clearly identified to be benefited thereby.”) (quoting Montana, 124 F.3d at 1273).
503. See e.g., Anderson v. D.C. Hous. Auth., 923 A.2d 853, 863 (D.C. 2007); Kirby v. Richmond
Redevelopment and Hous. Auth., No. 3:04-791, 2005 WL 5864797, at *6 (E.D. Va. 2005);
Dewakuku v. Martinez, 271 F.3d 1031 (Fed. Cir. 2001); Moore v. Gaither, 767 A.2d 278 (D.C.
2001); Garreaux v. United States, 544 F.Supp.2d 885, 895 (D.S.D. 2008).
504. See, e.g., Richards v. City of New York, 433 F. Supp. 2d 404, 430 (S.D.N.Y. 2006); Johnson v.
City of Detroit, 319 F. Supp. 2d 756 (E.D. Mich. 2004); Wallace v. Chicago Hous. Auth., 298 F.
Supp. 2d 710, 723–24 (N.D. Ill. 2003); 5th Bedford Pines Apartments Ltd. v. Brandon, 262 F.
Supp. 2d 1369, 1377–78 (N.D. Ga. 2003).
505. Miree v. Dekalb County, 433 U.S. 25, 31 (1977); see also Audio Odyssey, Ltd. v. United
States, 255 F.3d 512, 520-521 (8th Cir. 2001). Compare, e.g., Owens v. Haas, 601 F.2d 1242,
1249–50 (2d Cir. 1979) (third-party claim by federal prisoner against county officers, for injuries
he suffered after a transfer to county custody under federal contract, implicates federal duty to
protect prisoners), with Smith v. Correctional Corp. of America, 19 Fed. App. 318, 320 (6th Cir.
2001) (no federal jurisdiction over contract claim by District of Columbia prisoner against
private operator based on contract with District).
506. See Bobroff and Tobin, supra note 480, at 101-102.
507. Wallace v. Chicago Hous, Auth., 298 F. Supp. 2d 710, 723–24 (N.D. Ill. 2003).
508. Compare, e.g., In re Telluride Global Dev. Ltd. Liab. Co., 380 B.R. 585, 594 (10th Cir. 2007)
(question of fact under Colorado law), with Basic Capital Mgmt. v. Dynex Commercial, Inc., 254
S.W.3d 508, 516 (Tex. Ct. App. 2008) (question of law), and AgGrow Oils, LLC v. Nat’l Union Fire
Ins. Co., 420 F.3d 751, 755 (8th Cir. 2005) (question of law in North Dakota), and Flexfab, 424
F.3d at 1259 (mixed question). See also Restatement (Second) of Contracts § 212(2)
(interpretation of contracts is a question of law except where “it depends on the credibility of
extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic
evidence”).
509. Smallwood, 151 P.3d at 325.
Page 305 of 559
510. See Rathke v. Corrs. Corp. of America, 153 P.3d 303 (Alaska 2007); Ogunde v. Prison Health
Servs., Inc., 645 S.E.2d 520 (Va. 2007); Brown v. Sun Healthcare Group, Inc., 476 F. Supp. 2d 848,
853 (E.D. Tenn. 2007).
Updated 2011
Page 306 of 559
6.1 Conferences and Scheduling
Updated 2010
Very shortly after the complaint is filed, you will need to prepare for a set of conferences.
Federal Rules 16 and 26(f) govern these conferences, but set forth the timing of them in a fairly
confusing way. Consult your court's Local Rules or your judge's standing order for an
understanding of the sequencing of these conferences. The purpose of the discovery
conference is to develop a mutually acceptable discovery plan which anticipates and attempts
to resolves potential discovery issues. The pretrial conference with the court -- used to greater
or lesser extent depending on the judge and the nature of the case -- is intended to permit the
court to exercise managerial control over the case in order to resolve it efficiently./1/ Important
decisions are made at these conferences; you should prepare for them carefully. This
preparation requires you to anticipate and take positions on issues which may occur much later
in the litigation.
6.1.A. Conference of Parties, the Joint Discovery Plan, and Discovery Planning
As soon as practicable, and at least 21 days prior to the Rule 16(b) scheduling conference or
filing of a scheduling order, the parties must confer. At this meeting, referred to as a “Rule 26(f)
conference,” counsel and unrepresented parties must, among other tasks, confer to "consider
the nature and basis of their claims and defenses and the possibilities for promptly settling or
resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any
issues about preserving discoverable information; and develop a proposed discovery plan.”/2/
The discovery plan of the parties is supposed to address the subjects listed in Fed. R. Civ. P.
26(f)(3). A joint written report of the conference must be submitted to the court within
fourteen days of the conference. Be sure to check your local rules and your judge’s individual
practice regarding Rule 26(f) conferences and their reports./3/ Because the Rule 26(f)
conference is typically conducted quite early in the litigation, it is wise to think through each of
the discovery issues presented in the case and to formulate your position promptly.
Apart from the discovery plan that must be discussed with opposing counsel, you must develop
your own internal plan, which should be reviewed and revised as the litigation progresses.
Successful discovery requires that you identify what you must prove as early as possible. The
plan should identify the facts that you must prove, the discovery tools most likely to assist in
proving those facts, and a sequence for using the various discovery tools. As you accumulate
information, you must maintain a carefully organized file that shows both the content and the
source of every document. As the case develops, continue to identify the facts that you can
prove and how you will prove them. In more complex litigation, you may find it useful to create
a computerized database of documents and potential testimony.
The discovery plan should set forth the sequence of discovery. If you anticipate protracted
discovery, you should begin it promptly and proceed in stages. Some basic information should
Page 307 of 559
be given automatically under the Rule 26(a)(1) initial disclosures. You can then use carefully
drafted interrogatories to identify other documents and their respective custodians, potential
witnesses, objective facts and the contentions of the opposing parties. Next, request
production of documents and, when appropriate, request admissions. Last, depose important
witnesses and again consider requests for admission. In a class action, early discovery should
also establish the existence of a class and, when feasible, the identity and addresses of class
members. As you complete each stage in your discovery plan, you should review and modify it
to reflect what you have learned.
The amount, order, and type of discovery needed varies from case to case. In many instances,
however, recurring issues make it possible to borrow liberally from discovery requests used in
similar cases. National support centers may have forms available. In an appropriate case, form
books on discovery, particularly American Jurisprudence Proof of Facts, may be helpful. Charles
A. Wright, Arthur R. Miller, and Edward H. Cooper’s Federal Practice and Procedure forms can
be helpful, and forms are becoming increasingly accessible on the Internet. Recognize the
limitations of forms: they save time, but they were not written with your specific case in mind.
Use them as a beginning rather than as an end.
There is danger in not using discovery tools to the fullest extent. If you are unfamiliar with the
full potential for discovery, you may overlook important opportunities. Discussing discovery
with more experienced counsel is always worthwhile. The underutilization of discovery is
especially common in test case litigation, where a focus on critical legal issues may obscure the
need for thorough discovery. Impact litigation is often dependent upon compelling facts that
convince the court that its intervention is necessary to correct a systemic injury. Discovery is
vital to finding the facts to make a record as the foundation for successful litigation.
6.1.B. Scheduling Orders and Pretrial Conferences
Rule 16(b) generally requires the court to a scheduling order. That order must be issued within
120 days after any defendant has been served or 90 days after any defendant has appeared,
whichever is earlier./4/ The order must also follow either receipt of the parties' Rule 26(f)
report or after consulting with the parties at a scheduling conference./5/ It is important for you
to know what may be discussed at the conference so that you can be prepared to advocate on
these issues. The scheduling order must limit the time to join other parties, amend pleadings,
complete discovery and file motions./6/ It may modify the timing of initial disclosures, modify
the extent of discovery, provide for the discovery of electronically stored information, include
agreements on privileged or protected material and set dates for pretrial conferences./7/
Modifications to the scheduling order may be modified only for good cause and with the
permission of the judge./8/
Magistrate Judge Wayne Brazil, writing in Moore's Federal Practice, offers excellent advice with
respect to the Rule 16 conference:
Page 308 of 559
[M]uch of the danger in practice under Rule 16 arises only for lawyers who are not well
prepared, or who do not communicate or cooperate with one another. Aside from squandering
an opportunity to save the client money and the attorney stress and distraction, a lawyer who is
not prepared for a Rule 16 conference runs a substantial risk that a better-prepared opponent
will persuade the judge to enter orders that put the unprepared lawyer at a severe procedural
disadvantage, or even that cost the client important rights. Moreover, judges form impressions
about the quality of counsel, as well as the merits of their cases, through Rule 16 events; these
impressions can affect the mind set that judges bring to rulings on important motions,
settlement negotiations, or findings at trial. A lawyer who makes a poor impression at a Rule 16
conference, and who cannot articulate credible legal and evidentiary bases for the client's
position, needlessly harms both his or her own professional reputation and the client's prospects
in the litigation./9/
Ordinarily, the court will hold one or more pretrial conferences following the scheduling
conference. The subjects of such a conference can include any of the matters listed in Rule
16(c)(2). Rule 16(e) provides that “[t]he order following a final pretrial conference shall be
modified only to prevent manifest injustice.” Rule 16(f) authorizes the imposition of sanctions
for failing to obey a scheduling or pretrial order, including the ultimate sanction of
dismissal./10/ The district court’s decision to impose or refuse sanctions may be overturned
only for an abuse of discretion./11/
6.1.C. Assignment of Magistrate Judges
The role and authority of federal magistrate judges is governed by 28 U.S.C. §§ 631 et seq. and
Federal Rules of Civil Procedure 72 and 73. Rule 72 permits magistrate judges to decide pretrial
matters referred to them by district court judges, and Rule 73 permits them to conduct trials
“[w]hen specially designated ... by local rule or order of the district court and when all parties
consent.” Magistrate judges may act as special masters,/12/ and may have additional duties
established by court order or local rule, so long as these are not “inconsistent with the
Constitution and laws of the United States.”/13/ In all of these situations, magistrate judges are
authorized to act only to the extent granted by the district court. The advisability of referring
matters to a magistrate judge is one of the subjects to be discussed at a pretrial conference.
The manner in which cases are assigned to magistrate judges is determined by local rule.
The “pretrial matters” covered by Rule 72 include virtually any motion made before trial and
include both “(a) non-dispositive matters” and “(b) dispositive motions and prisoner petitions.”
Determining which matters are dispositive is not always easy./14/ For non-dispositive matters,
the magistrate judge has the authority to enter an order deciding the matter unless the order
of reference directs her merely to make a recommendation. A party who is displeased with the
magistrate judge’s ruling may file objections within ten days of being served with the order./15/
Unless the matter was referred solely for a recommendation, the standard of review set forth
in Rule 72(a) is highly deferential: “clearly erroneous or contrary to law.”/16/ Objections are
heard by the district judge to whom the case is assigned, and may be made in any manner
Page 309 of 559
permitted by local rule. Failure to object constitutes a waiver of the right to review of the
magistrate judge’s order, but the district judge may elect to review it sua sponte./17/
For dispositive pretrial motions under Rule 72(b), the magistrate judge may make findings and a
recommendation, but does not enter an order. Any objections must be "specific" and filed
within fourteen days./18/ The party opposing the objection is expressly permitted to file a
written response within fourteen days of service of the objections. The review by the district
judge assigned to the case is de novo./19/ A record of the proceedings before the magistrate
judge is made in order to permit such de novo review, and the party objecting must “promptly
arrange” for its transcription./20/ A district judge has no obligation to review the magistrate
judge’s recommendation on a dispositive matter in the absence of an objection./21/
Upon review of objections, the district judge “may accept, reject, or modify the recommended
decision, receive further evidence, or recommit the matter to the magistrate with
instructions.”/22/ The district judge must not, however, merely rubber-stamp the
recommended decision./23/ Even so, no specific findings are necessary to satisfy the judge’s
review responsibility./24/
Rule 73, implementing 28 U.S.C. § 636(c), gives magistrate judges authority to “conduct any or
all proceedings, including a jury or non-jury trial, in a civil case” on two conditions. The first is
that they have been “specially designated to exercise such jurisdiction by local rule or order of
the district court,” and the second is that all parties consent./25/ To protect against a party
feeling coerced into accepting such a referral, subsection (b) of the rule provides that each
party’s position on consent is to be filed but not revealed to the judge or magistrate judge
unless all parties consent./26/ Implied consent to trial by the magistrate judge is permitted
“when the litigant or counsel was made aware of the need for consent and the right to refuse
it, and still voluntarily appeared to try the case before the Magistrate Judge.”/27/ If any parties
are added to the case after the original parties have consented to trial before the magistrate
judge, care must be taken to obtain their consent./28/ Once the matter is referred, the order of
reference can be vacated by the district judge “for good cause shown on its own motion, or
under extraordinary circumstances shown by a party.”/29/ There is some authority that a
magistrate judge may also permit withdrawal of consent./30/
The only exception to the magistrate’s plenary power to hear a case referred under Rule 73 is
that she may not find parties in contempt. Section 636(e) mandates that the district judge hear
such matters when the magistrate issues an order to show cause. A record of the proceedings
before the magistrate judge must be kept unless the parties agree otherwise; they may also
agree on a method of recording other than the use of a court reporter./31/ Under Rule 73(c),
appeal from a judgment entered by a magistrate judge “will lie to the court of appeals as it
would from a judgment of the district court.” Review in the court of appeals is the same as if
the judgment had been entered by a district judge./32/
Updated 2010
Page 310 of 559
1. Fed. R. Civ. P. 16(a).
2. Id. 26(f).
3. Rule 26(f)(4) allows local practice variations regarding timing of the conference and the
issuance of a report. Consult your court’s local rules for implementation of the mandatory
initial disclosure requirements and procedures. Id.
4. Fed. R. Civ. P. 16(b)(2).
5. Id. 16(b)(1).
6. Id. 16(b)(3)(A).
7. Id. 16(b)(3).
8. Id. 16(b)(4). Compare Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604-06 (10th Cir. 1997)
(permitting modification) and Burton v. United States, 199 F.R.D. 194, 197 (D. W. Va. 2001)
(same) with Book v. Nordrill Inc., 826 F.2d 1457, 1461 (5th Cir. 1987) (refusing to permit new
expert to testify); Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 140 (D. Me. 1985) (denying
modification). See Marmo v. IBP, Inc., No. 8:00CV527, 2005 WL 675809, at *2 (D. Neb. Feb. 3,
2005) (In holding there was no showing of good cause for modification of case management
order to allow designation of new expert witness, court noted that the “primary measure” of
the Rule 16 good cause standard “is the moving party's diligence in attempting to meet the case
management order's requirements.”).
9. 3 James Wm. Moore et al., Moore's Federal Practice para. 16.05 (2010).
10. Spain v. Bd. of Educ. of Meridian Cmty. Unit Sch. Dist., 214 F.3d 925, 930 (7th Cir. 2000).
11. See, e.g., Sanders v. Union Pac. R.R., 193 F.3d 1080, 1082 (9th Cir. 1999) (en banc).
12. 28 U.S.C. § 636(b)(2); see Fed. R. Civ. P. 53.
13. 28 U.S.C. § 636(a), (b)(3) .
14. See, e.g., Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (denial of motion to
amend not dispositive, but noting cases to the contrary); Vogel v. U.S. Office Prods. Co., 258
F.3d 509, 517 (6th Cir. 2001) (order of remand is dispositive and can only be entered by district
court); Calabro v. Stone, No. CV2003-4522 (CBA)(MDG), 2005 U.S. Dist. LEXIS 5527, at *1, 2005
Page 311 of 559
WL 327547, at *1 (E.D.N.Y. Jan. 27, 2005) (ruling on motion to amend complaint treated as
dispositive, but acknowledging contrary case law); Benedict v. Zimmer, Inc., 232 F.R.D. 305 (N.D.
Iowa 2005) (motion for leave to provide expert report is nondispositive matter); Yang v. Brown
Univ., 149 F.R.D. 440, 442-43 (D.R.I. 1993) (order precluding testimony of expert witness as
discovery sanction deemed dispositive). Cf. Fed. R. Civ. P. 54(d)(2)(D) (district court “may refer a
motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive
pretrial matter.”).
15. Fed. R. Civ. P. 72(b).
16. Particularly in the discovery context, this is viewed as an abuse-of-discretion standard. See,
e.g., Anjelino v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir. 1999).
17. Fed. R. Civ. P. 72(a). Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760-61 (7th Cir.
2009).
18. Fed. R. Civ. P. 72(b)(2). The right to de novo review is confined to the specific issues raised
by the objection. See, e.g., Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190 (10th Cir.
1999).
19. Fed. R. Civ. P. 72(b)(3). See McCombs v. Meijer, 395 F.3d 346, 360 (6th Cir. 2005) (district
court cannot simply “concur” in the magistrate’s findings, but must conduct its own review).
20. Fed. R. Civ. P. 72(b).
21. See, e.g., Thomas v. Arn, 474 U.S. 140, 153 (1985).
22. Fed. R. Civ. P. 72(b).
23. See, e.g., Patel v. Baluyot, 2010 U.S. App. LEXIS 13442, at *5 (5th Cir. Jun. 30, 2010); United
States v. Vosburgh, 602 F.3d 512, 526 (3d Cir. 2010); Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991). See also McCombs, 395 F.3d at 360.
24. Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000); see also, United States v.
Bach, 2010 U.S. App. LEXIS 16339, at *9-10 (1st Cir. Aug. 5, 2010).
25. See Roell v. Withrow, 538 U.S. 580, 585 (2003).
26. See also, 28 U.S.C. § 636(c)(2) . Parties are to be advised “that they are free to withhold
consent without adverse substantive consequences.” Id.
Page 312 of 559
27. Roell, 538 U.S. at 590.
28. Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir. 1994).
29. Fed. R. Civ. P. 73(b); 28 U.S.C. § 636(c)(4) . See also Manion v. American Airlines, Inc., 251 F.
Supp.2d 171, 175 (D.D.C. 2003) (allegation of magistrate bias found insufficient to meet
“extraordinary circumstances” standard required to vacate referral with consent of parties).
30. Sockwell v. Phelps, 906 F.2d 1096, 1097 n.1 (5th Cir. 1990).
31. 28 U.S.C. § 636(c)(5) .
32. See, e.g., Lady v. Neal Glaser Marine Inc., 228 F.3d 598, 601 (5th Cir. 2000), cert. denied, 532
U.S. 941 (2001).
Updated 2010
6.2 Discovery
Updated 2010
Discovery is the process of uncovering relevant facts and identifying witnesses whose testimony
can establish those facts. As required by Federal Rule of Civil Procedure 11, informal pre-filing
discovery begins with a reasonable investigation of the facts before the attorney drafts the
complaint. Aspects of pre-litigation investigation is covered in Chapter 4.1 of this MANUAL. This
chapter discusses the tools of discovery, the methods for protecting against unwarranted
discovery and motions to compel permitted discovery.
6.2.A. How the Pleadings Limit Discovery
The Federal Rules of Civil Procedure specify the general scope of discovery as follows:
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's
claim or defense, including the existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and location of persons who know of
any discoverable matter. For good cause, the court may order discovery of any matter relevant
to the subject matter involved in the action. Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)./33/
Broadly speaking, the scope of discovery is determined by the parties to the action as they
frame their theories of relief and defenses. The 2000 amendments to Rule 26 of the Federal
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Rules of Civil Procedure narrowed the scope of presumptively allowable discovery from that
which is “relevant to the subject matter involved in the pending action” to discovery that is
“relevant to the claim or defense of any party.”/34/ Discovery of information that is not
germane to the claims or defenses, but is relevant to the subject matter of the action now
requires a court order./35/ There is no precise dividing line between discovery relevant to
claims or defenses and discovery relevant to the subject matter./36/ The “relevance” standard
itself remains broad./37/ While courts have ruled that the amendments do somewhat narrow
the scope of discovery, the amendments were not intended as a dramatic change to the
traditionally broad standard that favors liberal disclosure./38/ The rule change has, however,
led courts to carefully analyze discovery requests with reference to the asserted claims and
defenses of the parties./39/ It additionally “signals to parties that they have no entitlement to
discovery to develop new claims or defenses that are not already identified in the
pleadings.”/40/ The district court in Thompson v. Department of Housing and Urban
Development expressed a utilitarian approach:
Lest litigants and the court become consumed with the philosophical exercise of debating the
difference between discovery relevant to the "claims and defenses" as opposed to the "subject
matter" of the pending action--the juridical equivalent to debating the number of angels that
can dance on the head of a pin--the practical solution to implementing the new rule changes
may be to focus more on whether the requested discovery makes sense in light of the Rule
26(b)(2) factors, than to attempt to divine some bright line difference between the old and new
rule. Under this approach, when confronted with a difficult scope of discovery dispute, the
parties themselves should confer, and discuss the Rule 26(b)(2) factors, in an effort to reach an
acceptable compromise, or narrow the scope of their disagreement./41/
For good cause shown, a court may allow the same scope of discovery as had been available
under the prior version of the Rule – “any matter relevant to the subject matter involved in the
action.”/42/ Speculative or conclusory allegations of good cause, however, will not be
sufficient, absent supporting facts./43/ As was the case prior to the 2000 amendments, a
significant overall factor to bear in mind is that the information sought in discovery “need not
be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence.”/44/
Rule 26(b)(2) further specifies three considerations which, if present, require the court to limit
the scope of otherwise permissible discovery. The Rule states, in relevant part:
[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules or
by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
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The first two sub-parts of Rule 26(b)(2) present guidelines for a court’s assessment of claims
that compliance with a discovery request would be unreasonably burdensome. The third subpart sets out a principle of “proportionality” that directs the court to conduct a balancing test
to determine whether limits should apply to the scope of requested disclosure in cases where
the costs of discovery would outweigh its likely benefits to the litigation./45/
6.2.B. Mandatory Initial Disclosures
In most cases, Rule 26(a)(1) requires each party at the outset of litigation to automatically make
significant, self-executing “initial disclosures” in writing, without waiting for formal discovery
requests from the opposing party. Parties must identify witnesses and documents (including
electronically stored information) “that the disclosing party may use to support its claims or
defenses,” a computation of damages, and information regarding insurance agreements./46/
The names of witnesses must include the subjects of their information. The documents
themselves or their description and location must be provided. “Use” is broadly construed to
include use in discovery, to support a motion, or at trial, but it excludes information used solely
for impeachment./47/
This mandatory disclosure requirement does not apply in three situations:

if the parties stipulate not to make such disclosures;

if otherwise directed by court order, and

in certain categories of proceedings, the most significant of which, for purposes of
legal services litigation, is “an action for review of an administrative record.”/48/
A “major purpose” of the initial disclosure requirements, as declared when first added to Rule
26 in 1993, was to “accelerate the exchange of basic information about the case” which is
“needed in most cases to prepare for trial or make an informed decision about
settlement.”/49/ Because plaintiff's counsel has made an investigation of the case before filing
the complaint, ordinarily little additional searching would be required to comply with
mandatory initial disclosure requirements after filing. The burden of initial disclosure rests in
large part on the defendant, which must relatively quickly perform an investigation of the
claims and its defenses to answer the complaint. The information found would serve as the
basis of initial disclosure as parties must make their disclosures based on "information
reasonably available to it."/50/ A complete investigation is not required, but a failure to fully
perform an investigation is no excuse for failing to make any initial disclosures.
Failure to make these disclosures will result in exclusion of the material that should have been
disclosed unless the failure was substantially justified or harmless./51/ It may also result in any
of the serious sanctions set forth in Fed. R. Civ. P. 37(c)(1). Therefore, "[c]ounsel who make the
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mistake of treating Rule 26(a)(1) disclosures as a technical formality, rather than as an efficient
start to relevant discovery, do their clients no service and necessarily risk the imposition of
sanctions.”/52/ Court has used variations of five factors to determine whether evidence should
be excluded for failure to timely disclose it earlier: "(1) the surprise to the party against whom
the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to
which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5)
the nondisclosing party's explanation for its failure to disclose the evidence."/53/ Generally, the
failure of the opposing party to comply with mandatory disclosure requirements as well, or the
ability of the opposing party to obtain the undisclosed documents elsewhere do not constitute
substantial justification. At the same time, the opposing party's familiarity with the witness or
document would suggest that nondisclosure was harmless.
The initial disclosures must be signed and served “at or within 14 days after the Rule 26(f)
conference unless a different time is set by stipulation or court order,” or unless a party
otherwise objects to making the disclosures./54/ The Rule 26(f) conference, discussed below,
must be held at least 21 days before a scheduling conference is held or a scheduling order is
due. Additional disclosures later in the case are mandated by Rule 26(a)(2) (expert testimony)
and 26(a)(3) (pretrial disclosures). These disclosures are usually governed by an order of the
trial court.
A party has a duty to supplement or correct initial disclosures “if the party learns that in some
material respect the information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing.”/55/ Incomplete investigation or the failure of an opponent to
make disclosures is not an excuse for failing to make these disclosures yourself./56/ The
supplemental disclosures must be made in a "timely manner” or as ordered by the court./57/
Advocates will need to carefully assess their options when receiving inadequate initial
disclosures from the opposing party. Depending upon the nature and critical need at the outset
of litigation for these disclosures, the expense, delay and effort necessary for a challenge to
their sufficiency will need to be weighed against seeking the information through other
discovery devices./58/
6.2.C. Written Discovery
Interrogatories, as well as requests for production, are often the first discovery tool to be used.
6.2.C.1. Interrogatories
Except with leave of court or by stipulation, interrogatories may be served only after the Rule
26(f) conference discussed above./59/ They can be directed only to other parties, who then
have thirty days to respond./60/ Interrogatories propounded on one party must be served on
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each party./61/ Filing discovery requests and responses with the court is prohibited by Federal
Rule of Civil Procedure 5(d)(1), except in connection with trial or certain motions, such as
motions to compel, for protective orders, or for summary judgment.
Interrogatories are generally used for two purposes. First, they seek factual information to
establish a basis for subsequent discovery by production or deposition. Thus, interrogatories
typically seek the addresses and names of persons having knowledge of relevant matters, the
identity of people having certain authority or occupying certain offices, the existence, location,
accuracy and authenticity of documents and reports, statistical data or summaries, other
objective facts, and the identity and opinions of experts. Interrogatories may accompany
requests for admissions and ask the basis for and facts supporting any denials. Rule 33(a) limits
the number of interrogatories that may be served upon any other party to twenty-five,
“including all discrete subparts,”/62/ but the court may alter this limitation consistent with Rule
26(b)(2)(C)./63/ Plan interrogatories with care; do not waste the limited opportunity to use
interrogatories on questions of marginal value. If your client receives more than 25
interrogatories, the best approach is to answer the first 25 and to object to the remainder./64/
Effective interrogatories are short, to the point, and unambiguous. Interrogatories should be
preceded by clear instructions and precise definitions of potentially ambiguous words. They
should be drafted to anticipate and avoid useless responses and valid objections. If possible,
they should require the opposing party to give some relevant elaboration to the answers. Good
interrogatories commit the opposing party to clear answers or information. Remember that,
although interrogatories are directed to a party, an attorney prepares the answers. Broad,
unstructured interrogatories give opposing counsel an opportunity to provide answers framed
in the best possible light for their clients. Before serving your interrogatories, test them by
trying to frame an objection to each one and by trying to compose an answer that would be
responsive but useless.
Second, contention interrogatories ask parties to state their contentions and their factual bases
for them. Properly phrased, contention interrogatories may be a very useful tool to probe the
theories of the opponent's case or defense. Such interrogatories may not inquire into a party's
view on the pure question of law, but may ask for a party's opinion regarding a fact or how the
law applies to a particular fact./65/ A court may permit a party to answer contention
interrogatories later in the litigation, or when discovery is complete./66/
Responding parties must answer the interrogatories, object, or move for a protective order.
Answers are to be drafted after a reasonable inquiry, which may involve asking agents,
reviewing documents, and engaging in other reasonable investigations./67/ For corporate and
governmental entities, such investigation requires asking present and past officers and
employees believed to have personal knowledge of the issue. Discovery is not objectionable
simply because the information sought is already known by the party propounding the
interrogatories./68/
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The most common objection to interrogatories is that answering them would be unduly
burdensome. The objecting party must do more than merely assert burden; it must specify the
nature of that burden./69/ The district court has broad discretion to determine whether the
search for responsive information would be unduly burdensome. It typically evaluates the
nature of the information sought, whether it is available elsewhere at less burden or expense,
the anticipated costs of response compared with the amount at stake in the litigation and
whether the burden is self-imposed as a result of a disorganized filing system./70/ Other
potentially valid objections are that the interrogatories are that they are “unreasonably
cumulative or duplicative”/71/; ambiguous; overbroad or that they call for the disclosure of
information protected by an evidentiary privilege or work product protection./72/ Objections
must be stated with specificity./73/
Rule 33(d) allows a responding party the option to provide business records as an answer to an
interrogatory if an examination, audit, or inspection of the records will yield a proper response,
and the burden of deriving or ascertaining the answer from these records is substantially the
same for both parties. The responding party is then allowed to answer by specifying, in detail,
the responsive records and giving the party serving the interrogatory a reasonable opportunity
to examine, audit, or inspect the documents, and to make copies, compilations, abstracts, or
summaries./74/
Responses to interrogatories must be signed by the party making the response, and by the
attorney making the objection./75/ As with initial disclosures, a party and his attorney have a
duty to timely supplement or correct answers to interrogatories “if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.”/76/
6.2.C.2. Requests for Production of Documents
Federal Rule of Civil Procedure 34(a) permits a party to request documents or electronically
stored information or to inspect, copy, test or sample “tangible things” that are in the
respondent’s “possession, custody or control.” The responding party may either produce the
documents or permit them to be inspected and copied. Like interrogatories, Rule 34 requests
for production can be directed only to parties./77/ Rule 34 governs such requests whether filed
separately or in conjunction with a deposition./78/ Unlike interrogatories and depositions, the
federal rules do not impose any numerical limits on the number of requests for production.
However, consult your Court's Local Rules for any limitations imposed.
Generally, requests for production cannot be propounded until the Rule 26(f) conference and
will follow receipt of initial disclosures./79/ If permitted by the Rule 16(b) scheduling order, a
party may seek production of material outside the scope of the initial disclosures before those
disclosures are received. Counsel should determine whether there is a need for expedited
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discovery and either move for such discovery or ensure that it is permitted by the discovery
plan.
Rule 34 defines “documents” expansively, to include ‘writings, drawings, graphs, charts,
photographs, sound recordings, images, and other data or data compilations./80/ Effective
2006, it also includes electronically stored information, which is discussed below. The
responding party is to produce material within their possession, custody or control, which
includes records in their actual possession, custody, or control, or in the possession of others
from whom the party has a legal right to demand their return./81/ The “agency” aspect to Rule
34 can require a party to produce a document turned over to counsel./82/ The party seeking
production of documents bears the burden of establishing the opposing party’s control over
those documents./83/
Rule 34(b) requires that requested documents be described by “item or by category” with
“reasonable particularity.” Do not simply request “all relevant documents” or documents that
"reflect noncompliance with the ADA." Such requests fail to put the responding party on notice
of what is requested so that they are able to identify responsive documents./84/ Make
requests as reasonably specific as you can, and include requests describing documents by
category or conduct. Ask for production of original documents together with copies that
contain any handwritten notes or changes, as well as all subsequent versions of the documents
that are not identical to the initial one.
Rule 34(b) requires the opposing party to object or file a written response within 30 days of
service that states "that inspection and related activities will be permitted as requested.” Many
lawyers fail to file the required response; they assume that actual production is all that is
required. Insist on a written response describing what is being produced and what is not
produced; this should protect you against the later appearance of a document not previously
produced. If your request was drafted with care, you may be able to exclude from evidence
surprise documents clearly encompassed within its terms. The response may also indicate that
requested documents do not exist—a fact that may be quite significant in establishing an
element of your case such as arbitrary action or negligence./85/ Follow up these responses with
requests for admission to confirm the nonexistence of the documents.
The response to a request for production may be an objection or a motion for a protective
order./86/ As with objections to interrogatories under Rule 33, objections to Rule 34 requests
for production “must be stated with particularity in a timely answer, and . . . a failure to do so
may constitute a waiver of grounds not properly raised, including privilege or work product
immunity, unless the court excuses this failure for good cause shown.”/87/ The Ninth Circuit
has held that a boilerplate privilege objection is insufficient and identified many factors for
lower courts to consider when deciding if the responding party's failure to produce a privilege
log within thirty days constitutes a waiver of the privileges asserted./88/ If the objection
includes that the requests are burdensome or unduly intrusive, the court is likely to balance the
need for the information by the party seeking discovery with the harm to the party opposing
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it./89/ If only the expense of copying documents is involved, you may offer to do the copying. If
the expense is related to reviewing the respondent’s files, you may again offer to undertake the
review.
Conversely, you may receive objectionable discovery requests. Ordinarily your response to
improper requests for production, requests for admission, and interrogatories should be to
object, specifying your grounds with precision. It is rarely necessary to move for a protective
order.
Occasionally, as a form of obstruction or harassment, parties respond to a request for
production by turning over a large volume of unreviewed, unsorted materials and documents.
Because Rule 34(b) requires the producing party to sort or label documents to correspond with
the categories in the request, or to otherwise produce them as they are maintained in the usual
course of business, the production of a mass of unsorted material violates the rule./90/ If this
happens, you should move to compel discovery under Rule 37(d). Although most trial courts
prefer not to supervise the discovery process actively, production that clearly violates the
obligation to particularize a response should lead to relief. Confronted with a respondent who
has foisted a huge mound of unsorted materials upon the requesting party, a court should
order the respondent to particularize the response and may ultimately impose sanctions on a
party who fails to do so./91/
The ultimate goal of production is to generate admissible evidence. Although parties
customarily stipulate to the authenticity of documents that they produce, authenticity or
source is sometimes in doubt. In such a case, the requesting party may later submit requests for
admission to establish authenticity, simplifying the admission of those documents into
evidence./92/ Documents can also be authenticated at a deposition.
As with initial disclosures and interrogatories, a party and his attorney have a duty to
supplement or correct responses to requests for documents “if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing.”/93/
6.2.C.3. Requests for Admission
Requests for admissions issued pursuant to Federal Rule of Civil Procedure 36 are a useful but
often underused tool. They are written requests for the admission of “the truth of any matters
within the scope of Rule 26(b)(1)” for purposes of the pending action only. As with
interrogatories and requests for production, they may only be directed to parties./94/ Unlike
interrogatories, the number of requests for admission is not limited by the federal rules but
may be limited by court order or by local court rule./95/
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Rather than being discovery devices designed to uncover facts, they are instead a means to
define and limit the matters in controversy between the parties./96/ Requests for admission
are intended to relieve the parties of the time and cost of proving facts that will not be disputed
at trial. To be useful, requests for admission must be precise and phrased in such a way as to be
admitted or denied./97/ They may cover facts or mixed questions of fact and law, but not pure
questions of law./98/ Authority is split as to whether requests for admission seeking
interpretations of documents are improper./99/
Although documents produced in response to a request for production can sometimes be
authenticated through use of the party’s written reply, the better practice is for the discovering
party to request that authenticity be admitted. /100/ A request for admission may relate to
origin, authenticity, accuracy, or contents of the document./101/ Rule 36(b) states: “A matter
admitted under this rule is conclusively established unless the court, on motion, permits the
admission to be withdrawn or amended.” Such permission is occasionally granted./102/ A
request for admission that is not answered within thirty days after service of the request is
deemed admitted./103/ Once a fact is admitted, the offering party need not prove it. The court
and parties are bound by it even if more persuasive evidence relating to the fact is later
offered./104/
Rule 36(a)(4) further provides that “an answering party may assert lack of knowledge or
information as a reason for failure to admit or deny only if the party states that it has made
reasonable inquiry and that the information it knows or can readily obtain is insufficient to
enable the party to admit or deny.”/105/ While a denial must “fairly respond to the substance
of the requested admission,” the responding party is also allowed in “good faith” to “qualify” an
answer, or to qualify or deny part of the matter and specify which of the remainder is
true./106/ Stating its reasons, the responding party may also object to the requested
admission./107/
The propounding party may move to compel if unsatisfied with the sufficiency of the answers
or objections given. If the court determines that a response is noncompliant with the rule, it can
either order that the matter is admitted, or compel an amended answer./108/ Subject to
specified conditions, a requesting party having to prove the truth of a matter or the
genuineness of a document requested under Rule 36 may seek reasonable costs, including
attorney's fees, if the responding party failed to make the appropriate admissions./109/
6.2.C.4. Depositions
Federal Rule of Civil Procedure 30 permits a party to take an oral deposition under oath of any
person, including individuals who are not parties. A deposition is, in essence, a conversation
between an attorney and a witness in which the witness's knowledge,
perceptions, understandings and opinions are probed under oath. A deposition may have two
functions: to discover facts and opinion and to preserve testimony for trial. The latter is known
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as a de bene esse deposition and is governed by Federal Rule of Civil Procedure Rule 32.
Generally, depositions may not be taken until the parties have had their Rule 26(f) conference.
Absent written stipulation of the parties, Rule 30(a)(2)(A)(i) limits parties to ten depositions
without having to obtain leave of court,/110/ and the number of depositions may be limited
further./111/ When organizations are deposed pursuant to Rule 30(b)(6), each person
designated as a witness is subject to a separate seven-hour time limit on his deposition,/112/
and multiple 30(b)(6) depositions of the same entity are regarded as only one deposition
against the presumptive limit of ten./113/
The rule limits a deposition to one day of seven hours of actual deposition time (excluding
breaks), unless the parties otherwise agree or the court allows additional time “if needed for a
fair examination of the deponent or if the deponent or another person, or other circumstance,
impedes or delays the examination.”/114/ A party requesting extension of the seven-hour limit
must show good cause. Factors that may be considered in the good cause determination
include: (1) the need for an interpreter; (2) the need to examine the witness about events
occurring over a long period of time; (3) the need to question the witness about numerous or
lengthy documents; (4) the examination reveals that documents have been requested, but not
produced; (5) the need for the deponent’s own attorney to ask questions, and (6) the need to
fully explore the theories upon which an expert witness relies./115/ As a result, the deposing
party is advised to facilitate time-efficient depositions by sending documents to the witness’s
attorney to review in advance of the deposition. If the witness fails to do her homework, or if a
witness stonewalls, there may be grounds for asking for an extension of the time limit or
sanctions, or both. Similarly, you should ask the deponent to produce subpoenaed documents
in advance of the deposition; this may alleviate the need to exceed the time limit./116/
Depositions can be enormously helpful to learn facts and opinions, memorialize perceptions
and develop evidence needed for summary judgment and trial. However, legal aid attorneys
recognize that they are expensive and the importance of depositions should be prioritized to
comport with budgetary limitations. Unlike other discovery tools, depositions may be taken of
any witness, and, unlike answers to interrogatories and requests for production, responses in
depositions come directly from witnesses or parties, without screening or filtering by opposing
counsel. Testimony during a deposition is under oath and may be used on a motion for
summary judgment or as evidence or for impeachment at trial. Because a deposition may be
accompanied by a subpoena duces tecum, it also serves as a method of document discovery
from nonparty witnesses./117/
6.2.C.4.a. Taking Depositions
6.2.C.4.a.1. Procedure
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Depositions of parties are arranged using a notice of deposition, which designates the location
and time for the deposition, along with other specified information required by Rule
30(b)./118/ To avoid scheduling conflicts, consult opposing counsel to determine an agreeable
time.The notice must be served on all parties. When deposing a party, a subpoena is not
required; service of the notice on opposing counsel is sufficient. If the party is a corporation or
governmental entity and you are unsure whom to depose, you can, as described further below,
instruct the party to designate witnesses with knowledge of the areas into which you propose
to inquire./119/
Depositions must be conducted before an officer authorized to administer oaths./120/ The
notice must state the method of recording the deposition, with costs to be borne by the party
taking the deposition./121/ No court order is required to record a deposition by audio or
videotape recording unless the local rules require traditional stenographic recording./122/
When stenographic transcription of the deposition is not required, these alternative methods
may offer cost advantages. A videotaped deposition may be also useful if a visual
demonstration is needed and may be used in jury trials if the witness is not available./123/ The
parties may stipulate, or the court may order, that depositions be taken by other means, such
as by telephone or through video-conferencing./124/ Because the rule states that the
deposition occurs where the deponent, not the attorney, is located, the reporter must be
located with the deponent./125/ Depositions by telephone should be considered when long
distances are involved, but the courts are divided on whether extreme hardship is required if
there is an objection to this method. An obvious drawback to telephone interviews is the
inability to observe the deponent in person.
The notice of deposition must state the place and time of the deposition./126/ Some local rules
of court designate the amount of notice required before a deposition is taken; in the absence of
a rule, reasonable notice is typically ten days. Depositions ordinarily take place in the office of
the deposing party’s attorney. However, the deposition of a corporation by its agents and
officers is usually taken at its principal place of business, subject to considerations of
expense./127/ Taking a deposition at the opponent's office is sometimes useful if the witness
refers to documents that are located on-site and may be made available following a break in
the deposition.
When you want a party to bring documents to the deposition, request the documents in the
notice of deposition./128/ However, the 30-day document production time period of Rule 34
applies to requests for such documents under Rule 30(b)(2). Unless the deposition is scheduled
for more than 30 days from the date of the deposition notice, you can avoid this delay and issue
a subpoena duces tecum, even to a party./129/ Sequestration of witnesses during a deposition
is no longer the norm./130/ Other witnesses may attend unless a specific showing of harm is
made./131/
At the outset of the deposition, the deposing attorney should ask the witness whether they
reviewed documents in preparation for the deposition and, if so, ask that the witness identify
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those documents. Determine whether all of the documents have been produced. If some have
not, request production of the documents. You may expect the opposing attorney to argue that
the documents are protected work product. While courts have taken different approaches to
resolving this conflict between work product and Federal Rule of Evidence 612, but one
particularly detailed and thoughtful decision, subsequently widely cited, concluded that work
product protection should be balanced against the interests of disclosure./132/
6.2.C.4.a.2. Practice and Strategy
In preparing for a deposition, begin by defining your objectives. Is your primary goal to
determine what the witness knows? To establish a basis for impeaching the witness at trial? To
learn the details of the adversary’s case in order to prepare better to rebut it? To commit the
witness to testimony favorable to your position for a record for summary judgment? Whatever
your goal, you should prepare for the deposition by outlining a series of questions or areas of
inquiry, checking off each question or area as you cover it. Do not, however, fall into the trap of
asking only questions developed in advance; you must listen carefully during the deposition.
Inevitably the answers you get will suggest questions that you did not think of before the
deposition. Be prepared to depart from your outline when necessary, so you can thoroughly
explore lines of questioning suggested by the deponent’s answers.
Most depositions open with two sets of preliminary rituals. The first concerns stipulations,
some of which may vary with local practice. Some attorneys propose stipulations that are
already mandated by federal rule unless otherwise stated, such as waiver of irregularities in the
notice and defects in the qualification of the officer before whom the deposition is taken./133/
If the opposing party is requesting the “usual stipulations,” be sure to ask, at the outset,
precisely what is encompassed by them. Stipulations may also waive the witness’s right to read
and sign the transcript before it is submitted to the court. Federal Rule of Civil Procedure 30(e)
requires review of the transcript by the witness only if requested by a party before completion
of the deposition. Do not permit your own witness to waive review and signature because
doing so may prevent him from amending, correcting, or revising by affidavit his testimony
before trial./134/
The second preliminary but very important ritual is for the deposing attorney to state certain
ground rules to the witness. You should introduce yourself and indicate the party whom you
represent. After the reporter swears the witness, explain to the witness on the record that the
testimony is under oath and must be both accurate and complete. Instruct the witness that if
the witness does not understand a question, the witness should say so in response, and you will
rephrase the question. Similarly the witness should be advised to explain or clarify any answer
that the witness feels needs explanation or clarification. This not only helps prevent
embellishment of testimony at trial but also may give you leads for additional inquiry. Explain to
the witness that an answer must be given by spoken words and not simply by a gesture, nod, or
“mmhmm.” Ask whether there is any reason why the deponent cannot testify fully and
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accurately, including whether the witness has recently taken any medications or is experiencing
an illness./135/
Experience teaches that depositions are best conducted in an accommodating, friendly manner.
The best deposition is one in which the witness cooperates. A hostile, abrasive, or overbearing
manner discourages cooperation. A confused, interrupted, belligerently conducted deposition
often does not generate a useful transcript. Moreover, it solidifies hostilities and may impede
settlement. As the deposition unfolds, and as you assess the nature of the information you
obtain, you may decide to sharpen your questioning strategy from open-ended information
gathering questions to more closed questions designed to challenge the witness.
Do not settle for ambiguous answers; follow up and insist on an answer. Remember that a
reporter cannot transcribe accurately when several people speak simultaneously. Do not allow
attorneys to answer questions in the guise of an objection, thus testifying in place of the
deponent. The informal setting of a deposition often leads to going “off the record” more often
than in a courtroom, with the result that valuable information may not be recorded. To assure
the production of a useful transcript, be cautious about going off the record.
The first objective in most depositions is to discover what the witness knows. To further that
objective, begin the deposition much like an interview: start by having the witness identify
herself, her position, background, and involvement and detail what she did or experienced
relevant to the case. Inquire of the witness’s knowledge about other witnesses, the parties
generally, and potential sources of evidence. After allowing the witness to give narrative
answers to questions framed to elicit elaboration, you should go back through the testimony,
pinning down dates, locations, persons present, documentation, and other ways of fixing the
testimony and using it as a source for further investigation or discovery. Only then should you
seek, if at all, to confront the witness with adverse examination, particularly that which
develops motive or exposes hostility. Along the way, acquaint the witness with matters
developed previously through discovery or produced by the witness in response to a subpoena
duces tecum. Ask the witness to identify the matters, agree with and substantiate them, or
indicate her inability to do so and explain why.
Mark in advance with an exhibit number all documents you intend to use during a deposition.
You will be identifying these documents for use at the deposition. They are not being offered as
evidence for purposes of disposative motions or for trial. Have at least three sets of marked
documents—one for the witness, which the reporter should retain, one for opposing counsel,
and one for yourself. To ensure that the transcript is clear, always refer to documents by their
exhibit number. If you intend to question a witness about a document, determine whether your
local practice requires such documents to be provided to counsel for the witness in advance.
Practice varies by jurisdiction.
Objections to the competency, relevancy, or materiality of testimony can but need not be made
during a deposition; they can be raised later at trial. The only objections waived if not made
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during the deposition are those relating to the form of questions, privilege, and errors that
could have been corrected during the deposition itself./136/ Because objections are preserved
for trial, the deposing attorney should seek during the deposition to respond, if possible, to the
objection by curing any defect, such as a defect regarding the form of the question. An
objection that is not cured precludes the use of the answer at trial. If faced with an objection on
the grounds of privilege, ask a series of questions designed to elicit the factual basis for the
objection and request that the opposing attorney state the basis on the objection on the
record. That explanation may be unpersuasive, or offer insight on how to obtain the
information sought without objection.
There are behavior norms for attorneys during depositions: “[i]n general, counsel should not
engage in any conduct during a deposition that would not be allowed in the presence of a
judicial officer.”/137/ Some attorneys engage in obstructive behavior, particularly with young
opposing counsel. You may have to cope with opposing counsel’s harassment in order to
prevent interference with your ability to elicit appropriate testimony from the witness. A
common harassment technique is to make “speaking” objections in a manner that offers the
witness a hint as to how to respond. This tactic is not permissible. Rule 30(c)(2) states: “An
objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person
may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce
a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”/138/ An
attorney is prohibited from attacking every question posed by opposing counsel so as to
prevent elicitation of any meaningful testimony from the witness./139/ Cases of particularly
egregious attorney misconduct can lead to severe sanctions./140/ It is not improper for an
attorney to raise reasonable, non-waivable objections.
Another frequently encountered tactic is for defending counsel to request frequent breaks with
the witness. This pattern of conduct should be strenuously resisted. As one court has held,
"conferences between witness and lawyer are prohibited both during the deposition and during
recesses" unless “the purpose of the conference is to decide whether to assert a
privilege."/141/ While agreeing that private attorney–witness consultations between questions
and answers are impermissible except for the purpose of determining privilege issues, other
courts have rejected a bright line rule barring all witness-lawyer conferences during the
deposition./142/
Personal remarks and ad hominem attacks on opposing counsel are inappropriate and may be
sanctioned./143/ The lawyer for the witness is not an intermediary for interpreting
questions./144/ If necessary, you may seek a judicial ruling on a motion to compel pursuant to
Rule 37(a), as appropriate, but doing so may interrupt or delay the deposition./145/ The federal
magistrate or judge assigned to the case (or in the district in which the deposition is held) often
makes herself available to resolve these types of disputes, sometimes by telephone. In some
jurisdictions, however, interrupting a deposition to move to compel may delay the deposition
for weeks or months as you await a ruling./146/ If possible, learn the local practice from other
counsel or the judge’s clerk before deciding whether to interrupt a deposition./147/
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6.2.C.4.b. Defending Depositions and Preparing Witnesses
The four key steps to follow in order to prepare a witness for deposition are: (1) Review your
entire file, and prior deposition transcripts, to anticipate questions that the witness will be
asked. (2) Meet with the witness to review the deposition process, including the preliminaries
and breaks, and the facts and documents about which you expect her to be asked, including the
most difficult issues that are likely to be covered. (3) If the witness is shaky or would feel more
comfortable, have another attorney conduct a mock cross-examination of the witness. Try to
keep this practice session as formal as possible, and use a tape recorder to simulate the
presence of a court reporter. (4) Advise the witness how to dress for and conduct herself during
the deposition. A sample set of instructions is set forth below./148/
When defending a deposition, counsel will have to determine whether and when to make an
objection. Certain objections may be waived if not made, and thus should be made if
appropriate. Those objections are listed in Rule 32(d) of the Federal Rules of Civil Procedure.
Perhaps the most common are objections to the form of the question as such questions (like
compound questions) can be corrected immediately. Objections as to relevance and hearsay
are not waived if not made./149/ If such non-waivable objections are made, they are noted for
the record and the witness will answer notwithstanding the objection. The strategic use of
legitimate objections may be highly useful even if the objection would not be waived by not
being made. As noted above, this is not per se improper, although at some point it could
become abusive. An objection may signal to the witness to be cautious before responding to
the question or may give her an opportunity to think through her answer more carefully before
giving it. Relevance objections may cause the questioning attorney to reconsider the line of
questioning. On the other hand, advocates can also signal a weakness in their case by pointedly
objecting to a line of questioning.
Instructing a witness not to answer a question should rarely be necessary, except when the
inquiry intrudes into privileged areas. to enforce a limitation imposed by the court or to present
a motion under Rule 30(d)(3)./150/ It is improper, for example, to instruct a witness not to
answer on the grounds of repetition. If a witness is instructed not to answer, the deposition
may proceed to other matters. The courts are somewhat divided on whether the deponent's
attorney should move for a protective order to enforce the asserted privilege, or whether
the deposing counsel should seek a motion to compel./151/ Alternatively, the deposition may
come to a halt while such relief is being sought, to resume at a subsequent time if a magistrate
judge is not promptly available. This is rare; interrupting the deposition is necessary only when
the objection precludes all useful inquiry or when the witness will soon become unavailable.
In defending a deposition of your client or of a friendly witness, you must also decide whether
to ask questions at the conclusion of direct examination. Although many lawyers, reasoning
that explanations or rehabilitation may be offered at trial, forgo “redirect” of their witnesses,
do not automatically decline this opportunity. Whenever the examination of your witness
produces damaging testimony that can be explained, obtain the explanation in redirect. A later
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explanation is not precluded, but it is more easily dismissed as the work of the lawyer than one
elicited during the deposition on the very same day as the apparently damaging statement.
Waiting until trial to rehabilitate your witness is particularly hazardous for three reasons. First,
an explanation offered at trial, after your witness has been impeached or even in anticipation of
impeachment, may look contrived. Second, before trial, the deposition of your witness may
become part of an adverse motion for summary judgment. Should that happen, your witness
will have no other opportunity to testify, although an explanatory affidavit may be permissible,
at least if the witness noted a correction on his errata sheet. Third, adverse deposition
testimony alters the settlement dynamic, which can be rebalanced if the witness is successfully
rehabilitated.
An errata sheet presents an opportunity for a witness to amend his testimony after the
deposition. The witness may create an errata sheet when the transcript is submitted to him for
review, but, under Rule 30(e), submission to the witness occurs only if the deponent or a party
affirmatively requests it before completion of the deposition and such request must be noted in
the officer's certificate. It is best not to waive signing and review of the transcript by your client.
Rule 30(e) permits the deponent to make “changes in form or substance” in his transcribed
testimony,/152/ although courts have interpreted Rule 30(e) differently./153/ To be effective,
however, the changes must be supported by reasons and must be made within thirty days of
submission of the transcript to him./154/ The changes are appended to the deposition,
although the original testimony stands as well. Again, however, this approach will be less
convincing to the trier of fact than testimony amended at the time of the deposition.
6.2.C.4.c. Depositions of Organizations
Depositions of individuals who can speak on behalf of organizations or government entities
are addressed in Federal Rule of Civil Procedure 30(b)(6). Rule 30(b)(6) allows you to name as
the deponent, in a deposition notice or subpoena, “a public or private corporation, a
partnership, an association, a governmental agency, or other entity." The deposition
notice must “describe with reasonable particularity” the topics of inquiry./155/ This triggers the
obligation of the named organization to “designate one or more officers, directors, or managing
agents, or other persons who consent to testify on its behalf” to appear at the deposition on
behalf of the organization./156/ The designation may, but is not required to, set forth the
matters on which the designee will testify. Admissions of these individuals are regarded as
admissions of the entity on whose behalf they are testifying./157/ If the designated witness
does not have knowledge regarding one or more of the topics identified for deposition, the
entity must select additional witnesses who do have this information./158/ If the entity cannot
produce any individual to testify regarding the matters named, it should move for a protective
order.
Pursuant to Rule 30(b)(6), the person designated by the organization is to testify “about
information known or reasonably available to the organization.” Courts have taken somewhat
different approaches when a line of questioning goes beyond that designated in the deposition
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notice. The trend favors the view that, once an organization designates a witness on its behalf,
the scope of the inquiry is governed by the general scope of discovery, and is not limited to the
specific areas identified in the notice of deposition./159/ In such cases, courts may deem the
answers offered in response to questions outside the scope of the notice not to be binding on
the entity, but merely the views of the deponent personally./160/
In one important respect organizations producing Rule 30(b)(6) deponents have a greater
responsibility than other deponents. The organization responding to a Rule 30(b)(6) deposition
notice “must prepare deponents by having them review prior fact witness deposition testimony
as well as documents and deposition exhibits.”/161/ Even if the documents are voluminous and
the review of those documents would be burdensome, the deponents are still required to
review them in order to prepare themselves to be deposed./162/ Such preparation is necessary
because the individuals so deposed are required to testify not only as to their own knowledge,
but also as to the knowledge of the business or government entity./163/
6.2.D. Discovery From Non-Parties
Federal Rule of Civil Procedure 45 governs discovery from non-parties. Parties may issue
subpoenas, commonly known as subpoenas duces tecum, to third parties for production of
documents or electronically stored information, or for inspection of premises. The requesting
party need not depose the third party, or the document custodian thereof, who furnishes
documents or electronically stored information./164/ A deposition may be unnecessary if the
third party is prepared to stipulate to the authenticity of the documents provided and the
thoroughness of the search performed to generate them. If the requesting party wishes to
depose the third party, the request for documents, electronically stored information or tangible
things should be included in the subpoena for attendance at the deposition. You should request
that the documents be provided in advance of the deposition so that you have sufficient
opportunity to review them prior to the deposition.
Subpoenas are issued by the Clerk of the Court (typically on the court's website), but are signed
by the attorney./165/ If the subpoena seeks the production of documents or electronically
stored information, it must describe what is sought with a degree of specificity required to
avoid an overbreadth or burdensomeness objection. The subpoena may request material in the
recipient's "possession, custody, or control," which includes information which the recipient
has the legal right to demand from others./166/ The subpoena is issued from the court for the
district in which the deposition or production is to take place./167/ So long as the production is
to take place in the district in which the issuing court is located, the recipient is obligated to
produce material even if it resides outside the district from which the subpoena was issued and
served./168/ Thus, for example, a subpoena issued by the federal court in the District of
Columbia commanding a Maryland firm's production of documents in Maryland is invalid./169/
Subpoenas are served by non-party adults, but are served by the U.S. Marshal's Service in cases
brought in forma pauperis./170/ Most courts have held that subpoenas must be served on the
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recipient personally, although others have held that the term "delivering" in the Rule permits
alternative forms of service, such as Federal Express so long as the method selected ensures
receipt./171/ If the subpoena commands the production of documents, electronically stored
information or tangible things or the inspection of premises, notice on all parties must be
provided before the subpoena is issued./172/ Failure to provide such notice is sanctionable.
Although the rule does not similarly require advance notice for third-party depositions, it is
often good practice to notify the opposing parties to ensure that the date selected for the
deposition is convenient.
When commanding the attendance of a third-party witness, the subpoena must include a check
to cover witness fees and travel costs./173/ You must pay these expenses even when the
plaintiff is proceeding in forma pauperis./174/ Service of the subpoena must be made: 1) within
the district of the issuing court, 2) outside that district, but within 100 miles of the location of
the deposition or inspection, 3) within the state of the issuing court, if permitted by state law or
4) where the court authorizes on motion for good cause, if permitted by federal statute./175/
For an example of the latter, see 28 U.S.C. § 1785.The process server should file a proof of
service./176/
Federal Rules of Civil Procedure Rule 45(c) directs the party or attorney issuing a subpoena to
“take reasonable steps to avoid imposing undue burden or expense on a person subject to that
subpoena." There is no particular test implementing the "undue burden" proscription in the
Rule, but common sense generally prevails here. The courts typically balance the benefits of the
material sought against the burden imposed, taking into account possibilities that the
requesting party may have to obtain the information more inexpensively elsewhere. A third
party subpoenaed to produce documents or tangible things objects to the subpoena by filing
written objections./177/ Those objections must be filed within fourteen days or prior to the
date specified for compliance, whichever is earlier./178/ Rule 45(d)(2) explains how the third
party makes a claim that information requested is privileged or subject to protection as trial
preparation material. If the requesting party disagrees with the objection, the issue is typically
resolved upon a motion to compel enforcement of the subpoena. Federal Rules of Civil
Procedure Rule 45(d)(1) sets forth the means by which the third party is to comply with a
subpoena for documents or electronically stored information.
A third party subpoenaed for deposition objects by filing a motion for protective order or a
motion to quash the subpoena./179/ Such a motion is to be filed "timely," which is generally
defined as prior to the date of the deposition./180/ The party issuing the subpoena may wish to
file a cross-motion for enforcement. In response, the court may consider and impose
conditions or modifications on the subpoena./181/
6.2.E. Electronic Discovery
The December 1, 2006 amendments to the Federal Rules of Civil Procedure represent a major
development in the discoverability of electronically stored information (ESI) and is the
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culmination of considerable academic commentary and work by the Sedona Conference./182/
The vast majority of information is stored digitally. The volume and dispersion of such
information is astounding. It is easily modified, tagged with metadata and stored in databases
and on platforms and in formats which change frequently. ESI presents entities which store and
maintain such data, as well as those seeking it in litigation, with enormous challenges. Given the
complexity and rapidly developing case law in this area, only a summary is possible./183/
Rule 34(a)(1)(A) permits the discovery of ESI, just as it long permitted the production or
inspection of paper documents. ESI is not defined precisely, but includes "any type of
information that is stored electronically."/184/ Rule 34 covers documents or ESI "stored in any
medium from which information can be obtained whether directly or, if necessary, after
translation by the responding party into a reasonably usable form."/185/ Documents and ESI
may be tested and sampled. If you have engaged with opposing counsel prior to the filing of a
complaint, or with the filing, consider writing a letter to opposing counsel instructing them to
preserve ESI relevant to the case, to issue a litigation hold to their clients and to ensure that
relevant data is not destroyed. ESI is subject to mandatory initial disclosures./186/
A request for ESI may (and should) specify the form in which ESI is to be produced./187/ A
meaningful request should reflect an understanding of what form the ESI is in and how it can
most easily be accessed by the requestor. Rule 26(f)(3) now specifically requires the parties to
express their views and proposals on the discovery of ESI, "including the form or forms in which
it should be produced." Thus, ESI should be a topic of discussion during the Rule 26(f)
conference and you should ask about how relevant material is stored electronically. To prepare
for such a conference, consider consulting with a professional who can guide you in
understanding what questions to ask at the conference and what resources may be needed for
you to read the ESI produced. Various kinds of ESI, such as word processing documents, e-mails,
text messages and information from various databases may be stored in different formats and
require production in different forms./188/
In response to the request, the responding party may produce the material in the
form requested, select the forms in which it will be produced if the requester did not specify it
or object to the form requested./189/ The party producing ESI must "produce documents as
they are kept in the usual course of business or must organize and label them to correspond to
the categories in the request."/190/ If the requester does not specify the form of production,
the responding party must produce it in the form in which it is ordinarily maintained, or "in a
reasonably usable form or forms."/191/ The "ordinarily maintained" language suggests that the
responding party may not alter the ESI from an existing format, such as one with searching
capabilities, to a less usable form./192/ Of importance to legal services office without technical
capabilities, the rules contemplate that the responding party may need to provide the
requester with technical support, information or application software in order to use the ESI
produced./193/
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Not surprisingly, much ESI is stored and/or usable on superseded computer systems or
programs or is otherwise asserted to be not reasonably accessible or costly to access. If the
responding party does not produce ESI on the grounds that it is not reasonably accessible, it
"must also identify, by category or type, the sources containing potentially responsive
information that it is neither searching nor producing."/194/ If the requesting party continues
to want this ESI, the rule contemplates that the parties will discuss the costs of access. Should
there be no agreement, the court will resolve it following a motion to compel or for protective
order./195/ Discovery may be required to create the record necessary to assess whether the
ESI is not reasonably accessible.
If the court finds that the ESI is not reasonably accessible, it may nevertheless order it produced
if the requesting party demonstrates "good cause."/196/ The Advisory Committee notes list
several factors that should be considered in making this determination: (1) the specificity of the
request, (2) the availability of information from other and more easily accessed sources, (3) the
failure to produce information that once existed but is no longer available on more easily
accessed sources, (4) the likelihood of finding relevant information that cannot be obtained
from other sources, (5) predictions as to the importance and usefulness of the information, (6)
the importance of the issues to the case, and (7) the parties' resources./197/ The Rules do not
address the shifting of costs of such discovery, if ordered, but the Advisory Committee notes
state that cost shifting is relevant to the "good cause" inquiry and whether limitations should
be placed on discovery./198/
6.2.F. Expert Discovery
The federal rules “provide for extensive pretrial disclosure of expert testimony.”/199/ Experts
are those individuals who are expected to testify pursuant to Federal Rule of Evidence 702. Rule
26(a)(2)(B) requires parties to disclose the names of their trial experts before trial and to give
the opposing party a written report, prepared and signed by witnesses who are "retained or
specially employed to provide expert testimony in the case or one whose duties as the party's
employee regularly involving giving expert testimony."
The disclosures “shall be made at the times and in the sequence directed by the court,” but at
least ninety days before trial if not otherwise directed./200/ However, the parties have an
additional thirty days to disclose expert evidence intended solely to contradict or rebut
evidence on the same subject matter identified in another party’s disclosures./201/The
“automatic sanction” for a violation of Rule 26(a)’s disclosure requirements is preclusion of the
expert’s testimony, unless the violation was “harmless” or “substantially justified.”/202/
The report is required to be comprehensive. It must contain “a complete statement of all
opinions the expert will express and the basis and reasons for them" and “the data or other
information considered by the witness in forming them,” exhibits that will be sued to
summarize or support the opinions, the expert’s qualifications (including publications authored
within the preceding ten years), compensation received, and a listing of expert testimony
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during the preceding four years./203/ According to the Seventh Circuit, “A complete report
must include the substance of the testimony which an expert is expected to give on direct
examination together with the reasons therefor. . . . Expert reports must not be sketchy, vague
or preliminary in nature. . . . Expert reports must include ‘how’ and ‘why’ the expert reached a
particular result, not merely the expert's conclusory opinions.”/204/
In some cases, a thorough report may eliminate the need for the deposition of an expert.
However, a deposition allows you to explore weaknesses in the witness’s background,
knowledge, and opinions./205/ If a deposition is desired and you are able to afford the
significant expense entailed, you may schedule it as soon as the expert is identified and the
report is given./206/ By contrast, a party may generally seek discovery from experts who are
merely retained or specially employed in anticipation of litigation or preparation for trial and
who are not expected to testify only upon a showing of “exceptional circumstances.”/207/
As noted, information considered by the expert in forming her opinion should be included in
the expert's report. This provision raises the question of whether and to what extent
documents provided by counsel to their expert, ordinarily regarded as work product, are
discoverable. The majority rule is that all documents considered by experts, including
documents given by counsel with opinion work product, are discoverable./208/ Draft reports
may be discoverable even if they contain comments of non-testifying, consulting experts/209/
or counsel’s comments./210/ Counsel’s own notes of her communications with an expert are
generally viewed as non-discoverable work product./211/ Extreme caution should therefore be
exercised before sending the expert anything in writing, whether by e-mail or otherwise. As
with other discovery, timely supplementation of expert disclosures is required pursuant to Rule
26(e)(1). Supplementation of an expert report on the eve of trial is not permitted unless
justified by good cause./212/
6.2.G. The Uses of Discovery
When information gathered during discovery supports new claims, new parties, or new relief,
amend or supplement your pleadings. Occasionally, discovery suggests that a claim is no longer
viable or that a party should be voluntarily dismissed. In that event, file an appropriate
document pursuant to Federal Rule of Civil Procedure 41(a).
More typically, the point of discovery is to generate usable evidence. Evidence from discovery
may be particularly valuable in connection with seeking preliminary injunctive relief and
summary judgment. Although motions for preliminary injunctions may require live testimony,
they are sometimes granted (or denied) on the basis of documentary evidence including
depositions or responses to requests for production./213/
In contrast, motions for summary judgment are considered exclusively on documentary
evidence. Although Rule 56 speaks of affidavits submitted in support of or in response to the
motion for summary judgment, in practice parties often rely extensively on depositions. Local
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practice may vary as to whether filing the transcript of the entire deposition is necessary;
attaching excerpts to the motion for summary judgment or the memorandum in opposition is
more frequently permissible.
Discovery by or from you sometimes facilitates settlement. The opposing party may be induced
to settle in order to avoid the effort, expense, and possible embarrassment of responding to
your discovery requests. Disclosure of harmful facts may encourage settlement. When you
respond to discovery and show the strength of your case, the opposing party may also be
encouraged to settle.
Discovery is essential in preparing for and conducting a trial. A deposition may be used to
impeach a witness or may be offered into evidence as the testimony of a party, or of a witness
who is unavailable for trial./214/ When offered to impeach the testimony of a witness,
deposition testimony is admissible as substantive evidence rather than simply as evidence of
the witness’s lack of credibility./215/ Requests for production and interrogatories also generate
trial evidence, and requests for admission may pare down the issues that must be tried.
6.2.H. Shifting Costs of Discovery
Depositions can be expensive due to court reporter's fees, videotaping costs, the fee of any
expert whom you depose, and transportation and lodging for you to attend out-of-state
depositions or to bring a witness to the deposition. A number of federal statutes permit the
recovery of certain expenses to the prevailing party. In the absence of such a cost-shifting
statute, however, Federal Rule of Civil Procedure 54(d)(1) permits the court to award limited
costs to the prevailing party. As explained in more detail in Chapter 9.5 of this MANUAL, taxable
costs are limited to those listed in 28 U.S.C. § 1920. /216/
Section 1920(2) permits the recovery of costs for "fees for printed or electronically recorded
transcripts necessarily obtained for use in the case."/217/ When the deposition is used in
pretrial motions or at trial, application of the statute is straightforward./218/ When the
deposition is not used during the course of the litigation, the courts are split on whether the
costs are recoverable. The majority view is that they are, if the deposition was reasonably
viewed as necessary at the time it was taken./219/ Fees associated with depositions that are
purely investigative in nature are generally not taxable. Typically, costs incident to the taking of
the deposition, particularly those that are provided for the convenience of counsel, are not
taxable./220/
Under Section 1920(4), reasonable and well-documented costs for making necessary copies of
deposition transcripts and other documents are permitted./221/ Section 1920(3) permits
recovery of daily witness attendance and travel fees set under Section 1821,/222/ and service
fees associated with servicing deposition subpoenas are taxable under Section 1920(1)./223/
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6.2.I. Protective Orders
Protective orders may be sought in different contexts and with varying goals. In general,
protective orders may be granted, upon motion by the party resisting discovery and “for good
cause shown,” to avoid "annoyance, embarrassment, oppression, or undue burden or
expense./224/ Before seeking such an order, the movant is required by Rule 26(c)(1) to confer
with the opposing party in an effort to resolve the dispute without court action./225/ If this
effort is unsuccessful, the movant has the burden to show why a protective order is necessary,
based on a particular and specific demonstration of fact; the burden cannot be satisfied by
boilerplate and conclusory statements./226/ In deciding whether good cause exists, the court
typically balances the potential benefit of disclosure against its harms./227/ When appropriate,
some courts will weigh social or public interests more heavily than private ones. The decision to
enter a protective order is within the court’s discretion,/228/ including what degree of
protection is necessary in the fashioning of the order./229/
The court can enter any of the types of protective orders specified in Rule 26(c)(1), or any other
kind of order necessary to further the objective of Rule 26. Protective orders are sometimes
sought to avoid producing responsive information completely, often in the context of seeking
to protect information asserted to be privileged or attorney work product./230/ As a result of
the 2006 amendments, Rule 26(b)(5) now sets forth a procedure for asserting a claim of
privilege or protection. When a party withholds information asserted to be privileged or
protected as trial preparation materials, the party must make that assertion expressly and
describe the nature of the information in sufficient detail so that the requesting party can
determine whether the assertion is justified./231/ The assertion should be in writing, unless the
context, such as defending a deposition, makes that impossible./232/ If the requesting party
does not agree with the assertion or believes that any privilege or protection has been waived,
it may file a motion to compel disclosure of the information.
In other cases, particularly in the context of document production, protective orders are sought
not to foreclose discovery but to prohibit further disclosure, limit use of the information to the
case at hand, or require return of documents at the end of the litigation. For example, in Title
VII employment discrimination litigation, in which plaintiffs are required to demonstrate
pretext, courts customarily allowed wide discovery of personnel files, subject to a protective
order requiring that they be maintained in confidence, utilized only for purposes of the subject
litigation, and returned or destroyed at the conclusion of the litigation./233/ Such protective
orders are commonly entered by stipulation and tendered to the court. Stipulated blanket
protective orders trouble many courts; you should determine how judges in your district
approach these orders before agreeing to one./234/
With respect to depositions, a protective order may be sought to bar entirely the taking of the
deposition or simply to limit its scope or duration. Protective orders prohibiting a deposition
from being conducted are unusual and require a showing of “extraordinary
circumstances.”/235/ Some courts apply a balancing test, weighing the movant’s proffer of
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harm against the adversary’s significant interest in preparing for trial./236/ A claimed lack of
knowledge is not a sufficient ground for a protective order unless supported by a persuasive
affidavit./237/ Similarly “the fact that the witness has a busy schedule is simply not a basis for
foreclosing otherwise proper discovery.”/238/ Such orders may, however, be granted in a
number of different contexts:

where it clearly appears that the information sought is wholly irrelevant and could
have no possible bearing on the issue;/239/

as to a high-level corporate executive who lacks unique or superior knowledge of the
facts in dispute;/240/

where the deposition would necessarily involve attorney work product,/241/ and

as to an opposing party’s attorney, except where the party seeking the attorney’s
deposition establishes no other means to obtain the information except to depose
opposing counsel./242/
Depositions of high-ranking non-federal public officials present special concerns about the
diversion of their time and attention from other duties./243/ If you believe that such a
deposition may be appropriate, attempt first to determine whether lower-ranking employee
have the information sought and, if not, develop a record to demonstrate that the high-ranking
employee has personal knowledge. A third party subpoena for deposition testimony or
documents directed to a federal agency official are typically processed pursuant to the agency's
Touhy regulations./244/ Those regulations govern the process by which testimony or
information is sought, while traditional evidentiary and other objections control the federal
government's substantive response./245/
6.2.J. Motions to Compel
Although the rules contemplate cooperative discovery, some lawyers unfortunately practice
obstruction. Should you encounter late, incomplete, evasive, or ambiguous responses, or
improper objections to discovery requests, you should write opposing counsel a demand for
compliance, specifying a short time limit for a reply./246/ If a satisfactory reply is not
forthcoming within your specified time limit, move under Rule 37(a)(3) to compel disclosures or
discovery and, when appropriate, for sanctions. Rule 37(a)(1) requires any motion seeking to
compel discovery (or to compel Rule 26(a) disclosures) to include “a certification that the
movant has in good faith conferred or attempted to confer with the person or party failing to
make the disclosure or discovery in an effort to obtain it without court action.” Never threaten
unless you intend to act; you must follow through when dealing with obstruction or you will
encourage more of it.
Page 336 of 559
When you move to compel or for sanctions, you must explain clearly and simply what the
dispute is about. You should begin by setting forth the discovery request, the improper
response or objection, and your attempt to resolve the dispute. Then explain why you are
entitled to the disclosures or discovery and why the discovery sought is important. Before filing
your motion, check your local rules, which frequently specify how discovery materials are to be
presented to the court in the context of motions to compel.
The district court has broad discretionary power to impose a range of sanctions as
consequences for a party’s failure to comply with disclosure and discovery rules and orders, and
its decision will be reversed on appeal only for an abuse of that discretion./247/ Rule 37
provides a spectrum of sanctions. The mildest is an order to reimburse the opposing party for
expenses caused by the failure to cooperate. More stringent are orders striking portions of the
pleadings, prohibiting the introduction of evidence on particular points, and deeming disputed
issues determined adversely to the position of the disobedient party. The most severe sanctions
are orders of dismissal and default judgment./248/ Rule 37 sanctions provide a specific
deterrent to those parties whose conduct warrants penalty, and a general deterrent to those
contemplating abusing the rules of discovery. The sanctions “`must be applied diligently both to
penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those
who might be tempted to such conduct in the absence of such a deterrent.’”/249/
A party may move to compel disclosure, and may seek appropriate sanctions for a failure to
make a disclosure required by Rule 26(a); for a deponent’s failure to answer a question; for
failure to answer an interrogatory; for failure to respond to a request for production; failure to
answer completely or for answering evasively./250/ If the court grants the motion, or if the
requested discovery is provided after the motion is filed, the court “shall” “require the party or
deponent whose conduct necessitated the motion or the party or attorney advising such
conduct or both of them” to pay the reasonable expenses involved in bringing the motion,
including attorney’s fees./251/ The court may disallow costs and fees if it determines that the
motion was brought without a good faith attempt to informally secure the discovery, if the nondisclosing party’s actions were “substantially justified,” or if “other circumstances make an
award of expenses unjust.”/252/ Similar standards dictate the potential award of expenses
against the moving party, if the motion to compel is denied./253/ Apportionment of expenses
among the parties is to be made if the motion is denied in part and granted in part./254/ If the
motion is denied in whole or in part, the court may further enter a corresponding Rule 26(c)
protective order./255/
Failure to comply with discovery orders issued by the court carries potentially more severe
consequences. Rule 37(b)(2)(A), provides, in part, that "[i]f a party ... fails to obey an order to
provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the
court where the action is pending may issue further just orders." In addition to the potential
award of expenses and fees against the party, attorney, or both, these sanctions include: (1) an
order that designated facts are to be taken as established as the prevailing party claims; (2) an
order refusing to allow the noncompliant party to support or oppose designated claims or
Page 337 of 559
defenses, or prohibiting the party from introducing specified matters into evidence; and (3) an
order striking pleadings in whole or in part, (4) staying further proceedings until the order is
obeyed, (5) dismissing the action in whole or in part, (6) issuing a default judgment against the
disobedient part, or (7) treating the failure to obey as contempt, except for orders to submit to
a physical or mental exam./256/
The court may also award these severe sanctions (except contempt) and fees and expenses in
cases of total noncompliance” with discovery requests./257/ These cases include a failure to
appear at a deposition; a failure to serve answers or objections to interrogatories; or failure to
serve a response to a request for production./258/ The failure to respond is not excused by the
argument that the sought-after discovery is objectionable, unless the non-disclosing party has a
motion for protective order pending./259/
The failure to provide the initial disclosures, expert witness reports, or pretrial disclosures of
Rule 26(a), or the failure to supplement or amend a response pursuant to Rule 26(e), may lead
to the preclusion from using, at a trial, hearing, or motion, any witness or information not
disclosed./260/ The party may avoid the sanction if it had “substantial justification” for its
failure to disclose, or if the failure is “harmless.”/261/ The court may additionally or
alternatively award reasonable expenses, attorney's fees, and “other appropriate sanctions,”
including the Rule 26(b)(2) evidentiary and relief-based penalties described above./262/
Rule 26(e), added in 2006, provides that, absent exceptional circumstances, a court may not
issue sanctions on a party who failed to provide ESI if the information was lost "as a result of
the routine, good-faith operation of an electronic information system."/263/ The court may
require a party or attorney to pay expenses, including fees, if the party or attorney failed to
participate in good faith in developing and submitting a Rule 26(f) discovery plan./264/
Serious obstruction of discovery may result in an order precluding the admission of certain
evidence./265/ Because issue-related sanctions are fundamentally remedial rather than
punitive and do not preclude a trial on the merits, they do not require a heightened standard of
proof. They may instead be imposed “whenever a preponderance of the evidence establishes
that a party’s misconduct has tainted the evidentiary resolution of the issue.”/266/
Imposition of the ultimate sanctions for discovery abuse - the entry of a default judgment
against the defendant and dismissal with prejudice against the plaintiff - generally requires a
clear record of delay or contumacious conduct./267/ When the guilty party engages in
wholesale destruction of primary evidence regarding a number of issues and the district court
cannot fashion an effective issue-related sanction, default or dismissal may be granted./268/
Courts of appeal also demand an explanation of why lesser sanctions were likely to be
ineffective./269/ However, this does not mean that courts must first impose the lesser
sanction./270/
Page 338 of 559
Discovery problems can surface at trial when testimony changes and documents suddenly
appear. When a witness changes testimony from that given at a deposition, you can impeach
the witness on cross-examination. When, however, a document is produced that was not
disclosed in response to a request for production or interrogatory, the producing party may
argue that the request is unclear, that earlier production fully complied with the request, or
that the material is newly discovered. Properly prepared document requests and
interrogatories, as well as strategic requests for admission, protect against the first two
arguments; thorough discovery requests should make the claim of newly discovered documents
incredible.
Trial courts have broad discretion—ranging from granting a continuance to excluding a
document—in dealing with surprise documents. However, unless you can show prejudice or
willful, bad-faith failure to produce, the court is likely to allow the document into evidence.
Your opposition to admissibility is stronger if the document was omitted from disclosure
required in a pretrial conference. The message is clear: discovery requires careful planning and
execution and continuing vigilance.
33. Fed. R. Civ. P. 26(b)(1) (emphasis added).
34. 2000 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee notes.
35. Fed. R. Civ. P. 26(b)(1); see In re Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008).
36. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
37. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 430 (M.D. Fla. 2005) (While
not without limits, “[t]he term ‘relevant’ in this definition is to be ‘construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that bears
on, any issue that is or may be in the case.’") (quoting Oppenheimer Fund v. Sanders, 437 U.S.
340, 351 (1978)).
38. See, e.g., Collens v. City of New York, 222 F.R.D. 249, 252 (S.D.N.Y. 2004) (information to
impeach likely witness may be discoverable under narrower standard); Cornell Research Found.,
Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 73 (N.D.N.Y. 2003); Sanyo Laser Prods., Inc. v. Arista
Records, Inc., 214 F.R.D. 496, 500 (S.D. Ind. 2003) (“[T]he scope of discovery has narrowed
somewhat under the revised rule. The change, while meaningful, is not dramatic, and broad
discovery remains the norm. The revised rule simply provides one additional justification for the
Court to put the brakes on discovery that strays from the claims or defenses being asserted.”)
Accord, Fountain v. City of New York, No. 03CIV4526 (RWS), 2004 U.S. Dist. LEXIS 7539, at *7,
2004 WL 941242, at *2 (S.D.N.Y. May 3, 2004).
Page 339 of 559
39. See, e.g., Bowen v. Parking Auth., 214 F.R.D. 188, 195 (D.N.J. 2003) (while disallowing
defendants request for mental examination of plaintiff in an employment termination and
retaliation action because he had not placed his mental status “in controversy,” defendants
would be allowed to request production of plaintiff’s psychological records and depose his
therapists, since he claimed that emotional distress had emanated from his employment). See
also, Sallis v. Univ. of Minn., 408 F.3d 470, 477 (8th Cir. 2005) (“the new rules limit the breadth
of discovery that can occur absent court approval”) (quoting Elvig v. Calvin Presbyterian Church,
375 F.3d 951, 967-68) (9th Cir. 2004)).
40. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes. See Diaz-Padilla v.
Bristol Myers Squibb Holding LLC, No. 04-1003 (PG/GAG), 2005 WL 783076, at *1 (D. P.R. Apr. 4,
2005) (noting this purpose of disallowing discovery to develop new claims or defenses as the
most significant behind the 2000 amendments). See also Collens, 222 F.R.D. at 253 (“While Rule
26(b)(1) still provides for broad discovery, courts should not grant discovery requests based on
pure speculation that amount to nothing more than a "fishing expedition" into actions or past
wrongdoing not related to the alleged claims or defenses” (citations omitted)).
41. Thompson v. Dept. of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001). For a
discussion of relevance in connection with particular types of cases, see 6 James Wm. Moore et
al., Moore's Federal Practice para. 26.46 (2010).
42. Fed. R. Civ. P. 26(b)(1).
43. Surles v. Air France, No. 00CIV5004 (RMBFM), 2001 U.S. Dist. LEXIS 15315, at *6, 2001
1142231, at *2 (S.D.N.Y. Sept. 27, 2001).
44. Fed. R. Civ. P. 26(b)(1) (emphasis added). See Seales v. Macomb County, 226 F.R.D. 572, 575
(E.D. Mich. 2005) (“Under Fed. R. Civ. P. 26(b)(1)(b) , the scope of discovery is quite broad. . . .
‘The scope of examination permitted under Rule 26(b) is broader than that permitted at trial.
The test is whether the line of interrogation is reasonably calculated to lead to the discovery of
admissible evidence.’”) (quoting Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir.
1998)); Cory v. Aztec Steel Bldg., Inc., 225 F.R.D. 667, 670 (D. Kan. 2005) ("Relevancy is broadly
construed, and a request for discovery should be considered relevant if there is 'any possibility'
that the information sought may be relevant to the claim or defense of any party.") (quoting
Sonnino v. Univ. of Kan. Hosp. Auth., No. CIV.A.0222576-KHV-DJ, 2004 WL 769325, at *2 (D.
Kan. Apr. 8, 2004)).
45. See, e.g., Peskoff v. Faber, 244 F.R.D. 54, 59-61 (D.D.C. 2007) (applying factors in electronic
discovery case); Starbucks Corp. v. Lundberg, No. CV02-948-HA, 2004 U.S. Dist. LEXIS 16141, at
*14, 2004 WL 1784753, at *5 (D. Or. Aug. 10, 2004) (applying Rule 26(b)(2) factors to deny
plaintiffs’ request for production of “all documents” relevant to defendant’s responses to
plaintiffs’ interrogatories and requests for admission).
Page 340 of 559
46. Fed. R. Civ. P. 26(a)(1).
47. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes. The courts have
taken different approaches with respect to documents that may both have substantive content
and value for impeachment purposes. This issue arises in situations in which the court must
decide whether to preclude use of the previously undisclosed document. See McPheeters v.
Black & Veatch Corp., 427 F.3d 1095, 1105 (8th Cir. 2005); (Lomascolo v. Otto OldsmobileCadillac, Inc., 253 F. Supp. 2d 354, 359-60 (N.D.N.Y. 2003).
48. Fed. R. Civ. P. 26(a)(1)(B). A party may object at the Rule 26(f) conference that initial
disclosures are not appropriate. This will require a case-specific order from the court on the
objection. Fed. R. Civ. P. 26(a)(1)(C). In addition, if the parties “stipulate to bypass disclosure,
the court can order exchange of similar information in managing the action under Rule 16.”
2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
49. 1993 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
50. Fed. R. Civ. P. 26(a)(1)(E).
51. Fed. R. Civ. P. 37(c)(1). See, e.g., Hopkins v. J.C. Penney Co., 227 F.R.D. 347 (D. Kan. 2004)
(order of dismissal without prejudice, subject to conditions upon refilling, as sanction for
protracted delay in making Rule 26(a)(1) disclosures, coupled with failure to meet other
discovery obligations).
52. Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004).
53. Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003) (declines to make bad faith a separate factor, but notes that it is relevant to the fifth).
54. Fed. R. Civ. P. 26(a)(4) (disclosures must be in writing, signed and served); Fed. R. Civ. P.
26(a)(1)(C), (D) (timing).
55. Id. 26(e)(1).
56. Id. 26(a)(1).
57. Id. 26(e).
58. See United States v. Merck-Medco Managed Care, 223 F.R.D. 330, 334-35 (E.D. Pa. 2004)
(noting that parties were still engaged in discovery and that defendants could obtain the
needed information by “contacting the individuals; reviewing the list of persons noticed for
Page 341 of 559
deposition by Plaintiffs; taking depositions; and reviewing documents provided on an ongoing
basis during discovery”).
59. Fed. R. Civ. P. 26(d)(1).
60. Id. 33(b)(2).
61. Fed. R. Civ. P. 5(a)(1)(C).
62. Fed. R. Civ. P. 33(a)(1). Check your Local Rules to determine whether they define a
"subpart." A “question asking about communications of a particular type should be treated as a
single interrogatory even though it requests that the time, place, persons present, and contents
be stated separately for each such communication.” 1993 Amendments to Fed. R. Civ. P. 33(a),
advisory committee notes. Courts have, perhaps predictably, struggled to resolve various
disputes regarding how interrogatories are to be counted in order to determine compliance
with the Rule. See, e.g., Krawczyk v. City of Dallas, No. CIV.A.3:03-CV-0584-D, 2004 WL 614842,
at *3, 2004 U.S. Dist. LEXIS 30011, *7-9 (N.D. Tex. Feb. 27, 2004) (request for opinion or
application of law to facts, coupled with requests for identification of relevant witnesses and
their relevant statements held to constitute single interrogatory). “A subpart is discrete and
regarded as a separate interrogatory when it is logically or factually independent of the
question posed by the basic interrogatory . . . Or, stated differently, a subpart is independent
and thus discrete when it is unnecessary to the understanding of a second subpart.” Sec. Ins.
Co. of Hartford v. Trustmark Ins. Co., No. Civ.3:01CV2198 (PCD), 2003 WL 22326563, at *1, 2003
U.S. Dist. LEXIS 18196, *2-3 (D. Conn. Mar. 7, 2003). Banks v. Office of the Senate Sergeant-atArms & Doorkeeper, 222 F.R.D. 7, 10 (D.D.C. 2004) (footnote omitted) (demand for information
about an event and a demand for documents pertaining to it should be counted as two
separate interrogatories; demands relating to a single topic in a single field of inquiry can be
contained in one interrogatory).
63. Fed. R. Civ. P. 33(a); 26(b)(2)(A). Application of the Rule 26(b)(2)(C) factors frequently
involves determining “whether the requesting party has adequately shown that the benefits of
additional interrogatories outweigh the burden to the opposing party.” Am. Chiropractic Assoc.
v. Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL 534459, at *4, 2002 U.S. Dist. LEXIS 6199,
*10 (W.D. Va. Mar. 18, 2002) (citation omitted). Advocates requesting permission to serve
additional interrogatories must offer specific justification. Barker v. Am-Rail Construction, Inc.,
No. 02-2835-BV, 2004 WL 784507, at *3, 2004 U.S. Dist. LEXIS 6328, *8-11 (W.D. Tenn. Feb. 26,
2004) (where plaintiff had already served 32 interrogatories, new counsel’s statement that
“new discovery is needed into the policies and/or practices of Defendant” found insufficient to
authorize more interrogatories).
64. Capacchione v. Charlotte-Mecklenburg Sch., 182 F.R.D. 486, 492 n.4 (W.D.N.C. 1998).
Page 342 of 559
65. See Fed. R. Civ. P. 33(a)(2). Contention interrogatories "seek to clarify the basis for or scope
of an adversary's legal claims. The general view is that contention interrogatories are a
perfectly permissible form of discovery, to which a response ordinarily would be required."
Starcher v. Correctional Medical Systems, Inc., 144 F.3d 418, 421 n.2 (6th Cir. 1998).
66. Id.
67. Fed. R. Civ. P. 26(g)(2). The responding party is “required to inquire and investigate in order
to learn about others’ knowledge . . . [and[ must at least make a reasonable effort to obtain the
information requested.” Interland, Inc. v. Bunting, No. 1:04-CV-444-ODE, 2005 WL 2414990, at
*6, 2005 U.S. Dist. LEXIS 36112, *19 (N.D. Ga. Mar. 31, 2005). “In responding to an
interrogatory, a party must include all information within his knowledge or control.” Hanley v.
Como Inn, Inc., No. 99C1486, 2003 WL 1989607, at *4, 2003 U.S. Dist. LEXIS 7130, *12 (N.D. Ill.
Apr. 28, 2003) (citation omitted); see also Am. Int'l Specialty Lines Ins. Co. v. NWH, Inc., 240
F.R.D. 401, 413 (N.D. Ill. 2007).
68. See Meyer v. S. Pac. Lines, 199 F.R.D. 610, 615 n.12 (N.D. Ill. 2001) (interrogatory not
objectionable because requested information is available to both parties as a matter of public
record).
69. Thomas v. Cate, No. 1:05-cv-01198-LJO-JMD-HC, 2010 U.S. Dist. LEXIS 21750, at *45 (E.D.
Cal. Feb. 19, 2010); Masters v. Gilmore, No. 08-cv-02278-LTB-KLM, 2009 U.S. Dist. LEXIS 113059,
at *12 (D. Colo. Nov. 17, 2009); State Farm Mut. v. Injury Rehab. Clinic, Inc., No. 07-CV-15129,
2008 U.S. Dist. LEXIS 50507, at *11-12 (E.D. Mich. Jun. 30, 2008); see also Fed. R. Civ. P.
33(b)(4).
70. See Beach v. City of Olathe, 203 F.R.D. 489, 493 (D. Kan. 2001); Pulsecard, Inc. v. Discover
Card Servs., Inc., 168 F.R.D. 295, 304 (D. Kan. 1996).
71. Fed. R. Civ. P. 26(b)(2).
72. Id. 26(a)(5)(A).
73. Id. 33(b)(4). Interland, Inc., 2005 WL 2414990, at *5, 2005 U.S. Dist. LEXIS 36112, at *18
(“global” objections prefacing the interrogatory responses were to be discounted as not
meeting the Rule’s specificity standard).
74. Fed. R. Civ. P. 33(d). See In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 366-67 (N.D. Ill.
2005) (producing party could not invoke Rule 33(d) option where it had produced a million
pages of documents and had only referred to them generally for their interrogatory answers,
and where burden of reviewing documents was less for producing party, who, together with
counsel, was more familiar with them).
Page 343 of 559
75. Id. 33(b)(5).
76. Id. 26(e)(1).
77. Id. 34(a). Requests can also be made under the rule to “permit entry on to designated land
or other property” to "inspect, measure, survey, photograph, test, or sample the property or
any designated object or operation on it." Id. 34(a)(2).
78. Id. 30(b)(2) ; 34(c).
79. Id. 26(d).
80. Id. 34(a)(1)(A).
81. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed sub. nom Bankers
Trust Co. v. Procter & Gamble Co., 517 U.S. 1205 (1996); see Searock v. Stripling, 736 F.2d 650,
653 (11th Cir. 1984). Accord Doggett v. Perez, No. CS-02-282-AAM, 2004 WL 2939600, at *6,
2004 U.S. Dist. LEXIS 29568, *17-19 (E.D. Wash. Mar. 4, 2004); Prokosch v. Catalina Lighting
Inc., 193 F.R.D. 633, 636 (D. Minn. 2000).
82. Eley v. Herman, No. 1:04-CV-416, 2005 WL 3115304, at *2, 2005 U.S. Dist. LEXIS 30476, *4-7
(N.D. Ind. Nov. 21, 2005).
83. Chatman v. Felker, No. CIV S-03-2415 JAM KJM P, 2009 WL 173515, at *8, 2009 U.S. Dist.
LEXIS 4747, at *21 (E.D. Cal. Jan. 23, 2009) (citing United States v. Int’l Union of Petroleum &
Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989)). Accord Super Film of Am., Inc. v. UCB
Films, Inc., 219 F.R.D. 649, 653 (D. Kan. 2004); Klesch & Co. v. Liberty Media Corp., 217 F.R.D.
517, 520 (D. Colo. 2003).
84. See Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004); Massaro v. Allingtown
Fire Dist., No. Civ. 3:02CV537(PCD), 2003 WL 22305133, at *2, 2003 U.S. Dist. LEXIS 17927, *8
(D. Conn. Apr. 25, 2003) (“These requests constitute blanket requests seeking all documents
relevant to the case without qualification and cannot be read as possessing the degree of
particularity required by Fed. R. Civ. P. 34(b).”) (footnote omitted).
85. For example, a request for production of all documents that constitute the administrative
record would reveal that agency action was arbitrary if the record did not contain documents
that should have formed the basis of the agency decision.
86. See, e.g., Badalamenti v. Dunham’s Inc., 896 F.2d 1359, 1362 (Fed. Cir.), cert. denied, 498
U.S. 851 (1990).
Page 344 of 559
87. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005).
88. Burlington N. & Santa Fe Ry. v. U.S. Dist. Court, 408 F.3d 1142 (9th Cir.), cert. denied, 546
U.S. 939 (2005).
89. See Fed. R. Civ. P. 26(b)(2).
90. Rothman v. Emory Univ., 123 F.3d 446, 455 (7th Cir. 1997). Persons producing documents in
response to subpoenas must also organize and label them to correspond to the request, or
otherwise provide them in the usual course of business. Fed. R. Civ. P. 45(d)(1). The “usual
course of business” option may be unavailable for documents simply kept in storage, requiring
them instead to be organized and labeled. In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 351,
363 (N.D. Ill. 2005). In any event, parties “are not at liberty under federal discovery rules to
dump massive amounts of documents, which the . . . [responding parties] concede have ‘no
logical order to them,’ . . . on their adversaries and demand that they try to find what they are
looking for.” Id. (citations omitted).
91. In Consol. Equip. Corp. v. Assoc. Commercial Corp., 104 F.R.D. 101, 103 (D. Mass. 1985), the
court held that dismissal was an appropriate sanction when the plaintiff responded to a request
for production merely by offering to permit the defendant to inspect undifferentiated records
contained in forty-seven feet of files.
92. The admission overcomes objections relating to authenticity, best evidence, and hearsay.
93. Fed. R. Civ. P. 26(e)(2).
94. Id. 36(a)(1).
95. Id. 26(b)(2).
96. See, e.g., Henry v. Champlain Enterprises, 212 F.R.D. 73, 77 (N.D.N.Y. 2003); Russo v. Baxter
Healthcare Corp., 51 F. Supp. 2d 70, 79 (D.R.I. 1999).
97. The court’s admonitions in Henry v. Champlain Enters., Inc., 212 F.R.D. 73, 77 (N.D.N.Y.
2003), are instructive: “In order for this to be an orderly procedure, the requesting party bears
the burden of setting forth its requests simply, directly, not vaguely or ambiguously, and in such
a manner that they can be answered with a simple admit or deny without an explanation, and
in certain instances, permit a qualification or explanation for purposes of clarification. That is,
Requests for Admissions should be drafted in such a way that a response can be rendered upon
a mere examination of the request. To facilitate clear and succinct responses, the facts stated
Page 345 of 559
within the request must be singularly, specifically, and carefully detailed.” Id. (citations
omitted).
98. See, e.g., United States v. Petroff-Kline, 557 F.3d 285, 292 (9th Cir. 2009); In re Carney, 258
F.3d 415, 419 (5th Cir. 2001); United States v. Block 44, 177 F.R.D. 695, 695 (D. Fla. 1997);
Lakehead Pipe Co. v. American Home Assurance, 177 F.R.D. 454, 458 (D. Minn. 1997).
99. Compare, e.g., Bausch & Lomb Inc. v. Alcon Lab. Inc., 173 F.R.D. 367, 377 (W.D.N.Y. 1995),
with Booth Oil Site Administrative Group v. Safety-Kleen Corp., 194 F.R.D. 76, 80 (W.D.N.Y.
2000). See Henry, 212 F.R.D. at 80 (reviewing conflict in case law and finding that “more
determinative as to the extent to which an ‘interpretation inquiry’ may be answered is the
complexity of the document, which is at issue in the case. The more complicated the document,
the stronger the objection to such an inquiry because the complexity obscures the Rule 36
intent to have simple and definitive answers. The determination of the degree of complexity of
a document, in order to further determine the adequacy of any response or the permissibility
of an objection, can only occur on a case by case basis.”).
100. See Fed. R. Civ. P. 36(a)(1)(B).
101. Fed. R. Civ. P. 36(a)(2). A request to admit that a document is genuine must include a copy
of the document unless it was previously furnished.
102. See, e.g., Rolscreen Co. v. Pella Prods. Inc., 64 F.3d 1202, 1209 (8th Cir. 1995). A motion to
permit withdrawal or amendment of an admission is directed to the court’s discretion,
referencing whether the presentation of the merits is served and the party requesting the
admission is not prejudiced as a result. Carney, 258 F.3d at 419; Fed. R. Civ. P. 36(b).
103. Fed. R. Civ. P. 36(a)(3). The parties may stipulate to, or the court may order, a larger or
shorter time for response.
104. Armour v. Knowles, 512 F.3d 147, 154 n.9 (5th Cir. 2007); Tillamook Country Smoker v.
Tillamook County Creamery Ass'n, 465 F.3d 1102, 1112 (9th Cir. 2006).
105. Id. See Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 44 (D. Conn.
2004) (“Such reasonable inquiry includes an investigation and inquiry of employees, agents, and
others ‘who conceivably, but in realistic terms, may have information which may lead to or
furnish the necessary and appropriate response.’ The inquiry may require venturing beyond the
parties to the litigation and include, under certain limited circumstances, non-parties, but not
strangers. The operative words are ‘reasonable’ and ‘due diligence’” (quoting Henry v.
Champlain Enterprises, Inc., 212 F.R.D. 73, 78 (N.D.N.Y. 2003)). See also United States v. Taylor,
166 F.R.D. 356, 363 (M.D.N.C. 1996).
Page 346 of 559
106. Fed. R. Civ. P. 36(a)(4). Qualification is permitted when compelling “a succinct yes or no”
would lead to unfair inferences arising from statements taken out of context. See Henry, 212
F.R.D. at 77-78 (citations omitted).
107. Fed. R. Civ. P. 36(a)(5).
108. Id. 36(a)(6). In the case of a responding party’s suspected failure to make reasonable
inquiry prior to answering, the Rule “requires only that the party state that he has taken these
steps” to “make reasonable inquiry and secure such knowledge and information as are readily
obtainable by him.” 1970 Amendments to Fed. R. Civ. P. 36(a), advisory committee notes
(emphasis added). The proper sanction for a party failing to appropriately obtain information
before answering is an award of costs after trial, pursuant to the requirements of Rule 37(c)(2).
See id. See also Interland, 2005 WL 2414990, at *10, 2005 U.S. Dist. LEXIS 36112, at *35
(“Defendant has risked not making reasonable inquiry before asserting lack of knowledge as the
basis for not admitting or denying Interland's requests. However, Defendant's statements that
it cannot, after reasonable inquiry, admit or deny [the] requests . . . are sufficient. Defendant is
warned, however, that if facts developed during trial or further litigation expose his failure to
make a reasonable inquiry before responding to Interland's request, he will be held
accountable pursuant to Rule 37(c).”
109. Fed. R. Civ. P. 37(c)(2). The responding party may avoid such an order if the request for
admission was held objectionable, the admission sought was not substantially important, there
were reasonable grounds to believe the responding party might prevail on the matter, or if
there were other good reasons for the failure to admit. Id.
110. One purpose of the ten deposition limit is to assure review under the standards of Rule
26(b)(2), absent agreement of the parties. Another objective reinforces the importance of the
parties’ cooperation, in order “to emphasize that counsel have a professional obligation to
develop a mutual cost-effective plan for discovery in the case.” 1993 Amendments to Fed. R.
Civ. P. 30(a), advisory committee notes. See Sigala v. Spikouris, No. 00CV0983(ILG), 2002 WL
721078, at *4 (E.D.N.Y. Mar. 7, 2002) (party not allowed to exceed magistrate-imposed limit of
13 depositions under standards of Rule 26(b)(2), since she “failed to come forward with any
evidence beyond pure speculation that the additional persons he sought to depose would
provide any evidence that was not cumulative of that he could obtain (or had obtained) from
persons he was permitted to depose.”).
111. Donohoe v. Bonneville Int'l Corp., 602 F. Supp. 2d 1, 4 n.2 (D.D.C. 2009).
112. Id.
113. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227, 234 (E.D. Pa. 2008).
Page 347 of 559
114. Fed. R. Civ. P. 30(d)(2). Again, a court’s ruling on extension of the seven-hour limit is to be
governed by the standards of Rule 26(b)(2). Id.
115. 2000 Amendments to Fed R. Civ. P. 30(d), advisory committee notes. See Grill v. Costco
Wholesale Corp., No. C03-2450-RSM, 2004 WL 2314639, at *1 (W.D. Wash. Oct. 7, 2004)
(finding good cause for an order compelling additional time upon resumption of plaintiff’s
deposition, where questioning referenced wide-ranging claims of discrimination and all relevant
documents had not been produced); Boston Science Corp. v. Cordis Corp., No. 5:02CV1474 JW
(RS), 2004 WL 1945643 at *2 (N.D. Cal. Sept. 1, 2004) ("Considerations relevant to the granting
of [such] extension of time include the need for additional time for full exploration of the
theories upon which the witness relies, or where new information comes to light triggering
questions that the discovering party would not have thought to ask at the first deposition.").
116. See 2000 Amendments to Fed. R. Civ. P. 30(d), advisory committee notes.
117. Fed. R. Civ. P. 45(a)(1)(C).
118. See id. 30(b)(1), (2).
119. Id. 30(b)(6).
120. Id. 28, 30(b)(5).
121 .Id. 30(b)(3).
122. Id. 30(b)(3)(A).
123. Id. 32(c).
124. Id. 30(b)(4).
125. Aquino v. Automotive Serv. Indus. Ass'n, 93 F.Supp. 2d 922, 923-24 (N.D. Ill. 2000).
126. Id. 30(b)(1).
127. See 8A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2454, §
2112 at 81-85; Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); National Community
Reinvestment Coalition v. Novastar Fin., Inc., 604 F. Supp. 2d 26, 31 (D.D.C. 2009); Morin v.
Nationwide Fed. Credit Union, 229 F.R.D. 362, 363 (D. Conn. 2005); Tailift USA, Inc. v. Tailift Co.,
No. Civ.A3:03-CV-0196-M, 2004 WL 722244, 2004 U.S. Dist. LEXIS 28648 (N.D. Tex. Mar. 26,
2004).
Page 348 of 559
128. Id. 30(b)(2).
129. See 8A Wright & Miller, supra note 127, at § 2108.
130. Fed. R. Civ. P. 26(c)(1) (reference to Federal Rule of Evidence 615).
131. See, e.g., Jones v. Circle K. Stores Inc., 185 F.R.D. 223, 223 (M.D.N.C. 1999); Tuszkewicz v.
Allen Bradley Co., 170 F.R.D. 15, 16 (E.D. Wis. 1996). A court may, “for good cause shown,”
order “that discovery be conducted with no one present except persons designated by the
court.” Fed. R. Civ. P. 26(c)(5). Courts have “declined to order sequestration based on a
conclusory allegation or inchoate fear that witnesses who attend each other’s depositions will
tailor their testimony to conform.” Veress v. Alumax/Alcoa Mill Prods., Inc., No. 01-CV-2430,
2002 WL 1022455 (E.D. Pa. May 20, 2002) (citations omitted).
132. Nutramax Lab., Inc. v. Twin Lab., Inc., 183 F.R.D. 458 (D. Md. 1998).
133. Fed. R. Civ. P. 32(d).
134. See, e.g., Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995); Blackthorne v. Posner, 883 F.
Supp. 1443, 1451 (D. Or. 1995).
135. The following is a sample list of preliminary questions and instructions to the deponent: (1)
Have you ever been deposed before? (2) (If so), what was the nature of that proceeding? (3) (If
so), what was the nature of your testimony in that proceeding? (4) I need you to give an audible
response to my questions, so the reporter can prepare an accurate transcript. Is that
understood? (5) If you do not hear a question, please say so and I will repeat it. Is that
understood? (6) If you do not understand a question, please say so and I will rephrase it. Is that
understood? (7) If you realize that an earlier answer you gave was inaccurate or incomplete,
please say that you want to correct or supplement your earlier answer, and you will be allowed
to do so. Is that understood? (8) If you want to stop to use the restroom, or to stretch your legs,
or to get a cup of coffee or water, or to collect your thoughts, please say so and you will be
permitted to do so. Is that understood? (9) I am not agreeing to allow you to privately confer
with counsel during the deposition between a question and an answer, except for the purpose
of determining the existence of a privileged communication. Conferring with your attorney
during normal recesses and at adjournment of the deposition is permissible. Is that
understood? (10) If you do not know or do not remember the information necessary to answer
a question, please say so. Is that understood? (11) Please base your answers on what you have
personally seen, heard, or otherwise know. Is that understood? (12) Do you understand the
instructions I have just given you? (13) When you answer a question then, do you agree that I
am entitled to assume, unless you otherwise tell me, that you have heard it, that you have
understood it, and that you have given me your best recollection based on your personal
knowledge? (14) Is there any reason why you cannot proceed at this time with this deposition?
Page 349 of 559
136. Fed. R. Civ. P. 32(d)(3)(B).
137. 1993 Amendments to Fed. R. Civ. P. 30(d), advisory committee notes.
138. This amendment to the Rule “was intended to curtail lengthy objections and colloquy
which often suggested how deponents should answer.” McDonough v. Keniston, 188 F.R.D. 22,
24 (D.N.H. 1998) (“Speaking objections and coaching objections are simply not permitted in
depositions in federal cases. . . . During his client's deposition plaintiff's counsel repeatedly
violated Rule 30(d). In particular, [specified transcript pages] . . . contain classic examples of
witness coaching, speaking objections and improper instructions not to answer”). But see
Quantachrome Corp. v. MicroMetrics Instrument Corp., 189 F.R.D. 697, 701 n.4 (S.D. Fla. 1999)
(with respect to objections as to form, “it may be necessary to provide a brief explanation or
clarification of the objection. Such explanation or clarification should be provided only at the
request of deposing counsel and should be succinctly and directly stated without suggesting an
answer to the deponent.”).
139. Odone v. Croda Int’l PLC, 170 F.R.D. 66, 68 n.3 (D.D.C. 1997) (“It is well settled that in the
course of a deposition, an attorney is prohibited from engaging in so-called Rambo litigation, in
which he attacks every question posed by the opposing counsel thus preventing the elicitation
of any meaningful testimony from the witness. The attorney also may not object to questions in
such a way as to ‘coach’ the witness or suggest an answer.”) Id. (citation omitted).
140. E.g., Heriaud v. Ryder Transp. Servs., No. 03C0289, 2005 WL 2230199, at *9 (N.D. Ill. Sept.
8, 2005) (barring expert witness from testifying at trial, because at the expert’s deposition,
counsel “was unprofessional, obstreperous, and obstructive; his witness followed his lead and
similarly impeded the discovery process.”).
141. Hall v. Clifton Precision, 150 F.R.D. 525, 529 (E.D. Pa. 1993).
142. See, e.g., United States v. Philip Morris, 212 F.R.D. 418, 420 (D.D.C. 2002); In re
Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998) (court "will not
preclude an attorney, during a recess that he or she did not request, from making sure that his
or her client did not misunderstand or misinterpret questions or documents, or attempt to
rehabilitate the client by fulfilling an attorney's ethical duty to prepare a witness” and that "[s]o
long as attorneys do not demand a break in the questions, or demand a conference between
question and answers, the Court is confident that the search for truth will adequately prevail.").
143. Van Pilsum v. Iowa State Univ. of Science & Techn., 152 F.R.D. 179, 180 (S.D. Iowa 1993).
144. Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993).
Page 350 of 559
145. See, e.g., Quantachrome Corp. v. MicroMetrics Instrument Corp., 189 F.R.D. 697, 700 (S.D.
Fla. 1999).
146. Fed. R. Civ. P. 30(d)(4).
147. Some courts may also have local rules specifying appropriate conduct at depositions. See
Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398,
421 (D. Md. 2005) (referencing local district “discovery guidelines”); McKinley Infuser, Inc. v.
Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (same).
148. The following is a sample set of instructions: (1) Never speculate or guess. (2) Do not
volunteer any information; answer only the question asked. (3) Do not get angry or emotionalyou will not think as clearly. (4) Just answer the question that is asked. (5) Do not anticipate the
question. (6) Wait until opposing counsel finishes his question. (7) If you do not remember, say
so. (8) Ask to look at a document if you are asked questions about it. (9) If asked to look at any
document, read the whole thing. (10) Even if asked for an estimate, do not guess. (11) Never
answer just “yes” or “no” if you want to explain. (12) Do not try to be funny or witty-this is a
formal proceeding. (13) Listen to my objections-they are made for a reason. (14) Beware of
opposing counsel’s friendliness-do not drop your guard. (15) Try not to give absolute, definitive
answers. E.g., avoid words such as “never” or “always” if there is any doubt. Better: “That’s all I
can remember at this time.” (16) Treat opposing counsel with respect even if you do not like
him. (17) Come to the deposition well groomed. (18) Beware of an inadequate summary of your
testimony by opposing counsel. (19) Do not feel like you have to prove your case at the
deposition. (20) Pause before answering to give yourself time to think.
149. Fed. R. Civ. P. 32(d)(3)(A).
150. Id. 30(c)(2).
151. Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D.
398, 421 (D. Md. 2005) (surveying cases and concluding that a motion to compel is preferable).
152. Courts have adopted differing approaches as to how much a deponent can use the errata
sheet to change the substance of deposition testimony. Compare Greenway v. Int’l Paper Co.,
144 F.R.D. 322, 325 (W.D. La. 1992) (errata sheet cannot be used to "alter what was said under
oath. . . . A deposition is not a take home examination."); with Reilly v. TXU Corp., 230 F.R.D.
486, 490 (N.D. Tex. 2005) ("broad interpretation of Rule 30(e) . . . is consistent with the plain
language of the Rule, which expressly contemplates 'changes in form or substance'
accompanied by a signed statement reciting the reasons for the changes"). See generally,
Richard G. Stuhan & Sean P. Costello, Rule 30(e): What You Don’t Know Could Hurt You, 17 Prac.
Litigator 7 (2006) (reviewing case law approaches).
Page 351 of 559
153. Christopher Macchiaroli & Danielle Tarin, Rewriting the Record: A Federal Court Split on
the Scope of Permissible Changes to a Deposition Transcript, 3 Fed. Cts. L. Rev. 1 (2009).
154. Fed. R. Civ. P. 30(e). See 8A Wright & Miller, supra note 127, at § 2118.
155. Fed. R. Civ. P. 30(b)(6).
156. Fed. R. Civ. P. 30(b)(6).
157. McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 79 (D.D.C. 1999). Unless the
information requested was unknown or inaccessible at the time of deposition, the deposed
entity may not, at trial, introduce evidence contradicting the evidence supplied by its designee.
Dorocon, Inc. v. Burke, 2005 U.S. Dist. LEXIS 38839, at *61-62 (D.D.C. Nov. 1, 2005).
158. Alexander v. FBI, 186 F.R.D. 148, 151 (D.D.C. 1999).
159. See, e.g., EEOC v. Caesars Entertainment, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006);
McMahon v. Presidential Airways, 2006 U.S. Dist. LEXIS 4909, at *11-12 (M.D. Fla. Jan. 18,
2006); Detoy v. City of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000); Cabot Corp. v.
Yamulla Enters., 194 F.R.D. 499, 499 (M.D. Pa. 2000). But see Tri-State Hospital Supply Corp. v.
United States, 226 F.R.D. 118, 125 (D.D.C. 2005) (order eliminating “but not limited to”
language contained in Rule 30(b)(6) list of enumerated categories of areas to be inquired into,
since “[l]isting several categories and stating that the inquiry may extend beyond the
enumerated topics defeats the purpose of having any topics at all.”).
160. Falchenberg v. New York State Dep't of Educ., 567 F. Supp. 2d 513, 521 (S.D.N.Y. 2008).
161. Calzaturficio v. Fabiano Shoe Co., 201 F.R.D. 33, 37 (D. Mass. 2001) (quoting Prokosch v.
Catalina Lighting Inc., 193 F.R.D 633, 639 (D. Minn. 2000)). See also Bank of N.Y. v. Meridien
Biao Bank Tanzania, Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (deponent must be prepared “to
the extent matters are reasonably available, whether from documents, past employees, or
other sources”); United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996).
162. Concerned Citizens of Belle Haven v. Belle Haven Club, 223 F.R.D. 39, 43 (D. Conn. 2004)
(organization not absolved of responsibility to produce knowledgeable deponent even though
“the documentation may be voluminous, and different people affiliated with the [organization]
. . . may hold the information”); Prokosch, 193 F.R.D. at 638 (“the burden upon the responding
party, to prepare a knowledgeable Rule 30 (b)(6) witness, may be an onerous one, but we are
not aware of any less onerous means of assuring that the position of a corporation that is
involved in litigation, can be fully and fairly explored”).
Page 352 of 559
163. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 216 (E.D. Pa. 2008);
Prokosch, 193 F.R.D. at 638 (a corporation must prepare its deponents “so that they may give
complete, knowledgeable and binding answers on behalf of the corporation”); Taylor, 166
F.R.D. at 361 (“the designee [under Rule 30(b)(6)] must not only testify about facts within the
corporation’s knowledge, but also its subjective beliefs and opinions.... The corporation must
provide its interpretation of documents and events”).
164. Fed. R. Civ. P. 45(a)(1)(C), 45(c)(2)(A).
165. Fed. R. Civ. P. 45(a)(3).
166. Fed. R. Civ. P. 45(a)(1)(A)(iii).
167. Fed. R. Civ. P. 45(a)(2).
168. Fed. R. Civ. P. 45, advisory committee notes (1991).
169. James v. Booz-Allen & Hamilton, Inc, 206 F.R.D. 15,19 (D.D.C. 2002).
170. Fed. R. Civ. P. 45(b)(1).
171. See Franklin v. State Farm Fire & Cas. Co., 2009 U.S. Dist. LEXIS 90687, at *3 (E.D. Mich.
Sept. 30, 2009); Hall v. Sullivan, 229 F.R.D. 501, 503-06 (D. Md. 2005) (collecting conflicting
authority).
172. Fed. R. Civ. P. 45(b)(1); Advisory Committee Notes (2007); Potomac Elec. Power Co. v.
Electric Motor Supply, Inc., 190 F.R.D. 372, 380 (D. Md. 1999).
173. Id. 45(b)(1); 28 U.S.C. § 1821 . A court may issue an order protecting a non-party from
“significant expense” resulting from a subpoena requesting the production of documents. Id.
45(c)(2)(B).
174. See Malik v. Lavalley, 994 F.2d 90 (2d Cir. 1993).
175. Fed. R. Civ. P. 45(b)(2).
176. Id. 45(b)(4).
177. Id. 45(c)(2)(B).
Page 353 of 559
178. Id.
179. Id. 45(c)(3).
180. Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002).
181. Fed. R. Civ. P. 45(c)(3)(C).
182. See generally, The Sedona Conference, The Sedona Principles: Best Practices
Recommendations & Principles for Addressing Electronic Document Production (2d ed. June
2007) (available at http://www.thesedonaconference.org ).
183. For a good overview, see Greg Bass, Affirmatively Litigating: The Computer Ate My
Homework, Your Honor': What you Need to Know about the Electronic Discovery Amendments
to the Federal Rules of Civil Procedure, 41 Clearinghouse Review 532 (Jan.-Feb. 2008).
184. Fed. R. Civ. P. Rule 34 Advisory Committee Notes (2006).
185. Fed. R. Cvi. P. 34(a)(1)(A).
186. Id. 26(a)(1)(A)(ii).
187. Id. 34(b)(1)(C).
188. Fed. R. Civ. P. Rule 34 Advisory Committee Notes (2006).
189. Fed. R. Civ. P. 34(b)(2)(D).
190. Id. 34(b)(2)(E)(i).
191. Id. 34(b)(2)(E)(ii).
192. Fed. R. Civ. P. Rule 34(b) Advisory Committee Notes (2006).
193. Id.
194. Fed. R. Civ. P. Rule 26(b)(2) Advisory Committee Notes (2006).
195. Fed. R. Civ. P. 26(b)(2)(B).
Page 354 of 559
196. Id.
197. Fed. R. Civ. P. Rule 26(b)(2) Advisory Committee Notes (2006).
198. Id.
199. Thibeault v. Square D Co., 960 F.2d 239, 244 (1st Cir. 1992).
200. Fed. R. Civ. P. 26(a)(2)(C).
201. Id. 26(a)(2)(C). See, e.g., Dixon v. Certainteed Corp., 168 F.R.D. 51, 54 (D. Kan. 1996).
202. Fed. R. Civ. P. 37(c)(1); 1993 Amendments to Fed. R. Civ. P. 26(a)(2), advisory committee
notes (stating that the threat of "[r]evised Rule 37(c)(1) [is to] provide an incentive for full
disclosure"); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico,
248 F.3d 29, 34-36 (1st Cir. 2001); Nutra Sweet Co. v. X-L Eng’g Co., 227 F.3d 776, 786 (7th Cir.
2000); Olson v. Montana Rail Link, Inc., 227 F.R.D. 550 (D. Mont. 2005).
203. Fed. R. Civ. P. 26(a)(2)(B). The expert’s report must be “detailed and complete" and
"[s]ince depositions of experts required to prepare a written report may be taken only after the
report has been served, the length of the deposition of such experts should be reduced, and in
many cases the report may eliminate the need for a deposition.” 1993 Amendments to Fed. R.
Civ. P. 26(a)(2), advisory committee notes. See, e.g., Pacamor Bearings Inc. v. Minebea Co., 918
F. Supp. 491, 508 (D.N.H. 1996).
204. Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998) (citations omitted).
205. See 1993 Amendments to Fed. R. Civ. P. 26, advisory committee notes.
206. See Fed. R. Civ. P. 26(b)(4)(A).
207. Id. 26(b)(4)(B).
208. Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 713-18 (6th Cir. 2006); Dyson Technology
Ltd. v. Maytag Corp., 241 F.R.D. 247 (D. Del. 2007); Synthes Spine Co., L.P. v. Walden, 232 F.R.D.
460, 464 (E.D. Pa. 2005).
209. Trigon Ins. v. United States, 204 F.R.D. 277, 282 (E.D. Va. 2001).
Page 355 of 559
210. Elm Grove Coal Co. v. Director, O.W.C.P., 480 F.3d 278, 303 (4th Cir. 2007); Weil v. Long
Island Sav. Bank, 206 F.R.D. 38, 39 (E.D.N.Y. 2001); Ross v. Burlington Northern Railroad Co., 136
F.R.D. 638, 638 (N.D. Ill. 1991); In re Shell Oil Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990).
211. See, e.g., B.C.F. Oil Refinery v. Consol. Edison Co., 171 F.R.D. 57, 66-67 (S.D.N.Y. 1997).
212. See, e.g., Sheek v. Asia Badger Inc., 235 F.3d 687, 694 (1st Cir. 2000); Reliance Ins. v. La.
Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997).
213. Fed. R. Civ. P. 65(a)(2).
214. Id. 32(a).
215. Fed. R. Evid. 801(d)(1)(A).
216. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-45 (1987).
217. 28 U.S.C. § 1920(2). See also 28 U.S.C. § 1920(4) (awards fees for "exemplification and the
costs of making copies of any materials where the copies are necessarily obtained for use in the
case").
218. See, e.g., Tilton v. Capital Cities/ABC Inc., 115 F.3d 1471, 1474 (10th Cir. 1997); Bathke v.
Casey’s General Stores, 64 F.3d 340, 347 (8th Cir. 1995).
219. In re Williams Sec. Litig -- WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009); Fogelman v.
ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991); Bats, Inc. v. Vector Pipeline LP, 222 F.R.D. 356,
358 (N.D. Ind. 2004).
220. Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006); Burton v. R.J.
Reynolds Tobacco Co., 395 F. Supp.2d 1065, 1080 (D. Kan. 2005) (disallowing deposition-related
costs for manuscripts, keyword indices, disks, exhibits, and postage and delivery, as being
merely for the convenience of counsel).
221. Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st Cir.), cert. denied, 474 U.S. 1021
(1985) (expense of copying deposition transcript awarded as cost under 28 U.S.C. § 1920(4),
which allows "[f]ees for exemplification and copies of papers necessarily obtained for use in the
case.”); Wyne v. Medo Industries, 329 F. Supp. 2d 584, 590-91 (D. Md. 2004).
222. Treaster v. Healthsouth Corp., 505 F. Supp. 2d 898 (D. Kan. 2007).
223. Id.
Page 356 of 559
224. Fed. R. Civ. P. 26(c)).
225. Id.
226. Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981); In re Terra International, 134 F.3d
302, 306 (5th Cir. 1998); Reed v. Bennett, 193 F.R.D. 689, 691(D. Kan. 2000).
227. Gill v. Gulfstream Park Racing Ass'n, 399 F.3d 391, 400 (1st Cir. 2005).
228. Thomas v. Int’l Business Machs., 48 F.3d 478, 482 (10th Cir. 1995); Kramer v. NCS Pearson,
Inc., No. Civ.03-1166 (JRT) (FLN), 2003 WL 21640495 , at *3 (D. Minn. June 30, 2003).
229. Seattle Times Co., v. Rhinehart, 467 U.S. 20, 36 (1984).
230. See Fed. R. Civ. P. 26(b)(3)(B) (work product); Fed. R. Civ. P. 26(c)(1)(G) (trade secrets).
231. Id. 26(b)(4)(B).
232. Fed. R. Civ. P. Rule Rule 26(b)(5) Advisory Committee Notes (2006).
233. See, e.g., Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997). See also
Hinton v. Conner, 225 F.R.D. 513, 517 (M.D.N.C. 2005). But see Sallis v. University of Minn., 408
F.3d 470, 478 (8th Cir. 2005) (Title VII discovery of discrimination complaints against defendant
limited to those filed no more than one year of the actions at issue, within the department
where plaintiff worked).
234. A particularly thoughtful examination of this issue, which wrestles with the presumption of
public access to judicial documents, is Judge Posner's decision in Citizens First Nat'l Bank v.
Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999).
235. Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); Jennings v. Family Mgmt., 201
F.R.D. 272, 275 (D.D.C. 2001); Prozina Shipping Co. v. Thirty-Four Autos., 179 F.R.D. 41, 48 (D.
Mass. 1998). See also, Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 503 (S.D.
Ind. 2003) (“Allegations of general injury are insufficient to constitute good cause; the movant
must show that disclosure will cause a clearly defined and serious injury.”); 8A Wright & MIller,
supra note 127, at § 2037.
236. See, e.g., Jennings, 201 F.R.D. at 275.
237. Protective orders seeking to bar the taking of depositions must generally be accompanied
by affidavits establishing lack of knowledge. See Thomas v. Int'l Bus. Machs., 48 F.3d 478, 483
Page 357 of 559
(10th Cir. 1995); Gen. Star Indemnity Co. v. Platinum Indemnity Ltd., 210 F.R.D. 80, 83 (S.D.N.Y.
2002); Digital Equip. Corp v. Sys. Indus., Inc., 108 F.R.D. 742, 744 (D. Mass. 1986).
238. In re Air Crash at Taipei, No. MDL 1394-GAF (RCx), 2002 WL 32155478, at *2 (C.D. Cal. Nov.
6, 2002) (citing CBS Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984)).
239. See 8A Wright & Miller, supra note 127, at § 2037; Rosin v. N.Y. Stock Exch. Inc., 484 F.2d
179, 185 (7th Cir. 1973), cert. denied, 415 U.S. 977 (1974); Sec. & Exch. Comm’n v. Dowdell, No.
C99-3055-MWB, 2002 U.S. Dist. Lexis 19980 (W.D. Va. Oct. 11, 2002).
240. See, e.g., Thomas, 48 F.3d at 482; Lewelling v. Farmers Ins. of Columbus, 879 F.2d 212, 218
(6th Cir. 1989); Salter, 593 F.2d at 651. Compare In re Bridgestone/Firestone, Inc. Tires Prods.
Liab. Litig., 205 F.R.D. 535 (S.D. Ind. 2002) (allowing deposition, under specified conditions, of
CEO where evidence indicated he had personal knowledge of and involvement in events
relevant to the litigation).
241. Fed. Trade Comm’n v. U.S. Grant Res., No. Civ.A04-596, 2004 WL 1444951 (E.D. La. June 25,
2004); Securities and Exchange Commission v. Rosenfeld, No. 97 CIV. 1467 (RPP), 1997 WL
576021 (S.D.N.Y. Sept. 16, 1997).
242. Shelton v. American Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986); Ed Tobergte Assocs.
Co. v. Russell Brands, LLC, 259 F.R.D. 550 (D.Kan. 2009)(collecting cases); Younger Mfg. Co. v.
Kaenon, Inc., 247 F.R.D. 586 (C.D. Ca. 2007); Indus. Maritime Carriers v. Barwil Agencies, No.
Civ.A03-1668, 2005 WL 2060925 (E.D. La. Aug. 23, 2005).
243. United States v. Morgan, 313 U.S. 409, 422 (1941); Byrd v. District of Columbia, 259 F.R.D.
1 (D.D.C. 2009); Jones v. Hirschfeld, 219 F.R.D. 71, 75 (S.D.N.Y. 2003) (“While even a sitting
United States President may be compelled to comply with a subpoena under some
circumstances, . . . courts have recognized that requests to depose a high-ranking government
official are subject to a heightened standard of review . . . . Under that heightened standard,
‘high ranking government officials are not subject to depositions’ absent a showing by the party
seeking the deposition that ‘(1) the deposition is necessary in order to obtain relevant
information that cannot be obtained from any other source and (2) the deposition would not
significantly interfere with the ability of the official to perform his governmental duties.’")
(quoting Marisol A. v. Giuliani, No. 95CIV.10533 (RJW), 1998 WL 132810, at *2 -3 (S.D.N.Y. Mar.
23, 1998) (Clearinghouse No. 50,954)).
244. Pursuant to 5 U.S.C. § 301, the “head of an executive department ... may prescribe
regulations for the government of his department, the conduct of its employees, the
distribution and performance of its business, and the custody, use and preservation of its
records, papers and property. . . ." Section 301 allows a federal agency to establish procedures
for responding to non-party subpoenas. These regulations are commonly known as Touhy
Page 358 of 559
regulations. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (Department of
Justice employee could not be held in contempt for refusing to comply with a subpoena duces
tecum where the employee's superior had prohibited him from producing the subpoenaed
documents pursuant to an agency regulation promulgated under 5 U.S.C. § 301). If a “federal
agency, pursuant to so-called Touhy regulations, prohibits its employees from responding to a
subpoena . . . without agency approval and declines to grant that approval in a given case, the
requesting party must then proceed under the . . . [Administrative Procedure Act], and a federal
court will review the agency's decision under an 'arbitrary and capricious' standard.”) Truex v.
Allstate, 233 F.R.D. 188, 190-91 (D.D.C. 2006) (citations omitted).
245. Burlodge Ltd. v. Standex Int'l Corp. (In re Motion to Compel Compliance), 257 F.R.D. 12, 1516 (D.D.C. 2009).
246. You may have to deal more immediately with a deponent’s failure or refusal to answer a
question at a deposition.
247. Friends of Animals, Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997).
248. JSC Foreign Econ. Assoc. Technostroyexport v. Int’l Dev. & Trade Servs., Inc., No. 03 Civ.
5562 (JGK) (AJP), 2005 WL 1958361, at *10 (S.D.N.Y. Aug. 16, 2005) (citing Cine Forty-Second
Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir.1979)) (further
citation omitted).
249. Cielo Creations, Inc. v. Gao Da Trading Co., No. Civ.A.04 Civ. 1952, 2004 U.S. Dist. LEXIS
11924, at *6, 2004 WL 1460372 at *2 (S.D.N.Y. June 28, 2004 ) (quoting Roadway Exp., Inc. v.
Piper, 447 U.S. 752, 763-64 (1980)) (internal quotation omitted).
250. Fed. R. Civ. P. 37(a)(3)(A), (B)., 37(a)(5).
251. Id. 37(a)(5)(A). Bad faith is not required to warrant the award of fees. Green v. Baca, 225
F.R.D. 612, 614 (C.D. Cal. 2005) (quoting Marquis v. Chrysler Corp., 577 F.2d 624, 641-42 (9th
Cir. 1978)) (further citation omitted).
252. Fed. R. Civ. P. 37(a)(5)(A). "[A] party only meets the 'substantially justified' standard when
there is a 'genuine dispute' or if 'reasonable people could differ' as to the appropriateness of
the motion." Alexander v. F.B.I, 186 F.R.D. 144, 147 (D.D.C. 1999) (quoting Pierce v. Underwood,
487 U.S. 552, 565 (1988)).
253. Fed. R. Civ. P. 37(a)(5)(B).
254. Id. 37(a)(5)(C).
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255. Id.
256. Fed. R. Civ. P. 37(b)(2)(A).
257. See 1970 Amendments to Fed. R. Civ. P. 37(d), advisory committee notes (“[T]he total
noncompliance with which Rule 37(d) is concerned may impose severe inconvenience or
hardship on the discovering party and substantially delay the discovery process.”) (citation
omitted).
258. Fed. R. Civ. P. 37(d); see id. 37(b)(2)(A)-(C).
259. Id. 37(d)(2).
260. Id. 37(c)(1). Described by the advisory committee notes as “self-executing,” this
“automatic sanction provides a strong inducement for disclosure of material that the disclosing
party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as
one under Rule 56 [summary judgment].” 1993 Amendments to Fed. R. Civ. P. 37(c), advisory
committee notes.
261. Fed. R. Civ. P. 37(c)(1).
262. Id.
263. Id. 37(e).
264. Id. 37(f).
265. See, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, 296-99 (2d Cir. 2006); Marrocco v.
General Motors Corp., 966 F.2d 220, 224 (7th Cir.1997) (discussing compensatory purpose of
directed verdict as sanction for prejudice resulting from lost documents: "sanctions can be
employed for a wide array of purposes, but they cannot replace lost evidence"). See also
Hamburger v. State Farm Mutual Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (“The Court
reviews the trial court’s exercise of its discretion to exclude experts not properly designated by
considering four factors: (1) the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.”) (citation omitted); Musser v. Gentiva
Health Servs., 356 F.3d 751, 758-60 (7th Cir. 2004) (preclusion of expert witness upheld for
failure to produce expert report compliant with Rule 26(a)(2)); Salgado v. General Motors Corp.,
150 F.3d 735, 742-43 (7th Cir. 1998) (same).
Page 360 of 559
266. Shepherd v. ABC, 62 F.3d 1469, 1478 (D.C. Cir. 1995); Rubin v. Kerr, No. A300CV1680G,
2001 WL 167965, at *1 (N.D. Tex. Jan. 18, 2001).
267. See, e.g, Banco Del Atlantico, S.A. v. Woods Indus., 519 F.3d 350 (7th Cir. 2008); Ciaverelli
v. Stryker Med., No. 002873, 2002 U.S. App. LEXIS 3349, at *2-3, 2002 WL 334124 at *1 (3d Cir.
2002); Synanon Church v. United States, 820 F.2d 421, 423 (D.C. Cir. 1987); Ford v. Fogarty Van
Lines, 780 F.2d 1582, 1583 (11th Cir. 1986); Williams v. Employment Serv., 2001 U.S. Dist. LEXIS
11817 (N.D. Iowa 2001). Cf. 28 U.S.C. § 1927 ((“Any attorney or other person admitted to
conduct cases in any court of the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such
conduct.”).
268. See, e.g., Century ML-Cable Corp. v. Carillo, 43 F. Supp. 2d 176, 184 (D.P.R. 1998); Skeete v.
McKinsey & Co., 1993 WL 256659 , 1993 U.S. Dist. LEXIS 9099, *8 (S.D.N.Y. July 7, 1993);
Telectron Inc. v. Overhead Door Corp., 116 F.R.D. 107, 135 (S.D. Fla. 1987).
269. Shepherd, 62 F.3d at 1469 (vacating default judgment); Hathcock v. Navistar Int’l Transp.
Corp., 53 F.3d 36, 40-41 (4th Cir. 1995) (vacating default judgment); Henry v. Gill Industries, 983
F.2d 943 (9th Cir. 1993) (upholding dismissal and setting out a five-part est); Wilson v.
Volkswagen of America Inc., 561 F.2d 494, 503-5 (4th Cir. 1977), cert. denied, 434 U.S. 1020
(1978) (setting forth a four-part test: the court must determine (1) whether the noncomplying
party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary,
(3) the need for deterrence of the particular sort of noncompliance, and (4) whether less drastic
sanctions would have been effective).; Acosta v. ISD, No. EP-03-CA-0355-FM, 2005 WL 3271654,
at *3 (W.D. Tex. Nov. 29, 2005) (awarding default judgment).
270. Beil v. Lakewood Eng’g & Mfr., 15 F.3d 546, 552 (6th Cir. 1994); Aoude v. Mobil Oil Corp.,
892 F.2d 1115, 1118 (1st Cir. 1989); Automated Datatron Inc. v. Woodcock, 659 F.2d 1168,
1169-70 (D.C. Cir. 1981); Danis v. USN Commc’ns, Inc., No. 98C7482, 2000 U.S. Dist. LEXIS
16900, 2000 WL 1694325, at *31 (N.D. Ill. Oct. 23, 2000).
Updated 2010
6.3 Motions Practice
Updated 2010
To a great extent, federal litigation practice is a motions practice. Legal aid attorneys often
challenge agency regulations or practices on constitutional or statutory grounds or both. Facts
are often not in dispute and plaintiffs seek judgment as a matter of law. In such cases, neither
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discovery nor settlement features prominently in the litigation strategy. Rather, such cases are
resolved through motions to dismiss or for summary judgment.
6.3.A. Procedure on Motions
A motion is a request for a court order. Federal Rule of Civil Procedure 7(b)(1) requires that all
motions, except those made at trial, be made in writing and state with particularity the grounds
supporting the motion and the relief or order sought. As discussed below, other rules set out
specific requirements for particular kinds of motions. Typically, the motion is accompanied by a
memorandum of law and a proposed order. When appropriate, you may establish facts in
support of a motion by appending a declaration or an affidavit, which, in turn, may authenticate
or explain attached documents or both. All motions are to be signed in accordance with Rule
11./271/
Local rules of court typically provide detailed requirements regarding the form, content, length,
and timing of motions, memoranda, and proposed orders./272/ Motions are generally quite
brief and simply state the nature of the motion and invite the court to review the
accompanying memorandum./273/ Local rules frequently require motions to certify that the
movant consulted unsuccessfully with opposing counsel to resolve the matter at issue. Clerk’s
offices refuse to permit filing of such motions without a required certification. Review your
local rules with care and comply with all such certification requirements. Local rules frequently
also identify categories of information, such as social security numbers, names of children,
dates of birth and identifiable financial data, which must not be filed electronically with the
court. Ordinarily, such information must be redacted from public filings and, when necessary,
filed under seal with the court. Before filing a document with the court, review it carefully for
confidential personal information and consult the local rules and experienced attorneys in your
office regarding filing requirements.
Motions practice may also be governed by standing orders of the court. Standing orders may be
issued by the particular judge hearing the case, or the court may issue specific scheduling
orders pursuant to Rule 16(b). Some courts use case management tracking systems based on
the expected complexity of the case and direct cases into alternative dispute resolution
procedures. If you are new to the district in which you are practicing, consult with senior
attorneys in your office for advice on the sources of local written litigation procedure as well as
the unwritten local customs and practices that judges and opposing counsel expect you to
follow.
The amount of factual detail and legal support necessary for a memorandum of law depends on
the nature of the motion involved, the anticipated position of the opposing party, and the
expectations of the court. Most memoranda include a brief introduction to familiarize the court
with the case and the issues presented in the motion and follow with sections containing the
pertinent facts, statutory framework, legal argument, and the specific relief requested in the
motion. If you represent the moving party, do not forfeit the opportunity to file a reply brief.
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The reply can and should respond to the arguments made by the opposing party and identify
the argument you have made that have gone unrefuted. It is generally best not to introduce
new arguments in the reply brief in support of the motion; doing so will likely result in a request
to file a sur-reply which gives your opponent the last word. The content of your briefs should be
concise and persuasive; heated rhetoric is usually not effective.
Unless your local practice provides otherwise, a motion should be accompanied by a proposed
order granting the relief your client requests. It should be cast in the present tense, so that the
judge may execute the order in the presence of counsel at the time of presentation. A carefully
considered and drafted proposed order may well be signed by a busy federal judge. If you are
seeking several forms of relief, set forth each request in a separately numbered paragraph. Do
not assume that the judge will simply ignore your proposed order and craft her own. A
thoughtfully prepared proposed order is itself an advocacy piece and may create a framework
for oral argument and the judge’s consideration of your motion.
Although there are differences of opinion about the importance of oral argument, the better
practice is to request oral argument on any motion critical to your case. If your motion is
complicated or if opposing counsel has made strong arguments, oral argument may be useful.
Similarly, if the judge assigned to your case is unfamiliar with or unsympathetic to the issues of
legal aid clients, you may want an opportunity to answer any questions that the court may have
or to persuade the court of the basis of the claims. If you have been constrained by the court’s
page limits on briefs, oral argument is an opportunity to elaborate on issues of particular
interest to the judge.
Check your local rules or consult with those knowledgeable about unwritten practices to see
what steps are necessary to request oral argument on a motion. In some districts, oral
argument must be specifically requested; in others, it will be granted only upon a “proper
showing” to the presiding judge. In many jurisdictions, oral argument is uncommon. If the
assigned judge allows oral argument, find out how that judge conducts motions hearings. Sit in
the courtroom for a few hours to observe; talk to other attorneys who have appeared before
the judge. Find out whether the judge limits the time for argument and whether there is
opportunity for rebuttal. The more you can learn about how a hearing might proceed, the more
prepared and effective you can be.
6.3.B. Motions Addressed to the Pleadings and Parties
6.3.B.1. Rule 12
In many cases, a defendant’s first response to a complaint is to file a motion to dismiss
pursuant to Rule 12(b)./274/ The defendant’s Rule 12(b)(6) motion—the Rule 12(b) motion you
are most likely to encounter— will generally argue either that the factual allegations made in
the complaint, even if true, do not set forth a cognizable legal claim, or that the complaint is
factually insufficient in that, for example, it fails to allege facts that are sufficient to state a
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plausible claim for relief. The first sort of argument raises questions of law for briefing, many or
all of which you would have considered pre-filing and have discussed in your pre-filing litigation
memorandum. The second sort of argument will require you to consider whether to oppose the
motion on the ground that the complaint satisfies notice pleading standards,/275/ or whether
to move to supplement or amend the complaint to add more factual allegations consistent with
Rule 11./276/
6.3.B.2. Rule 15
Rule 15(a)(1), which governs amending pleadings as a matter of course, was changed
significantly effective December, 2009. It now permits a plaintiff which has filed a complaint an
opportunity to amend the complaint without leave of court 1) within 21 days of service or 2)
when an answer is required, within 21 days of the filing of the answer or 21 days after a Rule
12(b), (e) or (f) motion is filed, whichever is earlier. The purpose of the new rule is permit the
pleader a limited amount of time to amend their complaint in response to assertions made in
the answer or arguments made in a Rule 12 motion. Doing so may serve to limit the disputes
between the parties or moot points made in the Rule 12 motion. /277/ No longer may the
plaintiff wait after a motion to dismiss (filed without an answer) to file an answer as a matter of
course. And, no longer does the filing of an answer preclude the plaintiff from amending as a
matter of course. Following the expiration of these periods (with or without the filing of an
amended complaint), amended complaints may be filed only by leave of court or written
consent of the adverse party. Leave to amend should be freely given. A court's refusal to grant
leave to amend is reviewed under an abuse of discretion standard, unless the denial is based on
futility, in which case the court apply a de novo standard of review./278/ Typically, the motion
for leave to file an amended complaint attaches the amended complaint, which is deemed filed
when the motion is granted.
6.3.B.3. Rule 19
Legal aid advocates should have a working knowledge of Federal Rule of Civil Procedure 19,
which deals with the compulsory joinder of parties. Rule 19(a) establishes the rule for
determining whether a party is “necessary” and who must therefore be joined if possible.
Joinder may, however, not be feasible if the person is not subject to service of process, if
joinder deprives the court of subject-matter jurisdiction, and if the party properly objects to
venue./279/ In such cases, Rule 19(b) requires the court to determine whether the action
should proceed without the necessary party or whether the party is indispensable, and,
therefore, the case must be dismissed./280/
6.3.B.4. Rule 23
In class actions, the complaint should contain allegations concerning the class drafted in light of
Rule 23. It should allege facts to support the requirements of numerosity, commonality,
typicality, and representativeness. When practical, a motion for class certification can and
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should be filed with the complaint. Other cases may require discovery to establish the factual
basis for class certification. A motion for class certification and accompanying memorandum
must contain the evidence and argument necessary to demonstrate that the prerequisites of
Rule 23(a) are met and that the action is maintainable under one or more of the forms of class
actions listed in Rule 23(b). Again, be sure to consult your local rules, because many districts
have specific requirements on the form of class action complaints and a limited time, often
sixty or ninety days, after filing the complaint within which the motion for class certification
must be filed./281/ In class actions in which you seek a temporary restraining order (TRO) or
preliminary injunction on behalf of the class, you should move immediately for conditional class
certification under Rule 23(c).
6.3.B.5. Rule 25
Legal aid attorneys frequently need to substitute parties when a client dies or becomes
incompetent and when government officers change. Under Rule 25(a), if a party dies, but the
claim survives, a motion to substitute may be made by any party or the decedent's successor or
representative. The action is dismissed if the motion is not made within ninety days
after "service of a statement noting the death."/282/ A statement or suggestion of death is not
required to be filed./283/ The ninety day period only begins to run upon filing and proper
service./284/ Given the language of the Rule, there is sometimes controversy over the nature
of the document that qualifies as a "statement." Such a statement is a formal and specific
document resembling Federal Rule of Civil Procedure Form 9. Federal courts have frequently
described the triggering statement as a “formal” document./285/ When a public officer is a
party to a pending action and dies, resigns, or ceases to hold office, the successor is
automatically substituted as a party./286/ A suggestion of substitution may be filed by either
party and the court may order substitution, but its failure to do so is not important.
6.3.C. Preliminary Relief
6.3.C.1. Preliminary Injunctions
Federal Rule of Civil Procedure 65 governs motions for TROs and preliminary injunctions.
Because complex and varying circumstances often arise, trial courts are given broad discretion
over granting or denying preliminary relief. Such orders accordingly are reviewed for abuse of
discretion./287/ The standards for both TROs and preliminary injunctions are formulated by
case law rather than by rule or statute; the standards have sometimes formulated differently in
different circuits. However, the Supreme Court's recent decision in Winter v. Natural Resources
Defense Council, established a more exacting standard and limited to some degree a sliding
scale approach./288/ To obtain a preliminary injunction, the plaintiff must establish that it is:

likely to succeed on the merits;/289/
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
likely to suffer irreparable injury if preliminary relief is denied;

the balance of equities tips in the plaintiff's favor; and

an injunction would serve the public interest./290/
The Court rejected the Ninth Circuit's sliding scale approach in which only a "possibility" of
irreparable injury was sufficient when the plaintiff showed a "strong likelihood" of prevailing on
the merits./291/ Instead, the Court held that a likelihood of irreparable injury is required, in
keeping with the notion that preliminary injunctive relief is an extraordinary remedy requiring a
"clear showing" of entitlement./292/ Winter, involving the Navy's use of sonar in training
exercises and its potential impact on aquatic wildlife in the Pacific, also raised the profile of
the the balance of equities and public interest factors, regarding those factors as "important"
and criticizing the Ninth Circuit for giving them cursory consideration./293/ Indeed, even
assuming a likelihood of irreparable injury, the Winter majority found these factors to outweigh
it.
Where Winter leaves the oft-used sliding scale analysis is not clear. One way of reading Winter
is that "likelihood" of irreparable injury is a now a floor and a showing beyond it may be
balanced against a relatively weaker showing on the remaining factors. In dissent, Justice
Ginsburg wrote:
Consistent with equity's character, courts do not insist that litigants uniformly show a particular,
predetermined quantum of probable success or injury before awarding equitable relief. Instead,
courts have evaluated claims for equitable relief on a "sliding scale," sometimes awarding relief
based on a lower likelihood of harm when the likelihood of success is very high. This Court has
never rejected that formulation, and I do not believe it does so today. /294/
Winter did not specifically address a converse question: given a showing a likelihood of
irreparable injury, may a court issue a preliminary injunction based on something less than a
likelihood of success if the remaining factors weigh in favor of preliminary relief? The Second
Circuit, for example, requires a showing of irreparable injury and either "(1) likelihood of
success on the merits or (2) sufficiently serious questions going to the merits to make them a
fair ground for litigation and a balance of hardships tipping decidedly toward the party
requesting the preliminary relief." /295/ Given the relative uncertainty of success, the balance
of hardships must tip decidedly in the movant's favor. The Fourth Circuit has read Winter to
reject this sort of sliding scale inquiry in cases in which the movant has not established that it is
more likely than not that they will prevail./296/ The Second, Seventh and Ninth Circuits have
disagreed and held that a sliding scale formulation survives Winter so long as a likelihood of
irreparable injury is shown./297/ Given this emerging split in the circuits, consult the law in
your circuit to ascertain the standard, and if one does not yet exist, review the developing law
in other cirucits in formulating your argument.
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When researching a potential motion for preliminary injunction, determine whether the
applicable statute authorizes injunctive relief. Some cases have held that no showing of
irreparable injury is necessary to obtain a preliminary injunction pursuant to such statutes
because Congress has implicitly determined that a statutory violation is irreparable. Given the
Supreme Court's repeated holdings regarding express and implied directions in legislative
language, be very cautious in arguing that the plaintiff need not establish the threat of
irreparable injury when seeking statutorily authorized injunctive relief.
6.3.C.2. Temporary Restraining Orders
Under Rule 65(b), the court may grant a TRO ex parte, without notice to the opposing party,
only if (1) specific facts shown by affidavit or by a verified complaint "clearly" show that
immediate and irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition and (2) the applicant’s attorney
certifies to the court in writing the efforts, if any, that have been made to give the notice and
the reasons supporting his claim that notice should not be required./298/
A TRO expires at any time that the court fixes, not to exceed fourteen days./299/ However, the
court may extend the order for another period of fourteen or fewer days for good cause shown
or for a longer period if the adverse party consents. After an ex parte TRO is granted, the
motion for a preliminary injunction is set for hearing at the earliest possible time and takes
precedence over all other matters except older matters of the same character. /300/ On two
days’ notice to the party that obtained the ex parte TRO, or shorter notice if the court so
prescribes, the adverse party may move for modification or dissolution of the TRO./301/ Rule
65(b)(2) and Rule 65(d) detail what the court must state on the record or in the injunction.
Rule 65(c) requires an applicant for a TRO or preliminary injunction to post security for the
issuance of preliminary relief in the event that the court later finds that the opposing party was
wrongfully enjoined. Because this is likely to be a problem for legal aid clients, you must seek a
waiver of this requirement and document your client’s inability to post security. The court may
dispense with security when the applicant does not have the resources to post a bond./302/
The Federal Rules do not favor ex parte TROs, as they are contrary to the adversarial system of
justice. Unless you believe in good faith that notifying the opposing party will cause it to harm
your client, try first to negotiate a settlement with the opposing party. Rule 65(b)(1)(B) requires
an attempt to give notice and, in exercising its equitable authority, the court will want to know
that you have attempted to resolve matters without taking valuable court time on an
emergency basis. During negotiations, you may want to give to opposing counsel a draft of your
TRO memorandum or notice of the statutory, regulatory, or case authority upon which you are
relying. As a general proposition, the more candid you are in attempts to resolve matters
without court involvement, the more reasonable you will appear to the court. Therefore, no
matter how hurried you are, keep a record of all contacts with the opposing party or counsel
and confirm them in a letter at the earliest possible time. At the same time, do no permit these
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discussions to drag on; real or perceived delay in seeking emergency injunctive relief may be
viewed as suggesting the lack of irreparable injury. Despite the urgency, take extreme care in
drafting the declarations or affidavits you draft, which must be signed under oath and will
undoubtedly be examined carefully at this and future stages of the litigation.
If a temporary settlement is not feasible, or is too time-consuming, call the court clerk’s office
or district judge’s chambers, depending on who does scheduling in your district, and request a
hearing time. As soon as you schedule a hearing, notify opposing counsel or parties by phone,
followed by a confirming letter. Review all of your documents at this point to make sure they
are in order, and, in particular, check your proposed order to see that it contains the detail
required by Rule 65(d).
Although TRO hearings are often held in chambers and without evidence, be prepared to
present witnesses to prove your need for a TRO. Whether or not you are in chambers,
presentation of the facts is crucial. Of the elements for a TRO, proof of imminent irreparable
injury is the most important. In litigation over public benefits, the client’s loss of a social welfare
benefit can be irreparable injury./303/ At a hearing on a motion for preliminary injunction, you
should also be prepared to present live testimony, although your motion papers will present
the relevant facts through declarations. The witnesses should be present even if the practice of
the court is not to take such testimony. Many judges conduct a “mini-trial” on a preliminary
injunction. Therefore, be prepared to present a compelling and sympathetic case that the client
has been or will be imminently and irreparably harmed by the defendant’s unlawful conduct if
preliminary relief is not granted, and will likely prevail on the merits.
Plaintiff must show that preliminary relief will not harm the defendant or that such harm is
outweighed by the harm to the plaintiff from denying preliminary relief. In some cases, the
plaintiff should be prepared to subpoena and examine the defendant. Although presenting a
case only through the client and favorable witnesses is better, having the welfare administrator,
housing bureaucrat, or correctional worker before the court not only increases the likelihood
that the court will hear testimony, but also ensures that the court can, in fact, enter preliminary
relief in the presence of the opposing party.
Rule 65(a)(2) allows for the consolidation of the preliminary injunction hearing with the trial on
the merits. In some cases this may be to your client’s advantage, particularly when discovery is
not essential.
6.3.D. Summary Judgment
Summary judgment is the procedural device intended to dispose of factually meritless or legally
unpersuasive claims and defenses before trial. Federal Rule of Civil Procedure 56 authorizes
summary judgment when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Thus, a motion for summary judgment pierces the
pleadings to consider the facts of the case. In the last twenty-five years, summary judgment
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practice has played an increasingly prominent role in the resolution of federal litigation, and
federal trial practice has been in relative decline./304/
Either party may move for summary judgment and may do so with or without supporting
affidavits./305/ If used, affidavits must be based on personal knowledge, “set out facts
that would be admissible in evidence” and show that the affiant is competent to testify on the
matter./306/ Unless the objection is waived, hearsay, for example, may not support a motion
for summary judgment. If you are relying on the affidavit (or deposition) of an expert witness to
oppose or support a motion for summary judgment, keep in mind the rules generally applicable
to expert testimony. The affidavit should not just offer conclusory comments; rather, it should
set forth the expert’s qualifications as well as the factual basis, reasoning, and methodology
underlying the expert’s opinion./307/
The movant may also support its motion for summary judgment with documents, answers to
interrogatories, and deposition transcripts obtained in discovery. Review local federal court
rules prior to filing a motion for summary judgment. Often, for example, the local rules will
require a party to file a statement of material facts not in dispute with the motion. The
adequacy of these statements and opposing statements has become an increasing focus of
summary judgment disputes. Failure to offer adequate statements of undisputed fact or to
oppose the statements of other parties can severely prejudice your clients./308/
The 2009 amendments to Rule 56 made significant changes to timing issues involving summary
judgment motions. A movant may now file immediately after a complaint is filed./309/ Unless
otherwise ordered or prescribed by local rule, motions for summary judgment may be filed
until 30 days after the close of discovery. Oppositions are due within 21 days and replies
fourteen days after service./310/
The moving party always bears the burden under Rule 56(c)(2) to establish the absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. An issue of
material fact is one “that might affect the outcome of the suit under the governing law.”/311/ A
genuine dispute is one that a reasonable jury can resolve against the moving party./312/ The
judge’s role is not to weigh the evidence, but instead to determine whether there is a relevant
and triable factual issue. Nonetheless, some evaluation of the evidence is necessary to
determine whether a jury can reasonably find in favor of the nonmoving party. That evaluation
incorporates the standard of proof at trial, whether it is preponderance of the evidence or clear
and convincing evidence./313/
Moreover, in Celotex Corporation v. Catrett the Court tied the nature of the movant’s burden to
the allocation of the burden of production in the underlying litigation./314/ Celotex was a
wrongful-death case against various asbestos manufacturers and distributors. During discovery,
Celotex served interrogatories asking plaintiff to identify any witnesses who could testify to the
decedent’s exposure to Celotex products. When plaintiff failed to identify any witnesses,
Celotex moved for summary judgment on the ground that plaintiff lacked evidence proving that
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exposure to Celotex products caused the disease. Plaintiff opposed the motion on the ground
that Rule 56 required the defendant to establish the absence of a genuine issue of material fact
by filing affidavits specifically negating her claim that the decedent was exposed to Celotex
products.
The Court held that the defendant was entitled to summary judgment even though it did not
file any affidavits to negate the claim of causation./315/ The Court reasoned that because the
plaintiff would have borne the initial burden of production on the issue of causation, had the
case proceeded to trial, the defendant would have been entitled to judgment as a matter of law
unless the plaintiff produced evidence showing that her husband had been exposed to Celotex
products./316/ Summary judgment was proper even though Celotex filed no affidavits because
the plaintiffs’ lack of evidence on an issue on which she bore the burden of production
necessarily made every other issue nonmaterial./317/
The principal holding of Celotex is clear: Rule 56 requires the entry of summary judgment (after
an adequate time for discovery) against a nonmoving party on a claim or defense on which it
bears the underlying burden of production whenever the moving party shows that the
nonmoving party lacks sufficient evidence to establish one or more elements of that claim or
defense. The court must resolve all ambiguities and draw all permissible factual inferences
against the movant, and issues of credibility should not generally be resolved by summary
judgment. When, however, as in Celotex, a plaintiff cannot prove an essential element of a
claim, all other factual issues are immaterial; hence, “no genuine issue as to any material fact”
can then exist./318/
Celotex makes clear that the party moving for summary judgment can easily satisfy the initial
burden of showing the absence of a genuine issue of fact when the nonmoving party bears the
burden on the claim or defense at issue. The motion need not be supported by evidence
negating the claim. Rather, the moving party can meet the Rule 56 burden without filing
negating affidavits if the responses to discovery show that the nonmoving party will not be able
to establish an element of the claim or defense.
Celotex does not affect summary judgment practice when the moving party has the burden of
production on the underlying claim or defense. When the moving party has the underlying
burden, it must produce affidavits and other material that, if offered at trial, would entitle it to
judgment as a matter of law. Thus, Celotex principally affects plaintiffs, since plaintiffs ordinarily
bear the burden of production on all elements of a claim. However, because defendants bear
the burden of production on most affirmative defenses, Celotex may be invoked against an
unsupported affirmative defense.
When faced with a motion for summary judgment, the nonmoving party is likely to try to
establish a material factual dispute./319/ If discovery is not complete when the motion is filed,
the nonmoving party may file a motion under Federal Rule of Civil Procedure 56(f) with an
affidavit in which it must explain that it cannot yet oppose the motion because relevant
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discovery has not been obtained. If discovery is complete, the nonmovant generally needs to
produce discovery or affidavits (or both) demonstrating the existence of a genuine issue of
material fact that a reasonable finder of fact could decide in the nonmovant’s favor.
The Celotex and Anderson decisions have had a dramatic impact on the use of summary
judgment practice to resolve federal court litigation. The message of the cases for plaintiffs is
clear: prompt and thorough discovery is crucial. The impact of Celotex and Anderson in cases
involving questions of motive, intent, or state of mind is largely fact dependent. On the one
hand, courts commonly hold that summary judgment is not appropriate in cases involving an
assessment of credibility, demeanor, and state of mind because this function is reserved for the
finder of fact./320/ On the other hand, virtually all cases involve some such element and to
deny summary judgment reflexively in all such circumstances would undermine the utility of
the summary judgment procedure. For the nonmoving party, resolution of this issue often turns
on identifying record evidence revealing important questions of credibility on particular and
relevant issues. This underscores the need to approach discovery with great care.
Whenever the plaintiff’s claim crucially depends on expert testimony to establish fault or
causation, the defendant can combine a Celotex/321/ summary judgment motion with a
Daubert/322/ challenge to the admissibility of plaintiff’s expert testimony./323/ If, under
Daubert v. Merrill Dow Pharmaceuticals, the trial court concludes that the expert testimony is
inadmissible, and that without that expert testimony plaintiff will lack admissible evidence of
fault or causation, then Celotex will require the entry of summary judgment./324/ Good
practice, therefore, requires the early retention and preparation of an expert in anticipation of
a Daubert challenge likely to accompany a summary judgment motion. Although appeals from
orders granting summary judgment are subject to plenary review, General Electric Co. v. Joiner
held that when the basis for the grant of summary judgment is the exclusion of expert
testimony, deferential abuse of discretion review governs the admissibility determination./325/
271. Fed. R. Civ. P. 7; Fed. R. Civ. P. 11(a).
272. Local federal court rules can be found on the Internet, using the links at www.uscourts.gov
or going to the “Federal Resources” section of www.FindLaw.com.
273. Some local rules, however, require the motion to set forth supporting rules and cases as
authority.
274. A Fed. R. Civ. P. 12(b)(6) motion will be treated as a motion for summary judgment under
Rule 56 if matters outside the pleading are presented to and not excluded by the court. The
advocate should also be familiar with Fed. R. Civ. P. 12(g) and 12(h), which govern when certain
defenses may be waived.
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275. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atlantic v. Twombly, 550 U.S. 544
(2007). The new "plausibility" pleading standards are discussed extensively in Chapter 4 of this
MANUAL.
276. A motion to supplement under Fed. R. Civ. P. 15(d) is used to set forth transactions or
events that have occurred since the date of the original pleading. It is allowed only by leave of
court, and response is required only if the court so orders.
277. Rule 15 Advisory Committee Notes (2009).
278. See Foman v. Davis, 371 U.S. 178, 182 (1962); Estate of Oliva ex rel. McHugh v. New
Jersey, 604 F.3d 788 (3rd Cir. 2010); In re NVE Corp. Sec. Litig., 527 F.3d 749, 752 (8th Cir.
2008); Franks v. Ross, 313 F.3d 184 (4th Cir. 2002); YWCA v. Allstate Ins. Co., 214 F.R.D. 1 (D.D.C.
2003).
279. Fed. R. Civ. P. 19(a).
280. See Temple v. Synthes Corp., 498 U.S. 5 (1990); Provident Tradesmen’s Bank v. Patterson,
390 U.S. 102 (1968).
281. Chapter 7 of this MANUAL discusses class actions.
282. Fed. R. Civ. P. 25; see generally 7C Charles A. Wright et al., Federal Practice and Procedure
§ 1951 (3d ed. 2007).
283. McKenna v. Pacific Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994).
284. Fed. R. Civ. P. 25(a)(3).
285. Younts v. Fremont County, 370 F.3d 748, 752 (8th Cir. 2004); Barlow v. Ground, 39 F.3d
231, 233 (9th Cir. 1994); Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir. 1990); Rothschild v.
Board of Educ., 778 F. Supp. 642, 644 (W.D.N.Y. 1991).
286. Fed. R. Civ. P. 25(d).
287. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006);
Ashcroft v. ACLU, 542 U.S. 656, 664 (2004).
288. Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008).
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289. Because the “burdens at the preliminary injunction stage track the burdens at trial,” a
party moving for a preliminary injunction does not have the burden of disproving the
defendant’s affirmative defense. The defendant’s failure to discharge that burden renders the
movant likely to prevail on the merits. O Centro Espirita, 546 U.S. at 429.
290. Winter, 129 S.Ct. at 374.
291. Id. at 375.
292. Id. at 375-76.
293. Id at 378.
294. Id. at 392.
295. Citigroup Global Markets v. VCG Special Opportunities Master Fund, 598 F.3d 30, 35 (2d
Cir. 2010).
296. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir.
2009), vacated on other grounds, 130 S. Ct. 2371 (2010).
297. Citigroup Global Markets, 598 F.3d at 35-38; Hoosier Energy Rural Elec. Co-op., Inc. v. John
Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009); Alliance for the Wild Rockies v. Cottrell,
2010 U.S. App. LEXIS 15537 at *10-19 (9th Cir. Jul. 28, 2010).
298. Fed. R. Civ. P. 65(b)(1); see generally 11A Charles A. Wright et al., Federal Practice and
Procedure § 2952 (2d ed. 1995).
299. Fed. R. Civ. P. 65(b)(2). The time period was increased from 10 to 14 days effective
December, 2009.
300. Fed. R. Civ. P. 65(b)(3).
301. Id. 65(b)(4).
302. Pharm. Soc’y v. N.Y. State Dep’t. of Soc. Servs., 50 F.3d 1168 (2d Cir. 1995); C.H. v. Payne,
683 F. Supp.2d 865, 885 (S.D. Ind. 2010); Collick v. Weeks Marine, 680 F. Supp.2d 642, 658
(D.N.J. 2009); Brantley v. Maxwell-Jolly, 656 F. Supp.2d 1161, 1177 (N.D. Cal. 2009).
Page 373 of 559
303. Collick, 680 F. Supp.2d at 655-56; Brantley, 656 F. Supp.2d at 1176; Mayer v. Wing, 922 F.
Supp. 902 (S.D.N.Y. 1996); McMillan v. McCrimon, 807 F. Supp. 475 (C.D. Ill. 1992). See also
11A Charles A. Wright, supra note 298, at § 2951.
304. See Martin H. Redish, Symposium: The Civil Trial: Adaptation And Alternatives, Summary
Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev. 1329
(2005).
305. Celotex v. Catrett, 477 U.S. 317, 323 (1986).
306. Fed. R. Civ. P. 56(e)(1); Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The Celotex
and Anderson cases were the principal catalysts for the increased importance of summary
judgment practice.
307. See Chapter 6.6 of this MANUAL for a detailed discussion of expert witnesses.
308. See, e.g. Potter v. District of Columbia, 558 F.3d 542, 548 (D.C. Cir. 2009) (court may accept
statement of material facts as true if opposing party does not dispute them); Gosselin v. Webb,
242 F.3d 412, 414, n.2 (1st Cir. 2001); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir.
2001).
309. Fed. R. Civ. P. 56(a), (b).
310. Id. 56(c).
311. Anderson, 477 U.S. at 248.
312. Id.
313. Anderson, 477 U.S. at 248.
314. Celotex, 477 U.S. 317, 324 (1986).
315. Id.
316. Id. at 323-24.
317. Id. at 322.
318. Id.
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319. See generally 10A Charles A. Wright et al., Federal Practice and Procedure § 2725, n.1622. (3d ed. 1998).
320. See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
321. Celotex, 477 U.S. 317, 317 (1986).
322. Daubert is discussed extensively in Chapter 6.6 of this MANUAL.
323. General Electric Co. v. Joiner, 522 U.S. 136 (1997).
324. See e.g., Paz v. Brush Engineered Materials, 555 F.3d 383 (11th Cir. 2009) (affirming district
court's rejection of doctor's affidavit on diagnosis of disease and granting of summary
judgment); Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2004) (summary judgment for
city affirmed since expert’s opposing affidavit asserting municipal policy of condoning excessive
force was properly disregarded as inadmissible under Daubert for lack of reliable methodology);
Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577 (5th Cir. 2004) (summary judgment for
prison officials affirmed since proposed expert’s testimony that prison welding shop exposure
to radioactive thorium caused plaintiff’s cancer inadmissible for lack of reliable methodology);
McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) (summary judgment for defendants
responsible for delay in treating inmate’s spinal epidural abscess affirmed since plaintiff’s
expert’s proposed testimony that four hour delay caused or worsened paralysis unsupported by
reliable methodology); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809 (7th Cir. 2004)
(summary judgment for employer in ADA claim affirmed since expert affidavit attesting that
plaintiff could perform essential functions of job with or without reasonable accommodation
was speculative and unreliable); Gabbard v. Linn-Benton Hous. Auth., 219 F. Supp.2d 1130 (D.
Or. 2002) (summary judgment for defendant in ADA claim based on “multiple chemical
sensitivity” syndrome (MCS); expert affidavit attesting to diagnosis unreliable, noting that no
federal court has yet found reliable expert testimony purporting to diagnose MCS; existence
and etiology not established by reliable methodology).
325. Gen. Elec. Co., 522 U.S. at 142-43 (“ We likewise reject respondent's argument that
because the granting of summary judgment in this case was 'outcome determinative,' it should
have been subjected to a more searching standard of review. On a motion for summary
judgment, disputed issues of fact are resolved against the moving party--here, petitioners. But
the question of admissibility of expert testimony is not such an issue of fact, and is reviewable
under the abuse-of-discretion standard.”).
Updated 2010
6.4 Alternative Dispute Resolution
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Updated 2010
Some form of alternative dispute resolution is likely to be offered, or may be required, before
or after filing a federal lawsuit. Before an action is filed in court, some federal agencies make
use of either voluntary or mandatory, nonbinding ADR procedures as part of their investigative
or adjudicative operations./326/ Federal courts are mandated to provide for nonbinding ADR
procedures, although the courts have discretion to determine which cases are appropriate for
ADR referral./327/ Settlement offers made during the litigation of a claim, either as part of ADR
process or informal negotiations, may present challenging ethical, strategic, and legal issues for
the practitioner. This section examines the ADR issues that are most likely to come up in cases
handled by legal aid attorneys.
6.4.A. Early Use of ADR
A well-prepared plaintiff should consider pursuing settlement of a case before filing and, after
filing, through use of the federal court’s ADR procedures. Sending a settlement offer or a
demand for relief to defendant or to defendant’s counsel shortly before filing the action, if
nothing else, permits the plaintiff to say that an attempt was made to resolve the matter
outside of court. Plaintiff’s counsel may want to present a written settlement offer again to
defense counsel before the first pretrial conference. The court’s ADR process may require a
report of prior attempts at settlement. Developing a settlement offer requires you to consider
carefully the objectives of the lawsuit and to ensure that your client fully understands their
interests and priorities as well as the costs and benefits of settlement. Having a clear sense of
objectives and the prospects for settlement early on is important because the Rule 26(e)
conference requires the parties to discuss and assess the prospects for settlement.
The plaintiff’s request, in a Rule 16 report or subsequent conference, to refer the action to ADR
forces the defendant who does not want to participate to have to object to a settlement
conference. Scheduling a settlement conference early in the case, before completion of
discovery, can be helpful to a legal services program with limited resources to pay for
deposition transcripts and other expenses. Consider asking that the settlement conference be
set after the time for service of initial written discovery and before holding any depositions. A
plaintiff with good command of the facts may want to set the conference for a date after
service of the written discovery, but before answers are due, to give an incentive for the
defendant to settle without having to complete time-consuming discovery.
Early use of ADR process may help the plaintiff in several ways. First, if the case is not fully
settled through ADR, the defendant may be pressured to stipulate to key facts, and thus avoid
the need for expensive discovery. Second, when there is statutory authority for award of
attorney's fees, the settlement conference is an opportunity for the mediator to discuss with
the defendant and its counsel the costs potentially involved in further litigation. Third, a
plaintiff who prepares a thorough and factually detailed complaint before conclusion of
discovery can present a more thorough explanation of the case and relevant law than defense
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counsel. This may result in pressure by the mediator to the defendant to settle. Given the
uncertainty of success in federal litigation and the common interest among clients to resolve
matters promptly, creative opportunities for settlement should not be overlooked. This, of
course, will require close coordination and consent of your client.
6.4.B. Forms of Judicial ADR
The Alternative Dispute Resolution Act of 1998 requires that “[e]ach United States district court
shall authorize, by local rule . . . , the use of alternative dispute resolution processes in all civil
actions, including adversary proceedings in bankruptcy . . . .”/328/ The ADR process “includes
any process or procedure, other than adjudication by a presiding judge, in which a neutral third
party participates to assist in the resolution of issues in controversy, through processes such as
early neutral evaluation, mediation, minitrial, and arbitration . . . .”/329/ Many variations in
ADR processes are used in the federal court system, but the most common is some type of
mediation. The use of ADR in a case is frequently first raised at the initial Rule 16(b) pretrial
conference, and the parties may be ordered to participate in a settlement conference held
before or after completion of discovery./330/
6.4.C. Successful Use of ADR
If the local ADR process uses third-party neutrals (rather than court officers or court staff) there
might be an issue regarding the expense of compensating the neutral. If the court previously
granted permission to proceed in forma pauperis, the indigent party may not be required to pay
anything. The local ADR rule may provide a procedure to substitute a magistrate or court officer
for the third-party neutral when the expense of ADR is an issue. The other party may agree to
cover the full cost to utilize a third-party neutral. Perhaps a volunteer mediator would be
available through your local pro bono referral program. If ADR cost is a concern, the problem
should be raised before the court issues a referral order requiring participation in the ADR
process. The referral order addresses compensation of the neutral when there is a cost to the
parties. Whether the court uses a standard form referral order or modifies one for particular
cases, asking to see the court’s form well before a referral may be made is a good idea.
The referral order to ADR will probably require the parties to submit at least one settlement
conference statement. The local procedure may call for exchanging these statements, followed
by filing a confidential letter or supplementary statement given only to the mediator. There is
no commonly employed format for settlement conference statements; they may not even be
uniform within the same district. Typically, the referral order may require exchanging
statements approximately one week before the conference and filing confidential statements
the day before the conference. On the date of the settlement conference, counsel and the
parties are expected to appear (in person or by telephone) and orally summarize their litigation
positions. The mediator typically meets separately with counsel and the parties to discuss the
case and facilitate reaching a partial or full settlement of the action.
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The instructions for preparing the settlement statements emphasize that they should be
concise or may set a short page limit. A page limit on the written statements is a significant
advantage for the plaintiff who filed a detailed complaint. Attaching copies of the favorable
cases to the statements and including the citations in the written statements may be helpful.
One reason to prepare a more detailed complaint than is required by the federal rules is to
have a full exposition of the legal claims and factual bases for them and thus reduce the
amount that needs to be stated in the settlement conference statement./331/
An issue that may arise in settlement discussions when monetary relief or damages are sought
is how to deal with a lump-sum offer. The plaintiff may be asked to offer a number for
settlement of any monetary claims. How do you calculate this when you are seeking future
wages or private disability benefits for an unknown duration? The amount of such prospective
income can be discounted to present-day value, and there are various formulas to calculate
this, depending upon assumptions about inflation and other factors./332/ The well-prepared
plaintiff should anticipate this issue. For the mediation or settlement conference, plaintiff’s
counsel should have available the relevant case authority for the formula to be used in
computing interest, inflation, and present value and may wish to consult with a professional
expert in making these calculations.
326. For example, the Equal Employment Opportunity Commission requires federal agencies to
make reasonable efforts to settle EEO claims during the administrative process. 29 C.F.R. §
1614.603.
327. See, e.g., In re Atl. Pipe Corp., 304 F.3d 135 (1st Cir. 2002).
328. Alternative Dispute Resolution Act of 1998, 28 U.S.C.§ 651(b).
329. Id. § 651(a).
330. See Fed. R. Civ. P. 16(c)(2)(I). The Federal Judicial Center, www.fjc.gov., issues
useful publications on federal court procedure, including Robert J. Niemic et al., Guide to
Judicial Management of Cases in ADR (2001), and Robert J. Niemic, Mediation and Conference
Programs in the Federal Court of Appeals: A Sourcebook for Judges and Lawyers (2d ed. 2006).
The Civil Litigation Management Manual, issued jointly by the Federal Judicial Center and the
Judicial Conference of the United States, the Committee on Court Administration and Case
Management (adopted Mar. 2001), includes sections on ADR and judicial settlement guidelines
and offers insight into many other aspects of federal practice. See www.fjc.gov/public/.
331. Another drafting practice with particular benefit for later use in ADR is annexing key
documents as exhibits to the complaint. Reading the correspondence and notices preceding the
filing of the action gives the mediator a more objective impression of the history of the dispute
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(and the lack of responsiveness of the defendant in resolving the dispute without need for
litigation). A defendant who does not similarly append the key supportive documents to the
answer may be at a comparative disadvantage when there are page limits to settlement
conference statements.
332. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983), for a discussion of these
factors.
Updated 2010
6.5 Trial Practice
Updated 2010
A full development of trial principles and techniques is best left for specialized trial practice
courses and the treatises and handbooks devoted to the subject./333/ Nonetheless, a brief
review of the basics may assist the busy practitioner. Simply stated, the keys to a successful trial
are thorough preparation and excellent organization. Maintaining a trial notebook helps you
achieve these objectives. A bench book for the judge that contains exhibits, pleadings, and
precedent may also prove helpful in both jury and non-jury cases. Being well prepared and
organized not only improves the substance of your presentation, but also signals to the judge
and the jury that you are trustworthy and credible, attributes that are essential to successful
advocacy.
6.5.A. Waiver
The first issue that the lawyer must confront is whether to have the case tried before a judge or
a jury. While jury trials are not available in cases seeking only equitable relief, a litigant has a
constitutional right to trial by jury in virtually any case in which damages are sought. This
encompasses most legal aid matters such as consumer cases, fair housing claims, and civil rights
actions brought against police, corrections officers, or other governmental personnel./334/ A
jury trial, however, must be demanded in the complaint or by written demand served within
ten days after filing./335/ Otherwise, the right to trial by jury is waived./336/
In certain cases, such as where the issues are unusually complex or you represent an
unsympathetic plaintiff, you should consider whether to recommend that your client waive the
right to a jury trial. If your recommendation would be affected by the judge to whom the case is
assigned, consider omitting the jury demand from your complaint and decide whether to
request a jury after you know the specific judge who will hear your case. Remember, though,
that if you decide to waive a jury, the defendant may elect to request a jury trial for the very
reasons you chose not to. Therefore, if you believe that a bench trial is essential, your only
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option may be to omit a plea for damages or otherwise limit your pleading to issues not triable
by jury.
Timing is another consideration in deciding whether to insist upon a jury trial. Jury trial dockets
may move more slowly than a bench trial docket. Always determine whether the client can
afford a delay. Of course, a delay may inconvenience the other side as well. Thus, consider
whether the imposition is greater for your client or the opposition.
Waiving the right to trial by jury is a decision that should never be made lightly, especially when
representing an individual plaintiff. It is a mistake to underestimate the common sense,
independence, and intelligence of juries. A jury’s value lies principally in the freshness and
independence of a juror’s perspective. Jurors, unlike judges, are not infected by the cynicism of
the routine. A jury writes on a fresh slate and may be receptive to arguments that a judge or
hearing officer stopped listening to long ago. Depending upon the composition of the pool from
which the jurors are chosen, jurors may be more generous in awarding reasonable
compensation for a wrong.
6.5.B. Jury Selection
In a jury trial, you will have a limited opportunity to select the jury. The selection process,
however, involves the rejection of prospective jurors - through “challenges”- not the selection
of acceptable ones. Challenges to prospective jurors are made during or after a voir dire
examination, in which members of the venire panel are given information about the case, the
parties, witnesses, and counsel, and asked questions as to whether anything in their
backgrounds or experience would make it difficult for them to decide the case fairly.
The method by which the voir dire examination is conducted varies from jurisdiction to
jurisdiction, and sometimes from judge to judge. Although some courts still permit lawyers to
do the voir dire by themselves, it is more common today for the court to conduct the voir dire
examination entirely on its own or at least to ask most of the preliminary questions while
allowing the lawyers to ask certain follow up questions. Many judges prefer the more limited
role of attorneys in voir dire, believing that it expedites the jury selection process and
minimizes the opportunity for lawyers to “argue” their case. In preparing for trial, check the
local rules and investigate how the judge handles the voir dire process, including whether and
how the judge permits attorneys to question potential jurors and the manner in which
challenges are to be exercised.
In the courts that permit a more active role for attorneys, the voir dire will be your first
significant exposure to the jurors, and it is important to make the most of it. During your
questioning, you should educate the jurors about the theme of your case and the strength of
your evidence, establish your credibility, and develop a rapport with them. An abbreviated
opening statement or preface to the voir dire, if permitted by the judge, is useful to give a
broad overview of the case and to show the jurors that you believe in your client’s cause. You
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may