FEDERAL COURTS OUTLINE
I.
JUSTICIABILITY IN FEDERAL COURTS
A. Standing
1. Requires that a litigant have a personal stake in order to litigate.
2. Constitutional standing relates back to Article III.
3. Requirements for constitutional standing:
a. Injury
 actual or imminent
 must be concrete and particular, however it can be widely shared
 requires personal suffering of actual or threatened injury
 generalized grievances are not acceptable b/c they are widely shared
and of an abstract and indefinite nature
b. Causation
 fairly traceable to Defendant
 cannot be speculative
c. Redressability
 a favorable decision is likely to remedy the injury
 the distinction is that causation focuses on the defendant’s conduct
whereas redressability focuses on the relief sought.
4. Prudential standing is a standing rule made by the Court as a matter of
prudence. It exists when the injury asserted by a plaintiff falls within the zone
of interests sought to be protected by the statute at issue.
5. Cases:
a. Allen v Wright: Plaintiff sued on behalf of parents of black school children
alleging that IRS aided discriminatory schools which in turn caused them
direct harm and hindered their efforts to desegregate. Ct held no standing
b/c the injury alleged was not fairly traceable to the conduct of the IRS.
b. Lugan v Defenders of Wildlife: Non-specific intent to return in future
“someday” was insufficient for standing w/out description of concrete
plans or any specification of when someday will be.
c. FEC v Akins: Ct found voters had prudential standing to bring suit b/c the
statute provided any person who believes a violation had occurred or any
person aggrieved by an FEC order could seek review. Also met Art. III
standing requirements since there was an injury in fact (inability to obtain
info. about political committees hindered their ability to evaluate
candidates for office), and causation and redressability requirements are
met b/c the harm results from the FEC decision.
d. Raines v Byrd: Congressmen did not have standing to challenge line item
veto b/c they were alleging an institutional injury. Ct found they must have
a personal injury in order to have standing. Ct based its decision on the
fact that the line item veto had never been used. Left open whether there
would be sufficient injury if the veto had been used.
B. Related Doctrines
1. Third Party Standing
a. A third party has standing when the members of the group or association
could file individually or when the third party suffers actual injury as a
result of the treatment of others (Craig v Boren)
b. Generally, third party standing is not valid. Rationale for this is:
 Courts should not adjudicate rights unnecessarily, as the persons
represented by the third party may not wish to, or may enjoy them
regardless of success of party litigant.
 3rd parties are usually the best proponents of their own rights.
c. Exceptions to applying prudential rule of no third party standing:
 Relationship of litigant to person whose right he seeks to assert. Third
party standing is likely to be granted when there is a close relationship
between the party and the third party. Examples: seller/purchaser,
doctor/patient (right of patient seeking abortion or contraception),
teacher/student
 Ability of 3rd party to assert his own right. Standing is likely to be
granted where the 3rd party will find it difficult to assert her own rights.
Examples: NAACP can assert the rights of its members not to have
their names revealed, criminal defendant could assert rights of jurors
 Overbreadth Doctrine: Concept is that party whose activity could
constitutionally be punished may assert First Amend. rights of those
whose actions could not be punished. Rationale is that overbroad laws
will chill free speech so safeguarding free expression justifies allowing
third party standing. Limits on the overbreadth doctrine:
 Overbreadth must be substantial
 Construe statute to avoid Constitutional issue, or sever invalid bits
if possible.
 Cannot be used in challenging regulations of commercial speech
(impulse to advertise unlikely to be chilled)
2. No Generalized Grievances (Prudential Doctrine)
a. As a general rule, taxpayer standing is not allowed.
b. However, there is one exception (Flast case) which allowed taxpayer
standing to challenge expenditures alleged to be in violation of the
Establishment Clause. Two part test:
 The expenditure must be an exercise of the taxing and spending power
rather than merely an incidental expenditure connected with a
regulatory program.
 The expenditures must be prohibited by some specific constitutional
limitation, rather than merely beyond the powers delegated to the
federal government.
3. Zone of Interests Requirement
a. Applies to administrative agency regulation.
b. Must allege that the interest sought to be protected by Plaintiff is one w/in
the zone of interests sought to be protected by the statute or Const.
guarantee in question
c. Zone of interest requires that something in the text or history of the statute
supports your claim.
4. Ripeness
a. Looks at when the proper time is to bring a suit
b. Poe v Ullman est. a two part test:
 Is it fit to be decided?
 Is there actual hardship to the litigants of denying them the relief
sought?
c. Could have standing, but still not be ripe if Ct finds that later would be a
better time to have the dispute presented in a better form.
d. Rationale: don’t want to issue advisory opinions b/c they are prohibited by
the case and controversy provision of the Constitution.
e. Ripeness found in three general situations.
 Choice between unnecessary compliance and a possible conviction
 Hardship where enforcement is certain and only impediment to ripeness
is delay before proceedings commence.
 Hardship because of collateral injuries.
f. Note: If Ct finds record on appeal is not concrete or lacks factual details
they can declare case not ripe.
5. Mootness
a. Prevents a court from deciding a case to late, i.e. where the remedy sought
will no longer provide relief to the plaintiff
b. Two aspects
 Whether the issue is no longer “live”
 Whether the parties lack a legally cognizable interest in the outcome
c. Typical mootness events
 Criminal defendant dies
 Civil plaintiff dies and cause of action does not survive
 Settlement among the parties
 Challenged law repealed or expires
d. 4 exceptions to mootness rule:
 collateral or secondary injury
 must identify some continuing consequence
 emotional concern is not enough
 wrongs capable of repetition but evading review
 must be of a type which could occur to the same plaintiff again
 must be of inherently limited duration and likely to always become
moot before litigation is completed
 example: Roe v Wade
 Voluntary cessation of activity challenged
 It is moot only if the defendant can show there is no reasonable
expectation the wrong can be repeated.
 Class actions
 Even when a situation will not recur, class certification prior to
expiration of plaintiff’s claim prevents mootness.
 A class must be certified before the class action device can save a
case from mootness. If the class certification has been denied the
named plaintiff may appeal the denial, even after the suit has
become moot as to him.
6. Political Questions
a. Lack of justiciability is typically found if the case presents a political
question for another branch of the federal government.
b. 6 questions to determine if a political question exists.
 Is there a textually demonstrable constitutional commitment of the
issue to a coordinate branch of government? (issue is explicity given to
one branch of the government in writing, either by law or constitution)
 Is there a lack of judicially discernable and manageable standards for
resolving the dispute?
 Is the case impossible to decide without an initial policy determination
of a kind clearly for non-judicial discretion?
 Is the case impossible to decide without expressing lack of the respect
due coordinate branches of government?
 Is there an unusual need for an unquestioning adherance to a political
decision already made?
 Is there potential for embarrassment from multifarious pronouncements
from various departments on one question?
II.
SUBJECT MATTER JURISDICTION OF FEDERAL COURTS
A. Federal Question Jurisdiction
1. Article III provides jurisdiction in 9 types of cases or controversies, which are
grouped into two broad categories.
a. Constitutional provisions which provide authority to vindicate and enforce
the powers of the federal government.
 Cases arising under the Constitution, treaties and laws of the US
 Case in which the US is a party
 Cases affecting ambassadors, other public ministers and consouls
 Cases of admiralty and maritime jurisdiction
 Cases between a state or its citizens and a foreign country and its
citizens
b. Provisions granting authority to resolve disputes between a state and its
citizens
 Controversies between two or more states
 Controversies between a state and citizens of another state
 Between citizens of different states
 Controversies between citizens of the same state claiming land in
another state
Note: 11th Amendment modifies Art. III and denies power to hear suits
between state and citizens of another state, or of a foreign country, also
precludes suits by citizens against own state in Federal court.
2. 28 USC §1331
a. A case arises under federal law if:
 It is apparent from the face of the complaint either that plaintiff’s cause
of action was created by federal law or if based on state law, a federal
law which creates a cause of action is an essential component of the
plaintiff’s claim. (note this statute requires more than just being an
ingredient as provided by the constitution)
3. Other notes on federal question jurisdiction
a. The constitution only requires that federal law be an ingredient of the cause
of action.
b. Congress can give any organization it creates federal question jurisdiction.
c. Congress can also give federal question jurisdiction by statute to any case
with some federal ingredient.
d. Burden is on party seeking to invoke federal jurisdiction to demonstrate its
existence, but it cannot be conferred by consent of the parties.
e. Federal courts can raise the jurisdiction issue on its own.
f. Well Pleaded Complaint Rule: Federal question jurisdiction cannot be
based on federal defense, or anticipated federal defense.
B. Diversity Jurisdiction
1. 28 USC 1332
a. must have complete diversity: each Plaintiff must be diverse from each
defendant
b. must be a citizen of a particular state or foreign country
c. citizenship is determined by domicile not by residence (domicile is the true
fixed and permanent home)
d. Citizenship of corporations: dual, state of incorporation and principal place
of business
e. Unincorporated associations and partnerships are citizens of every state in
which they have a member
f. Insurance companies are citizens of the states in which their insured are
citizens
g. In class actions diversity is determined by the citizenship of class
representatives.
h. Burden on party seeking to invoke diversity jurisdiction.
C. Ancillary & Supplemental Jurisdiction
1. Basic theme is the need for federal courts to have jurisdiction over an entire
case.
2. Ancillary jurisdiction involves hearing of claims arising from “common
nucleus of operative fact”. Ancillary jurisdiction held to allow:
a. state law counterclaims which don’t meet amount in controversy
requirement
b. Defendant impleads third party Defendant
c. Intervention of right, but not permissive
d. Cross-claims of Plaintiff or Defendant
3. Pendent jurisdiction is a type of ancillary jurisdiction which is usually asserted
in the original complaint, whereas ancillary applies to claims asserted after the
original complaint has been filed.
4. UMW v Gibbs: set out test for determining when a court can hear both federal
and state claims:
a. federal claims must be substantial
b. state and federal claims must arise from a common nucleus of operative
fact
5. 28 USC 1367
a. uses term supplemental jurisdiction to embrace both ancillary and pendent
jurisdiction
b. Allows supplemental jurisdiction “over all other claims which are so
related to claims in the action that they form part of the same case or
controversy.”
c. 1367 (a) provides District Court’s shall have Supplemental Jurisdiction
d. 1367 (b) excludes supplemental jurisdiction in the following actions:
 Rule 14 Impleader
 Rule 19 Joinder
 Rule 20 Permissive Joinder
 Rule 24 Intervention
e. 1367 (c) allows District Courts discretion in the following actions:
 novel or complex issues of state law
 state claim substantially predominates
 all original jurisdiction claims have been dismissed
 exceptional circumstances involving compelling reasons to decline
jurisdiction (narrowly construed)
c. 1367 (d) Statute of Limitations
D. Removal Jurisdiction
1. 28 USC 1441
a. Fed Ct must have had original jurisdiction
b. Only a Defendant can remove, can be either diversity or federal question
cases
c. Can only remove to federal court, if case is originally filed in federal court
must dismiss and refile to get it in state court
d. Case can be remanded to state court only if it was originally filed there
e. You can remove an entire case which has federal and state claims, however
the federal court can choose to remand the state claims
f. In diversity cases a Defendant who is a citizen of the forum state may not
remove, even if there is diversity.
2. 28 USC 1446 Removal Procedure
a. Defendant has 30 days after service to remove
b. In diversity cases, one year limit to remove in cases that are not at first
removable.
c. All defendants who have been served must join in petition for removal
d. File notice of removal in Fed Dist. Ct and State Ct.
3. Remand
a. 28 USC 1447 provides costs and attorney’s fees if case was wrongfully
removed
b. grounds for remand: (a) lack of jurisdiction (b) procedural defect
c. Plaintiff could seek to prevent removal by (a) choose not to assert federal
claims or (b) dismiss part of suit which caused removal (doesn’t usually
work after removal)
d. Removal jurisdiction is determined at time of removal and later changes
may not have any effect.
e. Orders of remand are not appealable, except in limited circumstances.
E. Congressional Control of Federal Courts
1. Power to limit Federal Jurisdiction
a. Ex Parte McCardle: Held Congress can limit the appellate jurisdiction of
the Supreme Court in cases not expressly enumerated by the Constitution.
b. US v Klein: Held Congress cannot make laws that prescribe rules of
decision to be used by the Supreme Court.
 Narrow view- Some argue Klein only establishes Congress cannot limit
court jurisdiction in a manner that infringes on other constitutional
provisions
 Broad view- Others contend it means Congress may not limit the
court’s jurisdiction in order to limit substantive outcomes.
c. Lower Court Jurisdiction- Since Congress can choose whether to establish
lower federal courts at all, it has the authority to define their jurisdiction.
III.
ABSTENTION
A. General Principles
1. Basically means that the Ct has jurisdiction and could exercise it but abstains
from doing so.
2. Abstention does not strip away the federal forum. It requires letting the state
Ct run its course first.
3. Colorado River: exceptional circumstances abstention
a. requires concurrent state and federal suits
b. exceptional circumstances defined as a mix of the following;
 one Ct having assumed jurisdiction over the property to the exclusion
of others
 inconvenience of federal forum
 desirability of avoiding piece-meal litigation (most important)
 priority in which actions were commenced
c. Ct abstained even though it did not fit into one of the established categories
on the basis of exceptional circumstances
B. Pullman Abstention
1. Abstaining when there is an unsettled question of state law
a. this means a definitive state ruling would decide the issue
b. no abstention is permitted if the constitutional issue is uncomplicated by
the unresolved state law issue
c. state law may be considered clear either because of a definitive state
judicial opinion or a very clear statute. The court should abstain if there is
a unique state constitutional provision at issue.
2. A serious question of constitutional law might be avoided by abstaining.
3. 3 rationales for this abstention:
a. avoid friction between state and federal courts
b. reduce chance of erroneous interpretations of state law
c. avoid unnecessary constitutional decisions
4. Prerequisites for Pullman abstention:
a. must be substantial uncertainty as to the meaning of state law
b. must be reasonable possibility that the state ct clarification would avoid
need for federal constitutional ruling
5. It appears the Pullman abstention is discretionary, but this is still unclear.
C. Thibodeaux Abstention
1. deals with unclear state law in diversity cases, normally would not be grounds
for abstention
2. However, in Thibodeaux an unusually strong state interest permitted
abstention. In essence Thibodeaux is an exception to the Meredith rule which
provided for non-abstention in diversity cases where unclear state law exists.
D. Burford Abstention
1. Court will dismiss suit where federal intervention would be disruptive of state
efforts to fashion a coherent policy on matters of significant public concern.
2. Dispute as to whether unclear state law required for Burford abstention, or if
presence of complex administrative system suffices.
3. Court can never dismiss under Burford when the suit is for money damages.
4. Burford abstention appropriate in order to prevent disruption of a state’s
attempt to ensure uniformity in the treatment of an essentially local problem.
E. Younger Abstention
1. Federal court cannot enjoin pending state criminal proceedings. Not a narrow
doctrine, extends to civil cases and administrative matters.
2. Reasons:
a. Traditional equity rule that criminal proceedings are not enjoined absent
irreparable injury and inadequate remedy at law.
b. Our federalism- National govt fares best if it leaves states free to perform
their separate functions.
3. Note since Younger is expressly not based on the Anti-Injunction Act to get an
injunction against state proceedings you must satisfy the requirements of both
Younger and the Anti-Injunction Act.
4. Civil Proceedings Younger applies to:
a. nuisance proceedings
b. any case where a state is a party
c. contempt proceedings
d. child abuse proceedings
e. NOPSI case: held Younger doesn’t apply in all civil cases, only in those in
which there is an important state interest present.
5. What constitutes a pending proceeding? An indictment or an information,
some courts have also held an arrest or a grand jury investigation is sufficient.
6. Younger exceptions:
a. bad faith prosecutions
b. patently unconstitutional laws
c. unavailability of adequate state forum
d. waiver
F. Anti Injunction Act, 28 USC 2283
1. US Courts cannot grant injunctions to stay proceedings in state courts unless:
a. expressly authorized by Congress
b. necessary to protect or effectuate a judgment
c. necessary in aid of jurisdiction
Note: does not bar injunctions against the commencement of state proceedings
2. 28 USC 1983 is a statutory exception to the Anti Injunction Act b/c its very
purpose was to interpose the federal courts between the states and the people to
protect the people from unconstitutional action under color of state law.
3. There are other specialized abstention statutes (1341- Tax Injunction Act and
1342- Johnson Act, deals with utility rate orders)
IV.
CHOICE OF LAW IN THE FEDERAL SYSTEM
A. State Law in Federal Court- the Erie Problem
1. Erie RR v Tompkins
a. valid state substantive law and federal procedural law should apply in
federal court
b. By state law this includes state common law and statutory law
c. Supreme Court said there is no federal general common law, if a fed. Court
chose not to apply state common or statutory law, they would in a sense be
creating federal general common law. This is not within the power of the
federal court system
d. New Erie doctrine: distinction between Congress making federal law,
which is okay, and courts making judicial legislation, which is not okay
2. Rules of Decision Act (28 USC 1652)
a. The laws of the several states, except where the Constitution or the treaties
of the United States or acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts of the United
States, in cases where they apply.
3. Choice of law inquiry has 3 steps:
a. Does federal power exist on the issue?
b. If so, should state or federal law govern?
c. If federal, where do you get the content of the rule?
4. Klaxon v Stentor Mfg.
a. Ct held federal courts should apply state choice of law rules in a diversity
action, not federal choice of law rules
b. Proper function of Delaware federal court is to determine what the state
law is, not what it ought to be.
B. Substance/ Procedure
1. Federal courts are to apply state law when the question is substantive and
federal law when it is procedural. Most disputes in diversity cases center on
whether a state law is substantive or procedural.
2. Law of transferor state, or original state will always be applied, no matter who
moves for change of venue.
3. 3 part test for determining whether a principle is substantive or procedural
(outcome determinative);
a. If there a valid Federal Statute or Rule on point?
 If so federal law applies, even if state law is inconsistent.
 If not, go to question 2
b. Is the state law in question outcome determinative?
 If it is not, use federal law.
 If it is, go to question 3
c. Is there an overriding federal interest justifying the application of federal
law and displacing state law?
 If not, state law applies.
 If so, federal law applies. (example: importance of 7th Amendment
right to jury trial)
4. Goals of Erie: prevent of
a. forum shopping
b. the inequitable administration of justice
C. Federal Law in State Court
1. Almost any federal claim can be brought in a state court, b/c they are courts of
general jurisdiction. There are three exceptions to this:
a. Congress explicitly limits jurisdiction to federal courts
b. Unmistakable implication from legislative history
c. Clear incompatibility between state court jurisdiction and federal interests
2. Howlett v Rose
a. student brought §1983 claim, state court refused to hear it
b. Sup Ct held they had to hear it b/c federal law is a part of the law of the
land of each state
c. A state may not deny a federal right when parties and controversy are
properly before it, in the absence of a valid excuse
d. Excuses which are inconsistent or in conflict with federal law are not valid
 Only valid, neutral excuses so far have involved forum and jurisdiction
considerations
3. Congress has the power to require state courts to hear cases based on federal
causes of action. However, when a state court does not have jurisdiction over
or would dismiss a certain kind of case, the state court may refuse to hear
federal cases of that kind.
4. What is the source of the obligation of state courts to hear federal claims?
a. Supremacy clause, however if the supremacy clause obligates state courts
to decide federal claims, why does a valid, non-discriminatory excuse
suffice to justify not exercising jurisdiction?
 Perhaps, the answer is that state courts are still courts which have
neutral state rules, therefore absent federal legislation they can exercise
these rules.
5. Johnson v Fankell
a. Idaho court did not allow interlocutory appeal of a denial of a qualified
immunity defense.
b. This appeal would’ve been allowed had the case been in federal court.
c. Sup Ct decides that a state can be required to hear a federal case, but
cannot be required to follow federal procedural rules.
D. Supreme Court Review of State Court Decisions
1. Federal judicial power extends to all cases arising under the Constitution,
Laws, treaties, etc. even if decided in state court.
2. State court opinions are final on questions of state law, federal review of state
court decisions extends only to federal questions or state court interpretations
of federal law
3. Federal Premise cases
a. In some cases a state law may incorporate federal standards. In these cases
appellate review may be justified, even though there is not a federal
question, in the interest of uniformity.
4. Adequate and Independent State Grounds
a. Where a judgment of state court rests on two grounds, one Federal and the
other non-Federal in character, federal appellate jurisdiction fails if the
non-federal ground is independent of the federal one and adequate to
support the judgment. If the Court’s review of a federal issue would not
change the outcome, based on state law grounds, no review.
b. Justifications for the Rule:
 No advisory opinions
 Avoidance of unnecessary constitutional rulings
 Promotes harmony by limiting federal review of state cases
c. Criticisms of the Rule:

Leaves incorrect and inconsistent state court interpretations of federal
law uncorrected
 Invites state courts to immunize their judgments from Supreme Court
review by invoking state grounds for decision
d. Independence of State Grounds
 The state court must explicitly rely on state law in the opinion.
 If the state law incorporates federal law, it is not independent.
 If a decision of state law depends upon an interpretation of federal law,
the state law is not independent.
e. Adequacy of State Grounds
 Exists when the state law basis for the decision is sufficient by itself to
support the judgment regardless of whether the federal law basis is
affirmed or reversed.
 A state law basis is not adequate when there is a claim that the state
itself violates the constitution.
 State Procedural Rules
 In general, state procedural rules are seen as adequate grounds.
 However, they must serve a legitimate state interest, otherwise they
are reviewable.
 State procedural rules which deny due process are not adequate.
 States procedural grounds are not adequate where a state tries to
prevent review by applying a novel procedural hurdle or rule which
is not consistently followed.
 A state procedural rule will not qualify as adequate if the rule is
discretionary rather than mandatory.
 State rules are independent and adequate state grounds unless:
i.
they violate the Constitution
ii.
fail to serve a legitimate state interest
iii.
are used by a state court to frustrate a hearing on a federal
constitutional claim. The state court is considered to
frustrate a hearing when:
 creates a novel procedural rule
 uses a procedural rule it does not consistently follow
 employs a discretionary procedural rule
E. Power of Federal Courts to Create Federal Law
1. Federal Common Law
a. No federal common law creates criminal offenses against the U.S.,
however federal common law does exist.
b. Federalism can be affected in 2 ways:
 Can displace state laws
 Failure to create it can allow state law to frustrate federal interests
c. Separation of powers can be affected in 3 ways;
 May interfere with Congressional power to determine the existence
or content of federal law

Alternatively, developing common law principles is inherent in the
judicial role of deciding cases
 Moreover, federal common law is often developed to effectuate
Congressional intent
d. The major area of federal common law is the protection of uniquely
federal interests.
e. When exercising federal rights or a federal program, federal common
law should be applied or created.
f. Two part test on when to create federal common law to protect federal
interests
 Does the matter justify creation of federal law?
 If so, how is content to be determined?
 Copy existing state law?
 Formulate new rules?
g. Copying Existing State Law: Test
 Determine whether there is a need for uniformity.
 Would application of state law frustrate specific objectives of
federal programs?
 Would a federal rule disrupt commercial relationships predicated on
state law?
h. Private Party Cases
 Great reluctance of federal courts to make federal common law in
actions between private parties, only do so in cases where federal
law is deemed to preempt state law
 Preemption occurs when state law:
 Frustrates a federal objective
 Imposes obligations inconsistent with federal law, or
 There is a clear Congressional intent to preempt state law
2. Implied Rights of Action to Enforce Federal Statutes
a. Sometimes a federal statute will prescribe a standard of conduct w/out
specifying who is entitled to recover in the event the statute is violated.
The Supreme Court has occasionally inferred private causes of action
from such statutory commands.
b. Four part test to determine whether a private cause of action should be
inferred:
 Is Plaintiff one of the class for whose especial benefit the statute
was enacted? Does it create a federal right in favor of the Plaintiff?
 Is there any indication of legislative intent, explicit or implicit, to
create or deny a private remedy?
 Is it consistent with the underlying purpose of the statutory scheme
to imply a private remedy?
 Is the cause of action one traditionally related to state law, in an
area basically the concern of the states so that it would be
inappropriate to infer a cause of action based solely on federal law?
c. Modern approach is that private actions will be implied only if there is
affirmative evidence Congress intended to create one. Silence is a
definitive no. The Cort four factor analysis is not adhered to as much,
Congressional intent is the definitive question.
d. What Remedies Will Be Implied When There is an Implied Cause of
Action?
 Court will presume the availability of all appropriate remedies
unless Congress has expressly indicated otherwise.
 Title IX cases: No damages liability under Title IX, incases where
no official policy of entity is involved unless it is shown that:
 Official with authority to address discrimination and institute
corrective measures has actual notice of the discrimination
 And fails to adequately respond in a manner amounting to
deliberate indifference to discrimination
 Bivens case: 1st case to infer a private cause of action directly from
the Constitution. Ct allowed money damages on a 4th Amendment
violation. Individuals whose rights have been violated are not
relegated to state law remedies which might be inadequate or
hostile to federal constitutional interests.
 Supreme Court has applied Bivens to violations of a person’s 1st,
5th, and 8th Amendment rights.
 Schweiker v Chilicky- Court denied money damages to a person
whose Social Security did not come in for a long time. Court said
Congress has acted to provide meaningful remedies in this
situation, therefore Biven was not applicable.