Federal Courts Outline
Fletcher Fall 2004
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2
3
4
5
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Introduction ..................................................................................................................................................................... 1
Case or Controversy & Justiciability ........................................................................................................................... 1
2.1 Judicial Review ......................................................................................................................................................... 1
2.2 Advisory Opinions .................................................................................................................................................. 1
2.3 Judicial Revision ...................................................................................................................................................... 2
2.4 Feigned Cases........................................................................................................................................................... 2
2.5 Standing..................................................................................................................................................................... 2
2.5.1
Injury .............................................................................................................................................................. 2
2.5.2
Causation ....................................................................................................................................................... 3
2.5.3
Redressibility ................................................................................................................................................. 3
2.5.4
Zone of Interest ........................................................................................................................................... 3
2.5.5
Taxpayer & Voter Standing ........................................................................................................................ 3
2.5.6
Citizen Suits ................................................................................................................................................... 3
2.5.7
Third Party Standing .................................................................................................................................... 3
2.5.8
State Court ..................................................................................................................................................... 4
2.6 Mootness................................................................................................................................................................... 4
2.7 Ripeness .................................................................................................................................................................... 4
2.7.1
Ripeness has political overtones ................................................................................................................ 5
2.8 Political Question Doctrine ................................................................................................................................... 5
2.8.1
Passive Virtues .............................................................................................................................................. 5
Review of State Court Decisions by the Supreme Court ........................................................................................ 5
3.1 Appellate Jurisdiction is Limited to Federal Questions .................................................................................... 6
3.2 Independent and Adequate State Ground .......................................................................................................... 6
3.2.1
Procedural State Grounds .......................................................................................................................... 6
Federal Question Jurisdiction ....................................................................................................................................... 6
4.1.1
Protective Jurisdiction ................................................................................................................................. 7
4.2 Bankruptcy Cases .................................................................................................................................................... 7
4.3 International Law .................................................................................................................................................... 7
Congress’ Right to Limit Jurisdiction .......................................................................................................................... 7
5.1 Limits to Federal Court Jurisdiction .................................................................................................................... 8
5.1.1
Limits on diversity jurisdiction: ................................................................................................................. 8
5.1.2
Questionable Congressional Motives ....................................................................................................... 8
5.1.3
Mandatory Jurisdiction ................................................................................................................................ 8
5.2 Jurisdiction granted Non-Article III Courts...................................................................................................... 9
5.2.1
Public Rights ................................................................................................................................................. 9
5.2.2
Adjunct Courts ............................................................................................................................................. 9
5.3 Limits of Congress to Confer Jurisdiction ........................................................................................................10
5.4 Congress’ Control of State Court Jurisdiction .................................................................................................10
5.4.1
Federal Officers ..........................................................................................................................................10
5.4.2
Assigning State Courts Mandatory Jurisdiction ....................................................................................10
5.4.3
Obligation to Follow Federal Law ..........................................................................................................10
Suits Challenging State Action ...................................................................................................................................11
6.1 11th Amendment ....................................................................................................................................................11
6.1.1
Historical Background ...............................................................................................................................11
6.1.2
The Diversity Explanation .......................................................................................................................11
6.1.3
Current Doctrine ........................................................................................................................................11
6.2 11th Amendment Exceptions ..............................................................................................................................12
6.2.1
Local Government .....................................................................................................................................12
6.2.2
Suits Against State Officers ......................................................................................................................12
6.2.3
Consent to Suit ...........................................................................................................................................12
6.2.4
Congressional Abrogation of State Sovereign Immunity ...................................................................12
6.3 § 1983 Actions .......................................................................................................................................................13
6.3.1
Under Color of State Law.........................................................................................................................13
6.3.2
Operation of Statute ..................................................................................................................................14
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6.3.3
Constitutional Torts ...................................................................................................................................14
6.3.4
Official Immunity .......................................................................................................................................14
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Limits to Federal Court Jurisdiction ..........................................................................................................................15
7.1 STatutory Limits ....................................................................................................................................................15
7.2 Exhaustion ..............................................................................................................................................................15
7.3 Abstention: Pullman & Related ..........................................................................................................................16
7.3.1
Pullman Abstention ...................................................................................................................................16
7.3.2
Burford Abstention....................................................................................................................................16
7.3.3
Thibodaux Abstention ..............................................................................................................................16
7.4 Equitable Restraint ................................................................................................................................................17
7.4.1
Criminal proceedings .................................................................................................................................17
7.4.2
Civil Proceedings ........................................................................................................................................18
7.4.3
Abstention to Avoid Duplicative Litigation ..........................................................................................18
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INTRODUCTION
Art. III created Supreme Court and authorized Congress to create inferior courts.
Judiciary Act of 1789 created federal courts.
 Federal courts have admiralty, diversity, and federal question jurisdiction.
 Supreme Court has original jurisdiction for suits involving states and appellate jurisdiction over federal
courts and state courts (questions of federal law).
 Rules of decision: federal courts should follow laws of the states in cases where they apply.
Overarching concepts:
 Federalism: state v. federal power
 Separation of Powers: powers between branches
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CASE OR CONTROVERSY & JUSTICIABILITY
Federal courts are limited to: “case or controversy” and issues that are “justiciable.”
Techniques to avoid Constitutional decisions Ashwander v. TVA, 297 US 288 (1936) CB86 (concurrence):
1. No friendly, non-adversarial cases.
2. Will not anticipate Con law question before necessity of deciding it.
3. No broader decisions than that required by the precise facts.
4. Ability to decide case on other grounds.
5. Failure to show injury.
6. One who has benefited from the statute.
7. Construe statute to avoid Const. question.
2.1
JUDICIAL REVIEW
The Supreme Court is empowered to review the constitutionality of an act of Congress. Marbury v.
Madison, 5 US 137 (1803) CB55 (Court refused to issue writ of mandamus giving judge his job because the
Judiciary Act that gave Supreme Court original jurisdiction was unconstitutional).
"It is emphatically the province and duty of the judicial department to say what the law is." (CB 61)
NARROW: judges can't do something unconstitutional
BROAD: courts can decide that something is unconstitutional
The Supreme Court is the “ultimate interpreter of the Constitution.”
2.2
ADVISORY OPINIONS
The “case or controversy” limitation prevents federal courts from issuing advisory opinions(except extrajudicial
opinions, state and Art. I courts).
No legal advice to other branches. Correspondence of the Justices (1793) (Court refused to answer
Jefferson’s questions because no “case or controversy.” Court didn’t want to make policy, questions too
hypothetical, no adverse parties.)
Accelerated review clause may allow advisory opinions on constitutionality. Buckley v. Valeo, 424 US 1
(1976) (Campaign finance reform law had a provision to allow citizen-suit and Supreme Court answered
question prior to election.) See also, McConnell v. Fed. Election Comm’n, 124 S. Ct. 619 (2003) (granting
accelerated review of McCain-Feingold Act on campaign contributions).
Declaratory judgments are permissible if definite and concrete dispute of legal rights. Fed. Declaratory
Judgment Act (overturning Willing v. Chicago Auditorium Ass’n).
 Declaratory judgment turns on ripeness.
N. Cheyenne Tribe v. Hollowbreast, 425 US 649 (1976) (allowing tribe declaratory judgment on takings
question prior to law going into effect.)
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2.3
JUDICIAL REVISION
Courts will only issue final judgments.
Fed. courts refuse to issue judgments subject to revision by other branches. Heyburn’s Case 2 US 409
(1792) (Court refused to hear cases of injured veterans because executive branch Secretary could revise
decision.)
Extradition and deportation proceedings require executive branch to act.
Court determines if extraditable crime, President has unreviewable authority to decide whether to act.
Court decides if there are grounds for asylum, AG has discretion whether to grant it.
New law cannot revise judgments. Plaut v. Spendthrift Farms, 514 US 211 (1995) CB100 (Congress passed
law overturning judicial decisions because courts had misapplied the SOL. Congress can tell courts how to
interpret the law prospectively, but cannot reopen final judgments.)
An injunction can be revised by new law because it is ongoing. Miller v. French, 530 US 327 (2000)
CB101.
Claims against the US must be approved by Congress. Glidden v. Zdanok.
Prohibition of revisions does not apply to judicial revision.
2.4
FEIGNED CASES
Must be adverse parties seeking resolution of concrete and bonafide dispute.
Must be truly adversarial, friendly lawsuit not justiciable. United States v. Johnson, 319 US 302 (1943)
CB107 (Collusion between tenant and landlord to challenge constitutionality of rent control statute is not
reviewable—intervention of US as a party didn’t cure “case or controversy” defect.)
Test cases OK so long as truly adverse. Evers v. Dwyer CB 109 (Court heard “test case” of civil rights
activist refuses to sit in back of bus and brings action for declaratory judgment against segregation.)
Institutional reform suits generally permitted. (e.g. prisoner brings suit against prison conditions, Warden
not truly adverse because would like additional funding, but OK because Warden represents the State.)
2.5
STANDING
Plaintiff must have a personal stake in the matter.
Constitutional requirements of standing: (1) injury-in-fact; (2) traceability; (3) redressibility.
Prudential requirement: Look to the statute, is there a cause of action?
Standing is a “word game played by secret rules.” Flast v. Cohen, 392 US 83 (1968) (Harlan, J., dissenting).
2.5.1
INJURY
Plaintiff must have a concrete injury. Allen v. Wright, 468 US 737 (1984) CB114 (no standing for parents of
black children in public schools to challenge tax exemption of discriminatory private schools.)
The injury can be
 small (Flast v. Cohen –tax payment)
 aesthetic (Sierra Club v. Morton—environment)
 interest in living in a diverse environment (Trafficante v. Metro. Life Ins.)
Injury cannot be
 General (Schlesinger v. Reservists Committee—gov’t violated the law is not personal injury)
 Speculative (City of LA v. Lyons—speculative that he’d be in chokehold again)
Injury-in-fact should be actual injury (any harm), but courts transform it into injury that is recognized by the
law (normative).
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2.5.2
CAUSATION
Injury must be fairly traceable to the challenged action.
2.5.3
REDRESSIBILITY
Plaintiff must show that remedy will redress injury.
Must show remedy will redress plaintiff’s specific injury. Linda RS v. Richard D., 410 US 614 (1973)
(mother didn’t have standing to challenge that child support law excluded unwed mothers because AG still had
discretion to prosecute—but perhaps refused because it could be used to oppress black men).
Except if issue is major public concern. UC Regents v. Bakke (white plaintiff of affirmative action challenge
probably wouldn’t have been admitted.)
2.5.4
ZONE OF INTEREST
Is the plaintiff “arguably within the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question.” ADAPSO (limited to APA cases).
Standing question may go to whether the plaintiff has a cause of action.
2.5.5
TAXPAYER & VOTER STANDING
Taxpayer standing to challenge expenditures alleged to be in violation of Establishment Clause. Flast
v. Cohen (taxpayer standing granted for challenge statute that supports religions schools as violates
Establishment clause); but c.f. Valley Forge (standing denied to taxpayers who brought Establishment clause
challenge to US grant of real property to religious school).
 Expenditure must be an exercise of the taxing and spending power (not incidental)
 Expenditures must be prohibited by some specific constitutional limitation
No taxpayer standing in non-Establishment Clause cases.US v. Richardson (taxpayer standing denied for
plaintiff seeking CIA expenditures).
Voters have standing under law that intends to give them information. FEC v. Akins CB143 (granting
standing to voters to challenge FEC decision that organization is not a PAC, voters have informational injury).
2.5.6
CITIZEN SUITS
Normally there’s no “citizen” standing, but a statute can authorize a suit (private AGs).
Statute cannot confer standing. Lujan v. Defenders of Wildlife (no standing for ESA abroad because
plaintiffs didn’t have sufficient injury, despite citizen-suit provision).
Citizen-suit provision works if “injury-in-fact.” Bennet v. Spear.
 White resident has standing for racial discrimination under Civil Rights Act. Trafficante
 Black “tester” had standing under Fair Housing Act even though no real desire to live in apartment.
Havens Realty Corp.
 Students had standing under NEPA despite attenuated causation (more litter from rate increase).
SCRAPP
There’s a tension about whether citizen-suit provisions are constitutional, some would say there’s no
“standing.”
2.5.7
THIRD PARTY STANDING
rd
Generally, no 3 party standing unless prudent.
 Difficult for the 3rd party to assert own rights. Barrows v Jackson (white person granted standing to
assert rights of blacks challenging racially-restrictive covenant.)
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
Close relationship between party and 3rd party. But see Tileston (Used to be that doctor’s couldn’t
assert rights of patients—use of contraception illegal, but now OK.)
If 3rd party has injury and can bring concrete adverseness. Craig v. Boren 429 US 190 (1976) CB170
(female vendor of alcohol can assert rights of young males prohibited from buying because she can be
sanctioned.)
2.5.8
STATE COURT
State courts not bound by Art. III “case or controversy” and may hear suits by plaintiffs w/o standing.
Supreme Court can hear a case where plaintiff didn’t have standing, if (1) federal question and (2)
defendant lost in state court. Asarco Inc. v. Kadish 490 US 605 (1989) CB139 (Supreme Court reviewed
state court decision that invalidated mining leases even though the plaintiff’s wouldn’t have had Art. III
standing.)
 Narrowed to final judgments. Nike v. Kasky (Kasky claimed unfair business practices by Nike lying
about shoe manufacturing, no Art. III standing, Cal. Sup. Ct. invalidates Nike’s 1st Amend. defense
and remands. Supreme Court improvidently granted review b/c not final judgment yet.)
The Supreme Court cannot hear the appeal if the plaintiff lost.
2.6
MOOTNESS
Case is moot when circumstances have changed so that a party can no longer obtain relief that would be of any
use.
Moot if no longer active case or controversy. DeFunis v. Odegaard, 416 US 312 (1974) CB199 (white
student’s challenge to affirmative action became moot because he was about to graduate by the time it got to
the Supreme Court).
Voluntary cessation of activity does not render it moot.
Not moot if capable of repetition, yet evading review. Roe v. Wade, 410 US 113 (1973) (pregnant woman
challenging anti-abortion statute has baby by the time it gets to Supreme Court).
Certified class actions avoid mootness because other members of class may still have live controversy.
 Named plaintiff may appeal denial of class cert. even if suit has become moot for him. US Parole
Comm’n v. Geraghty, 445 US 388 (1980) (sought review of parole guidelines, but released from
prison before class cert appeal was heard, issue was not moot).
If case mooted while on appeal, judgment below can be dismissed (if you ask for it). Munsingwear CB209.
 Unless manufactured mootness (settlement). US Bancorp Mortgage CB210 (if you get a bad
judgment, you can’t settle while it’s on appeal to get the judgment below removed.)
2.7
RIPENESS
Ripeness is the requirement that a dispute has progressed to the point that the parties are in clear disagreement
over the legal rights and duties.
There must be an actual, immediate, and concrete controversy. Art. III
Not ripe to challenge statute pre-enforcement. United Public Workers v. Mitchell, 330 US 75 (1947)
(finding unripe public employees challenge to the Hatch Act that forbade political activity prior to enforcement
because the facts were not developed enough).
TEST balancing:
 Fitness of the issues for adjudication
 Hardship to the parties of withholding consideration.
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Challenge to statute pre-enforcement is ripe (it is purely a question of law). Abott Labs v. Gardener, 387
US 136 (1966) (allowing review of agency’s labeling law for drugs as exceeding authority).
Ripeness doctrine arose with the Declaratory Judgment Act so that the reach of declaratory judgments could be
limited.
2.7.1
RIPENESS HAS POLITICAL OVERTONES
Ripeness may avoid a politically inexpedient decision. Poe v. Ullman (holding unripe a challenge to law
prohibiting contraceptive use because it was not enforced.)
Ripeness may avoid federalism concerns—court reluctant to supervise police practices.
 Past exposure to illegal conduct is not a current case or controversy (for injunctive relief).
O’shea v. Littleton (Challenge to discriminatory law enforcement is unripe because not likely to
happen to Plaintiffs again); see also Los Angeles v. Lyons (denying standing for chokehold victim
seeking injunctive relief because unlikely to be a repeat victim)
Possible review if practices are so terrible.
Structural injunctions disfavored except: apportionment (voting districts); prisons; school segregation.
2.8
POLITICAL QUESTION DOCTRINE
Political questions are non-justiciable, key question: what do the courts do well and poorly?
Case-by-case analysis.
Criteria for determining if there is a political question:
1. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political dept.
2. Is there a lack of judicially discernible and manageable standards for resolving the dispute
3. Is the case impossible to decide without an initial policy decision—usually left to another branch
4. Is the case impossible to decide without expressing lack of respect due coordinate branches of govt.
5. Is there an unusual need for unquestioning adherence to a political decision already made
6. Is there potential for embarrassment from multifarious pronouncements by various depts.
POLICY: separation of powers and amenability to judicial resolution
Political Questions Found
Judiciary cannot review senate impeachment trial of judge. Nixon v. US, 506 US 224 (1993) CB244
(Senate has the sole power to try impeachments so there is textual commitment and no standards for resolving
question of whether senate can appoint a committee to hear evidence.)
No Political Question
Judicial review of apportionment. Baker v. Carr, (overruling precedent the Court held that reapportionment of
Tennessee state legislature on equal protection grounds was not a political question.
2.8.1
PASSIVE VIRTUES
Argument that ripeness, mootness, standing and political question are used to practice the “passive virtues” by
avoiding or postponing politically inexpedient cases. But now, Supreme Court can just deny certiorari.
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REVIEW OF STATE COURT DECISIONS BY THE SUPREME COURT
Supreme Court has appellate jurisdiction over certain state court decisions.
 Constitutional basis: Art. III “appellate jurisdiction with exceptions and regulations as Congress
makes.
 Judiciary Act 1789 §25: gave Supreme Ct. jurisdiction when state court decided against federal right
asserted.
 Modern law doesn’t make the distinction of whether federal right was upheld or denied.
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Constitutional for the Supreme Court to review state court decisions. Martin v. Hunter’s Lessee, 14 US 304
(1816) (Supreme Ct. has the power to review state court when federal treaty and state law conflict).
 Virginia though that federal law should be like general law and be persuasive, but not binding on the
state.
3.1
APPELLATE JURISDICTION IS LIMITED TO FEDERAL QUESTIONS
Appellate jurisdiction is generally limited to federal questions.
But, appellate jurisdiction for state law questions coming up from federal courts.

supplemental jurisdiction
 diversity jurisdiction
The old statute restricted review to issues that immediately respected the federal question, but it was
amended to remove that line—even omission of that line Supreme Ct. limited its jurisdiction.
Supreme Ct. cannot decide questions of state law in cases coming up from state courts. Murdock v.
City of Memphis, 87 US 590 (1875)
POLICY: Supreme Court cannot tell a state court that it got its own law wrong.
Supreme Court will not review findings of fact, unless intermingled with law or no support in the record.
3.2
INDEPENDENT AND ADEQUATE STATE GROUND
No review if there is an independent and adequate state ground.
Supreme Court will not answer a question of federal law if the state ground is enough. Fox Film Corp. v.
Muller, 296 US 207 (1935) (because contract was invalid under state law, Supreme Court wouldn’t decide if
contract was invalid under Sherman Antitrust Act).
 Distinguish from Murdock because the loss under state law doesn’t mean a loss under federal law.
State court must explicitly rest decision on independent and adequate state ground, or presume reviewable.
Michigan v. Long, 463 US 1032 (1983) CB501 (state court held search for marijuana was illegal under US &
state constitution, supreme court reviewed the case because the state court didn’t clearly say it relied on state
grounds).
POLICY: no advisory opinions, avoid unnecessary constitutional decisions, presumption creates larger pool of
cases
3.2.1
PROCEDURAL STATE GROUNDS
Failure to comply with valid state procedural requirements to raise an issue will bar litigant from presenting
federal issue on review. Michel v. Louisiana, 350 US 91 (1955).
Supreme Court review of state procedural rule if:
1. state rule is unconstitutional (e.g. violates due process)
2. unduly burdensome thus interfering with the federal right (e.g. all white jury)
3. state court uses it to evade supreme court review
4. novel state procedural rule that bars assertion of a federal claim
5. etc.
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FEDERAL QUESTION JURISDICTION
Federal question jurisdiction is authorized by the constitution, but conferred on district courts by statute.
Art. III: judicial power extends to cases arising under the constitution, laws and treaties of the US.
§ 1331: jurisdiction is interpreted more narrowly than the constitution
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Federal law gives rise to bank, even state law claims can be brought in Federal Court. Osborn v. Bank of the
US, 22 US 738 (1824) (Federal statute authorized the bank to sue and be sued in federal courts therefore even
state law-based claims “arise under” federal law, because there’s a possibility that a federal issue could arise as
to the bank’s capacity to act.)
 Another rationale, is that federal agency deserves right to federal forum.
 Affirmed that federal incorporation is sufficient for federal question jurisdiction. Nat’l Red Cross v.
SG & AE, 505 US 247 (1992).
 Critique that too expansive view of federal question jurisdiction. DISSENT in Textile Workers Union
v. Lincoln Mills, 353 US 448 (1957) CB840 (granting federal jurisdiction over labor contracts under
Taft Hartley Act—even though contract law is general law).
Federal jurisdiction over federal officers, even for state law claims so long as federal defense asserted. Mesa v.
California (disallowing removal to federal court for postal workers in car accidents while not in line of duty).
4.1.1
PROTECTIVE JURISDICTION
Congress has power to confer federal question jurisdiction to hear claims based on state law under a theory of
“protective jurisdiction.”
BROAD view: if Congress can pass laws over matters but allows states’ laws to govern—then it can grant
jurisdiction
NARROW: can grant jurisdiction to decide cases based on state law only if there is an articulated federal policy
regulating the field
4.2
BANKRUPTCY CASES
Federal courts have jurisdiction to decide bankruptcy cases in which no question of federal law is at issue.
Must have an Article III judge. Northern Pipeline (holding that non-Art. III federal judges cannot adjudicate
bankruptcy claims based on state law).
4.3
INTERNATIONAL LAW
Restatement of international law says that international law is federal law.
Verlinden v. Bank of Nigeria, 461 U.S. 480 (1983) (Foreigner against foreign bank is federal because the
Foreign Sovereign Immunities Act is invoked even if cause of action is under state law and diversity jurisdiction
does not extend between two foreigns).
Alien Tort Claims Act
Jurisdiction for civil action by alien for a tort only, committed in violation of the law of nations or a treaty of
the US. Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004) (prosecuting doctor who treated DEA officer during
captivity).
 Unocal case arguing that international law is not federal law.
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CONGRESS’ RIGHT TO LIMIT JURISDICTION
Congress has never conferred the full extent of the constitutional grant of federal jurisdiction.
Art III: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases
affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime
Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or
more States;--between a State and Citizens of another State;--between Citizens of different States;--between
Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
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5.1
LIMITS TO FEDERAL COURT JURISDICTION
Madisonian compromise: Congress has power to create inferior federal courts and regulate their jurisdiction.
Judiciary Act 1789: Fed courts created but never granted full jurisdiction authorized by Art III.
 Diversity: complete, amount-in-controversy, domestic relations
 Fed Q: well-pleaded complaint, Sup. Ct. app. limited to denial of right (OLD)
5.1.1


LIMITS ON DIVERSITY JURISDICTION:
Complete diversity
Amount-in-controversy
Diversity jurisdiction in federal courts may be narrower than constitutional limits. Sheldon v. Sill, 49 US
440 (1850) CB326 (NY sues Mich. resident to recover a bond and mortgage--assigned to him by Mich.
Resident--but Judiciary Act looks at citizenship of assignor so no diversity even though Constitution confers
diversity.)
5.1.2
QUESTIONABLE CONGRESSIONAL MOTIVES
Congress can probably use political motives to remove jurisdiction, but it is rare.
Federal question jurisdiction can be limited—perhaps even if political motive. Ex parte McCardle, 74
US 506 (1869) (McCardle held on charges for publishing editorials hostile to Reconstruction habeas appeal to
Supreme Ct. invalidated by Congress’ repeal of appellate jurisdiction because of a fear that the Ct. would
invalidate Reconstruction Acts).
 Congress used power for political control.
 Still other avenue for direct habeas.
NARROW: Congress can regulate Court’s appellate jurisdiction.
BROAD: Congress can use political motives to repeal jurisdiction.
Congress has proposed to strip jurisdiction from: (1) Pledge of Allegiance (2) Defense of marriage act and (3)
preventing courts from applying foreign law.
Invalid limitation of jurisdiction because it prescribed the outcome. US v. Klein (Claims for property
seized during Civil War and Congress directs that Presidential pardon is proof of disloyalty.)
 Impermissible restriction on the power of the President.
 Means to an ends.
POLICY: Courts should probably stay out of political struggles.
5.1.3
MANDATORY JURISDICTION
Is there an obligation to confer jurisdiction over certain issues somewhere in the federal courts?
Story’s BROAD view: All federal issues must have a federal forum…judicial power “shall” be vested
Amar’s view: All federal question, ambassador, and admiralty cases must have federal forum… “all” cases
Fletcher’s view: “all” refers to Congress’ power to make jurisdiction exclusive.
Valid jurisdiction limitation to remove remedy from all federal courts. Lauf (Norris-LaGuardia:
Congress restricts fed cts from enjoining labor dispute or enforcing yellow-dog contracts.)
 Remedies in state courts still available
Congress may not make exceptions that destroy the essential role of the Supreme Court. (Hart)
All jurisdiction from federal courts may be removed, unless violates due process. Battaglia v. GMC, 169
F.2d 254 (2d Cir. 1948) (Portal-to-portal Congress retroactively removed jurisdiction of federal courts to hear
any suit for overtime pay arising from broader definition of work-week.)
 First, determine if the consequence of the act is constitutional—due process.
 Different approach in Norris-LaGuardia than portal-to-portal.
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5.2
JURISDICTION GRANTED NON-ARTICLE III COURTS
Congress can create legislative courts under Art. I:
 Territorial courts
 District of Columbia courts
 Military courts-martial
 Tax, etc.
Tests to determine if the court is legislative or judicial:
1. The disputes must come under the head of jurisdiction described in Article III
2. The judges must have independence and judgments must be final.
POLICY: Art. I courts are more vulnerable to executive and legislative influence.
There must be provisions for significant review of ALJ decision by an Art. III court. Crowell v. Benson, 285
US 22 (1932) CB362 (Employee sought workers compensation from employer before an ALJ but claimed
entitlement to Art. III court. Supreme Ct. said agency may do fact finding, but issue of jurisdiction must be
reviewable by Art. III court.)
 NOTE: no public right involved (dispute between two private parties).
 If, case between private individual and govt., it would be clear no Art. III court required.
Art. 1 courts cannot exercise jurisdiction over state law claims without adequate appellate review. Northern
Pipeline v. Marathon Pipeline (striking down bankruptcy court’s exercise of jurisdiction over related
marshalling of assets state law contract claim.)
 Three categories of cases where Art. 3 court is not required:
1. Public rights—cases between private party and the government.
2. Territorial
3. Military
 Northern Pipeline was between private parties (also weird because this case is not within federal
courts original jurisdiction).
5.2.1
PUBLIC RIGHTS
The definition that “public rights” cases are between private party and government is too narrow.
 Perhaps too rigid of a reading separation of powers—J. White.
Expanding public rights to include safeguarding public health. Thomas v. Union Carbide Agricultural
Products, 473 US 568 (1985) (valid to allow ALJ to determine compensation for sharing of data for pesticide
registrations, even though between private parties it has characteristics of a public right).
 Decisions were subject to limited judicial review.
State law counterclaim allowed before ALJ. Commodity Futures Trading Comm’n v. Schor, 478 US 833
(1986) (allowing state law counterclaim by broker who was sued by private investor because deminimis intrusion
on Art. 3 courts).
Modern concept: If rights are closely intertwined with a federal regulatory program then it may not interfere
with Art. 3 courts.
5.2.2
ADJUNCT COURTS
Non-administrative nor Art 3 courts set up with specialized and limited jurisdiction:
 Bankruptcy
 Tax
 Magistrate (cannot conduct criminal trial, civil case with parties’ consent).
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5.3
LIMITS OF CONGRESS TO CONFER JURISDICTION
Congress cannot confer jurisdiction on Art. 3 courts by statute beyond the Constitutional Art. 3 jurisdiction.
Tidewater, 337 US 582 (1949) (plurality upheld diversity created by Congressional statute that made DC
territory residents equivalent to state citizens.)
5.4
CONGRESS’ CONTROL OF STATE COURT JURISDICTION
Congress’ power to regulate the jurisdiction of the federal courts includes the power to assign cases to the state
courts rather than the federal courts.
State courts may hear may federal law cases. If statute is silent, assume concurrent jurisdiction.
 State courts have concurrent RICO jurisdiction. Tafflin v. Levitt, 493 US 455 (1990).
Three categories of jurisdiction:
1. Exclusive state original jurisdiction, subject to appellate review by Supreme Court (default)
2. Exclusive federal jurisdiction
 in order for a statute to confer exclusive jurisdiction the statute must be clear...text, leg. his.,
inoperable reason
 only those enumerated with "all" in art 3 have been given exclusive jurisdiction
3. concurrent federal and state jurisdiction with state court decisions subject to Supreme Court review
4. concurrent state and federal jurisdiction, with right of state court defendants to remove to federal
court.
5.4.1
FEDERAL OFFICERS
Removal of suits against federal officers brought in state court.
OLD: Suits brought against federal officers in state court are removable. Tennessee v. Davis, 100 US 257
(1880) CB429.
NEW: Removal permitted if federal officer asserts a federal defense. Mesa v. California.
State courts have limited power to enter orders against federal officers.
State courts may not grant habeas corpus against federal officers holding prisoners. Tarble’s Case, 80 US 397
(1872) CB433 (denying authority of state court to issue writ of habeas corpus to release underage son from
military).
 If Congress, however, has not given habeas to a federal court then due process problem and
suspension clause says writ of habeas corpus shall not be suspended.
 Congress is required to give habeas power to federal courts.
5.4.2
ASSIGNING STATE COURTS MANDATORY JURISDICTION
State courts must hear federal law cases when Congress requires.
 A state court must hear a civil rights action under § 1983. Howlett v. Rose, 496 US 356 (1990).
State court must hear case under federal law if there is concurrent jurisdiction. Testa v. Katt, 330 US 386 (1947)
(RI required to hear treble damages case under federal Emergency Price control Act even though they refused
because the US is a sovereign.)
 What if a particular remedy is not available in either state or federal court (e.g. fed courts remedy of
bussing prohibited for segregated schools and state court’s policy is against structural injunctions)?
5.4.3
OBLIGATION TO FOLLOW FEDERAL LAW
State courts must follow federal law, but generally may follow their own procedural law.
State must follow federal procedure if it is “part and parcel” of the federal remedy. Dice
10
Federal Employer’s Liability Act
 Dice v. Akron, Canton & Youngstown RR (right to have certain issues tried by a jury is part and
parcel of the remedy under the Federal Employer’s Liability Act, even if the state court practice
wouldn’t require a jury).
 Brown v. Western Rwy. of Ala., 338 US 294 (1949) (forbidding strict local rules of pleading that
burden plaintiffs for the Federal Employers Liability Act).
§ 1983
Absent clear intent, the Court generally has held that state courts are not obligated to follow federal procedural
rules so long as the state procedures do not unduly burden the federal rights.

Johnson v. Fankell CB462 (even though § 1983 allows interlocutory appeals on MSJ for qualified
immunity, the state may follow its own rules that do not allow interlocutory appeals even in 1983 suits
because the state court may set up whatever rules it wants to protect its own state officers).
 Fedler v. Casey CB461 (state rule that required notice within 120-days of incident, thus denying relief
to plaintiff under § 1983 unduly burdened the federal right and is “inconsistent in both design and
effect with the compensatory aims of federal civil rights law”)
6
SUITS CHALLENGING STATE ACTION
The 11th Amendment is a jurisdictional bar to unconsented suits by private citizens against a state.
6.1
11TH AMENDMENT
“The judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”
6.1.1
HISTORICAL BACKGROUND
“State-Citizen Diversity Clause”: confers jurisdiction over controversies between a State and citizens of another
state or foreign citizens.
11th Amendment passed to overturn the result in Chisholm. (Worried that contract-based debts could be
enforced against states.)
 Chisholm v. Georgia, 2 US 419 (1793) CB978 (holding that state sovereign immunity was abrogated
in suits brought under the “state-citizen diversity clause.”).
6.1.2
THE DIVERSITY EXPLANATION
Amendment does not bar suits by private citizens against the states, it merely provided that the diversity clause
did not confer jurisdiction over suits against the state.
 “Shall not be construed” suggests it was meant to correct the Court’s interpretation of the diversity
clause, not to prohibit suits against the states.
 Federal question jurisdiction and other bases of jurisdiction still available.
State sovereign immunity is inherent, not conferred by the 11 th Amendment. If anything in 10th Amend.
6.1.3
CURRENT DOCTRINE
11th Amendment, in practice, is a bar to federal court jurisdiction for private citizen suits against a state.
In-state, as well as out-of-state, citizens are barred from suing a state by the 11 th Amendment. Hans v.
Louisiana, 134 US 1 (1890) CB973 (Louisana repudiated a contract and an in-state citizen sued but state
successfully.
Contract=more immunityTort=less immunity
11th Amendment sovereign immunity applies in state court too. Alden v. Maine, 527 US 706 (1999) CB1039
(suit against state by state probation officers for unfair labor standards brought in state court).
 But, Hilton CB10143 (holding injured employee of state-railroad could sue employer under FELA in
state court—can distinguish on immunity never raised and always immunity in own state court).
11
6.2
11TH AMENDMENT EXCEPTIONS
There are many exceptions to state sovereign immunity.
6.2.1
LOCAL GOVERNMENT
Counties and municipalities do not have sovereign immunity. Lincoln County v. Luning CB985 (county
repudiated its bonds issued for railroad and did not have sovereign immunity.)
Civil rights suits may be brought against counties and municipalities. Monell v. Department of Social Services.
 § 1983 suits not permitted against states.
6.2.2
SUITS AGAINST STATE OFFICERS
Suits against state officers for injunctive relief. Ex parte Young, 209 US 123 (1908) (holding federal court
could enjoin state AG from bringing case in state court because once official acts unconstitutionally he is
stripped of stat immunity.)
 Suit permitted against state officer acting illegally on behalf of the state to enjoin an illegal action.
 Only operates when officer violates a federal law. Pennhurst State School & Hospital v. Halderman
465 US 89 (1984) CB1000 (no structural injunction against state officers of mental school being run in
a horrible way that arises under state law only).
o Federal courts don’t have power to issue injunction against state officer under state law.
Sovereign immunity is not waived if not raised. (Failure to raise defense at trial court does not waive it.)
But, maybe the Court requires a clear statement from Congress when federal courts are asked to impose
injunctive relief against a state official. Seminole Tribe of Fla. V. Fla., 116 S. Ct. 1114 (1996) (Court refused to
enforce mild sanction against state official under Indian Gaming Act .)
But compare with 14th Amendment that allows injunction against state officers who act under color of state
law. Thus, what is not the act of the state for purposes of the 11th Amendment is the act of the state for
purposes of the 14th Amendment.
Monetary relief is forbidden by the 11th Amendment, even though injunctive relief is OK. Edelman v.
Jordan, 415 US 651 (1974) (invalidating action seeking recovery of money wrongfully withheld by delay of
processing welfare applications—prospective relief OK, but not retroactive relief).
 Damages also forbidden against municipalities.
Except, monetary relief may be ordered against state officer in some situations. Miliken v. Bradley CB997
(monetary relief is ordered against state officer to cure civil rights violations).
Scheuer v. Rhodes, 416 US 232 (1974) (money damages against governor for § 1983 suit for shooting at Kent
State Vietnam demonstration).
 Tort may be possible distinction (Edelman looks like contract).
 Prospective compliance may be possible distinction (future compliance with Constitutional law).
 Relaxed immunity under 14th Amendment to cure discrimination (Clause 5 can get damages.)
6.2.3
CONSENT TO SUIT
A state may waive the protection of the 11th Amendment by consenting to suit.
 Waiver by voluntary appearance and defense on the merits in federal court. (But may raise later.)
 Waiver by statute, a state can pass a statute that waives sovereign immunity for certain suits.
 Waiver by administering a federal-state program—clear statement in agreement required.
6.2.4
CONGRESSIONAL ABROGATION OF STATE SOVEREIGN IMMUNITY
Congress can abrogate state sovereign immunity, under certain constitutional provisions.
12


14th Amendment Fitzpatrick v. Bitzer, 427 US 445 (1976).
15th Amendment (maybe)
No power of abrogation under Indian or interstate Commerce Clause. Seminole Tribe of Fla. V. Florida
(holding that Congress has no power to abrogate state sovereignty under Indian Commerce Clause.)
 Commerce clause is regulatory power, whereas 14th amendment requires specific action.
 Perhaps no power under any Art I: bankruptcy, copyright, spending clause?
Clear statement of Congressional intent to abrogate required.
Exception v. Abrogation
§ 1983 does not abrogate state sovereign immunity—the basic civil rights statute, Congress did not intend to
abrogate state sovereign immunity. Quern
But, Title VII of the Civil Rights Act Congress clearly intended to abrogate. Fitzpatrick
 Exception: State officers can be sued under Ex parte Young
 Municipalities and counties may be sued.
If Congress amended Indian Gaming Act to explicitly order Governor to bargain with tribes this is an
exception, not an abrogation.
States are immune in copyright or patent.
Sovereign immunity may not apply to commercial activities of state.
States can usually decide when to waive and when not to waive.
Other abrogation statutes (under 14th Amend. § 5?):
 Nevada Dept. of Human Res. v. Hibbs, 538 US 721 (2003). Family Medical Leave Act is capable of
abrogating 11th Amendment protection.
 Tennessee v. Lane, 124 S. ct. 1978 (2004) Holds that Title 2 (access to public facilities) of ADA also
abrogates the 11th Amendment pursuant to sec. 5 of 14th Amendment.
 Garrett title 1(employment) does not abrogate.
 US v. Morrison Insufficient for Violence Against Women Act.
6.3
§ 1983 ACTIONS
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress”
6.3.1
UNDER COLOR OF STATE LAW
State action for the 14th amendment is not state action for the 11th Amendment.
Do not need state court to determine if “acting under state law.” Home Telephone & Telegraph v. Los Angeles
CB 1067(Violates 14th amendment when a state actor does something that would violate the constitution, it is
not necessary to go to state court to determine if it was authorized.)
Remedy is available even if conduct is wholly unauthorized by state law. Monroe v. Pape CB1072 (federal
remedy for violation of federal rights when Monroe’s house ransacked by police—suit OK without realized if
police were authorized to act under state law.)
 Federal civil rights claims may be brought without first exhausting state administrative or judicial
remedies.
It must be state action.
 Don’t need much more than state employment.
For liability against municipality, it must be pursuant to a policy or custom of the municipality. Monell CB 1082
(§1983 definition of person includes municipality, but no respondeat superior.)
13
 Opposite of Monroe (finding municipalities not state for 11th Amend.)
Policy is a decision by a high authority—it does not need to be written, nor of general applicability.
 Retaliatory firing for speaking out against discrimination—decision is a policy. Pembaur v. City of
Cincinnati CB1088.
 Failure to train may create a liability. City of Canton v. Harris CB1089.
 Lower official may not make city liable—e.g. school principal.
6.3.2
OPERATION OF STATUTE
Fee shifting CB1084--§1988 provides attorney’s fees with only Plaintiff getting fees if prevails.
Concurrent jurisdiction of §1983 claims in state court. Maine v. Thiboutout CB1081
Applies to all federal statutory violations—not only constitutional. Maine v. Thiboutout (welfare provisions
of social security act).
 But remedies limited to those in the statute (and atty fees). Middlsex County Sewerage v. Nat’l Sea
Clammer’s CB1096.
Pleading “Against officer in individual and official capacity.”
 Suit against state or municipal officer in personal capacity is suit for damages.
 Suit against state or municipal officer in official capacity you are suing for damages against
municipality and you must prove custom or policy.
 Suit for injunctive relief sue in official capacity (Ex parte Young remedy).
If suing federal official “Bivens action” directly under constitution, not under 14th Amend or 5th Amend.
6.3.3
CONSTITUTIONAL TORTS
Damages allowed against state officers for constitutional torts.
Constitutional tort : (a) something akin to a physical harm tort or property deprivation
(b) “constitutional” b/c actor is a state officer bound by 14th Amend.
Prison cases are distinct and less favored by the courts.
If state remedy then no §1983 remedy. Parratt v. Taylor CB1098 (package never arrived at prison, §1983 suit
for deprivation of property. State’s post-deprivation law provides a sufficient remedy.)
 Extended to intentional deprivations of property. Hudson v. Palmer CB1106 (adequate state remedy
even if prisoner claims intentional destruction of property.)
But no need to exhaust state remedies is post-deprivation procedures insufficient.
 Monroe where police ransack house and no exhaustion of state remedies necessary.
 Zinorman v. Burch CB 1107 (post-deprivation procedures not enough for mental hospital detention
longer than statute permitted because didn’t follow procedures)
o Distinguished from Parratt on (1) deprivation predictable—trained doctors (2) postdeprivation process impossible (3) conduct not arbitrary.
Monroe (exhaustion not required) applies:
1. Violation of bill of rights or substantive due process (Monroe is unreasonable search and seizure)
2. Arbitrary government actions –there are certain things that are really bad (Corcoran prison fights).
If the violation is procedural due process, then there’s a claim under 1983 only if the state denies adequate
post-deprivation remedies.
6.3.4
OFFICIAL IMMUNITY
Official immunity is distinct from sovereign immunity (no suit possible) because a suit may go forward against
the officer if the action is egregious enough.
14
Qualified immunity is an affirmative defense, if not raised then waived. If loss on MSJ, interlocutory appeal
permitted.
Qualified immunity for President’s men rather than absolute immunity. Harlow v. Fitzgerald CB1112 (against
federal officials… Does absolute immunity of president extend to those who assist him intimately? No.)
Prosecutorial Immunity
Generally, prosecutors have absolute immunity for things intimately associated with judicial process. Imbler
CB1124
Judicial Immunity
Judges have absolute immunity for judicial acts.
Police Immunity
Qualified immunity for police. Was the officer’s judgment so bad that it should waive the immunity?
Was it excessive force?
7
7.1
LIMITS TO FEDERAL COURT JURISDICTION
STATUTORY LIMITS
Anti-Injunction Act
A federal court cannot enjoin state court proceedings unless:
(1) expressly authorized by Congress (e.g. § 1983, bankruptcy, removal, admiralty, federal interpleader, habeas)
(2) necessary to aid jurisdiction (e.g. in rem jurisdiction, structural injunctions i.e. school desegregation)
or (3) to protect or effectuate its judgments (e.g. relitigation exception—fed. court already decided the matter)
Three-Judge Statute: Required three-judges because of fear of courts enjoining state statutes.
 Repealed in 1976 except as applied to election cases.
Tax Injunction Act: prohibits fed courts from enjoining collection of tax if adequate remedy in state court.
Johnson Act: prohibited federal courts from enjoining state utility rate-setting if there’s a state remedy
7.2
EXHAUSTION
State courts, unlike federal courts, can act legislatively (usually rate setting procedure). These cases will be
treated differently than other cases by Supreme Court.
You cannot bring a suit to federal court until you exhaust state court remedies if court acting legislatively.
Prentis v Atlantic Coast Line, 211 US 210 (1908) CB1180 (rate-setting case is a legislative procedure and the
federal court cannot intervene).
 But if state court would be acting in a judicial fashion you can go directly to federal court. (e.g. if
administrative agency set rate and state court can review)
No exhaustion of administrative remedies if the suit is brought under sec. 1983. Patsy v. Board of Regents, 457
US 496 (1982) CB1182
 exceptions to Patsy rule:
1. decline jurisdiction if seeking damages for state taxation when state has plain, adequate &
complete remedy
2. actions by prisoners
3. land use takings cases
15
7.3
ABSTENTION: PULLMAN & RELATED
Abstention means that a federal court should decline jurisdiction for state law issues.
Abstention is discretionary, so the question is it appropriate for the court abstain not whether it must.
7.3.1
PULLMAN ABSTENTION
Used when state action is challenged in federal court as violating the federal constitution, and a decision on a
question of state law may permit the constitutional question to be avoided. (Fed. Ct. retains jurisdiction.)
The federal court should abstain from deciding state law issue if it could eliminate the need to decide
difficult federal question. Railroad Comm'n of Texas v. Pullman, 312 US 496 (1941) CB1186 (finding
abstention appropriate for a case where a rule requiring a conductor (usually white) rather than porter (usually
black) may have been beyond the authority of the commission (state law question) and could avoid the equal
protection federal question).
 Reasoning: (1)resolution of state law question in one way would avoid constitutional question (2)state
law unclear (3)resolution could create friction (4)sensitive social policy in Pullman.
Only applies to unsettled state law.
Certification to state court is an alternative to abstention.
Practice of Circuit courts giving deference to district courts in a jurisdiction on state law questions disavowed.
Selve Regina College v. Russel.
If abstaining, the plaintiff should let the state court know that the federal question lurks under the state law
question. Govt & Civic Employees Organizing Committee v. Windsor, 353 US 364 (1957) CB1200
 But a plaintiff’s submission of the federal constitutional question to the state court is not a waiver to
ultimately have it decided by a federal court. England v. Louisiana State Bd. Of Medical Examiners,
375 US 411 (1964) CB1200 (finding that if the state court decides questions of federal law the party is
only bound by that determination if s/he sought a complete and final adjudication of rights in a state
court.)
7.3.2
BURFORD ABSTENTION
Requires a federal court to abstain when its decision on a question of state law would disrupt state efforts to
establish coherent policy on matters of importance to the state (e.g. disrupt an administrative process).
(Dismisses case.)
If tradition of a single court adjudicating a type of claim, then federal court should abstain. Burford v. Sun
Oil, 319 US 315 (1943) CB1204 (tradition of funneling oil field decisions through state courts the federal court
should have declined jurisdiction).
•
Especially if issue is technical and complicated.
7.3.3
THIBODAUX ABSTENTION
Permits a federal court to abstain when there is an unsettled question of state law in an area of particular local
concern.
Difficult takings cases involving land use federal courts should abstain. Louisiana Power & Light v.
Thibodaux, 360 US 25 (1959) cB1208 (holding that because eminent domain proceedings—state taking land
from utility-- are intimately involved with sovereign prerogatives the federal court should ascertain the meaning
of a disputed state statute from the state court).
But compare with County of Allegheny v. Frank Mashuda, 360 US 185 (1959) CB1210 (declining to abstain
from deciding whether land taken by the county and leased to a private party was validly condemned under
state law).
 Perhaps judicial discretion distinguishes this from Thibodaux.
16
7.4
EQUITABLE RESTRAINT
Federal court issuing an order, injunction, or declaratory judgment, that would interfere with the state’s
criminal prosecution or in some civil cases that resemble criminal prosecution.
Approach:
Is there a statutory prohibition on enjoining a state court (e.g. Anti-Injunction Act)?
Is an injunction permitted under “equitable abstention”?
Arises in civil rights cases, § 1983 exception from Anti-Injunction act, litigant may seek to enjoin state criminal
or civil proceedings but must satisfy requirements of equitable abstention.
7.4.1
CRIMINAL PROCEEDINGS
General rule is that a federal court may not enjoin a pending state criminal prosecution.
If parallel state criminal proceeding a federal court will not enjoin it absent a specified exception. Younger
v. Harris, 401 US 37 (1971) CB1213 (refusing injunction to Harris prosecuted under Cal. Criminal Syndicalism
Act that went to federal court to enjoin on grounds that statute unconstitutionally inhibited his speech. )
 At time, not clear §1983 exception to Anti-Injunction Act.
 POLICY: equity—must show no adequate remedy at law and irreparable injury; comity—proper
respect for states
Exceptions:
1. Bad faith and harassment. Dombrowski v. Pfister, 380 US 479 (1965) CB1223 (abstention doctrine
held inappropriate because record was clear that runups to prosecution were for harassment and bad
faith of civil rights activists in the South).
2. State statute is flagrantly unconstitutional in every sentence. (Useless exception because state should
discover itself)
 Interpreted this exception very narrowly. Trainor v. Hernandez (federal court refusing to enjoin
obviously unconstitutional statute that allowed seizure without a hearing).
Later-filed state proceedings
Equitable restrain appropriate when criminal prosecution filed before federal court consideration. Hicks v.
Miranda, 422 US 332 (1975) CB 1244 (holding that state criminal prosecution was filed before federal court
consideration of merits falls under Younger when owners of adult movie theater brought action in federal
court to determine obscenity of their materials subsequently state prosecutor adds them to a pending criminal
prosecution against employees of the theater.)
 DISSENT: state officials will institute criminal proceeding to defeat federal jurisdiction.
 Preliminary injunction could avoid consequence of Hicks.
Intertwining Analysis: independent of later filed state prosecution, the intertwining interests of the owner and
employees would still prevent the owners from going to federal court.
 But see, Doran v. Salem (holding that there is no intertwining of topless dancing bars—two of
which ceased activity and no criminal prosecution pending—despite representation by same
lawyer).
Threatened prosecution
If there is no pending criminal prosecution, a federal court can issue a declaratory judgment against future
prosecution—so long as the case is ripe. Steffel v. Thompson, 415 US 452 (1974) CB1229 (allowing declaratory
relief on constitutionality of statute for person who leaflets to protest Vietnam War and leaves when asked over
and over again, but friend is prosecuted).
 Extended to injunctions too. Willy v. Maynard, 430 US 705 (1977) CB1241 (covered up live free
or die and gets an injunction against being prosecuted again).
17
7.4.2
CIVIL PROCEEDINGS
Federal courts may not enjoin pending state civil proceedings that are alleged to violate civil rights.
Younger also applies in civil proceedings. Huffman v. Pursue, 420 US 592 (1975) CB1251
 State bringing case in state court (e.g. Enforcement Action)
 Strong state interest in the proceeding (e.g. state regulatory structure)
Where the state is NOT a party but in which the state’s interest in the proceeding is “so important that
exercise of the federal judicial power would disregard the comity between the states and national government.”
Enforcing orders of state courts:
 Judice v. Vail, 430 US 327 (1977) CB1253 (denying federal review of constitutionality of state’s
contempt statute because the state interest in its judicial proceedings.)
 Pennzoil v. Texaco, 481 US 1 (1987) CB1253 (applying Younger because of the state’s interest in
enforcing judgments and orders of its courts).
State recovery of welfare payments. Trainor v. Hernandez.
State protection of children. Moore v. Sims
7.4.3
ABSTENTION TO AVOID DUPLICATIVE LITIGATION
Generally, parallel litigation is the norm and both can go ahead. Kline
Colorado River Abstention is an exception to this rule, but there’s a presumption against such abstention to
avoid duplicative proceedings.
A federal court should abstain if there is parallel litigation in state court. Colorado River Water Conservation
Dist. v. United Satees, 424 US 800 (1976) CB1258 (holding that the federal court should abstain when parallel
water rights litigation is pursued in state court to avoid piecemeal adjudication.)
 Inconvenience of federal forum
 Desirability of avoiding piecemeal litigation
 Order in which jurisdiction obtained
 State case involves res (property) or something similar
18