Federal Jurisdiction Skinny
Fall, 2005
Professor George Cochran
I.
II.
III.
Mootness
a. Voluntary Cessation (New Bedford; Dieter; Buchanan; Lyons)
b. Avoiding it by Certifying a Class (Sosna; Garrity)
c. Capable of Repetition but Evading Review (Super Tire Eng’g)
Standing
a. Constitutional Requirements (Lujan) – Required in EVERY Case
1) Injury in fact (actual, concrete & particularized)
2) Causation (fairly traceable to defendant’s actions)
3) Redressability (must be LIKELY; not speculative/possible)
b. Prudential Requirements
1) Jus Turtii Standing – 3 Part Test:
a) Client must actually be injured (even if just economically)
b) Close relationship between plaintiff & absent parties
c) Hindrance/impediment keeps absent parties out of court
2) Organizational Standing (Hunt) – 3 Part Test:
a) member of the organization is actually injured
b) suit is germane to the interests of the [real] organization
c) Suit does not require individual participation
3) No generalized injury/grievances or potential injury (Ex Parte Levith;
Schlesinger)
4) Taxpayer Standing (Frothingham)
a) Limited exception where taxpayer money is being used to violate the
Establishment Clause (Flast)
b) Random potential exception for violations of the First Amendment/tax
money used as viewpoint discrimination (Planned Parenthood v.
Rose)
c) Municipal taxpayers are same as federal (Duremis)
d) State taxpayers are same as federal (Asarco)
- standing prohibition extends to suing parens patria (Mass. v.
Mellon; contra Snap & Son v. Puerto Rico)
c. Legislative Standing (Raines v. Byrd; Colon v. Miller)
d. Standing to Sue Governmental Agencies/Federal Bureaucracies
1) Additional Requirements – Data Processing
a) Must have actual injury; and
b) Plaintiff is protected/regulated by the statute in question
e. Standing based entirely on POLICY CONCERNS (i.e. Laidlaw; U.S. v. SCRAP;
City of Jacksonville; Duke Power)
f. BE AWARE – The requirements may become more stringent if your case starts
out in state court but somehow makes it to federal court (where Lujan applies)
(Nike v. Kaske)
Federal Common Law
IV.
a. “Protective Jurisdiction” (Osbourne)
b. State Court criminal suits against federal officers (In re Nagle; Masa v.
California)
c. High/Unique federal interest and need for uniformity (Clearfield Trust; Lake
Misere; Boyle)
d. State Court civil suits against federal officers:
1) NOTE – Westfall Act basically requires all of these to be under the
FTCA . . . which automatically removes you to federal court
2) FTCA Suits – U.S. is the only Δ; ONLY In federal court
a) Discretionary Exception (§ 2680(a)) – Dalehite; Gobert;
Berkowitz; & Shark
b) Military Activity Exception (§ 2680(j)) – Feres
- “Incident to Service” test – Lachum v. U.S.
 Location at time of injury
 Duty status
 Activities at death/injury
 Major activities
- Gonzales; Stencil; Johnson
c) Amended § 2680(h) – EXTENDS federal liability under FTCA for
intentional torts of federal investigating or law enforcement
officers
Implying Rights of Action (to enforce federal statutes)
a. Legislative intent for private right of action? (Touche Ross)
b. Rights-creating language? (Alexander v. Sandoval)
c. Right of Action from Federal Regulations?
1) Still need both of the above in the governing statute (Alexander v.
Sandoval)
d. Specific enforcement scheme in the statute? (Sky West Airlines)
e. Title IX Cases (Cannon)
1) Teacher/Student Harassment (Gebser)
a) School administrators were on notice –ANDb) They failed to respond in good faith
2) Student/Student Harassment (Davis)
a) Both of the requirements from Gebser. . . AND
b) Conduct so severe, pervasive, and objectively offensive as to deny
access to education
f. 1983 Actions (Maine v. Thiboudot)
1) “Pennhurst problem” – rights granted by underlying federal statutory
scheme must be MORE than wishful/hortatory
2) Comprehensive Remedial Scheme in the underlying statute = no 1983
action for a violation of that statute (Middlesex County)
3) Gonzaga University – Tests for implying a right of action are identical
g. Comprehensive Remedial Scheme – Even 1 other means for private enforcement
or 1 other option for relief raises a presumption (rebuttable) of no private r.o.a.
(Rancho Palos Verdes)
1) Straight 1331 – B.O.P. on Plaintiff to show legislative intent, etc.
V.
VI.
VII.
2) 1983/1331 – B.O.P. on Δ to show no legislative intent, etc.
Bivens Actions (Feds violating Constitutional rights)
a. 2 Limitations (Bivens)
1) Special Factors counseling hesitation
2) Equally-effective remedy is available (“For people in Bivens’ shoes it’s
damages or nothing.”)
b. Comprehensive Remedial Schemes – these are a “special factor counseling
hesitation.” (Chilicky; Bush v. Lucas)
c. Simultaneous Remedy under the FTCA – (Carlson v. Green)
1) DOESN’T preclude a Bivens suit b/c it’s not an “equally effective
remedy” OR an explicit alternative to an action under the Constitution
(i.e. remedial scheme counseling hesitation)
d. Actions ONLY against individual Federal Officers!
1) No Bivens suits against federal AGENCIES (FDIC v. Meyer)
2) No Bivens suits against private corporations (Malesko)
3) Negligence is not enough (no “deprivation of rights” from negligence)
§ 1983 Actions
a. No exhaustion requirement
b. Applies to: Persons acting under color of state law who violate rights secured by
the U.S. Constitution or laws
c. “Color of State Law”
1) Actions in official capacity (Monroe v. Pape)
2) Public Function Doctrine (Marsh; Jackson v. Metropolitan Edison) – i.e.
actions within the “exclusive prerogative of the state.”
3) No application to public defenders (Polk County)
4) Cooperation with state entity or actor, i.e. allegations of conspiracy with
the State (Addickus & Luger)
5) No application to officials’ isolated acts of negligence unrelated to their
official duties (Martinez)
6) Nexus between government authority and the decision made (Focus on
the Family)
7) No application to bail bondsmen (Aborg Bail Bonds)
d. Injury by Third Parties – No 1983 liability (DeShaney)
1) 2 Exceptions
a) Special Relationship
b) State Created Danger (more than negligence; McClendon)
e. Suing Private Individuals under § 1983 (Wyatt v. Cole)
1) Must meet the state action requirement
2) These Δ’s do NOT have any qualified immunities
Official Immunities
a. Absolute Immunity
1) Legislative (Penny v. Brenhove; Bogan v. Scott-Harris; Consumers’
Union)
2) Judicial (Stump v. Sparkman)
a) “Functional Equivalent” of a judge (Butts v. Economo; Dawson v.
Newman; Slevinger)
3) Derivative Immunity (Briggs Objective Reasonableness Test)
4) Presidents (Nixon; Clinton)
5) Prosecutors (Imbler)
b. Qualified/Good Faith Immunity
1) Harlow v. Fitzgerald – Suits against public officials in their individual
capacities; acts must violate CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHTS (or statutory)
a) 4th Amendment context (Anderson v. Creighton; objective std.)
b) 14th Amendment context (Rochin; Sacramento v. Lewis)
c) 8th Amendment context (Hudson; deliberate indifference)
d) 1st Amendment context (Bunting v. Mellon)
2) Evidence/Proof –
a) Blatantly obvious violations evidence themselves (Linear)
b) Don’t have to have a case exactly on point (Trammer)
c) BUT similar cases MAY help show violations of clearlyestablished constitutional rights (Brisseau v. Hoggin)
VIII. 11th Amendment Immunity
a. Hans v. Louisiana – immunity interpretation of the 11th Amendment
b. Ex Parte Young actions – official capacity; prospective injunctive relief;
Supremacy Clause / “stripping” theory
1) Do NOT name the State Entity (Alabama v. Pugh)
2) Do NOT try to get retroactive money damages (Edelman)
3) Do NOT try to get prospective injunctive relief for a violation of STATE
law! “Stripping” rationale doesn’t apply! (Pennhurst)
4) No allowed if there’s a comprehensive remedial scheme (Seminole
Indian)
c. County Level – 11th Amendment is N/A!
1) Must discern: State entity or political subdivision?
2) Pendergrass 6-Factor Test:
a) LOOK AT STATE LAW (Mt. Healthy; Hess)
b) Does the entity have local autonomy?
c) Source of funds to pay any judgments (Hess)
d) Deal with local or state-wide problems?
e) Right to sue in its own name? Be sued?
f) Right to hold property?
d. Official v. Individual Capacity Suits
1) Official capacity suits for money damages cannot be brought in state or
federal court (i.e. 1983 suits) – (Will)
2) Individual capacity suits for money damages CAN be brought in state
court (Hafer v. Melo)
a) NOTE – Here you’re going to have to jump the hurdle of
qualified/good faith immunity!
e. State Sovereign Immunity Laws: FF&C
1) State A does not have to give FF&C to the sovereign immunity laws of
State B when State B is being sued in the courts of State A! (Nevada v.
Hall; Franchise Tax Board)
IX.
f. Congressional Abrogation & Consent
1) Power comes from § 5 of the 14th Amendment (Fitzpatrick v. Bitzer)
a) In fact, this is the ONLY valid exercise of power to abrogate 11th
Amendment immunity (Seminole Indian)
2) Must have a Clear & Definite Statement (Atascadero) showing
unequivocal intent to abrogate (Seminole Indian)
3) State court sovereign immunity laws prevent Congress from being able
to subject non-consenting states to damages suits in STATE court (even
for violations of federal laws!) §5/14th is the only route. (Alden v.
Maine)
4) No constructive waiver (College Savings Bank)
a) Where state is participating in the Free Market, this creates a
double-dose of protection.
g. Agency Proceedings – 11th Amendment Applies (S.C. Port Authority)
h. Congruence & Proportionality (Boerne)
1) Pre-Req. to a valid use of power under § 5 of the 14th Amendment now!
2) 2 Steps for proper abrogation after Boerne (Florida Prepaid)
a) Identify the constitutional violation . . . THEN
b) Build a record evidencing a history of deprivation of rights in a
particular area
3) Generally, the higher the standard of review for the alleged
constitutional violation, the less thorough your record needs to be!
(Nevada v. Hibbs)
4) Title II of the ADA: Access to public facilities
a) Must consider what OTHER constitutional violations the alleged
discriminatory access implicates! I.E. Access to courthouse
implicates due process and VERY high scrutiny (Tennessee v.
Lane)
b) If it implicates 8th Amendment violations, the standard of review is
lower and more evidence is required (Michaels v. Tracy King)
Municipal Liability
a. Monell – Using § 1983 to sue the city directly b/c the unconstitutional activity
involves official policy or custom
1) LIMIT – no vicarious liability! Must have edicts or acts of employees
reflecting official policy or custom
2) No good faith/qualified immunity (Owen)
b. “Official Policy”
1) 2 General Routes:
a) Actual written/official polity by municipal lawmakers
b) Decision-making authority by someone whose EDICTS or ACTS
represent official policy or custom
2) Isolated Acts by Municipal Officials
a) Final decision-making authority under State Law?
b) If authority under State Law has been DELEGATED, show:
- Adoption or ratification (City of San Antonio); OR
- Establish a pattern suggesting CUSTOM
X.
3) Failure to Train (Tuttle)
a) Must show deliberate indifference by the municipality or policymaking officials (City of Canton)
c. No punitives (City of Newport)
d. Don’t go after a prosecutor and try to secure Monell liability (Imbler)
Abstention
a. To Avoid Duplicative Litigation
1) The Colorado River factors:
a) inconvenience on the federal court
b) desirability of avoiding piecemeal litigation
c) order in which jurisdiction was obtained
d) problems caused by parallel suits
2) More discretion allowed if Declaratory Judgment is being sought
(Wilton v. Seven Falls)
3) Federal Question or high federal interests weigh against abstention
(Moses H. Cone)
4) If $ Damages are requested, Court must STAY the proceedings, if
anything (Quackenbush)
5) May also consider vexatious or reactive behavior in deciding whether to
abstain (Conseco)
6) Make sure the parties are the SAME (ANCO Installations)
b. Rooker/Feldman
1) Bars “functional appeals” from state to federal court
a) Actual final decision itself OR
b) Q’s “inextricably intertwined” with the prior final judgment
2) N/A if State proceeding is still pending (EXXON v. Saudi Enterprises)
c. Burford – defer to complex state administrative procedures
d. Pullman – defer to resolve unclear questions of STATE law
1) Cross-reference – Miss. Supreme Court Rule 20
2) State law must be unclear (Constantineau)
3) Get an England certificate to return to federal court!
a) Only applies in Pullman-type cases (Gresham Park)
e. Younger Abstention –
1) Pending criminal proceedings – no injunction unless irreparable harm
b/c of:
a) flagrantly unconstitutional statute OR
b) series of prosecutions to harass; no reasonable hope of conviction
2) If case is on appeal, it’s still “pending” (Huffman)
3) Declaratory Judgments and NO pending state action
a) Steffel – No Younger problem if action is merely THREATENED
(note: arrest commences proceedings)
b) Derivative Preclusion where economic interests are identical
(Hicks v. Miranda)
c) Note – Substantial Completion Requirement (Hicks v. Miranda)
4) Preliminary Injunctions OK if no pending action (Doran v. Salem Inn)
5) Permanent Injunctions, absent pending action:
a) Available, as long as no effect on past convictions/criminal record
(Wooley v. Maynard)
b) BUT NOT available if it DOES have such an effect (Ellis v.
Dyson)
6) Pending CIVIL proceedings
a) Quasi-criminal? (Huffman)
b) State a party? (Trainor)
c) High state interests?
7) Administrative Proceedings – Middlesex County TEST:
a) Judicial or quasi-judicial proceeding (NOPSI)
b) High state interest
c) Ample opportunity to raise the federal constitutional questions at
the State level
- Ability to appeal an administrative decision to state court is
ample opportunity (Dayton Christian Schools)
XI.
Anti-Injunction Act – 28 USC § 2283
a. “Expressly Authorized” exception:
1) § 1983 IS one. (Mitchum v. Foster)
2) Otherwise, it’d better be pretty express (Vendo Corp.)
b. “Necessary in Aid of Jurisdiction” Exception –
1) State court not give up jurisdiction following removal? OR
2) Federal court acquire jurisdiction first and case involves a disposition of
real property?
c. “Effectuate a Judgment” Exception – “Relitigation Exception”
1) ISSUES must have actually been litigated in federal court (Choo)
2) Federal judgment must be on the MERITS of the issue (not merely a
procedural decision) (Atlantic Coastline)
3) Seek an injunction this way instead of waiting and raising Res Judicata
as an issue in the State Court proceeding because if they find against
you, it’s § 1738 time! (Parsons Steel)
4) The last judgment binds! (Trienes)
5) Is the Plaintiff in federal court a “stranger” to the state proceeding? No
privity = No § 2283 (BemCo Cement; Imperial County)
d. State court filing has a preclusive effect REGARDLESS of timing!
XII. Tax Injunction Act – 28 USC § 1341
a. Any remedy at all is sufficient (Rosewell)
b. No Dec Actions that would function as an injunction (Grace Brethren Church)
c. Can’t circumvent with a damages claim (McNary)
d. Not an issue when plaintiffs are seeking to ADD TO rather than DETRACT
FROM the state treasury (Hall v. Winn)
e. Taxes v. Fees (Home Builders v. Madison)
1) Tax $ goes to state treasury
2) Fees go to government entity for regulatory schemes, etc.
XIII. Preemption
a. Lincoln Mills; Beneficial National Bank – Remove because of preemption if:
1) Total Preemption –AND-
2) Congress intended the only cause of action to be in federal court
b. Only applies to LMRA; ERISA; and the National Bank Act
XIV. Declaratory Judgment Actions
a. For federal jurisdiction, must have been able to bring original suit in federal court
(Skelly Oil)
b. Wycoff Problem? Look to character of the threatened action (Branaugh Airways)
c. Beat a Wycoff problem by adding a request for an injunction under Ex Parte
Young to your Dec-Action (Local Union)
XV. Attorneys’ Fees under § 1988
a. Deals with Actions under Civil Rights statutes
1) § 1985 Actions – conspiracy to deprive a person of E.P. (Griffin v.
Breckenridge)
a) Conspiracy;
b) Motivated by class-based discriminatory aniumus
- class under high scrutiny; Brotherhood of Carpenters
c) To deprive members of the class of E.P.
d) Actions in furtherance of the conspiracy
e) Injury
b. Lodestar is the starting point (City of Riverside)
1) May enhance or reduce based on the Johnson factors (In re Rite Aid)
c. Abuse of discretion standard of review
d. None for nominal damages (Farrar)
e. Must succeed on a significant issue (Garland Indep. Sch. Dist)
f. None for Defense Counsel unless frivolous case (Christianburg Garment)
1) Cross-Reference – Rule 11; 28 USC §1927; Chambers)
g. You have to have actually filed a lawsuit (Crest)
h. You get them if you settle (Maher v. Gagne)
i. Evans v. Jeff D. – Waivers are Ok UNLESS bad faith attempt to deter civil rights
cases
j. Buchanan – Posture for fees has 3 requirements;
1) Enforceable court decree/order/judgment
2) That alters the legal relationship between plaintiff and defendant
3) And makes Defendant change its behavior somehow . . .
k. None for time spent in administrative proceedings UNLESS exhaustion is
required (Webb v. Board of Education)
1) Remember – no exhaustion requirement for a 1983!
2) Be aware of University of Tennessee v. Elliott
l. Cannot be reduced by OR reduce a valid contingency fee agreement (Venegas;
Blanchard)
m. Included as “costs” under Rule 68 IF underlying statue defines costs as including
fees (Marek v. Chesney)
n. Must use billing judgment (Hensley; Louisiana Power & Light)
XVI. Res Judicata under § 1738
a. Applies to § 1983 actions (McCurry)
b. Look to State Law to determine finality
c. Not an issue if the state proceeding is on appeal (Heck)
d. [Random] – don’t try to use § 1983 to collaterally attack a criminal conviction
unless it’s been pardoned or overturned (Heck)
e. Habeas Decisions (res judicata N/A)
1) Stone v. Powell
2) Preiser v. Rodriguez