Federal Jurisdiction Outline
Fall, 2005
Professor George Cochran
28 USC § 2201 ~ Creation of a Remedy
 Gives federal court right to grant declaratory relief (cause of action only; must have
separate jurisdictional statute)
42 USC § 1981 ~ Equal Rights Under the Law
 Cause of action statute for disparate racial treatment
 Must be used in line with a separate jurisdictional statute
 Equal rights to make and enforce K’s AND full and equal benefits of all laws
THE “JUSTICIABILITY” DOCTRINES
 The justiciability doctrines determine which matters federal courts can hear and decide
and which must be dismissed. Specifically, justiciability includes the prohibition against
advisory opinions, standing, ripeness, mootness, and the political question doctrine.
 Some of the justiciability doctrines are a result of the Supreme Court’s interpretation of
Article III of the Constitution; however, the Supreme Court has said that other
justiciability doctrines are derived not from the Constitution, but instead from prudent
judicial administration. Therefore, constitutional v. prudential requirements. This
distinction is important because Congress, by statute, may override prudential, but
not constitutional, restrictions.
 Note: Some justiciability doctrines, such as standing, have both constitutional and
prudential components. As for others, the Supreme Court has not specified whether it
views the limitation as constitutional or prudential.
 Note: Declaratory judgments are not impermissible advisory opinions so long as
they meet the requirements for judicial review.

MOOTNESS
I.
Voluntary Cessation
A) New Bedford case – When there’s voluntary cessation of conduct declared to be
illegal, it must be absolutely clear in the record that the conduct is not set to
reoccur.
B) Dieter v. Milwaukee (i.e. illegal statute but “we’ve never enforced it” argument) –
You can’t moot the case unless it’s absolutely clear that the statute won’t be
enforced
C) Buchanan v. West Virginia – Amendment of a statute by the state legislature IS
irrefutable proof that the allegedly illegal statute will not be enforced.
1. NOTE – No attorneys’ fees if voluntary cessation causes case to be moot
D) Lyons v. City of Los Angeles – If you can insert a damages claim in addition to
seeking injunctive relief, you can stop a case from being mooted.
II.
Avoiding it by Certifying a Class
A) Rule 23(a) Pre-Requisites to a Class Action
B) Rule 23(b)(3) Actions – Common questions of law and fact
C) Sosna v. Iowa – No mootness if you can get a class certified
D) US Parole Commission v. Garrity – The ability to avoid mootness through class
actions is retroactive, so if a question of class certification is reversed and granted
on appeal, the case can go on and is not moot.
III.
Capable of Repetition but Evading Review
A) Refers to something that could happen again to YOUR plaintiff
B) Super Tire Engineering – just because the strike ended did not moot the case
because the same workers can always go on strike again (plaintiff here was the
company/employer)
C) Election Cases – Caruso v. Yam Hill County – Normal standards for mootness
are not applicable in election cases because the same issues won’t be voted on
again, for the same candidates!
D) Limits (i.e. no capable of repetition but evading of review) –
1. Lyons & Weinstein – In criminal-based cases, you can’t assume your
plaintiff would commit the same crime and be treated in the same way!
STANDING
I.
“IN ESSENCE THE QUESTION STANDING IS WHETHER THE LITIGANT
IS ENTITLE TO HAVE THE COURT DECIDE THE MERITS OF THE
DISPUTE OR PARTICULAR ISSUES”
II.
General Constitutional Requirements for Standing
A) Lujan – To satisfy the “case or controversy” requirement of Article III, a plaintiff
must demonstrate that he has suffered:
1. Injury in Fact – That he/ she has suffered or threatened imminently to
suffer an injury. An invasion of a legally-protected interest which is (1)
concrete and particularized; and (2) actual or imminent, not hypothetical
or conjectural (i.e. prohibition against advisory opinions).
“Particularized” means the injury affects the plaintiff in a personal and
individual way.
a. A mere interest in a problem is not sufficient for standing (Sierra Club
v. Morton).
b. Aesthetic and environmental injuries are sufficient for standing so
long as the Π claims to suffer the harm personally (US v. SCRAP)
c. Π seeking injunctive or declaratory relief must allege a substantial
likelihood that he/she will be subject to the same harm in the future
(City of LA v. Lyons, chokeholds).
d. Descriptions of trips to the endangered areas and hopes to return
“someday” proves nothing without indication of concrete plans
e. Π’s allegation that he faced an increased risk of contracting a foodborn illness (Baur v. Veneman)
2. Causation – The injury must be fairly traceable to the defendant’s
actions/ conduct. That is, the Π must allege that the defendant’s
conduct caused the harm. The injury cannot result from the
independent actions of some third party not before the court (Allen v.
Wright)
3. Redressability – It must be likely that the injury will be directly
redressed by a favorable decision. That is, the Π must allege that a
favorable court decision is likely to redress the injury (Allen v. Wright)
III.
IV.
1. Key cases involving Causation and Redressability
a. The cases suggest you need both--they are distinct
hurdles, both of which must be met for a federal court
to hear a case.
b. Simon v. Eastern Kentucky Welfare Rights Org. - To show
causation, the complaint needs to suggest a substantial
likelihood that victory in the suit would result in the Π
getting what they want.
c. Duke Power- Π’s challenged as unconstitutional the PriceAnderson Act, which limited the liability of utility
companies in the event of a nuclear reactor accident. The
SC said the Π’s had standing: Injury--The construction of a
nuclear reactor in the Π area subjected them to many
injuries (i.e. exposure to radiation, thermal pollution, fear
of a nuclear accident); Causation--“But for” the PriceAnderson Act, the reactor would not have been built and
the Π’s would not have suffered these harms.
d. Allen v. Wright - Claim 1: Π’s and their children were
stigmatized by unlawful government direct financial aid to
discriminatory schools; the Court said there was no
standing b/c the injury was too abstract; it would extend
nationwide to all members of a racial group, no just the
ones being denied equal treatment. Claim 2: Children’s
chances to receive an integrated education were diminished
by the continued tax breaks for discriminatory schools; the
Court said no standing. Although cognizable injury, not
fairly traceable to the IRS conduct. From the perspective
of the IRS, the injury to repondents was highly indirect and
results from the independent action of some third party not
before the court.
General Prudential Requirements for Standing
A) Remember: Unlike constitutional requirements, Congress may override prudential
limits by statute.
B) A party generally may assert only his or her own rights and cannot raise the
claims of third parties not before the court.
C) A plaintiff may not sue as a taxpayer who shares a grievance in commone with all
other taxpayers.
D) A party must raise a claim within the zone of interests protected by the statue in
question.
Jus Turtii Standing - aka Third Party Standing - Plaintiff has an injury, BUT he
or she is arguing the rights of people/parties who are not present in Court. A Π can
assert only injuries that he or she has suffered; a Π cannot present the claims of third
parties who are not a part of the lawsuit.
A) 3 Major Exceptions: (or 3 part test??) : In the following situations the SC has
ruled that a person who has suffered an injury has standing to raise the
interests of third parties not before the court:
1. Where the third part is likely to be unable to sue
2. Close relationship between Π and third party
3. The overbreadth doctrine
V.
VI.
VII.
4. Client must actually be injured
5. Close relationship between plaintiff and absent parties
6. Some hindrance or impediment prevents the outside or absent parties
from being in court
B) Example – Griswold v. Connecticut – Griswold was the DOCTOR, arguing the
rights of married people to contraceptives.
C) Kowalski – Attorney/Client relationship doesn’t qualify as “close” under the 3Part test because it’s just sort of “quasi-contractual”
Organizational Standing
A) Hunt v. Washington Apple Commission – 3 Part Test:
1. A member of the organization has an injury in his own right
2. Suit is germane to the purpose of the organization
3. It’s the type of case that doesn’t require individual participation (i.e.
they’re not seeking money damages)
B) CEIBA v. Ford Motor Co. – General allegation that “all members are damaged”
is insufficient and will get your case dismissed.
C) Flick & Associates v. Phoenix – The organization must be a REAL
organization/association . . . NOT just a corporation trying to masquerade as an
organization.
1. ALSO – Under the standards for 3rd Party Standing, embarrassment is
NOT enough of an impediment to stay out of court
Generalized Injury – No standing
A) Ex Parte Levith – “injury to society as a whole” is not enough! NO
GENERALIZED GRIEVANCES!
B) Schlesinger – POTENTIAL injury is not enough! Standing to sue requires
concrete injury.
C) City of Jacksonville – “Injury in Fact” is the denial of equal treatment resulting
from the imposition of some barrier, not just the inability to obtain the benefit.
D) BUT NOTE – Duke Power – No subject matter nexus is absolutely required
between rights asserted and injury alleged
Taxpayer Standing
A) Frothingham – No standing where the only injury alleged is your share of an
increased tax burden resulting from an allegedly unlawful expenditure of federal
funds
B) Flast v. Cohen – Limited to its facts; May have taxpayer standing if there’s a
NEXUS between the claim presented and status as taxpayers. 2-Part Test:
1. Nexus between plaintiff and statute
2. Statute must exceed specific constitutional limitations on the federal
taxing/spending power. (Here, the specific limitation alleged was the
Establishment Clause).
C) Valley Forge – No taxpayer standing where the source of the Congressional
Action is NOT the taxing and spending clause (i.e. here it was the property
clause).
D) Planned Parenthood v. Rose – a “choose life” license plate case; taxpayer
standing may be permitted where alleging viewpoint discrimination in a limited
public forum
E) Municipal Taxpayers
1. Duremis v. Board of Education – municipal taxpayers are different
because it’s easier to trace how tax money is actually being spent at the
city level (rather than the state level). SO there is potential for the
standing requirements to be met where you can trace an expenditure to
the challenged activity.
F) State Taxpayers
1. Asarco, Inc. – State taxpayers are more like federal taxpayers; No
standing except in a case like Flast.
2. States Suing “Parens Patria”
a. Massachusetts v. Mellon – Absent actual injury to a quasigovernmental entity, states cannot sue the federal government on
behalf of their taxpaying citizens.
b. Snap & Son v. Puerto Rico – BUT it IS ok for a state to sue, parens
patria, a private corporation or business (rather than the fed. gov’t)
VIII. Legislative Standing
A) Raines v. Byrd – Senators/Congressmen don’t have standing to sue just because
they lost in the political process; must show MORE than just some lost votes.
B) Colon v. Miller – If there is proof that a lost vote actually counts or makes a
difference, it MAY be enough injury to get into state court.
IX.
Extraneous Issues/Wrapping Up Standing
A) Leflore v. Whitman – Likelihood that plaintiff himself will be exposed to illegal
emissions is sufficient harm/injury for standing.
B) Standing to Sue Federal Bureaucracies / Government Agencies – Additional
Requirement
1. Data Processing v. Camp – Must have (1) actual injury and (2) must
show that you’re protected or regulated by the statute in question
C) Policy Concerns – Just understand that policy considerations often play a role in
standing determinations. If the court just really wants to get to the merits of a
particular type of case because of strong public policy implications attached to the
issues, they’ll do it! ILLUSTRATIONS:
1. US v. Scrap; Duke Power; City of Jacksonville ; Laidlaw
2. In such cases, it doesn’t matter that the injury alleged may be merely
speculative!
D) Okplobi v. Foster – When seeking to have a statute declared unconstitutional, you
MUST name a governmental defendant. If only private citizens are in charge of
enforcing a statute, there is no “government defendant” to name and thus no case
or controversy under Article III.
X.
E) Nike v. Kaske – If you start out in state court and have standing under state law,
once you get up to the US Supreme Court, you’re under FEDERAL law and will
have to show actual rather than generalized injury.
F) Procedural Injury – Mere bitching about federal agencies not following correct
procedures is only enough for generalized injury, which is insufficient for
standing. (Lujan).
G) Redefining Injury – Congress can redefine “injury” under Article III and
“intellectual outrage” is sufficient injury for standing. (Trafficante).
Redressability
A) Simon v. Kentucky Welfare Rights – the relief sought must more than
speculatively redress the harm alleged.
B) Generally understand that you MUST PLEAD CASES WITH
PARTICULARITY; if you’re not careful, all your work is going to go down the
rat-hole!
FEDERAL COMMON LAW – generally, after standing is determined, the big questions to
decide are: (1) Who can I sue? (2) What law to apply? and (3) How do I win?
I.
“Protective Jurisdiction” – the latent power of federal courts to assert jurisdiction
when there is a high/unique federal interest (Osbourne)
A) In re Nagle – As a matter of policy, states shouldn’t be able to bring criminal
trials against federal officials who were carrying out their duties in a reasonable
manner.
1. SIDE NOTE – 28 U.S.C. § 1442 – If you sue a federal officer in state
court, they can remove to federal court.
B) Masa v. California – The Nagle protective jurisdiction is N/A where the federal
agent was UNREASONABLE in carrying out his duties.
C) U.S. v. Little Lake Misere Co. – high federal interest in exchange of federal
property under federal statutes, so federal court has protective jurisdiction.
1. ASK – Is there a need for federal uniformity???
D) Clearfield Trust – Federal law will apply where there is high federal interest and
need for federal uniformity in a particular area.
E) Parnell – If the US is not a party, the high federal interest is not there and state
law will be applied.
F) Boyle – Court referred to the high federal interest & need for uniformity when
dealing with government contractors (hence – “government contractors’
defense”); Cochran says this was most likely just a policy decision as to whether
or not we should be able to sue government contractors using state law.
II.
Civil Suits Against Federal Officers
A) Distinguish but compare Nagle, which dealt with a criminal suit against a federal
officer as providing a basis for protective federal jurisdiction.
B) Lyons, Matteo, & Westfall – ALL hold that there is total immunity against state
civil actions arising from the actions of federal officials who are reasonably
carrying out their duties.
C) Westfall 2 Part test:
1. Is the challenged conduct within the outer perimeter of the officials’
duties? AND
III.
2. Is it discretionary in nature?
D) WESTFALL ACT (totally undercut Westfall itself)
1. Scope Certificate – for government employees sued for something done
during the course of employment; certificate issued by US Attorney
certifying that you were acting within the scope of your duties as an
employee
2. Effect of Scope Certificate – if you were in state court, once the
certificate is filed, you’re case is automatically removed and instead of a
suit against one employee, it’s now an FTCA suit against the US.
Federal Torts Claims Act Suits
A) General Rules/Things to Know:
1. District Courts have exclusive jurisdiction; this is a waiver of sovereign
immunity
2. 28 U.S.C. § 2680 – Exceptions:
a. Discretionary Functions (§2680(a))
- Dalehite – negligence at a higher level will get you into the
“discretionary” exception
- Berkowitz – failure to follow a mandatory agency regulation or
provision is NOT a discretionary function, so no exception; suit
permitted.
- US v. Gobert – if there are elements of CHOICE, grounded in
social, economic, or political goals, the discretionary exception
applies.
- Shark v. US – if there are two competing, mandatory
regulations, there IS discretion in choosing which to follow and
the exception applies.
b. Claims arising out of combatant activities of the military or naval
forces during times of war (§2680(j))
- FARRIS DOCTRINE – expands 2680(j) entirely; US has
immunity for injuries sustained by people in the military that
occur, “incident to service.”
- Lachum v. US – 4 Part Test for “Incident to Service”
1) Location
2) Duty Status
3) Activities at Death
4) Major Activities
- Gonzales – if you’re subject to orders at the time of injury,
Farris will preclude suit
- Stencil – Farris also precludes you from IMPLEADING the
US as a defendant
- Johnson – Farris doctrine applies regardless of who causes the
injury (i.e. it’s irrelevant that they’re an employee of a different
federal agency outside the military)
c. §2680(h) – Extends liability under the FTCA for assault/battery/etc.
committed by any investigating or law enforcement officer
IMPLIED RIGHTS OF ACTION TO ENFORCE FEDERAL STATUTES
I.
Main Precedent
A) Cort v. Ash – 4 part test for implying a cause of action (note – this case has been
ripped apart by subsequent opinions)
1. Is the plaintiff part of the class the statute’s intended to benefit?
2. Any indication of legislative intent (explicit or implicit) to create or deny
a remedy?
3. Is it consistent with the underlying purposes of the legislative scheme to
imply such a remedy?
4. Is the cause of action one traditionally relegated to state law (i.e. in an
area traditionally of state concern?)
B) J.I. Case – Court implied a cause of action to enforce anti-fraud provisions of the
Securities Act because it would EFFECTUATE THE PURPOSES OF THE ACT
1. NOTE – Supreme Court here basically did what Congress wouldn’t do
by making a policy decision on who could sue.
C) Touche Ross – THE MAIN “LAW” TODAY – Says the 4-part of Cort v. Ash is
stupid and the only important question is WHAT IS THE LEGISLATIVE
INTENT???
D) Alexander v. Sandoval – BIG CASE!
1. To imply a cause of action under a federal statute, there must be
RIGHTS-CREATING LANGUAGE
2. Federal regulations cannot conjure up an implied cause of action not
intended by Congress.
3. SO – You need (1) Legislative Intent; and (2) Rights-CreatingLanguage to imply a cause of action from a regular federal statute.
4. Boswell v. Sky West Airlines – where a statute provides a specific
enforcement scheme and cause of action, that evidences legislative
intent for THAT type of relief and consequently an intent to BAR a
private cause of action for damages.
II.
Title IX Line of Cases
A) Cannon ~ There is an implied cause of action in Title IX because that statute was
modeled after Title VI, under which there is a clear private right of action for
injunction AND damages
B) Gebser – The test for implying a cause of action under Title IX where there is
Teacher/Student Harassment
1. Only if the school administrators have some type of notice of the gender
discrimination and fail to respond in good faith can the discrimination be
interpreted as a policy of the school district.
C) Davis – Implying a cause of action under Title IX where there is Student/Student
Harassment
1. Test is deliberate indifference to the action and knowledge of the
conduct and context by someone in the school AND conduct must be so
severe, pervasive, and objectively offensive as to deny someone access
to education
III.
§ 1983 – You do not have to imply a cause of action because the statute explicitly
provides one.
IV.
A) Maine v. Thiboudot – § 1983 provides a private cause of action against state
officials who violate a federal statute, regardless of whether THAT statute
contemplated private enforcement.
B) Pennhurst – Rehnquist opinion; said the underlying statute must have
unambiguous rights-creating language that is more mandatory than horatory to
use § 1983 / violation of underlying statute.
C) Middlexex County – The presence of a comprehensive remedial scheme in the
underlying statute overrides any “rights-creating-language” and shows
Congressional intent to deny a §1983 cause of action thereon.
D) Gonzaga University v. Doe – There’s becoming a MERGER B/T THE LINES OF
CASES:
1. The tests for implying a cause of action for a straight § 1331 suit and
whether or not you have a cause of action under § 1983 are
IDENTICAL! You have to show Congressional Intent to create such a
right in both cases.
Presence of Comprehensive Remedial Schemes
A) Middlesex County – (see above)
B) Rancho Palos Verdes – Scalia said that where the statute provides one means of
private enforcement as “another option for seeking relief,” there is a
REBUTTABLE PRESUMPTION that Congress intended there to be no private
cause of action for violating that statute.
C) Burden of Proof – UNDERSTAND - § 1983 gives plaintiffs a cause of action.
The defendant bears the burden of proof that the statute has no rights-creatinglanguage or legislative intent for private enforcement.
1. BUT - Contrast Straight § 1331 suits – THEN the burden is on the
plaintiff to prove there’s no legislative intent to preclude suit (and show
rights-creating-language and all that)
D) What is “Comprehensive?” – Starts out with Sea Clammers . . . ends up at RPV.
Now, a single provision can be equated with a “comprehensive scheme” and give
rise to a presumption of no private right of action.
BIVENS ACTIONS TO ENFORCE CONSTITUTIONAL RIGHTS
I.
Scope of this Area – We’re dealing purely with FEDERAL OFFICIALS violating
CONSTITUTIONAL (not statutory) rights!
II.
Main Precedent
A) Bivens – allows federal suit for violation of rights secured by the Federal
Constitution.
1. 2 times you cannot sue under this area:
a. The statutory scheme involves “special factors counseling hesitation.”
b. There’s an equally-effective remedy available.
2. The Key Here – “For people in Bivens’ shoes, it’s damages or nothing.”
B) Chilicky – Congressionally-created remedial schemes/alternative remedies are a
special factor counseling hesitation that precludes a Bivens cause of action.
1. RECALL – Bivens actions only lie where there is no:
a. explicit statutory remedy against the relief sought
b. special factors counseling hesitation
III.
2. Bush v. Lucas – more re: comprehensive remedial schemes; courts
shouldn’t step in and interfere with how Congress has chosen to work
out problems.
3. Davis v. Passman – Title VII’s congressional employer exemption is
NOT a comprehensive scheme or special factor reflecting an explicit
congressional declaration that congressional employees should not
recover SO – Bivens action allowed for violation of 5th Amendment.
C) Carlson v. Green – When there is a remedy under the FTCA, you can still bring a
Bivens action under the Constitution. FTCA permits recovery from the
government and Bivens permits recovery from individuals.
1. NOTE – to defeat a Bivens action, the defendants must show that the
alternative remedy provided by Congress was an explicit substitute for
recovery under the Constitution AND is equally-effective!
D) FDIC v. Meyer – No Bivens actions against federal AGENCIES.
E) Malesko – No Bivens actions against private corporations operating under color
of state law.
1. SO – Bivens actions are only available against private/individual federal
officers, NOT government or private entities.
F) Negligence cannot give rise to a Bivens action (or a § 1983 claim) because it
cannot create a deprivation of rights!
Statute of Limitations – Use the laws of the state unless that would bar a remedy;
choose the law that BEST EFFECTUATES THE VALIDATION OF
CONSTITUTIONAL RIGHTS
A) Note – in FTCA cases the SOL is 2 years.
§ 1983 ACTIONS
I.
42 USC § 1983 – creates a private cause of action against any PERSON who, acting
UNDER COLOR OF STATE LAW, abridges the rights secured by the Constitution
and laws of the United States.
II.
3 Primary Purposes of § 1983
A) Override State Law
B) Provide a remedy where state law is inadequate
C) Provide relief where state law is adequate but improperly enforced
III.
Exhaustion Doctrine – There is no exhaustion of remedies requirement to bring an
action under § 1983
A) Effect of this – increased ability to foreign shop
IV.
“Color of State Law,” defined –
A) Monroe v. Pape – misuse of power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law, is
action taken under color of State law.
1. I.E. – all actions taken in an officer’s official capacity, whether
authorized by or in violation of state law
B) Marsh v. Alabama – “Under color of state law” includes private area actions that
provide a PUBLIC FUNCTION.
C) Jackson v. Metropolitan-Edison – More – Re: Public Function Doctrine –
V.
1. When a private company is involved, look for extensive government
regulations and a NEXUS between the regulations and the injury or
cause of action; look for a nexus between conduct and official duties
2. THE KEY – “Actions within the exclusive prerogative of the State”
D) Flag v. Brooks – Mere authorization of private actions by State law is insufficient
for Public Function/actions under color of state law. It would be different if the
conduct was mandated by the State.
E) Kone – mere receipt of public funds is not sufficient to meet the state action
requirement of § 1983.
F) Addickus – When a private actor works in COOPERATION WITH THE STATE,
§ 1983 may be used on the basis of a JOINT CONSPIRACY (which qualifies as
“state action”).
1. Luger – A court action, initiated by a private party, where the end result
is attachment (of property) by the sheriff, is sufficient joint
activity/cooperation for state action under § 1983.
2. BASICALLY – if your complaint alleges this type of “conspiracy,” it’s
state action.
G) Public Defenders – even though they’re paid by the state, their allegiance is to
the client, which is more like a private attorney, so no state action and no §1983
against them (Polk County)
H) Martinez – Where officials engage in isolated activity, unrelated to their official
duties, there is NO state action for purposes of § 1983 AS LONG AS THE
HARM RESULTS FROM NEGLIGENCE
I) Focus on the Family – Even in the case of a private company being sued, if the
government has final authority over the decision at issue (OR a “Direct Nexus” to
the decision), it’s properly under § 1983.
J) Bail Bondsmen – No state action & no § 1983 for their actions b/c they operate
under the authority granted by K (Green v. Aborg Bail Bonds)
K) DeShaney – Purpose of § 1983 and the 14th Amendment is to protect people from
the STATE, not from eachother. There is no general duty to save.
1. RULE – injury by third persons does not give rise to § 1983 liability,
with 2 Exceptions:
a. Special relationship b/t the State and the person injured (i.e. someone
in custody or under arrest; no special relationship between schools and
students) – OR –
b. State-Created-Danger Exception - Texas A&M case; Knight v. Teft
- ASK – BUT FOR the action or non-action of the state entity, is
there heightened danger?
- Negligence in creating the danger is not enough for § 1983
(McClindon)
Suing Private Individuals under § 1983
A) Wyatt v. Cole – private persons who meet the § 1983 state action requirement (or
the § 1331 Bivens requirement) do NOT have any qualified immunities.
2. NOTE – This type of situation will often arise in the context of
individuals doing something that’s “historically the prerogative of the
State” OR where there’s joint action/cooperation with a government
official or body (i.e. a conspiracy claim).
OFFICIAL IMMUNITIES
I.
Absolute Immunity ~ 2 Part Test
A) Total immunity for the person at common law?
B) Good policy reasons to keep the immunity in place?
II.
Categories of Certain Total Immunity
A) Legislative Immunity – can’t sue a legislator for actions arising from legislative
activity (Penny v. Brenhove)
1. Bogan v. Scott-Harris – Legislative immunity goes all the way down to
city/local councils
2. Consumers Union – Legislative immunity carries over to suits for
injunctive relief as well as damages! This is the only category of
immunity that so extends.
B) Judicial Immunity – All actions taken by a judge within his or her judicial
capacity are immune from damages suits (unless actions are taken without
jurisdiction) (Stump v. Sparkman)
1. Butts v. Economo- Someone acting as the “functional equivalent” of a
judge is protected.
2. Parole Boards – are a functional equivalent and thus totally immune
(Dawson v. Newman)
3. Prison Disciplinary Boards – are NOT a functional equivalent of a
judge (Slevinger)
C) Derivative Immunity – When a police officer obtains a warrant from a judge that
turns out to have been improperly granted, the deputy has derivative immunity b/c
he was just carrying out the actions authorized by the judge.
1. Briggs – The TEST is – Would a reasonably well-trained officer have
known the facts didn’t establish probable cause?
D) Presidents – Presidents are immune from suits for damages from actions taken
during term (Nixon v. Fitzgerald)
1. Clinton v. Jones – Presidents CAN be sued for acts occurring before
they were in office
E) Prosecutorial Immunity – Prosecutors have absolute immunity from damages
suits for any actions taken within the judicial phase of the criminal process
(Imbler)
III.
Qualified/Good Faith Immunity
A) Harlow v. Fitzgerald – if you bring a damages suit against a public/government
official, the TEST for GOOD FAITH/QUALIFIED IMMUNITY is whether the
act violated clearly established constitutional or statutory rights
1. NOTE – proof of intent is irrelevant in this determination! Harlow did
away with that.
2. Crawford-El – applicable when you’re litigating a case where malicious
intent is a pleading requirement for the cause of action and you’ve got a
qualified immunity defense to deal with.
B) “Clearly Established Constitutional Rights” –
1. 4th Amendment Context – good faith immunity is only overcome when a
reasonable officer, under similar circumstances, wouldn’t have believed
his behavior was lawful (Anderson v. Creighton)
a. Proof/Evidence – you don’t NEED a case with exactly the same facts,
you just need clearly excessive force, etc., under the circumstances
(Trammer v. City of Edna). Another example of this is U.S. v. Linear
(blatantly obvious violation of bodily integrity didn’t need supporting
case law)
b. BUT – where there ARE similar cases, that CAN show a violation of a
clearly-established right, IF they’re right on point (Brisseau v.
Hoggin)
2. 14th Amendment Context – For substantive due process claims, the
TEST to get past qualified immunity is the Rochin “shocks the
conscience of the court” standard (Sacramento v. Lewis)
a. NOTE – if there’s no specific constitutional provision to hang your hat
on but it seems like outrageous conduct by the Cops, this is the test.
b. Mere negligence is insufficient (Cochran v. Deer Park)
3. 8th Amendment Context – note that you must have a plaintiff in prison
a. Hudson v. McMillian – TEST – court looks to the severity of the
injury and whether it was inflicted with DELIBERATE
INDIFFERENCE, thus constituting a wanton infliction of unnecessary
punisment
4. 1st Amendment Context –
a. Bunting v. Melon – qualified immunity will attach if it’s only
predicted that specific acts violate the constitutional right (note also
that this case notes that another way to get around a mootness problem
is to include a damages claim).
11th AMENDMENT & SOVEREIGN IMMUNITY
I.
General Overall Principles
A) The 11th Amendment Defense is Jurisdictional in nature.
B) It’s HOT! Part of a drive by the Supreme Court to build States’ Rights into the
case law.
C) Drafted for one reason – overturn Chisolm v. Georgia.
II.
The Immunity Interpretation – Says it is inherent in the nature of sovereignty that
states cannot be sued without their consent (Hans v. Louisiana)
III.
Main Precedent
A) Ex Parte Young –
1. allows you to sue a government official in his official capacity for
prospective injunctive relief from an allegedly unconstitutional State law
2. Holding/Rationale – you can’t be acting as a true state official if you’re
doing something that’s arguably unconstitutional. SO your 11th
Amendment immunity is stripped by the Supremacy Clause
B) Alabama v. Pugh – NEVER name a state entity as a Defendant! You can always
name the officials charged with responsibility, but not the entity itself because
that would violate the 11th Amendment
IV.
V.
VI.
C) Edelman v. Jordan – The 11th Amendment precludes suits against government
officials/State defendants seeking the retroactive payment of $ damages from the
state treasury
D) Pennhurst – There is no federal jurisdiction to enforce claims for prospective
injunctive relief based on STATE LAW!
1. Rationale – no high federal interest in state laws, thus no “stripping” of
rights of immunity by the Supremacy clause
2. Effect – forces bifurcation of the case!
a. If you’re suing a state entity in federal court with both state and federal
law claims, the Federal Court can’t hear the state law claims. SO, you
must either bring 2 separate actions OR forget your state law claim (or
bring both in state court)
E) Coeur d’Alene – Creates another exception to Ex Parte Young
1. Ex Parte Young cannot be used where you have SPECIAL
SOVEREIGNTY INTERESTS / factors counseling hesitation
2. BUT – you can really only use this case if you’re representing Indians in
Ohio because . . .
F) Verizon Maryland – Reaffirmed Ex Parte Young and pretty much left Coeur
d’Alene D.O.A. NOW – we’re back under the straightforward test of Ex Parte
Young, with Seminole Indian as the only exception(s)!
The County Level – The County is not the State for purposes of the 11th
Amendment! How do you determine State Entity v. Political Subdivision?
A) Mt. Healthy Sch. Dist. – School districts are political subdivisions (under state
law! You have to look it up)
B) Hess v. Port Authority – The KEY inquiry focuses on who will pay the
judgment? State or City/County?
1. But note that the Court has refused to read Hess too literally (Regents v.
Doe)
C) Pendergrass (5th Circuit) – 6 Part Test:
1. Look at statutes and case law of the state
2. Does the entity have local autonomy?
3. Source of funds (i.e. Hess is reduced to just one factor)
4. Entity deals with local or statewide problems?
5. Can it sue or be sued in its own name?
6. Right to hold property?
Official v. Individual Capacity
A) Will – § 1983 suits for damages against state governments or state officers in their
official capacities are not permitted in state or federal court! You can’t beat the
11th Amendment just by suing in State Court (???????)
B) Hafer v. Melo – you CAN use § 1983 to sue a state official in his INDIVIDUAL
capacity in state court.
1. Rationale – where’s the money come from? Here, from the individual
rather than the state/state entity
Full Faith & Credit
A) Nevada v. Hall – California doesn’t have to give FFC to Nevada’s sovereign
immunity law.
B) Franchise Tax Board – the state of California cannot plead sovereign immunity
in Nevada courts.
VII. Consent & Congressional Abrogation
A) Generally – All courts agree that Congress’ power under §5 of the 14th
Amendment allows it to override 11th Amendment sovereign immunity
(Fitzpatrick v. Bitzer)
1. Note also that § 1988 was enacted pursuant to this Congressional power,
SO attorneys’ fees aren’t precluded by the 11th Amendment
B) Requirement of a Clear & Definite Statement
1. Atascadero – if there’s to be an override of 11th Amendment immunity,
Congress must make its intention unmistakably clear in the language of
the statute.
C) Waiver by Removal –
1. La Pettes v. Board of Regents – if you sue a state in state court and they
remove to federal court, they waive all 11th Amendment immunity!
D) Seminole Tribe - The 11th Amendment is to “prevent the indignity of states being
sued in federal court.”
1. TEST for abrogation –
a. Congress expressed unequivocal intent to abrogate in the language of
the statute
b. Congress has acted pursuant to a valid exercise of power.
2. The ONLY “valid exercise of power” is §5 of the 14th Amendment
3. Holding 2 – you can’t have an Ex Parte Young case against a state
official if the statute contains a COMPREHENSIVE REMEDIAL
SCHEME (and thus a “special factor counseling hesitation”)
E) Alden v. Maine – The powers delegated to Congress under Article I do not
include the power to subject non-consenting states to damages suits in STATE
court.
1. SO – no abrogation to allow suit in STATE court either, other than
under §5 of the 14th Amendment
2. Implications of This – 11th Amendment principles are being carried over
to preclude state employees from getting relief in their own state courts
even though they still/also have no recourse in federal court!
3. This only applies to State Entity defendants, NOT political subdivisions.
F) College Savings Bank – States may not constructively waive their 11th
Amendment immunity just by participating in a program or in the free market.
1. Implications – states can enter the private market and be protected by the
11th Amendment AND the market participant exception to the
Commerce Clause creates a double-dose of state protection.
VIII. Agency Proceedings –
A) South Carolina Port Authority – 11th Amendment applies to federal agency
proceedings when a state is involuntarily sued in a federal agency.
IX.
Congruence & Proportionality
A) City of Boerne – If Congress is going to use its powers under § 5 of the 14th
Amendment to abrogate immunity, the remedy must be congruent and
B)
C)
D)
E)
proportional to the harm Congress seeks to address. (No authority for this;
dreamt up)
Florida Prepaid – To have proper abrogation of the 11th Amendment under
Boerne, take 2 STEPS:
1. First, identify the constitutional violation
2. Then, make a record of the history and problems showing that Congress
actually had a “wrong to remedy” under §5/14th (i.e. – must have
evidence of a history of deprivation of rights in a particular area)
3. BE AWARE – if the alleged constitutional violation is something
ordinarily subject to rational basis or low scrutiny review, the Court will
want a more thorough record.
Nevada v. Hibbs – If you’re in an area that gets higher review, the evidentiary
burden under Boerne is easier to meet!
Tennessee v. Lane – Title II of the ADA / access to public facilities . . .
discriminatory access to a Courthouse brings up notions of Due Process and thus,
strict scrutiny review (in which case a record of merely 2-3 instances may be
deemed “congruent and proportional”).
Michaels v. Tracy King – deals with 8th Amendment violations; lower scrutiny so
more evidence in the record is required.
MUNICIPAL LIABILITY
I.
Monell – Municipalities may be sued directly under § 1983 for monetary, declaratory,
OR injunctive relief where the allegedly unconstitutional activity implements or
executes a policy, ordinance, regulation, custom, or decisions officially
adopted/promulgated by city officials
A) LIMIT – No vicarious liability just for acts of city employees! Must have
EDICTS OR ACTS that can be said to represent custom or policy!
B) Partially overruled Monroe v. Pape (although the part defining state action is still
good law).
C) Owen – There is NO GOOD FAITH/QUALIFIED IMMUNITY for
municipalities! (i.e. the city, when sued, can’t rely on the “good faith” of its
officers!) There is absolute liability in Monell cases.
II.
Ascertaining “Official Policy”
A) Generally, 2 WAYS to get Monell liability based on policy or custom. LOOK AT
STATE LAW to see if:
1. Policy-making authority by lawmakers of the municipality
2. Decision-making authority by someone whose edicts or acts represent
official policy.
B) Isolated Decisions by Municipal Officials – may expose city to Monell liability
where?
1. Pembaur – Look to state law to determine whether a person has final
decision-making authority.
2. Prapotnik – Where decision or policy-making authority has been
DELEGATED to another official (i.e. not who has been identified by
state law as having such authority), MUST ESTABLISH A PATTERN,
III.
IV.
V.
VI.
such as through CUSTOM or usage, so as to suggest that a given
practice has been adopted as policy.
Failure to Train as “Official Policy” –
A) Oklahoma City v. Tuttle – you cannot infer failure to train based on a single,
isolated incident UNLESS there’s proof of an existing unconstitutional policy that
can be attributed to a policymaker.
B) City of Canton – failure to train is ONLY grounds for liability where it amounts
to DELIBERATE INDIFFERENCE to the rights of the people with whom the
police come into contact.
Delegation of Authority by Ratification – i.e. if authorized policy-makers
APPROVE a subordinate’s decision, and the basis for it, their ratification is
chargeable to the municipality because their decision is final
A) City of San Antonio – Failure to act is NOT ratification.
Punitive Damages – you can’t get them in a Monell case. (City of Newport v. Fat
Concerts)
Prosecutorial Immunity – recall – Prosecutors have absolute immunity from
damages suits for any actions taken within the judicial phase of the criminal process.
SO – don’t try to go after the prosecutor and hope to secure Monell liability.
ABSTENTION - I.E. when a federal court, after its jurisdiction has been properly invoked,
decides it’s not going to do anything and either stays or dismisses the case.
28 USC § 1738 ~ Res Judicata / Collateral Estoppel Statute ~ Once a state court has entered
judgment, that judgment is binding on the federal court proceeding!
B.S. Quote Defining Abstention (from Colorado River) – “An extraordinary and narrow
doctrine used only in exceptional circumstances” . . . because of the “unflagging obligation” to
go to judgment regardless of parallel cases in state court.
I.
Colorado River Abstention to Avoid Duplicative Litigation – where there’s
concurrent state and federal jurisdiction and parallel suits!
A) Four Factor Test
1. Inconvenience on the federal forum
2. desirability of avoiding piecemeal litigation
3. Order in which jurisdiction was obtained by the concurrent forums
4. the problems that occur from parallel litigation/concurrent jurisdiction
over the same res.
B) Declaratory Judgment Actions – In suits for declaratory judgments, federal
courts have DISCRETION whether to defer to duplicative state proceedings; the
normal Colorado River test is N/A. (Wilton v. Seven Falls)
C) Moses Cone – The existence of a federal question or high federal interest weighs
heavily AGAINST abstention (i.e. when weighing the Colorado River factors).
D) Quackenbush – Under no circumstances does the federal court have the right to
dismiss or remand a case that includes a damages claim. Must STAY the
proceedings.
1. NOTE – You still need to watch out for § 1738
II.
III.
IV.
V.
E) Conseco - Uncovers ANOTHER FACTOR to add to the C.R. test: VEXATIOUS
or REACTIVE NATURE OF BEHAVIOR may influence the decision whether or
not to stay the proceedings.
F) Different Parties – To even get into Colorado River, you have to be dealing with
the SAME PARTIES in the parallel suits. (ANCO Installations)
Rooker/Feldman Doctrine – Lower federal courts have no jurisdiction to hear
“FUNCTIONAL APPEALS” from state court final decisions – OR – to decide
questions that are inextricably intertwined with prior state court judgments.
A) The only route to federal court from a state court final judgment is by Writ of
Certiorari to the Supreme Court
B) BUT – Exxon-Mobile v. Saudi Enterprises – Rooker/Feldman only applies if you
file in federal court AFTER final judgment by the state court. If the state court
proceeding is merely PENDING, you don’t have a Rooker/Feldman problem
(although you might have Younger problems . . . )
Burford Abstention – abstention to defer to complex state administrative procedures
A) LOOK FOR a high, complicated regulatory scheme in an area where there is a
high state interest (Sun Oil)
B) Federal court can dismiss (unless there’s a damages claim) . . .
Pullman Abstention – Abstention to resolve questions of unclear state law;
proceedings are stayed pending resolution of state law claims.
A) Pullman – State courts should have the first opportunity to interpret state statutes
or decide issues of state law.
B) Mississippi Supreme Court Rule 20 – Allows abstaining federal courts to
bypass lower state courts and go directly to the Mississippi Supreme Court for a
determination of an unclear question of Mississippi law.
1. NOTE – Must be from Federal Court of Appeals to invoke this rule.
SO, if you’re in district court, should take a § 1292(b) interlocutory
appeal up to the Court of Appeals and THEN invoke Rule 20.
C) Constantineau – you can’t abstain under Pullman where state law is CLEAR.
D) England – To prevent § 1738 res judicata, a party can expressly reserve the right
to return to federal court for a determination of federal claims by filing an
“England Certificate.”
E) Gresham Park Community Org. v. Howell – you can’t get an England Certificate
in situations other than where court abstains under Pullman.
F) General Things to Keep in Mind:
1. The biggest question in this area is usually whether the state law is
sufficiently unclear to justify abstention
2. The doctrine is usually limited to suits for injunctions
3. Doctrine MAY be raised sua sponte for the first time on appeal.
Younger Abstention – abstention to avoid interference with pending state
proceedings; based on notions of equity, comity and federalism!
A) Younger – Federal courts cannot enjoin pending CRIMINAL prosecutions in state
courts UNLESS there’s a likelihood of irreparable harm arising from the
proceedings.
1. “Irreparable Harm” means either (1) a flagrantly unconstitutional statute
or (2) a series of prosecutions brought to harass, with no valid
expectation of a guilty verdict/conviction.
2. Dombrowski – where “bad faith” has infiltrated the entire criminal
process, there’s a judicial exception to Younger and the Anti-Injunction
Act.
3. Huffman – Younger applies even if the state case is on appeal.
B) Declaratory Judgments (where no pending state action)
1. Steffel – There is no Younger problem if you bring a suit for declaratory
judgment when a state criminal prosecution is only THREATENED, but
not yet pending.
a. But Note – ARREST commences state proceedings for purposes of
Younger.
b. Hicks v. Miranda – 2-Part Holding (Deep Throat case)
- Derivative Preclusion – Where different parties in parallel
litigation (i.e. employees & employer) have identical economic
interests, a pending criminal against one party will be imputed
to preclude a suit in federal court by the other party, even
though they’re not the same parties.
- Substantial Completion Requirement – Federal courts may
not provide declaratory relief if a state prosecution is
commenced before the federal court proceedings are
substantially complete (i.e. there have been proceedings on the
merits)
2. Doran v. Salem Inn – PRELIMINARY INJUNCTIONS
a. Federal Courts may issue preliminary injunctions in the absence of
pending state criminal proceedings
b. Practical Advice – If an ordinance comes down that seems
unconstitutional, advise your client NOT TO VIOLATE IT and just
file a suit under Doran for a preliminary injunction (because violating
it would lead to a pending criminal and thus a Younger problem).
3. Wooley v. Maynard – PERMANENT injunctions are available in the
absence of pending state proceedings, AS LONG AS there’s no effect on
past convictions/criminal record.
a. BUT – Ellis v. Dyson – If the injunctive relief has an effect on past
criminal convictions (ex: seeking to expunge criminal arrest record),
Younger applies.
C) Extending Younger to State CIVIL Proceedings –
1. Huffman – “Quasi-Criminal” proceedings – Younger applies whenever
pending state action is “quasi-criminal” in nature.
2. Trainor v. Hernandez – Younger applies to all pending civil cases to
which the State is a party.
3. Juidice v. Vail – Even if private litigants, Younger applies in a civil
proceeding with HIGH STATE INTERESTS (ex: states have a high
state interest in their own contempt proceedings).
4. NOPSI – Younger has never been applied to prevent review of matters
that are not part of JUDICIAL OR QUASI-JUDICIAL PROCEEDINGS
(i.e. no extension to legislative decisions, executive action, etc.)
D) Extending Younger to State ADMINISTRATIVE Proceedings –
1. Middlesex County – Application of Younger just requires: 3-PART
TEST:
a. a proceeding that’s judicial or quasi-judicial in nature
b. involving an important state interest
c. and ample opportunity to raise your constitutional questions at the
state court level
d. JUST NOTE that purely administrative proceedings CAN meet
these requirements. (Ex: State Bar disciplinary proceedings)
2. Dayton Christian Schools – applied Middlesex County; Implicitly Holds
that while you may not be able to raise your federal question AT the
administrative hearing, once you appeal the administrative decision to
the state court level, that’s “ample opportunity.”
ANTI-INJUNCTION ACT
I.
28 U.S.C. § 2283 – Forbids a federal court from enjoining pending state litigation
EXCEPT where:
A) Expressly authorized by Congress
B) Necessary in aid of its jurisdiction
C) To protect or effectuate its judgment
II.
“Expressly Authorized” exception
A) Mitchum v. Foster – § 1983 IS an expressly-authorized exception to the AIA
B) Vendo Corp. – re: the implications of Mitchum on OTHER Acts of Congress,
besides § 1983; if you’re going to have an express exception, it’d better be
REALLY express. Statute must authorize injunctions against State Courts. LH.
III.
“Necessary in Aid of Jurisdiction” – Only applies in 2 Circumstances:
A) When a case is removed to federal court, the federal court may issue an injunction
if the state court does not properly relinquish its jurisdiction (Mitchum)
B) Where the federal court acquires jurisdiction over a case involving the disposition
of real property FIRST (Atlantic Coastline)
IV.
Injunctions to Effectuate a Judgment
A) Generally, this “Relitigation Exception” is limited to situations where the state
court, because of res judicata, should not hear the case but does so anyway . . .
and THAT action is pending.
B) Choo – Relitigation exception only applies to those issues actually litigated in
federal court.
C) Atlantic Coastline – For a federal court to enjoin state courts with this exception,
the prior federal judgment must be on the MERITS of the issue (rather than just a
procedural ruling).
D) Parsons Steel – Where simultaneous state and federal suits are going on:
1. A party may be entitled to an injunction where the state court proceeding
is pending, but once res judicata is raised AND DECIDED AGAINST
V.
THAT PARTY in state court, §1738 kicks in to prevent them from
returning to federal court
2. Practice Pointer – File for a § 2283 injunction before the second (state
court) case reaches judgment
E) Trienes – Where you have an adverse judgment in State Court, you need to
APPEAL IT and not sit on it because THE LAST JUDGMENT is the one that’s
BINDING. Hypo:
1. X sues Y in Alabama and wins.
2. Y sues X in Mississippi . . . under full faith and credit, X should win, but
Y wins
3. X sues Y in Louisiana . . . who wins?
4. Y!!! Rationale – In the Mississippi litigation, X should have appealed
on full faith and credit grounds, but he didn’t, so the last judgment (for
Y) is binding!
F) Imperial County v. Menas – IF the plaintiff in federal court is a “stranger” to the
state court proceeding, §2283 doesn’t apply.
1. Hale v. BemCo Cement – only case citing Imperial County; where
there’s no privity between federal plaintiff and the parties in the state
court proceeding, § 2283 is N/A
Preclusive Effect on a State Court Filing - § 2283 applies regardless of WHEN
state and federal cases are filed; no exception where federal suit is filed first.
A) Practice Pointer – if you (as defendant) think plaintiff is going to file in state
court, you should seek an injunction under FRCP 65, against the state court suit
even being FILED. This will get you past the Anti-Injunction Act AND Younger
because tehn there’s no conflicting procedure . . . only THREATENED
proceedings.
TAX INJUNCITON ACT
I.
28 U.S.C. § 1341 – District Courts are prohibited from enjoining, suspending, or
restraining the collection of any state tax where a speedy and efficient remedy is
available in state court.
II.
Main Precedent
A) Rosewell – Any remedy at all is a “speedy and efficient” state remedy.
B) Grace Brethren Church – The Act precludes declaratory judgment actions (in
federal court) that would effectively suspend the collection of state taxes!
C) McNary – Can’t circumvent the Act by adding a claim for damages (i.e. under
§1983).
D) Hall v. Winn – The Act does not apply to cases where plaintiffs are trying to
ADD TO the state treasury rather than detract from it! (i.e. – they’re seeking
payment of taxes rather than trying to get out of paying taxes).
III.
Defining “Tax”- 2 PART TEST (Home Builders v. Madison)
A) Taxes generally go into the state treasury
B) Fees are usually related to regulatory schemes and generally go to the government
entity to administer something
C) NOTE – if it’s a “fee,” your OUT of § 1341.
PREEMPTION, FEDERAL QUESTIONS & DECLARATORY JUDGMENTS
I.
Preemption Precedent - Re: question of when can a case be REMOVED to federal
court on the basis of preemption?
A) Lincoln Mills – you can only remove on the basis of preemption when (1) the law
TOTALLY preempts the area AND (2) it’s shown that Congress intended the
only cause of action to be in federal court (this is the redefined holding as said in
Beneficial National Bank)
B) Really only allowed in 3 areas:
1. Labor Area (LMRA)
2. ERISA
3. National Bank Act
II.
Skelly Oil – There is no federal jurisdiction over declaratory judgment actions when
you couldn’t have brought the original suit for damages in federal court
III.
Franchise Tax Board - ????
IV.
Wycoff – Applies when you’re filing suit in federal court for declaratory judgment
and there’s a THREATENED state court suit in the background
A) HELD – when the complaint in the federal dec-action seeks to assert a defense to
an impending state court action, it is the CHARACTER OF THE THREATENED
ACTION and not the defense that determines whether the federal court has
jurisdiction
B) Illustration – Branaugh Airways v. Florida Public Service Comm’n – where the
threatened is a state proceeding in state court, there’s no federal jurisdiction for
the dec-action!
C) BUT – Verizon Maryland – any time you have a threatened state court action that
in effect will lead to a violation of federal law, there’s federal jurisdiction under
Ex Parte Young. SO you can beat Wycoff by adding to your request for
declaratory judgment a request for an injunction under Ex Parte Young (would
basically be under § 1983, which is also an express exception to the AIA) (Local
Union v. Massachusetts Commission on Discrimination).
ATTORNEYS’ FEES
I.
28 U.S.C. § 1988 – grants attorneys’ fees to prevailing plaintiffs in actions brought
under §§ 1981, 1982, 1983, or 1985.
A) NOTE - § 1985 provides a cause of action for conspiracy to deprive a person of
equal protection/rights/privileges (this translates into race-based conspiracies)
1. Griffin v. Breckenridge – for a § 1985(3) violation, you need (1) a
conspiracy, (2) motivated by class-based discriminatory animus, (3) to
deprive persons of E.P. and (4) actions in furtherance of (5) injury.
2. Brotherhood of Carpenters - § 1985(3) is limited to the types of classes
that get high scrutiny review under the E.P. clause (e.g. race)
II.
“Lodestar” – i.e. the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate (City of Riverside v. Rivera)
A) An ordinary lodestar may be enhanced or reduced depending on an application of
the “Johnson Factors” (basically just the factors from the MRPC) (In re RiteAid)
III.
Standard of Review when appealing a fee award is abuse of discretion
Nominal Success – A nominal damage award does NOT make the plaintiff a
“prevailing party” eligible for a fee award under § 1988! (Farrar v. Hobby)
V.
Prevailing Party – Fees may be awarded where the plaintiff succeeds on ANY
SIGNIFICANT ISSUE (Garland Independent School District)
VI.
Fees for Defense Counsel – A prevailing defendant may recover fees only where the
litigation is UNREASONABLE, FRIVOLOUS, MERITLESS or VEXATIOUS
(Christianburg Garment).
A) Rule 11 Fee Shifting – attorneys have to pay the other side’s fee for frivolous
cases filed in bad faith (objective standard)
B) 28 USC § 1927 – federal statute imposes fees on attorneys fro engaging in
professional activity that can be described as “unreasonable and vexatious”
C) Chambers v. Nascow – Courts have inherent power to award fees based on
subjective bad faith.
VII. Disputes Settled Prior to Litigation – You don’t get fees unless you’ve filed suit! A
civil rights plaintiff who settles before suing is not a “prevailing party” entitled to fees
under §1988 (Crest Comm. Council)
VIII. Fees Upon Ordinary Settlement – A plaintiff who recovers damages because
defendants settle (after suit was filed) is entitled to fees (Maher v. Gagne)
IX.
Settlement Conditioned Upon Waiver of Fees – Evans v. Jeff D. - § 1988 does not
prohibit this; just be aware . . .
A) Narrow Exception (from Evans dicta) – Waiver of fees may be attacked where it
can be defined as a VINDICTIVE EFFORT by defendants TO DETER
LAWYERS from taking CIVIL RIGHTS CASES!
1. HYPO – How do you PLEAD a case under this exception?
a. Who’s your plaintiff?
i)
Lawyer deterred from getting cases? STANDING
PROBLEM b/c injury & redressability would be merely
speculative
ii)
Person/Potential Civil Rights Plaintiff who couldn’t get
a lawyer for her case? This may barely make it under
the standing requirements (Bernhardt)
b. What relief are you seeking? Prospective injunctive against
enforcement of the waiver policy
c. Who’s your Defendant? Officials in charge of
administering/enforcing the policy, in their OFFICIAL
CAPACITY
d. What’s your jurisdictional base? 1331/1983 . . . but a violation of
what right secured?
i)
Rights secured by § 1988!
ii)
Address – Pennhurst problem? Are the rights secured
by § 1988 merely wishful or horatory? NO. Rights are
expressly provided and mandated in the statute.
X.
Buchanan – After this case you need 3 things to be in a posture to recover fees:
A) Receive an enforceable judgment or consent decree
B) That materially alters the legal relationship between your client and the defendant
AND
IV.
C) That modifies the defendants’ behavior in a way that positively affects your client
XI.
Administrative Proceedings
A) Webb v. Board of Education – A prevailing plaintiff cannot claim attorneys’ fees
for time spent in administrative proceedings in cases where exhaustion of such
remedies is not required!
B) University of TN v. Elliot – (general thing to watch out for) . . . Findings of fact
from an administrative agency, if binding under state law, will be binding on a
federal court suit under § 1738.
XII. Fee Awards & Contingency Fees – Effect on eachother?
A) Venegas v. Mitchell – Where a contingency agreement awards a fee greater than
that provided/awarded under § 1988, the contingency fee will NOT be reduced.
The statutory award is merely credited toward the contingency fee.
B) Blanchard v. Bergeron – Similarly, you can’t reduce an award under § 1988 just
because the percentage earned under a contingency agreement is less than the
statutory award.
XIII. Fee Awards & Rule 68 – Marek v. Chesney –
A) Q – Does the word “costs” in Rule 68 include attorneys’ fees awarded under
§1988?
B) Held – Absent Congressional intent to the contrary, where the underlying statute
defines “costs” as including attorneys’ fees, they are to be included as “costs” for
purposes of Rule 68.
XIV. “Billing Judgment” – If you don’t clearly document your hours using good “billing
judgment” in your § 1988 fee request, the Court is not going to award you fees based
directly off your calculated lodestar! (Hensley; and Louisiana Power & Light)
RES JUDICATA
I.
II.
III.
IV.
28 U.S.C. § 1738 – Governing statute; requires federal courts to give deference to
final judgments from state courts; based on notions of comity and equity
Allen v. McCurry - § 1738 applies to completed state criminal proceedings; thus, it’s
fully applicable to § 1983 actions based on an issue raised and decided in the state
criminal proceeding.
A) To decide whether or not § 1738 specifically applies to an issue, you have to
LOOK TO STATE LAW to determine whether the state court order or decision is
“final.”
CONTRAST – Heck v. Humphrey –
A) If the state criminal proceeding is ON APPEAL, there is no res judicata/collateral
estoppel issue for § 1738
B) You cannot EVER use a § 1983 suit to collaterally attack a criminal conviction
UNLESS the conviction has been pardoned or overturned.
Habeas Corpus Decisions
A) Generally – there’s no res judicata in habeas corpus
B) Stone v. Powell – with regards to the 4th Amendment exclusionary rule, if there’s
full and fair opportunity to litigate, this issue cannot be re-litigated using habeas
C) Preiser v. Rodriguez – (loss of “good time credits” case)
1. You can’t bring a § 1983 where it relates to and potentially affects time
of sentence b/c that’s a matter for habeas corpus.
2. You CAN use § 1983 to contest CONDITIONS of confinement.
HYPO – Pending state administrative proceeding; Plaintiff files a 1983/1331 in federal court for
violation of 1st Amendment rights. What should the federal court do with the lawsuit?
I.
What’s plaintiff seeking for relief? Injunction or damages?
II.
Who is he suing?
III.
Is it an OFFICIAL or an INDIVIDUAL capacity suit? (Addresses 11th Amendment
issues)
IV.
If individual capacity – have to consider whether defendants have qualified
immunity!
V.
If seeking an injunction:
A) Problem with the AIA? (Remember, 1983 is an expressly authorized exception)
B) Younger problem? (Remember, administrative proceedings – apply Middlesex)
VI.
What other Abstention issues come up?
A) Remember – if seeking damages, Quackenbush applies, so the court must stay
rather than dismiss the proceedings, if anything.
B) § 1738 Problems now because of the stay?
1. Allen v. McCurry - § 1738 applies to 1983 suits
2. To determine whether or not § 1738 applies, look to state law to
determine whether the state proceedings are “final.”
3. Be aware of Univ. of TN v. Elliot (because we’re dealing with pending
administrative proceedings here)!