FEDERAL JURISDICTION – COCHRAN – FALL 2011
KEYED TO ERWIN CHEMERINSKY, FEDERAL JURISDICTION (5TH ED. 2007)
Table of Contents
Part I.
Constitutional and Statutory Limits on Federal Court Jurisdiction ................... 3
Chapter 2
§ 2.3
Justiciability Doctrines: Constitutional and Prudential Limits on Federal
Judicial Power ............................................................................................................................ 3
Standing ............................................................................................................................................................. 3
§ 2.3.2
§ 2.3.3
§ 2.3.4
§ 2.3.5
§ 2.3.6
§ 2.3.7
Injury ............................................................................................................................................................................... 4
Causation and Redressability ............................................................................................................................... 6
Limitation on 3rd Party Standing (Prudential Requirement) ................................................................ 8
Prohibition Against Generalized Grievances (Tax Payer or Citizen standing) ............................... 9
Zone of Interest Requirement for Standing (prudential) .......................................................................12
Special Standing Problems: Organizations, Legislators, and Government Entities ....................12
§ 2.5.2
§ 2.5.3
§ 2.5.4
§ 2.5.5
First Exception: Collateral injury ......................................................................................................................14
Second Exception: Wrongs Capable of repetition yet evading review .............................................14
Third Exception: Voluntary cessation .............................................................................................................15
Fourth Exception: Properly certified class (Class Action: rule 23) ....................................................15
§ 6.2.1
§ 6.2.2
Introduction and Overview .................................................................................................................................16
Federal Common Law to protect Federal Proprietary Interests in Suits Involving the United
States or its Officers ................................................................................................................................................17
Federal Common Law to Protect Federal Interests in Suits Between Private Parties ..............18
§ 2.5 Mootness............................................................................................................................................................. 14
§ 2.6 Political Question Doctrine ...................................................................................................................... 16
Chapter 6 Federal Common Law........................................................................................................... 16
§ 6.1 Introduction ................................................................................................................................................... 16
§ 6.2 Development of Federal Common Law to Protect Federal Interests ..................................... 16
§ 6.2.3
§ 6.3
Development of Federal Common Law to Effectuate Congressional Intent ........................ 19
§ 6.3.1
§ 6.3.2
§ 6.3.3
Introduction ...............................................................................................................................................................19
Congressional authorization for federal courts to create common law rules ...............................20
Creation of private rights of action (Implying private actions from Federal Statutes) ............21
Part II. Federal Court Relief Against Government and Government Officers ............. 27
Chapter 7
§ 7.1
§ 7.2
§ 7.3
§ 7.4
§ 7.5
Suits Against State Governments: The Eleventh Amendment and Sovereign
Immunity .................................................................................................................................. 27
Introduction ................................................................................................................................................... 27
History of Ratification of the 11th Amendment .............................................................................. 27
What Does the 11th Amendment Mean? Competing Theories ................................................ 28
Application of the 11th Amendment - What’s Barred and What’s Allowed? ...................... 29
Ways Around the 11th Amendment: Suits Against State Officers ........................................... 32
§ 7.5.1
§ 7.5.2
§ 7.5.3
Suits against state officers for injunctive relief ..........................................................................................32
Suits against state officers for monetary relief ...........................................................................................32
Exceptions to Ex parte Young (i.e. 11A DOES BAR these suits) ...........................................................34
§ 8.5.1
§ 8.5.2
§ 8.5.3
Are municipalities persons and if so, when are they liable? .................................................................48
How is the existence of an official municipal policy proven? ...............................................................49
Municipal Immunities ............................................................................................................................................51
§ 7.6 Ways Around the 11th Amendment: Waiver ................................................................................... 36
§ 7.7 Ways Around the 11th Amendment: Suits Pursuant to Federal Law (abrogation) ......... 37
Chapter 8 Federal Court Relief Against Local Governments and State and Local
Government Officers: 42 U.S.C. § 1983 ........................................................................... 41
§ 8.1 Introduction ................................................................................................................................................... 41
§ 8.3 The Meaning of “Under Color of State Law”...................................................................................... 42
§ 8.4 Exhaustion of State Remedies Not Required for § 1983 litigation .......................................... 48
§ 8.5 Who Is a “Person” for Purposes of § 1983 Liability? Municipal Governments ................. 48
1
§ 8.6
Who Is a “Person” for Purposes of § 1983 Liability? The Liability of Individual
Offenders ......................................................................................................................................................... 51
§ 8.6.1
§ 8.6.2
§ 8.6.3
Introduction to individual officers’ immunities .........................................................................................51
Absolute immunity ..................................................................................................................................................52
Qualified (or good faith) immunity ..................................................................................................................54
§ 8.7 Who Is a “Person” for Purposes of § 1983 Liability? State Gov'ts & Territories................ 55
§ 8.8 What Federal Laws May Be Enforced via § 1983 Actions? ......................................................... 56
§ 8.9 When May § 1983 Be Used for Constitutional Claims? ................................................................ 58
§ 8.10 Preclusive Effect of State Court Judgments and Proceedings .................................................... 60
§ 8.11 Remedies Available in § 1983 Litigation............................................................................................ 62
  Attorneys fees (NOT LIMITED TO 1983) ........................................................................................... 63
Chapter 9 Federal Court Relief Against Federal Officers and the Federal Government... 65
§ 9.1 Suits Against Federal Officers ................................................................................................................. 65
§ 9.1.1
§ 9.1.2
§ 9.1.3
§ 9.1.4
§ 9.2
Suits Against the Federal Government................................................................................................ 70
§ 9.2.1
§ 9.2.2
§ 9.2.3
Part III
Introduction ...............................................................................................................................................................65
Cause of action against federal officers for monetary relief .................................................................66
Exceptions: Situations where Bivens suits are not allowed ..................................................................68
Bivens suits against government and private entities (overview) .....................................................70
The principle of federal sovereign immunity ..............................................................................................70
Injunctive relief against the United States ....................................................................................................71
The Federal Tort Claims Act ................................................................................................................................71
Federal Court Review of State Court Judgments and Proceedings .................. 74
Chapter 11 Statutory Control of the Relationship Between Fed. Courts & the States ....... 74
§ 11.2 The Anti-Injunction Act ............................................................................................................................. 74
§ 11.3 The Tax Injunction Act............................................................................................................................... 76
Chapter 12 Federal Court Abstention Because of Unclear State Law...................................... 76
§ 12.1 Abstention Overview .................................................................................................................................. 76
§ 12.2 When Is Abstention Because of Unclear State Law Appropriate? ........................................... 76
§ 12.2.1
§ 12.2.2
§ 12.2.3
Pullman abstention: avoiding federal court constitutional ruling ..................................................76
Thibodaux abstention: unclear state law in diversity cases ...............................................................78
Burford abstention: defer to complex state administrative procedures ......................................78
§ 13.3.1
§ 13.3.2
§ 13.3.3
§ 13.3.4
§ 13.3.5
Declaratory and monetary relief when there are pending state court proceedings ...............82
Fed. court declaratory & injunctive relief in the absence of pending state proceedings ......83
Application of Younger to pending state civil proceedings ................................................................84
Application of Younger to pending state administrative proceedings ..........................................85
Application of Younger to prevent federal court injunctive and declaratory relief against
the executive branches of state and local government (i.e. police departments) ....................85
§ 12.3 Procedures for Abstention ....................................................................................................................... 79
Chapter 13 Federal Court Abstention to Avoid Interference with Pending State
Proceedings........................................................................................................................... 80
§ 13.1 Intro ................................................................................................................................................................... 80
§ 13.2 Younger v. Harris (1971) ........................................................................................................................... 80
§ 13.3 Extension of Younger v. Harris................................................................................................................ 82
§ 13.4 Exceptions to the Younger Doctrine ..................................................................................................... 86
Chapter 14 Federal Court Abstention to Avoid Duplicative Litigation ................................... 86
§ 14.2 When Should Fed. Courts Abstain Due to Duplicative Litigation in State Courts? ........... 86
2
PART I.
CONSTITUTIONAL AND STATUTORY LIMITS ON FEDERAL COURT JURISDICTION
Chapter 2
Justiciability Doctrines: Constitutional and Prudential Limits on Federal
Judicial Power

Justiciability Doctrines
o General prohibition against advisory opinions (must be actual case or controversy
& decision by court would actually have an effect)
o Standing
o Ripeness
o Mootness
o Political Questions
§ 2.3

Standing
Introduction: standing is one of the most confused areas of the law - opinions are best
described as “erratic” and “even bizarre”
o Elements of standing may be viewed in a different light based on the merits of the
case - the courts will often use standing (and other justiciability doctrines) in order to
avoid a ruling on the merits of a difficult case or a case that the resolution of would
create additional problems for courts

General Constitutional Requirements for Standing:
o Injury in Fact - this is the core principle of standing
 An invasion of a legally protected interest which is:
 Concrete and particularized (Lujan); and
 Actual rather than hypothetical
 Must not be merely speculative (Lujan)
o Causation:
 The injury must be fairly traceable to the defendant’s action.
 The injury cannot result from the independent actions of some third party
not before the court.
o Redressability:
 It must be likely that the injury will be directly redressed by a favorable
decision.

Prudential Standing Doctrines
o 3rd Party Standing - generally, cannot assert the rights of another (Singleton v.
Wulff)
o Taxpayer Standing - generally, cannot sue when only injury is an increased tax
burden (but see Flast v. Cohen)
o “Zone of Interest” Requirement - P must be part of group intended to benefit
under the law (Data Processing v. Camp)
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§ 2.3.2

Injury
P must show that he has sustained (personally suffered) or is immediately in danger of
sustaining some direct injury as a result of the challenged conduct and the injury must be
both real and immediate, not conjectural or hypothetical (City of Los Angeles v. Lyons)
Two questions Arise:
1) What does it mean to Personally Suffer Injury?
 Injury must be personally suffered (Sierra Club v. Morton)
o Failed to allege any of its members would be affected in their activities or pastimes
by proposed development
o Mere interest in problem = not sufficient (i.e. claimed “interest” in conservation of
the park)
o US v. SCRAP: rail freights would discourage recycling which would cause pollution
which would lessen enjoyment of nature in DC area
o This shows: Ideological interest alone is not enough
 Gerrymandering:
o Only person in the gerrymandered/redrawn district has standing to sue (not those
outside district). Hays
 Key: Show that you use the land in question (and conduct will affect your use of that land in
some way)

Injury in fact = an invasion of a legally protected interest which is (1) concrete or
particularized and (2) actual or imminent (Lujan v. Defenders of Wildlife)
2) What types of Injuries are sufficient for standing?
 P can claim an injury to common law rights, constitutional rights, and statutory rights
o CL: tort, contracts, property
o Constitutional: refused some generalized grievances
 i.e. statement and account of all expenditures & prevention of members
serving
 If violation of individual liberty (Due Process of law; freedom of speech) =
standing usually allowed
o Statutory: Congress has broad authority to create injuries that are the basis of standing
(FEC v. Akins; Trafficante v. Met. Life Ins.); while statute may authorize “citizen
suit;” however, under Lujan P must still show constitutional requirements for
standing
 So if citizen suit = OK as long as it meets constitutional requirements
o ACLU v. NSA (6th Circuit): suit against NSA for wiretapping.

Argument that wiretapping injures lawyers w/ overseas clients and
journalists who call overseas. 6th Circuit rejected. No specific lawyers or
journalists mentioned. Mere chilling (like Laird)
 Compare: Presbyterian Church v. US
4
o Said undercover agents at church to monitor sanctuary
movement to harbor illegal aliens (INS agents taping
ministers actions)
o Court: more than chilling, some people actually not going
to church
o Laird v. Tatum: suit claiming army’s secret infiltration of civilian groups
opposed to Vietnam chills right of association. (Constitutional Injury = 1A
freedom of expression)

USSC finds no standing b/c speculative that P will be injured. No
standing if only allegation is mere existence of a program or some concern
that it may be used against your group - alleged chill not the same as
actual harm
o Moose Lodge: suit by blacks against white club for membership policy.

USSC finds no actual injury b/c Ps are just complaining about policy, they
didn’t actually apply and get denied
.
o O’Shea v. Littleton: suit brought against state judge claiming bails judge imposes
are unconstitutional.

Ps have no standing b/c there’s nothing to show they’d be arrested. It’s
merely speculative that injury will occur.
o City of Los Angeles v. Lyons: Suit brought by black guy against police seeking
injunction against chokehold they use. (Type of Relief Important)

No standing - suit not proper for injunction b/c P can’t show substantial
likelihood of future injury (too speculative whether he will be arrested
again and receive choke hold). Could still sue for damages though
(because there was an injury in fact in the past)

Court determined standing on the basis of the relief sought - which is
contrary to the Fed. R. Civ. P.
o Allen v. Wright: Mere stigmatization by law is insufficient injury for standing
purpose (too speculative)
o Roe v. Wade (companion case): adverse effect on “marital happiness” is
insufficient for standing (too speculative)
o Lujan v. National Wildlife Federation: Suit brought by owners of land adjacent
to area where mining is proposed.
5

Ct holds this is not direct injury so no standing. Injury must be direct
injury.
o Lujan v. Defenders of Wildlife: (proof of future injury) Suit challenging head
of Dept of Interior’s failure to consult with other agencies w/ re: to endangered
species - statute says “any person may commence a civil suit” (Other Injury: right
to view endangered animals for purely aesthetic purpose is enough: not const,
statute, or CL)

USSC: When P is not himself the object of gov’t action, standing is not
precluded, but it’s substantially more difficult.

Must have PARTICULARIZED INJURY - constitutional requirements
must be met
o Stewart v. Blackwell: Post-Lujan 6th Circuit Case. Example of panel playing w/
Lujan and injury requirement. Suit seeks injunction against use of punch cards or
optical scan voting in Ohio claiming violation of EPC. Lujan required
particularized injury, but this panel says allegations of an increased threat of
harm are sufficient to meet standing in 6th Cir.
o Tropicana: intellectual outrage may be enough
BUT SEE
o U.S. v. S.C.R.A.P.: most liberal standing case - this is not the winning argument
before the current court - SC concluded that aesthetic or environmental harm is
enough BUT P must personally suffer the harm (buy a ticket, actually go there,
etc.)
§ 2.3.3
Causation and Redressability
Often treated as one prong, though under Allen v. Wright the analysis is entirely separate
How the injury is defined will likely determine if these prongs can be satisfied (discretion of the
courts to redefine the injury in order to either extend or deny standing
Ex: Northeast Florida General Contractors v. Jacksonville, FL - city ordinance created
preference for minority businesses in receiving city contracts
City’s argument - no standing because P could not demonstrate they would have
received the bids otherwise
U.S.S.C. - the injury is actually the denial of the opportunity to compete for the
contracts; standing exists if law makes it more difficult for a class of people to
6
get something (Thomas, J.) (relying on earlier rationale from Regents of the
University of California v. Bakke)

Causation:
o P must allege that the D’s conduct caused the harm
o Warth v. Seldin: Suit claiming zoning restrictions of city, which required large
lots, prevented the construction of low-income homes.

Ct held that the availability of affordable housing was caused by other
intervening factors – economics of housing market. (Also a redressability
issue since P could not demonstrate that housing would be constructed
without the zoning restrictions)
o Allen v. Wright: must not be independent act of third party
 Court: Not fairly traceable to gov’t conduct (independent action of third
party = the discriminatory schools)


Allen v. Wright: causation and redressability are treated as separate hurdles – both of
which must be met
Redressability:
o P must allege that a favorable court decision is likely to remedy the injury
o Simon v. KY Welfare Rights: Suit by welfare organization claiming hospitals
should not receive 501(c)(3) tax exempt status if they don’t provide medical care
for poor.

Redressability prong NOT met – nothing in record to show that if
hospitals are denied tax-exempt status they will begin serving poor (also a
causation issue since it was purely speculative that the Revenue Ruling
was responsible for the denial of medical services)
o Duke Power Co.: P challenged Price-Anderson Act which limited liability of
utility company in event of nuclear accident (claimed violation of due process
since it allowed injuries without compensation)

Causation and Redressability satisfied - construction of the plant subjected
P to injury that but for the Price-Anderson Act the plant would not be built
and P would not suffer these harms

Underlying Motivation - Court wanted to uphold the constitutionality
of the Price-Anderson Act
7
o Lujan v. Defenders of Wildlife: no standing (in part) because invalidating the
regulation might not change the government’s behavior



§ 2.3.4
Criticism: if potential (government?) noncompliance is sufficient to
undermine redressability then many cases would have to be dismissed
(since this is always a potential problem)
Plane ticket requirement (apply Lyons chokehold test)
Linda R. v. Richard D.
o Even if injunction commanding state prosecutors to prosecute illegit fathers
was granted = it would only result in jailing of father and would not
necessarily lead to payment of support (too speculative)
Limitation on 3rd Party Standing (Prudential Requirement)
P must generally assert his own legal rights and interests; the 3rd party is generally the best
proponent of their own legal rights
Person seeking to advocate the rights of a 3rd party must meet the constitutional standing
requirements

Exceptions to General Prohibition Against Third-party Standing
o 3rd party unlikely to be able to sue
 Substantial obstacles to third party asserting rights AND reason to
believe advocate will effectively represent interests of third party

Eisenstadt v. Baird: Baird (M.D.) prosecuted for distributing
contraceptives to unmarried persons (against Mass Law) - his defense
centered on the rights of individuals to have access to contraceptives

Since individuals were not subject to prosecution under the law
(only doctors who prescribed it), they had no forum to assert their
rights
o Close relationship between P and 3rd party

Pierce v. Society of Sisters: close relationship between parochial school
and parents was sufficient for standing

Singleton v. Wulff: (Doctors & Patient) close relationship between
doctors and patients was sufficient for standing - 4-Part Test:


3rd party actually has injury (OR IS THIS P actually has to
have injury)
Close relationship b/t P and 3rd party
8



Craig v. Boren: (Vendor & Vendee) Court allowed vendors to assert
rights of customers - Bar owner allowed to sue on behalf of under-21
males challenging 3.2 beer statutes.





P is injured by law
Semi-contractual relationship is close (vendor-customer
relationship)
Effective proponent
Hindrance is that b/c of age, mootness is problem
Kowalski v. Tesmer: relationship between attorneys and potential
appointed indigent defendants is not sufficient - not only is there not a
close relationship - there is no relationship at all





P is effective proponent
Some hindrance or impediment prevents the 3rd party from
being in court
Ps injured b/c won’t be compensated
NO close relationship – no relationship at all
Effective proponent
There is no severe impediment that prevents criminal Ds from
arguing this.
Gilmore v. Utah: relationship between mother and criminal/son was not
sufficient for standing since the son could have pursued his own appeal
but chose not to
o Overbreadth Doctrine - overly broad statutes (generally limited to cases
involving the First Amendment) may be challenged as overbroad - P may assert
rights of others even if his own conduct would be prohibited within the statute
§ 2.3.5
Prohibition Against Generalized Grievances (Tax Payer or Citizen standing)
Prevents individuals from suing if their only injury is as a citizen or taxpayer concerned with
having the government follow the law (or restraining illegal gov’t expenditures)
If the harm is concrete, no matter how widely shared, then the injury is sufficient for standing
purposes - generalized grievance is not determined by number of people affected
- i.e. if law banned all religions
- If Freedom of Speech of DP = standing (even if everyone suffers)
Understanding the time line of these cases: no TP standing (Frothingham), Warren Court
expands TP standing (Flast), Burger Court nearly eliminates (Richardson & Schlesinger), and
9
Rehnquist Court treating generalized grievances as constitutional bar and not prudential (Lujan)

Taxpayer (TP) Standing Line of Cases
o Frothingham: P lacks standing because individual interest in the moneys of the
treasury are minute and indeterminable - P must suffer a direct injury and cannot
allege that he suffers in some indefinite was in common with people in general

Suit was brought under the 10th Amendment - federal maternity leave act
infringed on state power
Warren Court Expansion of TP Standing
o Flast v. Cohen: Upheld TP standing to challenge federal subsidies to parochial
schools as violating the First Amendment, establishment clause:

In order to sue as a taxpayer, P must establish (two-part test):




There is some logical nexus between TP status and the legislation,
(i.e. could challenge only the expenditure of funds under the taxing
and spending clause and not incidental expenditure of tax funds
related to regulatory statute)
o Thus:
 Only Article 1 § 8 expenditures (taxing and
expenditure clause of constitution)
 VS. incidental expenditure of tax funds in
administration of regulatory statute
Nexus between TP status and nature of constitutional infringement
(i.e. TP must argue that Congress violated a particular
constitutional provision and not simply exceeding the scope of its
powers)
o In this case: Establishment clause
Distinguishing Flast and Frothingham - 1st Amendment is limit on taxing
and spending authority; 10th Amendment is not
Generalized grievances were considered prudential NOT constitutional
Burger Court Restriction of TP Standing
o Schlesinger: Suit brought claiming Constitutional violation by members of
Congress who are also members of military (violates Art. I, § 6)

Generalized injury does not give standing to bring suit; P merely asserted
interest in having government follow the law and no violation of a specific
constitutional right
10
o US v. Richardson: Suit brought claiming CIA not properly disclosing budget.

Ct finds this is generalized injury – no standing (this seems to be an issue
for the political process and not the courts) (i.e. only brought as citizen
and tax payer)
o Valley Forge: TP suit challenging grant of surplus property by the Department of
Health, as violating the First Amendment, establishment clause (does Flast
apply?)

No standing - distinguished from Flast on 2 grounds


P was challenging decision by Dept. of Health, not a statute
(doesn’t make sense, since both Congress and executive branch
must comply with the 1st Amendment)
P’s objection was to government action pursuant to Congress’
power over government property (Art. IV, § 3) and not a spending
program (Art. I, § 8) (doesn’t make sense, since all congressional
actions must comply with 1st Amendment)
Rehnquist Court Reaffirms Flast’s Limited Application
o Flast is the rule – TP have standing to challenge government expenditures under
Art. I, § 8 powers as violating the establishment clause (Bowen v. Kendricks)

Cochran: All courts hold you can’t bring a TP suit and get standing
unless you’re representing a taxpayer and contesting a substantial
expenditure of funds under Art. I, § 8. Cf. Chao.

Freedom From Religion v. Chao – suit by organization claiming
executive’s faith-based community initiative programs violate
establishment clause. Executive expenditure, NOT congressional, which
is under Spending Clause. Judge Posner (7th Cir) distinguishes Flast and
grants standing to challenge the executive expenditure.


In re US Catholic Congress: (7th Circuit) – TP suit alleges violation of
establishment clause b/c IRS gives tax-exempt status to Catholic Church.
Ct holds no standing because not Art. I, § 8 expenditure.
o Lujan: appeared that the prohibition against generalized grievances was
CONSTITUTIONAL and NOT PRUDENTIAL
BOTTOM LINE: Look out for Article 1 § 8 Expenditure that violating 1A
Establishment Clause (Religion)
11

Other TP standing scenarios
o Municipal Taxpayer Standing:
 Doremus v. Bd. of Educ.: Municipal taxpayer standing is different than
state taxpayer standing b/c it’s easier to trace how tax money is actually
being spent.
o State Taxpayer Standing:
 Asarco, Inc.: State taxpayers are more like federal taxpayers. No
standing except in cases like Flast.
§ 2.3.6
Zone of Interest Requirement for Standing (prudential)
Applies when a person is challenging an administrative agency regulation that does not directly
control the person’s actions - i.e. P may sue if he can show he is within the group intended to
benefit from the statute
While the Court has indicated the zone of interest requirement must be met under constitutional
provisions, it is generally only used in statutory cases involving administrative law issues (if a
person alleges an injury to a constitutional right then the test is met; if it were the constitutional
right of another, exempting overbreadth, then 3rd party standing would likely bar the complaint)
Zone of interest is a separate standing requirement - however, the Court has indicated it is not
intended to be especially demanding

Data Processing v. Camp: P (data processors) challenged ruling by comptroller of currency
to allow banks to make data processing services available to other banks and bank customers;
Bank Service Corporation Act prohibits banks to engage in any activity other than the
performance of services for banks
o USSC added a new 4th factor to standing requirement - ZONE OF INTEREST
TEST - P must show he is either protected or regulated by the law in question
o Court concludes P (data processors) were arguably within the zone of interests
protected by the Bank Service Corporation Act
§ 2.3.7

Special Standing Problems: Organizations, Legislators, and Government
Entities
Standing for Organizations - organization may sue based on injuries to itself or to its
members; injury must still be concrete - mere concern about a problem is not enough
Organization standing to sue on own behalf
o Havens Realty Corp. v. Coleman: Organization claimed D discriminatory
policies undermined P ability to achieve goal of “securing open housing”
12

Organization has standing because D actions injured the organization’s
ability to accomplish its purpose - organization alleged more than mere
setback to the organization’s abstract social interests (spent great deal of
its resources investigating & handling complaints of housing discrim)
Organization standing to sue on behalf of members
o Hunt v. Washington Apple Commission- 3 PART TEST: (challenged NC law
covering marketing of applies as violating DCC)



Member would otherwise have standing to sue on own behalf (i.e. member
was also injured)
The suit is germane to the organization’s interest
The case does not require the participation of the individual members of
the organization.
 Only injunctions are proper; Damage suits (all must participate)
o United Food Workers v. Brown Group: P sought damages - case clarifies the 3rd
prong (Exception to 3rd Prong = Congressional Override)


3rd factor is NOT MET! The amount of damages is dependent upon the
injury of each individual member of the organization

3rd Factor is prudential and not constitutionally required - could be
overridden by statute (Worker Adjustment and Retraining Notification
Act allows unions to sue for damages on behalf of members) (i.e.
Congress can override third prong!)
Legislator’s Standing - clearly legislators can sue for injuries they personally suffer; this
addresses whether a legislator sues on the basis of injury to his ability to perform as a
representative
o Raines v. Byrd: Suit by individual members of Congress challenging the
constitutionality of the Line Item Veto Act (authorized president to cancel certain
spending and tax measures)

No standing just because they might lose in the political process. Must
show more than merely some loss of votes - must show that a bill was
struck down by the Line Item Veto

Distinguishes Coleman v. Miller

Coleman v. Miller: proof that a lost vote actually counts or makes
a difference may be enough injury to get into state court (if you
could show some sort of nullification or denial of a vote)
13


After Raines - legislators have standing ONLY if they have been singled
out for unfavorable treatment or their votes have been denied or nullified

Note: Clinton v. NY: standing allowed b/c NY lost funds b/c of line item
veto (state standing though)
Suits by government entities (state standing) (when states can sue individuals) (SEE
WHAT TELFORD HAS FOR THIS) (State Standing / State is injured? ash)
o Massachusetts v. EPA: Suit by state against EPA for agency’s failure to regulate
automobile emissions thus resulting in global warming. Standing allowed = slight
increase in waters on shores (injury) (causation: some caused by American auto
emissions; redressability: damage would work to reduce to some extent)
o Georgia v. TN Copper: TN copper setting off fumes that destroy something in
GA; Is GA injured? Yes, forest destroyed; Causation? Yes; Redressability? Yes;
quasi sovereign interest
§ 2.5 Mootness
Mootness is standing in a time frame… Four general exceptions to prevent a case from being
moot (Why do we have the Mootness Doctrine? Prohibition against advisory opinions)
§ 2.5.2

Collateral injury survives after P primary injury has been resolved (ex. after released from
jail, challenge to sentence is moot, but challenge to conviction is not - collateral injury) (i.e.
still injured b/c can’t vote if felon, etc…)
§ 2.5.3

First Exception: Collateral injury
Second Exception: Wrongs Capable of repetition yet evading review

Often related to prior restraints, permits and licenses, waiting periods, and challenges to
election laws (things that are by their inherent nature, short in duration and thus capable of
evading review)
Think: Roe v. Wade

Two Requirements for the exception
o 1) Injury must be of a type likely to happen to P again (in theory, the same P)
o 2) Injury must be of type of inherently limited duration that it is likely to always
become moot before litigation is completed
o Golden v. Zwickler: case is moot if it is too speculative whether the congressman P
sought to campaign for would run again
14
o Craig v. Boren- 18 year olds can’t by 3.2 beer; turn 18, thus moot; capable of rep.
o Sosna v. Iowa- Have to be in state a year to get a divorce; once in state a year, moot;
capable of rep.
§ 2.5.4

Third Exception: Voluntary cessation
Exception defined
o W.T. Grant (1953): voluntary cessation of illegal activity does not render a case
moot - mere promise not enough - not moot if D can return to his old ways
o Friends of the Earth v. Laidlaw (2000): case is moot if there is no reasonable chance
that D can resume offending behavior

Mootness as result of statutory change
o Usually, statutory change will moot BUT KIM (local v. state) [kim=keep in mind?]
o City of Mesquite v. Aladdin’s Castle (1982): repeal of challenged law does not moot
case if there is a reasonable possibility that the government might reenact the
(generally for lower levels of government)
o Camfield v. City of Okla. City: Statute repealed by state legislature - case is moot
because a state legislature is not like a city council, there is little likelihood that this
will reoccur
o Buckhannon Board & Care Home: state legislature amends statute - case is moot
because amendment by state legislature is irrefutable proof that the allegedly illegal
statute will not be enforced.

§ 2.5.5
Note: This was 1988 case. Yet, USSC denied attorney’s fees b/c voluntary
cessation made this moot.
Fourth Exception: Properly certified class (Class Action: rule 23)

Sosna v. Iowa (1975): Case is not moot so long as named P had live controversy
when suit was filed, class was properly certified, and there are members of the class
whose claims are not mooted
o As long as the controversy exists for some of the Ps, the case should not be
deemed moot
15
§ 2.6

Political Question Doctrine
Baker v. Karr: sets out test for political question doctrine (7 ways); Two Main Ways:
o Textually demonstrable commitment of the issue to a coordinate political
department (coequal branch of gov’t)
o Type of case where you cannot implement judicially manageable standards
Chapter 6
Federal Common Law
§ 6.1
Introduction

Presumption against federal common law
o Traditionally, there has been dispute over whether courts may fashion a federal
common law - presumed invalid under the Rules of Decision Act; also concerns
of federalism (infringed on states’ rights) and separation of powers (court’s
authority is limited to what Congress confers)

Limited scope of federal common law
o Developed out of necessity - major areas have been fulfilling intent and protective
jurisdiction



Resolving disputes between states
Fulfilling congressional intent (may include creating a cause of action,
Bivens actions, see § 9.1)
To protect the interests of the federal government (i.e. protective
jurisdiction)
 State law would frustrate important federal interests/objectives
o Critical question - what is the content and scope of the federal common law
Two Main Areas: 1) to protect federal interests & 2) to effectuate congressional intent
§ 6.2
Development of Federal Common Law to Protect Federal Interests
§ 6.2.1
Introduction and Overview

2 Part inquiry to determine whether to create federal common law:
o 1) Does the matter warrant the creation of federal common law (is it proper exercise
of federal power) (high federal interest and need for uniformity)
o 2) If yes, what should the content of the law be? [displacement language?]
 Copy existing state law principles - incorporation
 “Create” new rules
16

Does the matter warrant creation of federal common law?
o No clear criteria exists for this guideline - cases following are areas where court says
sufficient federal interest exists to justify creation of federal common law
o Clearfield Trust: US gov’t attempted to sue for recovery of a check that was
improperly cashed. The lower court applied state law, which would have precluded
the lawsuit.


Holding: High federal interest and need for uniformity in dealing with US
currency - the rights and duties of the United States on commercial paper
which it issues are governed by federal law, not state law
What should be the content of federal common law?
o Clearfield Trust - the need for uniform rules on commercial paper suggests that new
federal law should be fashioned as opposed to borrowed from state law
o U.S. v. Kimbell Foods: Balancing test to determine whether law should be
incorporated or created:



Consider need for uniformity
Would application of state law frustrate objectives of federal programs
Extent to which creation of federal rule would disrupt commercial
relationships predicated on state law
o DeSylva v. Ballentine: what is the content of federal common law for suit involving
family law and inheritance (applying Kimbell Foods) [define child for copyright law]

§ 6.2.2

State law should be incorporated - federal interest in uniformity is minimal
and well-developed body of state law already in existence
Federal Common Law to protect Federal Proprietary Interests in Suits
Involving the United States or its Officers
Development of federal common law
o Clearfield Trust is widely cited for proposition that federal courts may develop
federal common law to protect proprietary interests of the government

But see Bank of America v. Parnell (§ 6.2.3)
o US v. Little Lake Misere Co.: U.S. brought suit to quiet title on two parcels of land it
obtained pursuant to Migratory Bird Act. State law provision seemed to invalidate
17
part of the agreement

federal common law is to be fashioned to protect government interest in real
property (extended beyond commercial paper)

Holding: While state law normally applies to land deals, government has
high federal interest in determining the rights and obligations of the U.S.
under a K


Content of the law: create new law - state law would frustrate purpose
of federal law
Federal common law for tort claims involving federal government
o United States v. Standard Oil: federal common law determines suit in tort brought
by U.S. soldier against private tortfeasor
o Howard v. Lyons: federal common law determines suit in tort against a federal
officer (sued for defamation and libel for statements made in course of duty)
o Federal Tort Claims Act (discussed in detail in § 9.2) creates liability against the
United States for actions that would be torts in the state where they occur; other
exception prevents suits against the United States for injuries incurred by armed
forces personnel incident to service (Feres doctrine, discussed in detail § 9.2)

Case refusing to create federal common law (to protect federal proprietary interest)
o US v. Yazell: SBA officials (has offices in all states) default on loan in TX; TX had
law of coverture (to protect widows); K made under state law; negotiated in each state
& offices should be award of state law = federal CL not created
 NOT nationwide act of federal gov’t; local Tex offices
§ 6.2.3

Federal Common Law to Protect Federal Interests in Suits Between Private
Parties
Refusal to create federal common law in cases involving private parties (general rule)
o In general, federal common law will only be developed in suits between private
parties if applying state law would frustrate federal interests (i.e. if federal law would
preempt state law & no federal statute available on the matter = creation of Fed CL)
o Bank of America v. Parnell: Suit b/t private parties concerning who held rights under
U.S. bonds - looks like Clearfield Trust, however, the case does not directly involve
the US Gov’t

Holding: Litigation is purely between private parties - thus, no high federal
interest (however, court noted it could develop federal common law for suits
18
between private parties if necessary later-on to protect federal interests)
o Wallis v. Pan American Petroleum: determining if federal common law should be
applied to suits involving private parties


State law should be used UNLESS there is significant conflict between some
federal policy or interest and the use of state law
i.e. mere gaps in federal statutory structure are not sufficient
o Miree v. DeKalb County: Victim of plane crash and survivors of dead passengers
sued county which maintained the airport where plane took off - alleged county
breached K with FAA by maintaining garbage dump near the runway (i.e. P sued as
3rd party beneficiaries of the K between county and FAA) (relying on Parnell and
Wallis)
 P wanted federal CL to protect federal regulatory interest in aviation safety


Court refused application of federal common law - no showing that
application of state law would frustrate federal interests at stake - any federal
interests were too speculative
Federal common law in cases involving private parties (the exception)
o Most of these cases involve claims by family members to payments under federal
insurance
o Boyle v. United Technologies Corp.: Suit by dead military pilot’s dad against
contractor who built helicopter that crashed arguing defective design. Looks like
Parnell because suit is between private parties
 Issue: should K’tor be held liable under state tort law?


However, USSC (Scalia) says uniquely high federal interest in obtaining
equipment for the military and application of state tort law would impair this
federal activity
 Created military k’tor exception (3 elements):
 U.S. approved precise specs for equip
 Equip met specs AND
 Supplier warned US about danger in use of equipment known to
supplier but not to the US
Note: [Federal common law?] also developed in situations to resolve disputes b/t states and
to protect federal interests in international relations
§ 6.3
Development of Federal Common Law to Effectuate Congressional Intent
§ 6.3.1
Introduction
*Not about protecting federal proprietary interests, this is all about need for CL to fulfill
Congressional purpose
19
This type of federal common law is easily justified - because Congress cannot envision every
possible scenario, statutes will often have gaps and the application of the statute to specific
situations requires development of rules not within the laws

Two situations where federal common law is developed to effectuate congressional intent:
o 1) Where Congress wants the court to develop a body of common law rules under a
statute (congressional authorization)
o 2) Creation of private rights of action under federal statutes (more controversial)
§ 6.3.2
Congressional authorization for federal courts to create common law rules
In most statutes, Congress provides detailed substantive laws; in others, Congress indicates the
state law is to be incorporated as the substantive law (ex. Federal Tort Claims Act - rather than
create a body of federal tort act, just incorporate state law subject to some exceptions)
In other situations Congress intended for federal court to develop a body of federal common law;
in some instances Congress provides a broad statutory mandate and expects the judiciary will
develop the specific law through cases

Textile Workers Union of America v. Lincoln Mills of Alabama
o Lincoln Mills: Employer sues the Union for an injunction to enforce an arbitration
agreement - Taft-Hartley Act gives federal courts jurisdiction to decide disputes
under labor-management K - however, the law does not provide any substantive
principles for courts to use to decide the disputes in industries affecting interstate
commerce

Majority - federal jurisdiction is proper since Congress intended court to
develop federal common law to resolve labor-management disputes

Alternate theory of jurisdiction (Harlan and Burton): Congress used
authority to create “protective jurisdiction” (safeguarding federal interests that
would be compromised in state courts) (NOT AS IMPORTANT)
See § 5.2 (pp. 279-82) Protective Jurisdiction
o Protective Jurisdiction: Congress can authorize suits and jurisdiction
by statute in situations (i.e. a suit under this cannot be brought in state
court, even if state law substantively governs):


Where P need the protection of federal jurisdiction
Where federal jurisdiction is necessary to protect important
federal interest
20


Where there is “articulate and active federal policy regulation
in a field”

Osborn v. Bank of the United States: Congress created federal
court jurisdiction, even as to state law claims, to protect the
Bank of the United States from state court hostility

U.S. Supreme Court has given little consideration to the
concept of protective jurisdiction
Statutes interpreted as authorizing federal common law
o ERISA (Employee Retirement and Income Security Act) - when ERISA is silent
on an issue, federal courts must develop federal common law (based on clear
legislative intent)
o Sherman Antitrust Act, §§ 1 & 2 - Congress did not intend for the statute to
delineate the full meaning of the statute or its application to concrete situations
(based on clear legislative history)
o Texas Industries, Inc. v. Radcliff Materials: Under Sherman Act, Court DOES
NOT have right to create a right to contribution for defendants to recover from
others who were part of a conspiracy (no clear legislative intent - this is an issue
for Congress not the courts to decide)
o RULE: the federal judiciary will create a body of common law rules only
pursuant to clear congressional intent for such action
§ 6.3.3
Creation of private rights of action (Implying private actions from Federal
Statutes)
** also may be referred to as “implied” rights of action **

General reluctance to create private rights of action
o Wheeldin v. Wheeler: SC refused to create a cause of action against federal officer
for abuse of subpoena power
o United States v. Gilman: SC refused to create a cause of action by the United States
for contribution under the Federal Tort Claims Act (even though a private P would
have such a cause of action) without express congressional authorization
o Nonetheless, there are instances the Supreme Court has created causes of action
absent express congressional authorization
21


Most important - Bivens actions (discussed in § 9.1) or suits for damages
against federal officers for violations of constitutional rights
Statutes without private rights of action
o J.I. Case v. Borak: Court willing to create causes of actions (private action for
damages) where it believes a private right of action would fulfill congressional intent
(ex. many government benefit programs, regulatory acts, and most criminal laws do
not expressly authorize civil causes of action - if cause of action is necessary to fulfill
congressional intent, then court will create)
o Basic inquiry - did Congress intend, implicitly or explicitly, to create a private right
of action?




Problem: what constitutes sufficient evidence of intent?
Problem: how liberal or restrictive should the Court be in creating CAUSE OF
ACTION?
Problem: law in this area is not consistent in methodology or results

Trend: SC tends to be hesitant to create private rights of action
Approaches in creating private rights of action (each more restrictive than the prior)
o Borak: create private right of action in order to effectuate legislative intent and if no
legislative history suggested against creation; i.e. if damage suits would help
accomplish the legislative purpose for a statute (here private suit helped effectuate
Congressional intent & to stop false proxy statements)
SHIFT IN LAW
o Cort v. Ash (Brennan opinion):
 Issue in case: did civil cause of action exist under criminal statute prohibiting
corporations donating from presidential campaigns (denied suit)

Required detailed inquiry into congressional intent - 4 part inquiry





1) Is P one of the classes intended to benefit from the law?
2) Is there any indication of legislative intent either to create or deny?
3) Is it consistent with underlying purposes of the legislative scheme to
imply a remedy for P?
4) Is the cause of action one traditionally relegated to state law?
Under Cort approach - the courts have been unwilling to create new causes of
action
22

But see Cannon v. University of Chicago: Cort test used to permit a private
right of action - found an implied cause of action exists under Title IX
(prevents gender discrimination in education program receiving federal $)




P was part of class intended to benefit under the law (female student)
Congress intended a broad remedial scheme (statute was modeled after
Title VI, under which there is a clear private right of action)
Private actions would effectuate statutes objective of ending
discrimination
Powell dissent (basis for future shift in law) - absent the most
compelling evidence of affirmative congressional intent, a federal
court should not infer a private cause of action
SHIFT IN LAW
o Touche Ross & Co. v. Redington: adopts Powell’s approach - Court will create a
private right of action ONLY if there is affirmative evidence of Congress’ intent to
create a private right of action

No implied CAUSE OF ACTION since statute “grants no private rights to any
identifiable class” and “proscribes no conduct as unlawful”

Note: Court did not “officially” discard Cort; but it has been a departure in
methodology - current Court believes Cort is overruled at this point though

Aff’d by Transamerica Mortgage Advisors, Inc. v. Lewis: dispositive
question remains whether Congress intended to create any such remedy - the
existence of other remedies in the statute (i.e. injunctive relief) reflects a lack
of intent to allow private actions for damages


When statute expressly provides a particular remedy or remedies,
the Court is unlikely to read others into it
Alexander v. Sandoval: Court rejects implied right of action to enforce
regulations enacted under Title VI (racial discrimination by recipients of
federal funds) - (note: Title VI requires discriminatory intent, regulations
under Title VI do not)

Rule: Federal regulations cannot conjure up a cause of action that is
not otherwise authorized by Congress
o Regulations provide cause of action for disparate impact
(different than statute)
o Agency is sorcerer’s apprentice and not the sorcerer himself
(this does it for Cort v. Ash)
23


If no right found in statute, must have rights creating language
(found in Title VI)

Statute provides other methods for enforcement - fund cut-offs suggests Congress intended to preclude other methods of enforcement

Impact: Title VI regulations are often crucial for P challenging
practices with discriminatory impact - much more difficult since no
cause of action to enforce regulations (Stevens, dissent, argued § 1983
suits could be brought to enforce regulations)
Merrill Lynch, et al. v. Curran: Court established implied cause of action
under Touche Ross & Sandoval

Limited to its facts - permitted CAUSE OF ACTION under
Commodities Futures Trading Commission Act because a private right
existed when the act was amended in 1974 (Congress failed to amend
the law to reflect that actions existed)
o Current Test for “Implied” Cause of Action:

Affirmative evidence of legislative intent (Touche Ross & Sandoval) - look
for “rights-creating language” in the context of § 1983 cases

On an exam, mention Cort v. Ash’s 4-part test, and say today it has been
boiled down to “legislative intent” by the Touche Ross and Sandoval cases.
 FOCUS on Touche Ross & Sandoval
o Circuit Cases Under Sandoval Test:

Love v. Delta Air Lines: Air Carrier Access Act prohibits air carriers from
discriminating against disabled. Handicap person sues claiming she can’t
access the bathroom on the plane. Is there an implied private cause of action?
Under Sandoval?




Statute gives Sec. of Transportation powers to penalize violators. This
is an independent enforcement mechanism.
11th Cir: The fact that the statute has a discernable enforcement
mechanism shows an intent not to recognize a private CAUSE OF
ACTION.
Cf w/ Nat’l Sea Clammers – a “comprehensive enforcement scheme”
requires denial of a 1983 CAUSE OF ACTION.
Lundeen v. Mineta: Federal Highway Act requires DOT give “due
consideration” to bicyclists when building highways. Highway built with no
24
lane for bikers. Suit brought claiming private cause of action for violation.


Univ. of Colo. v. Denver Publishing Co: HIPPA prohibits disclosure of
identifiable health information. Violation is a crime. University (hospital)
brings suit for damages for publishing peer review report.



5th Cir: Under Sandoval, must have affirmative evidence of
legislative intent to create a private cause of action. Court held that
when Congress doesn’t do anything, there is no affirmative evidence
of an intent to create.
Issue: Are civil damages available for violation?
D. Colo.: Congress’ criminalization of violations of the statute do not
show an affirmative intent that private cause of action exist for
violation of the statute.
Implied cause of action to enforce provisions of Title IX
o Cannon v. University of Chicago: implied cause of action for injunction exists under
Title IX (using Cort factors)
o Franklin v. Gwinett County Public Schools: While Cannon only implied a private
cause of action under Title IX for injunctive relief, the Court implies a private action
for suits for damages (effectuates legislative intent to end discrimination)
(Remember: Title IX based on Title VI so Congressional intent to give damage suit)
o Gebser v. Lago Vista School District: reaffirms Cannon’s recognition of implied
right of action under Title IX where there is Teacher/Student sexual harassment
(Remember: must be receiving federal funds for Title IX to apply)

Teacher - Student sexual harassment cause of action exists when:


Actual notice by person under authority to take corrective action
(principal, superintendent, etc.) AND
Deliberate indifference to the conduct upon receipt of actual notice
(i.e. not responding like they should be responding)
o Baker (5th Circuit): must be clearly unr’ble conduct in light of
known circumstances (a lot more than negligence)
o Davis v. Monroe County Bd. Of Educ.: recognizes implied cause of action under
Title IX where there is Student/Student sexual harassment

Student - Student sexual harassment cause of action exists when (higher
standard):
25




School liability to protect students?
 Deshaney v. Winnabago Dept of Social Services: no state duty to
protect absent special relationship
o i.e. arrested
Federal defense to state criminal law for federal officials
o In re Negal
 Federal agent killed a man in California in order to protect a supreme court
justice; charged with murder under California law
 Two part test for determining if federal official can be charged under state
criminal law in state court for something done while acting in official
capacity:



School acts with deliberate indifference to known acts (actual
knowledge) of harassment (i.e. brought to knowledge of someone who
can take corrective action)
AND conduct must be so severe, pervasive, and objectively
offensive as to effectively bar victim’s access to an education
opportunity (i.e. really bad & continues over time)
1) Is there authorization under federal law for what the official did
(i.e., was he carrying out his official duty)? and
 2) Was the action taken necessary and proper?
This two part test establishes a “federal defense” which allows for removal to
the federal court
Federal defense to state civil law for federal officials
o Note that In re Negal only allow immunity to state criminal law for federal officials
o Westfall Act
 Provides for issuance of “scope certificates” by attorney general which say
that federal official was acting in the scope of his official duty

Issuance of a scope certificate brings the case within the purview of
the Federal Tort Claims Act; US becomes a defendant and the case is
removed to federal court
26
PART II.
OFFICERS
FEDERAL COURT RELIEF AGAINST GOVERNMENT AND GOVERNMENT
Chapter 7
Suits Against State Governments: The Eleventh Amendment and Sovereign
Immunity
§ 7.1
Introduction

Importance of sovereign immunity
o 11th Amendment prohibits suits in federal court against state governments in law,
equity, admiralty, 1) by a state’s citizens, 2) by citizens of another state, or 3) by
citizens of foreign countries

Alden v. Maine (1999): S.C. extends sovereign immunity to prevent suits
against state governments in state court without their consent
o If read expansively, the 11th Amendment (and sovereign immunity) immunizes
actions of states from federal review no matter how egregious the conduct may be we can imagine that the entire class of modern civil rights litigation could be barred
under such an interpretation
o What the Amendment “really” means remains elusive - several theories have been
offered - the choice of theory is determinative of the questions that arise concerning
the effect of the 11th Amendment
o Trend: Recent rulings have used a federalism argument (protecting dignity of states
that is consistent with their status as sovereign entities)
o 3 primary mechanisms for circumventing the 11th Amendment



§ 7.2

1) suits against state officers (§ 7.5)
2) permitting states to waive 11th Amendment protections (§ 7.6)
3) statutes adopted under the 14th Amendment can authorize suits (§ 7.7)
History of Ratification of the 11th Amendment
No consensus on historical meaning of sovereign immunity and the 11th Amendment
o Seminole Tribe of Florida v. Florida (1996): both majority and dissent disagree over
historical understanding of sovereign immunity and the meaning of the 11th
Amendment (majority affirms the Hans logic - dissent criticizes the Hans logic)

Arguments grounded in history can go either way . . .
27

Chisholm v. Georgia (1793)
o Judiciary Act of 1789 gave Supreme Court original jurisdiction in cases between
states and citizens of another state or citizens of foreign states (diversity jurisdiction)
o S.C. holds that clear language authorizes suits against a state by citizens of another
state
o Concern: States were concerned that under this ruling there would be a flood of cases
from people attempting to collect unpaid Revolutionary War debts (which Chisholm
itself was)
 GA responded by passing law that said attempt to enforce S. Ct. decision
would lead to execution
o 11A passed in response
§ 7.3

What Does the 11th Amendment Mean? Competing Theories
Competing theories of the 11th Amendment
o Conservative block of the court (Roberts, Alito, Scalia, Thomas, and Kennedy) see
the 11th as a restriction on the subject matter jurisdiction of the courts that bars ALL
suits against state governments
o Liberal block (Stevens, Ginsburg, Souter, and Breyer) - restriction on the subject
matter jurisdiction of the courts ONLY in precluding cases against states that are
founded solely on diversity jurisdiction (not Fed. Q., since Chisholm was diversity)

Hans v. Louisiana (1890)
o Expands 11th Amendment to prevent suits against a state by citizen of that state (text
of the Amendment clearly limits to citizens of other states) in federal court (also
immune in state court unless state consents to jurisdiction)

First theory: Constitutional limit on subject matter jurisdiction for all suits against the
state government (Conservative)
o 11th Amendment bars all suits against the state governments - favors the position of
the Court in Hans
o 11th Amendment is so sufficient a jurisdictional bar, that it can be raised for the first
time on appeal (Edelman v. Jordan (1974))
o However, Court has not been consistent in this categorization

SMJ cannot be waived or consented to - but 11th Amendment can be
28

SMJ must be raised by the federal court when defects become apparent - 11th
Amendment does not
o Benefit of this theory - bright line rule - federal courts cannot hear suits against state
governments regardless of the citizenship of the P

Second theory: Limit only diversity suits (Liberal)
o 11th Amendment restricts only the diversity jurisdiction of the federal courts - it
would not bar a suit against a state on the based on federal question jurisdiction (thus,
all claims of constitutional violations and violations of federal statutes could be
heard)
o Inconsistent with Hans (which was a federal question suit brought against Louisiana
by citizen of Louisiana) - proponents of this view claim Hans was wrongly decided
and should be overturned

Underlying value question - how should state sovereignty be weighed against federal
supremacy?
o First theory - great importance to sovereign immunity and federalism, but less weight
to ensuring state compliance with the Constitution
o Second theory - ensuring state compliance, but little weight to sovereign immunity
§ 7.4

Application of the 11th Amendment - What’s Barred and What’s Allowed?
Suits barred
o Suits against state government by citizen of another state or another country (11th A.)
o Suits against state government by its own citizens (Hans)
o Admiralty suits against states, suits against state by foreign nations or Native
American tribes
o Suits against state government in state court without their consent (Alden v. Maine)
o Suits against state government in federal administrative proceedings (Federal
Maritime Commission v. South Carolina State Ports Authority (2002))
o Principle for broadening power - preeminent purpose of sovereign immunity is to
protect the dignity of state governments; such dignity is offended by allowing states
to be named as D
29

Suits allowed
o Suits by the United States government against a state
o Suits by one state against another state (but state can only bring suit to protect its own
interest and not the interests of a citizen - i.e. can’t circumvent the 11th Amendment
by letting a state litigate their citizens’ claims)
o Suits against state on appeal - i.e. 11th Amendment bars original jurisdiction of
federal courts but not appellate jurisdiction (i.e. S. Ct. review of state court decisions
where state is party)

Suits against cities (local government)
o 11th Amendment DOES NOT bar suits against municipalities or political
subdivisions of the state
o But see Pennhurst State School & Hospital v. Halderman (1979): immunity does
extend when there is so much state involvement in the municipalities’ action that
the relief, in essence runs against the state

State funding of county programs and cooperation were deemed sufficient to
justify 11th Amendment immunity

11th Amendment prevents suits only if the money judgment would be paid
directly by the state treasury

However, S. Ct. has not used Pennhurst (thus far) to expand municipal
immunity
o Northern Ins. v. Chatam County: Two part test to determine who is state:
 1) who will pay judgment (state treasury or local entity) (Most Important);
AND
 2) how is entity characterized by state law

Immunity of state agencies
o The law concerning immunity of state agencies, boards, and other entities is
inconsistent - immunity exists if the suit against subdivision is in essence against the
state
o KEY QUESTION: who pays the judgment? (Hess v. Port Authority)
o Mt. Healthy Sch. Dist v. Doyle: mere funding from the state, alone, is not enough school district will likely be treated as municipality
30
o Pendergrass (5th Cir.): 6-part Test to determine what constitutes a state entity
(similar to factors proposed by Prof. Pagan) (DO NOT THINK WE NEED TO
KNOW THIS!!)






How do statutes and case law characterize the entity?
Source of the entities funding? (most important)
Degree of local autonomy the entity enjoys?
Is entity engaged in local or statewide matters?
Can the entity be sued in its own name? (not really important)
Can the entity hold property in its own name? (not really important)
o Regents of University of California v. Doe (1997): Consider the entity’s potential
legal liability and not whether a 3rd party (insurance, etc.) will actually pay the
judgment - the 11th Amendment protects the State from risk of adverse judgments
even if the State is indemnified by a third party
 i.e. if suit against state (University clearly part of state) = 11A bars suit even if
there is not risk of actual state financial responsibility (BUT did not foreclose
financial responsibility as factor to consider in regarding whether agency
should be regarded as state rather than local)


However, the source of funding for the judgment is extremely important (see
Auer v. Robbins (1997) (since financial responsibility for Board of Police
Commissioners rests with local government, the group is not immune from
suit)
Suits against local officials deemed state officers
o McMillian v. Monroe County, Alabama (1997): county sheriff in Alabama is a state
official, even though elected and paid locally

Court said holding is narrow and is based on how state constitution defined
the sheriff’s responsibilities (enforce state-wide & local law)

However, could have broad application - part of majority reasoning was based
on fact that sheriff enforces state law (which a lot of other county officials do)
o Why does this matter?


If local officials are treated as state officers, the 11th Amendment applies could bar a lot of litigation
Denial of 11A immunity is immediately appealable (Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy (1993))
31
§ 7.5

Ways Around the 11th Amendment: Suits Against State Officers
Origins of permitting suits against officers
o Osborne v. Bank of the United States (1824): 11th precludes case against state only
when state is actually named as defendant - thus, 11th Amendment could be
circumvented by naming a state officer instead
o Law is much more complicated than this - ability to sue state officer will depend on
the nature of relief and the type of claim that is brought
§ 7.5.1
Suits against state officers for injunctive relief
o Ex parte Young (1908) - the 11th Amendment does not preclude suits against state
officers for prospective injunctive relief, even when the remedy will enjoin the
implementation of an official state policy (Facts: Minn. fixing RR rates)

State officials have no authority to violate the Constitution and the laws of the
U.S. - thus, their acts are stripped of state authority or it is not considered the
action of the state, i.e. there is no immunity
 Legal fiction used by Court: when violate constitution, stripped of
state authority & can be sued

Procedure - name the state official responsible for enforcing the law in
question as D (see Alabama v. Pugh: never name the state as a defendant!
i.e., don’t name state agency, but name individual charged w/ running agency)
(i.e. name AG usually)
o Is there a state action problem under Ex parte Young? (NOT SURE IF WE
NEED THIS)

§ 7.5.2
Home Telephone & Telegraph v. Los Angeles (1913) - individual conduct
not entitled to 11th Amendment immunity is nonetheless state action for
purposes of 14th Amendment (Ex Parte Young authority stripping is for 11A
purposes only, not 14A too . . . legal fiction)
Suits against state officers for monetary relief
o Ford Motor Co. v. Dept. of the Treasury (1945) - 11th Amendment prevents award
of monetary damages from the state treasury even when an officer of the state is
named as the D (i.e. when the action is in essence one for the recovery of money
from the state, the state is the real, substantiated party and can invoke immunity)
o What monetary relief is allowed and what is prohibited (3 general rules)
32

1) 11th Amendment does not prevent suits against state officers for money
damages out of their own pocket - a suit against an officer in their individual
capacity (even when damages are retrospective compensation for past harms)



state indemnification policies are irrelevant for this analysis
officer still has immunities which protect from money damages (see
§ 8.6)
2) 11th Amendment does not prohibit a federal court from giving injunctive
relief against state officer even though compliance with the law could cost
the state money in the future (prospective v. retroactive relief)

Edelman v. Jordan (1974) - P seeks two type of relief - an injunction
requiring state to comply with law and an injunction asking the state to
give back payments that were improperly withheld from welfare
recipients
o 11th Amendment does not bar injunction for future compliance
with law, even if compliance will cost money (see Ex parte
Young)
o 11th Amendment DOES bar injunction ordering payment of
previously owed sums - the money will obviously come from
state treasury and not individual officer (characterization as
equitable doesn’t matter either - it seeks retroactive damages
from treasury)

Milliken v. Bradley (1977) - upholding desegregation order, requiring
the future expenditure of funds, is prospective since it alters future
conduct
o Fact the relief is also compensatory does not change the fact
that it is primarily prospective relief


Frew v. Hawkins (2004) - suit to enforce the terms of a consent decree
seeks prospective relief and, thus, is not barred by the 11th Amend.
3) 11th Amendment DOES prevent federal court from awarding
retroactive relief (damages to compensate past injury) when damages will be
paid by state treasury


irrelevant that the individual officer is named - state is the real D (see
Ford Motor Co.)
See Edelman
33
o Official versus individual capacity suits

Will v Mich. Dept. of State Police (1989) - see § 8.7

A suit against a state employee for damages in their official capacity
is a suit against the state and prohibited by the 11th Amendment
o Note: States are not persons for purposes of § 1983


Official capacity suits may only seek prospective relief
Hafer v Melo (1991)

What is the difference between official/individual capacity suits?
o Official capacity suits - attempt to sue government by naming
officer as D (force D to enforce the law)
o Individual capacity suits - seek to impose personal liability on
government officer for actions taken under color of law (D may
assert personal immunity defenses here) (even if actions were
part of official duties)
 If suit would lead to payment from state treasury w/o
indemnification = 11A bars
§ 7.5.3

Suit against head of agency in her individual capacity is valid.

This is valid and NOT prohibited by Will because damages are sought
against the individual rather than the state.
Exceptions to Ex parte Young (i.e. 11A DOES BAR these suits)
There are three major exceptions to Ex parte Young - however, does the last decision in this line
suggest a very broad expansion of Ex parte Young may be in the Court’s future . . .

1) Bar on suits against state officers based on pendent state claims
o Pendent jurisdiction (supplemental jurisdiction) provides federal court may hear state
law claims that arise from “common nucleus of operative fact”
o Pennhurst State School & Hospital v. Halderman: Ex Parte Young suit cannot be
brought to enforce a state law - federal court may hear federal claim against state
officer, but may not hear pendent state law claims (for more on Pennhurst see § 8.8)

How should litigant with both federal and state claims proceed in light of
Pennhurst?
34


Bring both federal and state claims in state court - however, the federal
forum is forfeited

Bring the federal claim in federal court and the state claim in state
court - risks having federal claims barred by res judicata if state court
decides its case first (see Allen v. McCurry (1980), § 8.10)

Bring claims sequentially (go to federal court with federal claims, if
unsuccessful, go to state court with state claims) - like splitting claims
this is extremely wasteful; federal court fact-finding has preclusive
effect in state court as well
2) Bar on suits enforcing federal law with “comprehensive enforcement mechanisms”
o Exception recognized in Seminole Tribe - state officers cannot be sued to enforce
federal statutes if the federal statute contains a comprehensive enforcement
mechanisms
o Two Arguments by P:
 P argued that the federal statute in question abrogated the 11th and authorized
a suit (see § 7.7)


P argued that Ex parte Young permitted the suit against the governor to
enforce the federal statute

you can’t sue a state official to enforce a statute if the statute they’re
violating contains a comprehensive remedial scheme (i.e. a special
factor counseling hesitation).

But P can argue it’s a limited remedial scheme.

To date, no case finding a detailed remedial scheme like in Seminole
Tribe (the court may have simply been wrong since the statute’s
remedial mechanisms were suits against states, which were declared
impermissible under this opinion)
3) Bar on suits to quiet title to submerged lands
o Idaho v. Coeur d’Alene Tribe (1997) - state officers cannot be sued to quiet title to
submerged lands (very narrow exception) (Fed gov’t can’t try quite title suits)

Opens the door to more expansive principle - state officers cannot be sued if
injunctive relief would affect a special sovereignty interest of the state
35


Cochran: Kennedy doesn’t know what the hell he’s talking about in
this opinion - Ex Parte Young should be black letter law.
Does Coeur d’Alene create a broader exception to Ex parte Young?
o In a part of the opinion (only Kennedy and Rehnquist) two narrow circumstances
when Ex parte Young should apply (case-by-case analysis)

1) State officers could be sued in federal court if there was no state forum
available to vindicate federal rights

2) State officers could be sued in federal court if there is a showing of a
particular need for federal court interpretation and enforcement
o Verizon Maryland, Inc. v. Public Service Commission of Maryland (2002) unanimously reaffirmed Ex parte Young (11th does not bar when it is alleged that
there is a violation of federal law)

§ 7.6

To determine if Ex parte Young avoids an 11th Amendment problem the
Court need only conduct a straightforward inquiry into whether the
complaint alleges ongoing violation of federal law and seeks relief properly
characterized as prospective
Ways Around the 11th Amendment: Waiver
Waiver must be explicit
o Test for determining whether a state has waived immunity is “stringent one” - must
be stated by the most express language or such overwhelming implications as to leave
no doubt of intention (Edelman v. Jordan)
o What might be sufficient to waive sovereign immunity (a general waiver) [to be sued
in state court] is not enough to waive 11th Amendment immunity (test is so stringent
that few explicit state waivers are likely to be found) [to be sued in federal court]
o Atascadero State Hospital v. Scanlon (1985): Congress can abrogate states’ 11th
amendment immunity only by making its intention to do so explicitly clear in the
language of the statute (see § 7.7) ; a state law can only waive 11th Amendment by
actually specifying its intention to subject itself to suit in federal court (very stringent)

Constructive waiver is not allowed
o Edelman: constructive consent is not favored in the surrender of constitutional rights;
nor should it be with 11th Amendment (mere participation in federal program was
NOT intentional waiver)
36
o College Savings Bank v. Florida Prepaid (1999): party does not waive 11th
Amendment immunity by engaging in actions prohibited by law - no constructive
waiver
o But see Lapides v. Board of Regents of University System of Georgia (2002):
removal by the state from state court to federal court is a waiver of 11th Amendment
immunities (the scope of the holding is unclear at this point - do not know if it is
always a waiver of immunity)
§ 7.7

Ways Around the 11th Amendment: Suits Pursuant to Federal Law
(abrogation)
Should Congress be able to abrogate the 11th Amendment
o 11th Amendment is a limit on federal judiciary’s power - not Congress’ - questions of
federalism are best resolved through the political process; therefore, Congress should
have authority to balance federal and state interests (including ability to create state
liability where needed)

Statutes adopted under § 5 of the 14th Amendment
o Current law - Congress may authorize suits against state governments ONLY when
acting pursuant to § 5 of the 14th Amendment - Congress may not override 11th
Amendment when acting under any other constitutional authority (commerce power,
taxing and spending, etc.)


Rationale: 14th Amendment was ratified after 11th, which was ratified after
Constitution itself . . . thus, drafters of 14th must have intended it to abrogate
immunity under the 11th (Fitzpatrick)
14A:
 Privileges or Immunities
 Due Process
 Equal Protection
o Hutto v. Finney (1978): states may be sued for attorney fees under § 1988 (despite
absence of authorization of suits in statute - S. Ct. reasoned that there was a clear
legislative intent to include states)
o S. Ct. now requires Congress’ intent to be very explicit in order to override state
sovereignty (though intent may not be in the language of the statute itself, but could
be found in the legislative history (see Hutto) - Quern v. Jordan (1979): although
§ 1983 was adopted pursuant to § 5 there was not sufficient indication of express
congressional intent to make state governments liable (see Will v. Mich. Dept. of
State Police, § 8.7)
 § 1983 does not override 11A = so states not persons under § 1983
37

Statutes adopted under other congressional powers
o Seminole Tribe of Fla. v. Florida (1996) - Indian Gaming Regulatory Act (passed
pursuant to Art. I, § 8) authorized suits against the state


Invalid - Congress may abrogate the 11th Amendment ONLY when acting
under § 5 powers of the 14A and not under any other constitutional authority
and Congress must express an unequivocal intent to abrogate in the language
of the statute

Furthermore, S. Ct. holds cannot sue state official to enforce a federal law that
contains a comprehensive remedial mechanism (i.e. special factor
counseling hesitation, see Chilicky) - therefore, cannot bring suit under Ex
parte Young exception either

Seminole Tribe touched off a heated debate among scholars
 What is the proper role of stare decisis? (Seminole overruled a line of
cases indicating that Congress could authorize under any power)
 Is there meaningful difference between § 5 powers and other
constitutional powers?
 General federalism questions - hold states honest or protect their
sovereignty?
Which statutes were validly enacted under § 5 - City of Boerne v. Flores
o City of Boerne (1997): sharply limits the scope of Congress’ § 5 power

Congress may act only to prevent or remedy rights already recognized by the
courts and Congress may not create new rights or expand the scope of rights;
any law under § 5 must be proportionate & congruent to preventing and
remedying constitutional violations


Ex. § 5 gives Congress power to enforce the 14th Amend. - language
that alters/expands the Free Exercise Clause cannot be said to be
enforcing the Clause (they passed the RFRA to overturn recent S. Ct.
decision that narrowly interpreted the free exercise clause of 1A)
o i.e. Congress has power to enforce constitutional rights; they
DO NOT have the power to change what that right is
The intersection of Seminole Tribe and City of Boerne
o Question: Why should Congress’ power under § 5 vary depending on the level of
scrutiny prescribed by the Supreme Court? (keep in mind as you go through this line
of cases)
38

Cases rejecting suits against states - federal law not valid exercise of § 5 power
o Florida Prepaid: Congress amended Patent Remedy Act to allow suits against state
government (claimed patents were property for due process purposes) (KIM 14A
protects taking of ppty w/o DP)

Not valid exercise under § 5 - authorization of suits was not proportionate or
congruent - Congress had identified no pattern of patent infringement by
states, let alone constitutional violations


Part of congruence and proportionality - need evidence in the record
that there is actually a problem to rectify (especially if the alleged
violation would be one that receives low level review)
Interesting: patent law is an area where federal courts have exclusive
jurisdiction - barring patent suits against states in federal court means the state
might never face a lawsuit (but see Ex parte Young, § 7.5 - state official could
be sued for injunction to stop future infringements, but could not sue state for
damages)
o Kimel v Florida Board of Regents (2000): state employees allege age discrimination
violated the ADEA - the ADEA authorizes suits against states (under EPC)

Not valid exercise under § 5 - burden imposed on state and local government
are disproportionate to any unconstitutional behavior that might exist



Age only receives RBR (rationale basis review) - possible to
discriminate on basis of age without offending the 14th Amendment ADEA prohibits great deal of conduct that is otherwise constitutional
There were insufficient findings of substantial age discrimination by
state governments
So state Employees have to sue in state court
o NOTE: Level of Review for these Important: if low level review, usually 11A
applies (i.e. disability and age)
 Low Level + No Evidence of Discrim w/ States = LOSER
o University of Alabama v. Garrett (2001): Suit against state for violation of Title I of
ADA (discrimination against disabled in context of employment)

Not valid exercise under § 5 - legislative record fails to show pattern of
irrational state discrimination - most evidence presented showed local
government discrimination against disabled, but local governments are
immune anyway

Disabled only receives RBR.
39



Insufficient findings of discrimination against disabled
(Not proportionate and congruent)
Cases allowing suits against states - valid exercise under § 5
o When dealing with cases that involve claims receiving heightened scrutiny (type of
discrimination or fundamental right involved), Congress has greater latitude and can
authorize suits against state

Higher Scrutiny Review Cases (I.S. to S.S.) - the Boerne evidentiary
burden is easier to meet.
o Nevada Department of Human Resources v. Hibbs (2003): Suit against state for
violation of family leave provision of FMLA (gender discrimination)

Valid abrogation of state sovereign immunity - easier to demonstrate pattern
of discrimination since gender receives intermediate scrutiny - however, the
record did not actually show any unconstitutional discrimination
o Tennessee v. Lane (2004): Suit against state for violation of Title II of ADA
(discrimination against disabled in government programs and services - in this case,
access to courts) (access to courts)

Valid abrogation of state sovereign immunity - access to courts is a
fundamental right - Congress has more latitude to authorize suits when
dealing with fundamental rights or discrimination involving heightened
scrutiny
o United States v. Georgia (2006): Suit against state for violation of Title II of ADA
(handicap person housed in prison without accessibility for handicapped) (cruel and
unusual punishment)


Valid abrogation of state sovereign immunity - the P actually alleged a
constitutional violation (cruel and unusual punishment) which itself violates
the 14th Amendment
Analysis for whether state government can be sued when federal law authorizes suits
o Does P allege a constitutional violation?
 Yes  state can be sued

No  does statute deal with type of discrimination that receives heightened
scrutiny or a fundamental right (especially watch for combinations, i.e. age
(RBR) coupled with right to education (“important right”) would likely
survive immunity claim)
 Yes  state can be sued
40
Chapter 8
Federal Court Relief Against Local Governments and State and Local
Government Officers: 42 U.S.C. § 1983
§ 8.1
Introduction
42 U.S.C. § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage . . .
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 proceedings . . . .
42 U.S.C. § 1988 - allows “prevailing party” to recover attorney’s fees for § 1983 suits

Jurisdiction for § 1983 suits
o 1983 does not create federal court jurisdiction - 1983 simply creates a cause of action


28 U.S.C. § 1331 - federal question jurisdiction - subject matter jurisdiction
for suits “arising under” federal law (constitution + fed laws)

28 U.S.C. § 1343(3) - confers subject matter jurisdiction for suits “redressing
violations of federal laws that provide for equal rights of citizens” (this statute
is now largely superfluous - just use § 1331) (important when there was
previously an amount in controversy requirement for 1331 suits)

Chapter 5 discusses the subject matter jurisdiction of federal courts in detail
Rooker-Feldman doctrine: No appellate review of state decisions
o There are some instances where § 1331 does not confer subject matter jurisdiction to
federal courts - most important: no jurisdiction pursuant to a § 1983 suit to review
decisions of state courts
o Rooker-Feldman Doctrine

Party losing in state court is barred from seeking what in substance would be
appellate review of state judgment in federal district court based on the claim
that that state judgment itself violates the losing party’s federal rights

Limiting the application of Rooker-Feldman (must be same parties + same
matter)

Mobil-Corporation v. Saudi Basic Industries (2005) - RookerFeldman limited to its facts - only applies when losing party in state
41
court seeks to re-litigate the same matter in federal district court

Lance v. Dennis (2006) - Rooker-Feldman does not bar non-parties to
state court judgment, even if they were in privity with a party in state
court
o General rule: A USDC may not exercise jurisdiction brought
by state court losers who seek to challenge state court
judgments, which were rendered before the district court
proceedings were commenced
o It is unclear what Rooker-Feldman adds to other doctrines (such as preclusion or
abstention doctrines, § 8.10; Younger v. Harris, Ch. 13)

Prison Litigation Reform Act limits number of § 1983 suits now brought - it is also one of
the statutes connected to the exhaustion of administrative remedies for § 1983

Historical Background to 1983: civil rights laws were virtually ignored by Southern states
FIVE MAJOR QUESTIONS REGARDING THE SCOPE OF § 1983:
What does “under color of state law” mean?
Who may be sued under § 1983?
What constitutes a violation of the laws and Constitution for the purposes of § 1983?
What is the preclusive effect of state court decisions on § 1983 suits?
What remedies are available under § 1983?
§ 8.3

The Meaning of “Under Color of State Law”
Monroe v. Pape (1961) - first occasion to directly consider the meaning of “under color of
law” under § 1983
o Facts: 13 officers broke into home and humiliated/ransacked house (conduct not
authorized so is this under color of state law?)
o Important language: “Misuse of power, possessed by the virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state
law, is action ‘under color of state law.’”

Actions taken by an officer in his official capacity are deemed to have
occurred “under color of law” even if not in pursuance of an official state
policy or even if they violate state law - i.e., § 1983 covers unauthorized
misconduct by state officials
o Frankfurter’s dissent (adopted by Scalia) - how can action not authorized by law be
said to be action “under color of law”?
42


The distinction between official policy and unauthorized conduct is important
to other aspects of § 1983 liability (see Monell, § 8.5; Parratt, § 8.9)
“Under color of law” satisfied if there is state action
o United States v. Price (1966) - under § 1983, “color of law” is treated the same as
“state action” requirement of the 14th Amendment
o Color of law requirement is met when state law gives someone power enabling them
to deprive P of constitutional or statutory rights

Problems in defining “under color of law”
o Home Telephone & Telegraph Co. v. Los Angeles (1913) - actions taken by an
officer in his official capacity constitute state action, whether or not the conduct is
authorized by state law
o West v. Atkins (1988) - state employment is generally sufficient to render D a state
actor; generally, a public employee acts under color of law while acting in official
capacity or while exercising his responsibilities pursuant to state law
o PROBLEM - off-duty police officers - court considers several factors




Is there a policy that requires officers to be on-duty at all times?
Did the officer display a badge or ID, identify himself as an officer, or carried
and/or used a service revolver?
Did the officer purport to place the individual under arrest?
Public employees with independent duties to clients (i.e. doctors, lawyers, & public
guardians)
o Prison doctors, psychiatrists, etc. who are employed by the states, or perform services
under a contract with the state are considered state actors (O’Connor v. Donaldson
(psychiatrist was admin. at state hospital), Estelle v. Gamble (doctor was chief
medical officer at prison), and West v. Atkins (private physician working pursuant to
K with the state))

o
Rationale - a doctor’s professional and ethical obligation to make independent
medical judgments in the best interest of the client does not set him in conflict
with the state
A public defender, however, employed by the state to represent an indigent D does
NOT act under color of state law

Public defender should not be thought of as a state actor, since his loyalties
are to his client; professional and ethical obligation of pub. def. is to oppose
43
the state (Polk County v. Dodson)
o In light of the loyalty-conflict dichotomy the court has created - what about a
guardian appointed by and paid by the state? (no clear answer)

Liability of private individuals
o Adickes v. Kress & Co. (1970) - “joint conspiracy test” (joint activity)

Proof of preconceived conspiracy between private group and state actor to
deprive someone of constitutional rights amounts to state action & private
party would be liable under 1983

Additionally, such persons would be subject to liability under 42 U.S.C.
§ 1985 (provided that conspiracy is race based or otherwise class based
invidious discrimination and animus)
o Dennis v. Sparks (1980) - private individuals who conspire with government may
also be sued under § 1983


See also S.H. Cress: where government is a willful participant in a joint
activity with a private party, that private party can be sued under § 1983
Examples of what is and is not sufficient state action for purposes of § 1983
o Examples where state action FOUND:

Newspaper does not support sheriff during campaign. Deputies buy out all
newspapers on election eve. 4th Circuit found a nexus to official duties meets
the state action requirement. Rossignol v. Voorhaar

Off duty cop puts pistol in his wife’s lover’s mouth and says “I’m a cop…I’ll
kill you.” 5th Cir. finds the power of the cop’s office was used. US v. Tarpley

Mayor has prostitute bring her 9-year-old daughter to get it on. Prostitute
claims she only brought daughter b/c of mayor’s position. 2d Circuit finds he
used the power of his office. US v. Giordano

Prison guards initiation ceremony consists of indecent incidents inside a room
in prison where electronic door is locked. 4th Circuit held use of state facility
to effectuate acts was sufficient nexus to find state action. Givens v. O’Quinn

City’s police training “unofficially” includes how to use “throw down”
gun. Held: although unofficial, so well recognized that it is state action
44
o Examples where state action NOT FOUND:

Cop investigating disappearance leaves house when finished. He later comes
back, breaks down door and rapes resident. 5th Circuit held his return to be
act of “an ordinary ruffian” and private. Almand v. DeKalb

Group of cops horsing around and one is accidentally injured. 1st Circuit
found this was totally removed from the cops’ official duty. Behavior not
sufficiently tied to state. Martinez v. Colon (cf. with Givens – using prison’s
electronic door to effectuate held to be state action)

Off-duty cop shoots wife. 2nd Circuit held it to be personal matter.
Bonsignore v. NYC
o Finding of public function sufficient for state action


Public Function Doctrine - private person/company performing what was once
an exclusive prerogative of the state may be subject to suit under § 1983.

Jackson v. Metropolitan Edison: in order to demonstrate “state
action” using public function doctrine, P must show that D is doing
something that was traditionally the exclusive prerogative of the state.

Mere regulation by a state of a private entity is not sufficient to meet
“state action” unless regulation is directly related to the CAUSE OF
ACTION.
o Directly tied to constitutional violation
o Example: state was regulating termination of power (private
utility company); Constitutional claim was lack of DP
hearing = not tied so not enough for 1983 action

Mere authorization by a state statute does not provide “state action”
Flag v. Brooks
APPLICATION OF THE RULE:

Logiodice: § 1983 suit brought against private school for alleged due
process violations by expelling students w/out hearing. 1st Circuit
held (i) private schools weren’t traditionally under exclusive
prerogative of the state; and (ii) mere receipt of federal monies is not
enough to generate state action.

Rendell-Baker: (USSC) mere receipt of gov’t money is not enough
to generate “state action.”
45

Romanski v. Detroit Ent.: Private casino security guard arrests
patron, unreasonably interrogates her, and then throws her out. 1983
suit brought. 6th Circuit upholds suit b/c arresting has traditionally
been under the exclusive prerogative of the state.

Lansing v. City of Memphis: Private security guard at private event
denies entrance to preacher and calls city police. Police arrest
preacher. 6th Circuit denies suit against private guard. If “state
action” had been found, any private individual who calls the cops
could be subject to 1983 suit.

Parks v. City of Columbus: City arts counsel hires off-duty policeman
for festival. They wear police uniform. Preacher is arrested for
distributing leaflets. 6th Circuit upheld suit finding “state action”
existed because cop wore uniform.
o Private prisons

Estelle: to sue for inadequate medical care in prison, must meet deliberate
indifference standard.

Roseborough: guard at private prison slams door and cuts off fingers of
inmate. 1983 suit. Ct looked at Jackson and found this was “traditionally the
exclusive prerogative of the state.”

Correctional Services v. Malesko: Bivens suit against private prison claiming
inadequate medical care. USSC rules no Bivens § 1331 suits against
companies (only individuals).

Holly v. Scott: Bivens suit against private prison denied because court held
providing prisons was not historically the exclusive prerogative of the state.
o SYMBIOTIC RELATIONSHIP TEST to determine state actions
 This FAILS almost every attempt to use it!!

Burton v. Wilmington Parking Auth.: symbiotic relationship test – if state
is getting benefit from private action, state action exists.
o Facts: restaurant in park which is discriminatory against race


NCAA v Tarkanian: USSC rejects symbiotic relationship test limiting
Burton to its facts (race discrimination). No state action w/ respect to
NCAA.
Brentwood Academy v TN Secondary Athletic Ass’n: USSC looked at such
factors as voting membership, time of meetings is during school, funded by
gate receipts, staff are in state retirement system to hold that there was
46
sufficient state activity to meet the state action requirement
o FAILURE TO ACT AS “STATE ACTION”

DeShaney Line of Cases:

DeShaney v. Winnebago Co: Purpose of 14th Amend. is to protect
individuals from the state, not to protect individuals from each other.
Therefore, injuries by 3d party do not give rise to 1983 liability.
Court rejects substantive due process claim against local
government for failure of police to act.
o 2 Exceptions:








Special Relationship: a 1983 suit may arise if a
special relationship exists b/t the state and the person
injured. Courts now define this exception as those taken
into involuntary custody, e.g. arrest, prison, mental
institution.
State-Created Danger Test: a 1983 suit lies where
state takes some affirmative action and puts a person in
greater danger than he was before state arrived.
 Example: drunk couple walking home in snow,
cops come and arrest husband and leave wife to
walk home alone, find wife dead next morning
in snow.
Collins: USSC rejects state-created danger test
exception holding that 1983 is not to be used in context
of overseeing activity b/t a gov’t and its employees.
5th Circuit: no DeShaney special relationship b/t
students and schools
Powers v. CSX Transport: Suit by victim of train crash under 1983
b/c city no warning signals. No duty to protect under DeShaney. Suit
dismissed.
Brown v. PA Dept. of Health: 1983 suit brought after 911 call comes
unanswered resulting in the death of child. 3d Circuit holds the
establishment of a 911 system does not waive rights under DeShaney.
Cornelius v. Town of Highland Lake, Ala.: Suit brought by victim
who was kidnapped by inmate out working on public works projects
with chain gang. Most courts have rejected the state-created danger
exception to DeShaney. This court went back to Rochin and found that
what the state did “shocks the conscience.”
Town of Castle Rock v Gonzalez: Court rejects procedural due
process claim for failure of police to act. No property interest exists in
the enforcement of a restraining order.
47
§ 8.4

Exhaustion of State Remedies Not Required for § 1983 litigation
State judicial remedies need not be exhausted
o Monroe v. Pape: no requirement that 1983 P exhaust state remedies

State administrative remedies need not be exhausted
o Patsy v. Bd. of Regents of State of Fla.: no requirement to exhaust administrative
remedies

A new exhaustion requirement: Heck v. Humphrey and Edwards v. Balisok
o Heck v. Humphrey (1994) - in order to recover damages for unconstitutional
conviction or imprisonment, P must first have conviction or sentence reversed on
appeal
o Edwards v. Balisok (1997) - extends Heck to prisoner litigation - claim not
cognizable under § 1983 until prisoner succeeds in having good time credits restored
(P claimed good time credits were revoked without due process)
§ 8.5
Who Is a “Person” for Purposes of § 1983 Liability? Municipal
Governments
§ 8.5.1
Are municipalities persons and if so, when are they liable?
o Monroe v. Pape - no municipal liability for suit under § 1983 for damages or
equitable relief (but upheld liability of officers)
o Monell v. Department of Social Services (1978) - expressly overruled Monroe’s
limitation of municipal liability - defined “persons” to include “bodies politic and
corporate” (i.e., municipalities)

Local government cannot be held liable under theory of respondeat superior


Instead, local government only liable when execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury (i.e. so they can only be sued for
their own unconstitutional or illegal policies)
Unresolved questions



How is a municipal policy or custom proven?
Do municipalities have good faith defense to liability?
Are municipalities liable for punitive damages?
48
§ 8.5.2
How is the existence of an official municipal policy proven?
Five Possible ways to establish existence of policy/custom to impose 1983 liability:
Actions (1) of municipal legislative bodies, (2) of agencies with delegated
authority, (3) of individuals with final decision-making authority, (4)
resulting from inadequate training or supervision, and (5) derived from
acceptance of custom.

Actions of municipal bodies
o Pembaur v. City of Cincinnati (1986)


Obviously, actions of municipal bodies constitute official policies - even a
single incident is enough
 Firing government official without procedural due process (Owen v.
City of Independence)
 City council’s cancellation of a concert (Newport v. Fact Concerts)
Agencies exercising delegated authority
o Monell involved regulations adopted by the Department of Social Services and the
Board of Education (authority was delegated by municipal authority)

Individuals with final decision-making authority
o Pembaur - liability under 1983 attached where a deliberate choice to follow a course
of action is made by official or officials responsible for establishing final policy mere discretion of employee is not enough

Under Ohio law, prosecutor had authority for making the final decision
(i.e. the city’s official policy on the matter) (order by prosecutor to break door
down and get suspects)
o City of St. Louis v. Praprotnik (1988) (plurality) - court determined whether person
has final decision making authority is question of law (Legal Q not Factual Q)
o Jett v. Dallas Sch. Dist. (1989) - majority adopts the position of Praprotnik - courts
can consider state and local laws and “custom or usage having force of the law”

See McMillian v. Monroe County - under Alabama law the county sheriff is a
state official, and therefore is not a final decision-maker for local government
(did not matter sheriff was elected and paid locally)
49

Policy of inadequate training or supervision
o City of Oklahoma v. Tuttle (1985) (plurality) - 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
o City of Canton v. Harris (1989) - demonstrating a policy of inadequate training
requires proof of deliberate indifference by the local government

Two situations justifying a conclusion of deliberate indifference for failure to
train:

1) Failure to provide adequate training in light of foreseeable serious
consequence that could result (ex. lack of instruction on the use of
firearms or in the use of deadly force would be deliberate indifference)

2) Where the city fails to act in response to repeated complaints of
constitutional violations
o Bryan County v. Brown (1997) - makes it much more difficult to prove deliberate
indifference - liability was not established by proving sheriff acted improperly in
hiring a deputy with a criminal record (could not satisfy heightened causation
standard - moreover, the court did not define what the heightened standard is)


Single incident of inadequate screening was not sufficient to show
municipality caused the injuries
Custom
o Municipal liability under § 1983 can be based on “custom” - however, there is little
guidance what actually is a custom
o Best definition - unlike policy which develops form the top-down, customs can be
thought of as developing from the bottom-up - thus municipal liability derives not
from its creation of custom, but from its tolerance or acquiescence to it

Pleading requirements for Monell (Issue: does P have to plead specific facts to establish
policy or custom?)
o Leatherman v. Tarrant County (1993) - no heightened pleading requirements for
Monell cases; no detailed factual pleadings either - courts may not impose heightened
pleading requirement in civil rights cases (Iqbal?)

Elliot v. Perez (5th Cir.) - to override qualified immunity, P must plead
sufficient facts to disprove immunity
50
o However, the court in Leatherman specifically left open the question of whether
heightened pleading may be required in suits against individual officers
§ 8.5.3

Municipal Immunities
No qualified immunity for local governments
o Owen v. City of Independence (1980) - local governments are liable even when their
constitutional violations are a result of actions taken in good faith


No indication in legislative history that Congress intended to accord municipal
governments any immunities (such immunities did not exist at common law)

Individual officers retain good faith immunity to personal liability
No punitive damages
o City of Newport v. Fact Concerts (1981) - No punitive damages under Monell (citing
legislative history and that it would be wrong to punish taxpayers for actions of
municipal government)
§ 8.6
Who Is a “Person” for Purposes of § 1983 Liability? The Liability of
Individual Offenders
§ 8.6.1
Introduction to individual officers’ immunities

Issues in litigating immunity
o Six general points

1) Determination of immunity in § 1983 suits is entirely question of federal
law - state immunities and defenses are not relevant in § 1983 litigation, even
if the case is brought in state court (based on Supremacy Clause)

2) A court ruling denying immunity is immediately appealable - may make
litigation more expensive (if D appeals ruling, P will have to litigate that issue
before can resume primary case)

3) Law concerning immunities accorded to federal officers pursuant to § 1331,
Bivens, etc., is identical to law concerning state officers pursuant to § 1983

4) Immunities are a defense to liability, not an element of P’s prima facie case

5) No heightened pleading requirements for suits against individual officers
51

§ 8.6.2
6) The distinction between suits against officer in official as opposed to
individual capacity is whether the P seeks money directly from individual
officer named as D or whether the remedy is sought against the government
entity that actually employs the officer

If damages are to be paid directly by officer - D can invoke these
immunities

If damages are to be paid from government treasury - 11A bars $ suits
against state officer (official capacity) and municipal policy or custom
must be proven to establish liability against local official
Absolute immunity
Individuals performing certain functions have absolute liability under § 1983 (main ones are
judicial, legislative, and prosecutorial functions) - because of the harsh effect immunities have on
wronged parties, the Court is hesitant to expand to other contexts and there is a presumption that
qualified immunities are sufficient to protect government officials
o Absolute/Total Immunity: if a D has absolute immunity, then what they do, no
matter how outrageous, is immune from suit under 1983 or Bivens

Function, not title, receives absolute immunity
o Focus is on the function performed, rather than the title (i.e. a judge does not have
absolute immunity when they act outside their judicial functions, such as acting in
administrative or executive roles)
o Absolute immunity varies in scope among the officers protected - some receive
immunity only against suits for money damages (judges) others receive immunity
from suits for money damages and prospective/injunctive relief (legislators)
o When absolute immunity does not exist, government officers are accorded good faith
immunity to suits for money damages (see § 8.6.3)

Who has absolute immunity (and from what)?
o Judicial Immunity (Damages Immunity)



Stump v. Sparkman: (sterilizing girl case) judges are immune for all judicial
actions taken unless without jurisdiction (not actions that are merely in excess
of jurisdiction)
Forrester v. White: judge firing a parole officer is not a judicial act
(administrative), therefore, no immunity (fired b/c of sex)
Moralas v Waco: judge having tardy public defender dragged into courtroom
is a judicial act and immune from suit.
52




Butts v Economou: someone acting as the “functional equivalent” of a judge
is immune
Walter v. Torres: Parole boards are “functional equivalent” of judge and
receive total immunity.
Cleavinger v. Saxner: Prison disciplinary boards are NOT “functional
equivalent” of a judge and not immune.
Derivative Immunity:
 Malley v. Briggs: immunity exists for sheriff for execution of
judicially-issued search warrant UNLESS a reasonable well-trained
officer would know the affidavit failed to establish probable cause.
o Legislative Immunity (Damages + Injunctive Immunity)



Jenny v. Brandhove: can’t sue a legislator for actions done in sphere of
legislative activity
Bogan: legislative immunity extends all the way down to local legislators
 Writing job out of budget (claimed race discrimination) = immunity
granted b/c Legislative function
Consumers Union: legislative immunity carries over to suits for injunctive
relief as well as damages. Note: Other immunities only protect against
damages.
o Prosecutorial Immunity (Damages Immunity)


Imbler: prosecutors have total immunity for acts intimately associated with
the judicial phase of the criminal process.
 Investigation vs. Judicial phase
Authorizing hypnosis (Burns) or press conference (Buckley) are not “acts
intimately associated with judicial phase of criminal procedure.
o Presidential immunity (Damages Immunity)


Nixon v. Fitzgerald: B/c of strong policy reasons, presidents are immune
from suits for damages from actions taken during term. (all about Office NOT
acts)
Clinton v. Jones: Presidential immunity does not lie for acts occurring before
they were in office.
o Immunity for police officers serving as witnesses

Briscoe v. LaHue: Common law and policy reasons support total immunity
for witnesses - even protects a police officer who commits perjury
53
§ 8.6.3
Qualified (or good faith) immunity
*KIM: affirmative defense D must raise
Qualified immunity exists only as to suits for damages, not as to suits for injunctive relief

Problem with defining qualified / good faith immunity
o Definition of good faith must strike balance between protecting the officer’s exercise
of discretion, while still compensating and deterring violations of federal law
o Previous attempts to define “good faith”


Scheuer v. Rhodes (1974) - was the act objectively reasonable? Did the
officer subjectively believe it was reasonable? (P could refute immunity by
demonstrating either) (Objective + Subjective Required)
 Objective = was it r’ble; Subjective = did officer believe it was r’ble

Wood v. Strickland (1975) - no qualified immunity if officer acts
unreasonably (objective) or with impermissible intent (subjective)
Current law: Harlow v. Fitzgerald (1982) test
o Government officials performing discretionary functions generally are shielded from
liability for civil damages so long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known
(Objective ONLY)



Eliminated subjective component of Scheuer and Woods
Court’s concern is more with protecting officers from defending meritless
suits than with ensuring injured individuals receive compensation
The sequence of analysis
o Wilson v. Layne (1999) - in evaluating whether an officer is protected by qualified
immunity, courts should consider:



First: Whether P’s allegations, if true, would establish a constitutional
violation
Second: If so, whether the officer’s actions violate clearly established rights
that a reasonable officer should know - contours of the right must be
sufficiently clear so that a reasonable officer would know what he is doing
violates the law
Reaffirmed by Saucier v. Katz (2001)
54


BUT: Now this analysis is discretionary Pearson v. Callahan (Courts can
avoid Constitutional Question) (2 step analysis is now optional)
How to determine “clearly established right that a reasonable officer should know?”
o Anderson v. Creighton (1987) - good faith immunity is not lost when an officer
violates a right unless a reasonable officer would know that the specific conduct was
impermissible - the inquiry turns on whether the officer had reason to know the
conduct was prohibited - this is an objective legal reasonableness test
o Hope v. Pelzer (2002) - there need not be a prior decision on point in order for the P
to show the existence of clearly established law - officers can be held liable so long as
they had fair warning that conduct was impermissible

See also United States v. Lanier (1997) - judge “on the make” in chambers Court stressed a reasonable person would know that such behavior is a
violation of a woman’s rights even in the absence of a decision on point

But see Brosseau v. Haugen (2004) - court stressed the absence of cases on
point as a basis for dismissing the case on qualified immunity (although TN v.
Garner held no shooting fleeing felon, the cases out there make it “far from
obvious” that shooting a fleeing felon in a car was a violation of a clearly
established constitutional right) (did not cite Hope - unclear when or if cases
on point are needed) (Tension b/t Hope and Brosseau)
o Graham v. O’Connor: USSC remanded a case to have determination of whether
cops’ actions were objectively reasonable.
§ 8.7

Who Is a “Person” for Purposes of § 1983 Liability? State Governments and
Territories
Suits against states in state courts
o Quern v. Jordan (1979) - 11th Amendment bars § 1983 suits against state
governments in federal court (the question was whether states are “persons” who can
be sued in state court under § 1983)
o Will v. Mich. Department of State Police (1989) - state governments are not persons
under § 1983 and thus may not be sued in state court under § 1983 (based on fact that
under 11A Congress can only override sovereign immunity if it expresses clear intent
to do so, which § 1983 did not)

Did not change rule that state officials can be sued under § 1983 for
prospective relief even if compliance with law costs the state substantial sums
55
§ 8.8
What Federal Laws May Be Enforced via § 1983 Actions?
Even though Court has made it harder to infer right of action directly from federal statutes (see
§ 6.3.3) P can sue under § 1983 in order to enforce the law - but what type of violations of the
law are sufficient? I.e., is § 1983 only available to redress violations of the 14th Amendment; or
all laws pertaining to civil rights; or every federal law, regardless of content?

Maine v. Thiboutot
o Thiboutot: (Brennan) § 1983 is not limited to providing cause of action to remedy
violations of the 14th Amendment - § 1983 suits are available whenever any federal
law has been violated

Concern: appears to create a cause of action for violations of all federal
statutes by those acting under color of state law
o While not overruling Thiboutot, the Court has narrowed the holding, creating 2
exceptions where § 1983 may not be used



1) Implicit/explicit statutory preclusion of § 1983 suits
2) § 1983 cannot be used unless federal statutes create rights (rights creating
language)
Implicit or explicit statutory preclusion
o § 1983 may not be used to enforce statutes that explicitly or implicitly preclude
§ 1983 litigation
o Middlesex Co. Sewage v. National Sea Clammers Ass’n (1981): a comprehensive
enforcement scheme demonstrates congressional intent to preclude suits under
§ 1983

Congress need not be explicit to preclude suits - congressional intent can be
inferred from comprehensive enforcement mechanisms
o Wright v. City of Roanoke Housing Authority (1987): statute providing for
administrative remedies through informal and formal hearings was NOT type of
comprehensive scheme needed to preclude § 1983 litigation

Significance of Wright

Presumption favoring the availability of § 1983 - D must demonstrate
by express provision or other specific evidence that Congress intended
to foreclose § 1983 litigation
56

Mere existence of administrative remedies is not enough - need more
specific congressional intent (possibly need administrative and judicial
remedies)
VS.
o City of Rancho Palos Verdes v. Abrams (2005): Telecom Act prohibits localities
from arbitrary denials of radio tower permits; Act authorizes a private remedy for
violations of the statute


Scalia noted the private remedy in the Act is narrower than relief under § 1983

However, the provision of an express, private means of redress is ordinarily
an indication that Congress did not intend to leave open a more expansive
remedy under § 1983

Significant departure from Wright - presumption against allowing § 1983 to
enforce federal law (at least where federal law provides a narrow remedy)
Federal statutes must create rights (rights creating language)
o Pennhurst State School and Hospital v. Halderman (1981): in order to have cause of
action under §1983 the statute must contain “rights creating language” (unambiguous
mandatory rights creating language)

Statutes which merely declare policy and do not create substantive rights are
not actionable under § 1983
o Virginia Hospital Assoc. v. Wilder (1990): Medicaid Act requires states give
hospitals reasonably adequate reimbursement for Medicaid patients - “reasonably
adequate reimbursement” is rights creating language since it creates a binding
obligation
o Blessing v. Freestone (1997): P must demonstrate violation of specific federal
statutory provision that creates a right - not merely a violation of the law

To create an enforceable statutory right the provision must be written in
mandatory terms - provisions in Title IV-D of Social Security Act requiring
“substantial compliance” is too general to create an enforceable right

Benefit under the law is not the same as a right under the law
o Gonzaga University v. Doe (2002): Doe, former student, sued for violations of
federal law (FERPA) (no express cause of action) under § 1983 - law did not, in clear
and unambiguous terms, confer a right on individuals
57



Law merely gives benefit, not rights.
This case may actually pose a significant obstacle to litigation especially since
Court has been restrictive in willingness to infer private rights of action (see §
6.3.3)
Federal gov’t not giving federal funds to university which doesn’t keep info
private = does NOT create an individual right
o Save Our Valley v. Sound Transit (9th 2003): § 1983 cannot be used to enforce
rights that derive only from agency regulations - this remains unclear point
(Sorcerer’s apprentice? Right has to come from the statutory language.)

Given the Court’s decisions in City of Rancho Palos Verdes and Gonzaga it is clear that the
Court is trying to limit ability to use § 1983 to enforce federal statutes
§ 8.9

When May § 1983 Be Used for Constitutional Claims?
Certain torts are constitutional violations
o Ex: when a police officer uses excessive force, there is both a constitutional violation
(cruel and unusual as well as deprivation of liberty without due process) and a state
tort law claim (battery)
 Another example: false arrest usually a tort & 4A violation
o However, there is concern by the courts that § 1983 should not be used to supplant
state tort law in all instances - therefore, the Court has developed 3 major limits on
constitutional claims brought under § 1983

1) Negligence insufficient
o Mere allegations and proof of negligence are not sufficient to demonstrate deprivation
of due process (Daniels v. Williams & Davidson v. Cannon (1986))

Daniels - inmate claimed freedom from bodily harm (protected liberty
interest) was denied without due process when he tripped on a pillow that was
negligently left by a guard

Davidson - inmate claimed prison authorities violated due process rights by
failing to protect him from attack by another prisoner

Held - Neither prisoner presented a constitutional claim

These cases extend beyond the context of prisoner litigation and even beyond
§ 1983 suits - it applies to all due process claims - government cannot be sued
for negligent violation of constitutional rights
58

Troubling distinction - is intentional conduct more troubling than negligent
conduct? Negligent conduct can be extremely violative of rights - such as
when the state executes an innocent person
o County of Sacramento v. Lewis (1998)

in non-emergency situations deliberate indifference or recklessness is likely
sufficient to establish liability

in emergency situations the government can only be held liable if the
conduct “shocks the conscience” - substantive due process could be used for
such claims; however, the restrictive requirement makes a finding of liability
difficult in most cases
o Johnson v. Glick (2d Cir. 1973) - substantive due process claims (such as excessive
force) are grounds for § 1983 if the action “shocks the conscience”


But see Graham v. Connor (1990) - excessive force claims should be viewed
under 4th Amendment analysis (significant injury, resulted from clearly
excessive force, force was objectively unreasonable)
2) Parratt v. Taylor (not terribly important)
o No denial of due process if P seeks post-deprivation remedy for the loss of property
as a result of a random or unauthorized act of a government officer and the state
provides adequate post-deprivation remedy (i.e. tort or other remedy)
o Tension with Monroe v. Pape?


Technically speaking, no - Monroe simply considers the meaning of “under
color of state law” and Parratt deals with what constitutes a deprivation of
due process

However, there actually is since Parratt clearly holds that suits for random
acts of government officers should be brought in state court and Monroe
explicitly rejects this and interpreted § 1983 to include actions of officers in
violation of state policy
3) Generally, no government duty to prevent private harms (DID COVER THIS)
*Constitutional Interpretation (not just limited to § 1983) = Limit on DP claims
59
o DeShaney v. Winnebago County Dept. of Social Services (1989)

No duty to protect individuals from privately inflicted harms - even if
government entity knew of private harms and did not act

Court recognized narrow exceptions where government has duty to protect situations where the state has affirmatively limited the individual’s ability to
protect himself (i.e. incarceration, (institutionalization, or where the
government creates the danger) (i.e. special relationship)
o State and local governments may create duties and remedies under their law, but these
do not exist under the Constitution
o What circumstances the government has a “special relationship” that creates
affirmative duty to protect
§ 8.10


Kallstrom v. City of Columbus (6th Cir. 1998) - police department liable that
released undercover names and addresses placed family at risk

Wood v. Ostrander (9th Cir. 1989) - police liable for stranding passenger of
car (impounded) in high crime area when subsequently raped

These cases tend to be the exception as DeShaney is generally cited when the
courts do not wish to impose liability on the government

There is an emerging trend that would create affirmative duty to protect
children in foster care when placed by the government - though clearly no
duty when the children are voluntarily placed in foster care
Preclusive Effect of State Court Judgments and Proceedings
Preclusion applies in § 1983 suits
o S. Ct. repeatedly has stated § 1983 was meant to give federal courts a preeminent role
in protecting constitutional rights - it would seem then, that state courts should not be
able to frustrate this purpose
o However, S. Ct. has clearly held state court proceedings are preclusive in § 1983
federal court proceedings

28 U.S.C. § 1738 (state judicial proceedings have full faith and credit in
federal court) (look to state’s law for res judicata)
60

Collateral estoppel
o Definition: Once a court decides an issue of law or fact necessary to its judgment, that
decision precludes litigation of that same issue on a different cause b/t same parties
o Allen v. McCurry (1982) - state court litigation has preclusive effect in subsequent
§ 1983 litigation - § 1983 does not ensure a federal forum for all litigants with claims

Key question - would the state court accord collateral estoppel effect to the
earlier state court decision - if yes, preclusion also applies in federal court

Harring v. Prosise (1983) - guilty plea did not preclude federal litigation b/c
under Virginia law collateral estoppel could not be applied to guilty pleas
o Note: Pennhurst (Chapter 7) held 11th Amendment bars federal courts from hearing
pendent state law claims - thus, litigant could bring all claims in federal court (since
res judicata does not apply since state claims could not have been brought in federal
court) the federal court decision will have collateral estoppel effect on state court as
to any common issues and facts

Res judicata effects of state court proceedings
o Parties may not raise in federal court § 1983 litigation issues/claims that could have
been or were litigated in state court
o Note: Pennhurst (Chapter 7) held 11th Amendment bars federal courts from hearing
pendent state law claims - thus, litigant may chose to bring claims separately federal
and state court; however, if the state court decides first, then res judicata applies since
federal claims could’ve been brought in state court as well
o Court applied res judicata in § 1983 context in Migra (READ CHEM pg. 152 on
interplay of state and federal claims)

State court review of agency decisions
o Kremer v. Chemical Construction Corp. (1982) - state judicial review of state
administrative agency’s action is entitled to full faith and credit

Preclusive effects of state agency proceedings
o University of Tennessee v. Elliott (1986) - When a state agency acts in judicial
capacity and the parties had an adequate opportunity to litigate the issue, federal
courts give agency’s fact finding the same preclusive effect it would be entitled to in
State court
61

The unintended effect - individuals may be less likely to utilize state agency
mechanisms; such use could preclude the federal case altogether
o But see McDonald v. City of West Branch (1984) - § 1738 does not require
preclusive effect to unappealed arbitration awards
o Whether state agency decision is preclusive turns on several factors: how would the
decision be treated in state court, whether the agency proceedings are judicial in
nature, whether allowing preclusion undermines the goals of the federal statute

Heck v. Humphrey (1994) preclusion of prisoner litigation
o In order to recover for unconstitutional conviction or imprisonment, P must first have
conviction or sentence reversed on appeal or expunged (see § 8.4 on Exhaustion)
o Edwards v. Balisok (1997) - applied Heck to prisoner disciplinary proceedings
§ 8.11
Remedies Available in § 1983 Litigation
§ 1983 creates broad authority for courts to fashion remedies, both legal and equitable; however,
there are numerous jurisdictional doctrines that limit courts’ ability to grant injunctions (see City
of Los Angeles v. Lyons § 2.3.2; Rizzo v. Goode, § 13.3.5; and Younger v. Harris, § 13.3.4).

What damages may be awarded?
o Nominal Damages? A court can authorize nominal damages solely to vindicate
constitutional rights even when there’s been no actual injury. This prevents mootness
claims. Carey v Piphus
o Memphis Community Sch. Dist.: a jury can’t put a value on a constitutional right Ps are restricted to recovering for actual harms they have incurred, including
compensation for emotional and mental distress

Punitive damages
o Smith v. Wade (1983) - punitive damages may be received from individual officers
 Motivated by evil motive or intent, or involves reckless or callous indifference
to federally protected rights of others
o City of Newport v. Facts Concert - although cities are liable under § 1983 recovery of
punitive damages from municipalities is not permitted

What law when § 1983 is silent?
o I.e., how do we determine whether a cause of action survives the death of P? Or,
what the statute of limitations on a particular claim is? (however, federal law
62
determines when § 1983 action accrues)
o 42 U.S.C. § 1988 - when federal law is silent, federal courts should apply the law of
the state of the forum unless such law is inconsistent with the federal law

Attorneys fees (NOT LIMITED TO 1983)
o 28 U.S.C. § 1988: grants attorneys’ fees to prevailing Ps in actions brought under:
 §1981: Equal rights to make and enforce contracts
 §1982: Equal rights with regards to property
 §1983: Civil action for deprivation of rights
 §1985: Conspiracy to interfere with civil rights (race-based conspiracies)
o Alyeska Pipeline Services: USSC established that we follow American Rule (each
party pays their own way) - a prevailing party is only entitled to attorneys fees
when:
 Expressly authorized
 Fund cases[?]
o CALCULATION:

Lodestar: the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. City of Riverside v Rivera (Hensley v.
Eckerhart?)

Enhancing/Reducing: an ordinary loadstar may be enhanced or
reduced depending on application of Johnson Factors. In re RiteAid
o (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of employment by the attorney due
to acceptance of the case; (5) the customary fee; (6) whether
the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the "undesirability" of the case; (11) the
nature and length of the professional relationship with the
client; and (12) awards in similar cases

Enhancements now much more unlikely: When you compute the
reasonable hours and reasonable rate, that imports the Johnson factors
and that covers the enhancements (Purdue v. Kenny)
o Only in extraordinary circumstances can you get fees that are
in excess of the lodestar figure:
 (1) If for some reason the reasonable hourly rate of the
lawyer has not been properly computed
63


(2) When the att’y has to put forth a large number of
expenses in a case that is protracted
(3) There is a protracted case and there has been a long
delay in payment to the att’y
o Prevailing Party: § 1988 grants attorneys fees to prevailing party

Any significant issue: fees may be awarded where P succeeds on any
significant issue. Garland Independent School District.

Nominal damages: an award of nominal damages does not make P
prevailing party, thus, no attorneys fees. Farrar v Hobby
o Who pays? Only the party found liable pays. For example, city does not pay if cop
is found liable. Kentucky v Graham.
o Contingency Fees:


Where a contingency agreement awards a fee greater than that provided under
1988, the contingency fee will not be reduced. The statutory award is merely
a credit toward the contingency fee. Venegas v Mitchell
Where a contingency agreement awards a fee less than that provided under
1988, the statutory award will not be reduced. Blanchard v Bergeron
o Settlements Prior to Litigation:

No attorneys fees unless you’ve filed a suit b/c no “prevailing party.” Crest
Comm. Council
o Settlements after Suit Commenced:

Settlement Offer – Marek v Chesny: after a settlement offer is made, if what
is awarded at trial is less than what was offered, P gets no attorneys fees for
any time after the offer of settlement.

CONSENT DECREE settlement – Maher v Gagne: If D settles after suit is
filed with consent decree, may seek attorneys fees b/c utilizing the court.

Note: just an ordinary settlement not entered into docket (like a
consent decree) may not be enough for 1988 fees.
o Settlement Conditioned Upon Waiver of Fees:

Evans v Jeff D: 1988 does not prohibit D from offering to settle w/ condition
that P waive attorneys fees.
64
o Administrative Proceedings

Fees if Exhaustion Required: Webb v Bd. of Educ.: a prevailing P cannot
claim attorneys fees for time spent in administrative proceedings in cases
where exhaustion of such remedies is not required.
o Standard of Review for attorneys fees: abuse of discretion. (Riverside)
 Clearly erroneous or abuse of discretion (low level scrutiny) = not many cases
get overturned on appeal
 BUT: 11th Circuit seems to be trending toward high review and
overturning more atty’s fees awards (so might consider appealing if
you lose there
o Fees for Defense Counsel:

Christiansburg v Garment: a prevailing D may recover fees from the losing
PLAINTIFF (not the lawyer) only when the litigation is UNREASONABLE,
FRIVOLOUS, MERITLESS or VEXATIOUS.

Rule 11: fee shifting statute for frivolous claims filed in bad faith. Objective
standard.

28 USC § 1927: federal statute imposes fees on attorneys engaging in
UNREASONABLE VEXATIOUS litigation. (unclear whether objective or
subjective)

Chambers v Nascow: courts have inherent power to award fees based on
subjective bad faith.
Chapter 9
Federal Court Relief Against Federal Officers and the Federal Government
§ 9.1
Suits Against Federal Officers
§ 9.1.1
Introduction

Authority for suits against federal officials
o § 1983 authorizes suits against state and local officers - no application to the federal
government or its officers (Wheedlin v. Wheeler)
o Supreme Court has long allowed federal officers to be sued for injunctive relief to
prevent future infringement of federal law

Administrative Procedures Act allows suits against the government so long as
seeking relief other than money damages - U.S. may even be named as D in
65
suit for prospective relief


Cases seeking monetary relief against federal officers is much more
controversial . . .

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics
(1971) - S. Ct. recognizes a cause of action for damages directly from
constitutional provisions
Limitations on recovery
o IMMUNITIES: Even if a cause of action is said to exist under Bivens, the D can still
raise immunity as a defense - immunities of federal officers are identical to those
recognized for state and local officers under § 1983 (Harlow v. Fitzgerald) immunities are very important limit on ability to recover from federal officers
o Since Bivens creates a cause of action for constitutional violation, Bivens suits can be
limited by limiting the scope of constitutional protections (so cases narrowing the
scope of due process clause, Daniels v. Williams, Davidson v. Cannon, and
Parratt v. Taylor, apply in suits against federal officers - see § 8.9)
 Daniels + Davidson = negligent conduct cannot constitute deprivation of DP
 Parratt = no DP violation when lose ppty by random and unauthorized act of
gov’t officer
§ 9.1.2

Cause of action against federal officers for monetary relief
Law prior to Bivens
o P seeking monetary compensation from federal officials were relegated to state tort
actions
o The Westfall Act would cause a scope certificate to be issued and removal to federal
court. Would be FTCA case, which only allows suits for negligence (not intentional
torts). Bivens allows FTCA claims for federal law enforcement officers’ intentional
torts.

Bivens analysis
o S.C. infers a cause of action directly from the Fourth Amendment - illegal search and
seizure gives rise to cause of action for damages
o Brennan - individuals whose rights have been violated should not be relegated to state
remedies, which might be inadequate or hostile to federal interests

Bivens can be thought of as melding Borak (implied cause of action exists
when damges suits help effectuate law) and Marbury v. Madison (where the
66
is a wrong, there is a remedy)

Exceptions recognized in Bivens
o 2 situations when Court will not recognize cause of action for constitutional violation




Special factors counseling hesitation in the absence of affirmative action
by Congress (ex. congressionally created remedial scheme of administrative
remedies with judicial review, Chilicky)
Congress has specified an alternate mechanism that is equally effective
substitute (ex. existence of comprehensive civil service remedies, Bush)
Although originally articulated as distinct exceptions, they tend to blur since
the S.C. has found alternate, effective remedies to be a special factor
counseling hesitation
Policy arguments over Bivens
o Harlan concrurrence - Court is responsible for upholding and enforcing the Bill of
Rights - do not need to wait for legislature to act

Does not make sense that if the interest is protected by the Constitution
instead of by statute or common law that courts are powerless to grant
damages absent a congressional action authorizing damages
o Burger, Black and Blackmun dissent - separation of powers means that Congress
should create a cause of action - Congress has a model in § 1983 if it chooses to allow
such suits for damages
o Is Bivens constitutional law or common law? (still unresolved: is the cause of action
required by Constitution or is it federal common law)

Could Congress expressly override and abolish the Bivens cause of action?
 If required by Constitution = this law would be UC

Implicit answer: since Bivens suits are denied only when there is either an
alternative remedy that is equally effective or special factors counseling
hesitation, the existence of effective relief, though not necessarily in the form
of Bivens suits, is constitutionally required (thus, Congress may provide
remedies that are exclusive, but it may not preclude all remedies for Const
violations)
o Current attitude toward Bivens suits

S.C. has consistently refused to expand and has substantially limited Bivens
suits (see e.g., Correctional Services Corp. v. Malesko (2001) (Rehnquist &
67
Scalia praising this trend)

Cases ALLOWING Bivens Action
o Davis v. Passman (1979): Suit by former congressional secretary against
Congressman claiming she was fired b/c of sex (5th Amd EPC claim). Title VII
exists, but it has congressional employer exemption.

Because of exemption from Title VII, there is no comprehensive scheme OR
special factor counseling hesitation

Congress did not intend to foreclose other remedies not included in
Title VII - the exemption provision shielded them from liability under
Title VII but did not preclude all suits for employment discrimination
o Carlson v. Green (1980): A remedy was available under the Federal Torts Claim Act
(FTCA) - question is whether a Bivens suit should be allowed in light of the
alternative (alternative federal law remedy)
§ 9.1.3


Bivens suits are counterpart to FTCA - no indication that Congress intended
the FTCA to preempt Bivens suits

FTCA is not equally-effective alternative remedy - punitive damages and jury
trials are available for Bivens litigation but not under FTCA

FTCA is not a special factor counseling hesitation.
Exceptions: Situations where Bivens suits are not allowed
Existence of alternative remedy forecloses Bivens suit
o Bush v. Lucas (1983): P wants to bring suit for violation of 1st Amendment rights claims civil service remedies (under Civil Service Reform Act) were inadequate
(punitive damages and jury trials unavailable; no compensation for emotional and
dignitary harms)

No Bivens suit because existence of alternative remedies under Civil Service
Reform Act

Civil Service Reform Act is “comprehensive civil service remedy” thus, alternative remedy shows a special factor counseling hesitation

Court assumed 1st Amend. Rights were violated, the civil service
remedies were not as effective, and Congress had not specifically
precluded creation of Bivens suit . . .
68

New analysis - Congress can indicate intent to preclude Bivens suits by
statutory language, clear legislative intent, or by the statutory remedy itself

Congress is best position to make policy judgments about what
remedies should be available

These policy considerations were “special factors counseling
hesitation”
o Schweiker v. Chilicky (1988): issue of whether there is a cause of action for money
damages against government for violation of due process (improper denial of Social
Security benefits)
 Facts: illegal policy of disqualifying large numbers of SS disability
beneficiaries


Existence of congressionally created remedial scheme is special factor
counseling hesitation (relying on Bush)
 Statute provided adequate remedial mechanism
The cases compared: The exception expands
o In Davis and Carlson, suits are allowed because there were not explicit
congressional declarations preclusing Bivens suits

In Carlson the unavailability of punitive damages or a jury trial under
FTCA was part of support for Bivens suit
o In Bush and Chilicky, suits are not allowed even though other remedies were
assumed to be inadequate and no express prohibition by Congress

In Bush the absense of punitive damages and jury trial was nonissue
o END GAME: Court is retreating from Bivens and is reluctant to expand into new
contexts

Suits arising from military service ( = special factor counseling hesitation)
o “special factors counseling hesitation” has been applied to prevent all suits arising
from injuries incurred incident to military service
o Chappell v. Wallace (1983): addressing allegations of discrimination by superior
officers directed at minority personnel in the U.S. Navy

Special nature of the military is itself a factor counseling hesitation - some
questions as to how far this extends (does it preclude all Bivens suits
69
arising out of military service?)
o United States v. Stanley (1987): Suit by former army soldier for secret army
program where he was given LSD, without knowledge, to study its effects

S.C. - U.S. government is immune from suit under FTCA because of Feres
doctrine (see § 9.2) for suits arising from military service

S.C. - all Bivens suits either for injuries incident to military service are
precluded (hard to fathom how this was incident to military service)
(based on Chappell reasoning)
o Rule: Bivens suits are never permitted for constitutional violations arising from
military service, no matter how severe the injury or how egregious the rights
infringement
§ 9.1.4

Bivens suits against government and private entities (overview)
NO Bivens suits against federal agencies
o Federal Deposit Insurance Co. v. Meyer (1994): FTCA provides a cause of action
directly against the government - Congress alone can decide the remedies against the
United States

Eleventh Amendment bars Bivens suits against state governments

Bivens suit against local gov’ts? Unresolved (probably not though)
o Important when Monell suit cannot be brought b/c not based on policy or custom

NO Bivens suits against private entities
o Correctional Services Corp. v. Malesko (2001): injured party has remedies through
state tort law and Bureau of Prisons’ procedures
§ 9.2
Suits Against the Federal Government
§ 9.2.1
The principle of federal sovereign immunity
NOTE: state sovereign immunity is discussed in Chapter 7

United States may not be sued without its consent
o U.S. may not be sued unless federal legislation authorizes the suit - i.e. only Congress
may consent to suits against the U.S.
70
o Congressional consent/waiver must be explicit
o As of now, 3 major statutes that waive federal sovereign immunity



§ 9.2.2
1) Administrative Procedures Act - allows federal government to be sued for
injunctive relief
2) Federal Tort Claims Act - allows federal government to be sued for
negligent torts of employees
3) Tucker Act - allows federal government to be sued for breach of K and
other claims not arising in tort
Injunctive relief against the United States

Injunctive relief allowed against federal officers - D must be acting beyond terms of
statutory authority or the action is unconstitutional (not merely tortious)

Injunctive relief against the federal government - under Admin. Procedures Act, U.S. has
clearly waived federal sovereign immunity in suits requesting other than monetary relief (so
injunctive or declaratory relief suits OK)
o important exception since judiciary can now halt illegal government conduct
§ 9.2.3

The Federal Tort Claims Act
FTCA creates government liability
o U.S. is liable for negligent acts of its employees - if the act is a tort in the state where
the conduct occurred (FTCA does not create a new body of tort law = state law is
applied)
o FTCA contains 13 exceptions where U.S. may not be sued for tort liability (some are
discussed below)

Westfall Act limits suits against government officials
o Westfall Act (passed in response to Westfall v. Erwin) 28 U.S.C. § 2679

Establishes FTCA as exclusive remedy for any tort claim against government
employee acting within the scope of employment (except Bivens suit for
Constitutional Tort Claims)

Westfall Scope Certificate: if government employee was acting witin scope
of employment when incident out of which claim arose, Att’y General issues
scope certificate to that effect
71

Individual employee granted immunity and the United States is
substituted as D; case is automatically removed to federal court
o Note: Martinez v. Lamagon held a D can challenge the issuance of a scope
certificate - but case will not be remanded to state


DEA agent drunk at 2:00 am with Colombian citizen - Colombian filed suits
in fed. court - Westfall scope certificate filed, FTCA takes over - specifically
exempts claim arising in foreign country
Exception for intentional torts (assault, battery, libel, slander, false imprisonment, etc…
BUT trespass and conversion allowed)
o Not all intentional torts are excepted (most are) - FTCA was amended to allow
recovery against the U.S. for intentional torts committed by federal law enforcement
officers (if constitutional violation could have Bivens)

Discretionary functions of government employees exception
o Designed to prevent government from being held liable for errors in making policy or
formulating laws

Dalehite v. United States (1953): Under FTCA, U.S. cannot be held liable for
negligence at planning or policy level, rather than the operational level
(fertilizer ship exploded)

Indian Towing Co. v. United States (1955): discretionary function is
inapplicable when government is sued for employee’s negligent performance
of duties (negligent maintenance of light house) (not sued for deciding to have
lighthouse; suit was for not maintaining it)

United States v. Viacao Airlines (1984): S.C. refused to allow suit against
U.S. for negligence of FAA in implementing system of compliance with
safety standards


Creation and implementation of a system for compliance review is a
discretionary activity - judicial intervention through tort suits amounts
to second-guessing political and economic judgments of agency
Defining discretionary function - emphasis on judgment or choice
o Berkovitz v. United States (1988): conduct cannot be discretionary unless it involves
an element of judgment or choice (i.e. actions and decisions based on considerations
of public policy)
72
o United States v. Gaubert (1991): potentially expands discretionary functions because
applied the exception to activities as the operational level (negligent supervision of
bank directors and officers - day-to-day operation involves choices)

“discretionary conduct is not confined to policy or planning level”
o 2 Part test for discretionary functions exception


1) government action must involve an element of judgment or choice
2) the judgment or choice must be based on considerations of public policy
o ex. Marbulk Shipping: Army Corp of Engineers dredging river and find submerged
boat - regulations say they may mark sunken vessels. Fail to mark - ship is damaged
and suit is brought against the government


Court holds this is a discretionary function so exempt
No liability for implementation of statutes of regulations
o 28 U.S.C. § 2680 - no liability under FTCA for acts or omission of government
employees in execution of a statute or regulation, even if statute or regulation is not
later held valid

Exceptions for injuries arising from military service
o
NOTE: this is judicially created - not codified in the FTCA (the FTCA exempts
injuries suffered in combat or a foreign country, but the judicial exception is MUCH
broader)
o Feres Doctrine: government is not liable for injuries to servicemen where injuries
arise out of or are in the course of activity incident to service (notwithstanding fact
that it may be peacetime)

U.S. has complete immunity for injuries inflicted by the military, even if they
are willful and wanton

Obviously, the Feres doctrine has been sharply criticized - tremendous
injustice to servicemen
o What injuries are “incident to military service”?

Brooks v. United States (1949): pre-Feres, but subsequently reaffirmed after
Feres
73

Not incident to military service - serviceman on leave, off base, and in
a private car case killed by Army truck - recovery allowed

United States v. Brown (1954): recovery allowed - nerve injuries received
from military doctor after discharge from Army (even though original injury
was suffered during active service, the post-discharge surgery was not
incident to service)
 Family Members = can sue for their own personal injuries

United States v. Johnson (1987): member of military cannot sue for injury
resulting from negligent civilian, nonmilitary members of the government if
injury is incident to military service (civilian air traffic controllers cause
injury to military personnel)


Different tests for determining “incident to military service”
 “But for” test- bars the most recovery (most things wouldn’t have
happened but for P presence and conduct, which is tied to being in the
military)
 Military discipline test - no suit if injury suffered while subject to
military discipline
 Line of duty test - key distinction is work-related and non-work-related
injuries
TUCKER ACT: NOT SURE IF WE COVERED THIS OR NOT
PART III
FEDERAL COURT REVIEW OF STATE COURT JUDGMENTS AND PROCEEDINGS
Chapter 11 Statutory Control of the Relationship Between Federal Courts and the States
*This is grouped in with abstention chapter in book
§ 11.2

The Anti-Injunction Act
28 U.S.C. § 2283: forbids fed’l ct from enjoining pending state litigation unless:
o 1) Expressly authorized by Congress
o 2) Necessary in aid of its jurisdiction OR
o 3) To protect or effectuate its judgment

EXPRESSLY AUTHORIZED exception
o 1983 is an expressly-authorized exception: Mitchum v Foster
 Remember: Younger still applies
o Courts will not read in expressly authorized exceptions to fed’l causes of action.
Must be VERY EXPRESS. Vendo Corp.
74



Vendo was a POLICY DECISION- if express exception wasn’t strictly
construed, it would open up flood gates of litigation.
Case doesn’t do much b/c plurality decision
NECESSARY TO AID IN JURISDICTION exception
o Only applies in 2 circumstances:


When case is removed to fed’l ct, fed’l ct may issue injunction if state court
does not properly relinquish its jurisdiction. Mitchum

Where fed’l court acquires jurisdiction over a case involving the disposition
of real property first. Atlantic Coastline
TO PROTECT OR EFFECTUATE ITS JUDGMENT exception
o a/k/a Relitigation exception – when b/c of res judicata, state court should not hear
claim actually litigated in fed’l ct, fed’l ct may enter injunction. (overruling Toucey)
o On the Merits: for this to apply, the prior fed’l judgment must be on the merits of
the issue. Procedural rulings don’t count. Atlantic Coastline

Example: earlier federal court denial of injunction of picketing was based on
lack of jurisdiction NOT b/c picketers had constitutional right to picket
o Parsons Steel: Timing for seeking injunctions: while a party may be entitled to
injunction under this exception where state court suit is pending, once final order is
issued by state court, 1738 will prevent fed’l ct injunction.
o What to do? File for a 2283 injunction before state case reaches judgment.
o Trienes: The last judgment is the one that’s binding.

!!! STRANGER TO STATE COURT PROCEEDINGS exception !!!
o Another exception to 2283 is when P in fed’l court is stranger to state court
proceedings. (Hale v Bimco Trading & County of Imperial, Calif v Munoz)
 Facts: FL has statute inspecting cement (but just inspecting out of state
cement; or inspecting for more); suit brought by FL contractor to comply with
law (suit for mandamus); gets final judgment; suit brought in federal court by
out of state cement producer saying state law violates Commerce clause
 It was a different party than was in the state court proceeding

Practice Pointer
75
o to prevent problems w/ 2283, Ds should seek fed’l court injunction against the P
filing a state court suit. This will prevent problems from arising with Anti-Injunction
Act and Younger.
§ 11.3

The Tax Injunction Act (NOT SURE IF WE NEED THIS)
Tax Injunction Act, 28 U.S.C. § 1341: fed’l statute prohibiting injunction against
collection of state taxes. Requires plain, speedy and efficient remedy in state court
o Younger Applied

Great Lakes Dredge & Dock v Huffman: can’t beat tax injunction act by
seeking a declaratory judgment. (same as Samuels holding)

Rosewell v LaSalle Nat’l Bank: 2-year appeal process was plain, speedy and
efficient. Thus, fed’l suit barred by tax injunction act.

Fair Assessment in Real Estate Assn v McNary: 1983 damage suit brought
against state tax assessor for retaliation after contesting property taxes. Not
allowed. Fed’l cts should not, b/c of equity and comity, be able to hear a
damage claim that seeks to beat tax injunction act.
Chapter 12
Federal Court Abstention Because of Unclear State Law
§ 12.1
Abstention Overview

Underlying police issues and rationales
o In certain circumstances the federal court must abstain and refuse cases that are
properly within their jurisdiction
o But abstention is criticized as being overly protective of state courts - also defended
as promoting federalism
§ 12.2
When Is Abstention Because of Unclear State Law Appropriate?
§ 12.2.1
Pullman abstention: avoiding federal court constitutional ruling

Railroad Commission of Texas v. Pullman Co. (1941)
o Federal court abstention is required when

1) state law is substantially uncertain
76


Note: the mere fact that state court has not yet decided the issue does
not make the issue uncertain, And
2) a state court’s clarification might make a federal court’s constitutional
ruling unnecessary

abstention is confined to situations where there are “special
circumstances”
o Rationales for the holding of Pullman

Avoids friction between federal and state courts (unclear because federal court
could still invalidate a state law on constitutional grounds; is it just anger
directed at the federal court?)

Reduces the likelihood of erroneous interpretations of state law (this risk is
commonly accepted anyway under pendent jurisdiction principles)

Avoids unnecessary constitutional rulings (see Ashwander v. TVA) (but this
concern can be obviated if the federal court simply decides the state law issue
first and only reach the constitutional question if necessary)
o Criticisms of Pullman

Abstention causes enormous delays as cases go from federal court to state
court (and often back to federal court)
o Result of abstention


Quackenbush v. Allstate Insurance Co. (1996): Only a stay is possible in
suits for money damages - suits for equitable or injunctive relief can be
dismissed or remanded based on abstention
Prerequisites for Pullman abstention
o 1) State law is substantially uncertain

Abstention is not warranted simply because law is challenged as
unconstitutionally vague, AND
o 2) Reasonable possibility that state court’s clarification of state law might make
a federal court’s constitutional ruling unnecessary

Abstention is not required if state law is patently unconstitutional, even if the
state court has yet to construe it (saving state law interpretation is unlikely)
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§ 12.2.2

Thibodaux abstention: unclear state law in diversity cases
Abstention generally not required in diversity cases
o Meredith v. Winter Haven (1943): S.C. held federal courts should not abstain in
diversity cases when state law is unclear - Congress created diversity jurisdiction and
there is no exclusion in the statute or law for “difficult cases”

Circumstances justifying abstention in diversity cases
o Louisiana Power and Light v. Thibodaux (1959): reaffirmed the general rule of
Meredith; however, indicated abstention is appropriate because of “special and
peculiar nature” of eminent domain proceedings
o “The Rule” - federal courts should abstain in diversity cases if


uncertain state law, AND
an important state interest that is “intimately involved” with the government’s
“sovereign prerogative”

In light of Quackenbush - it seems that federal courts could abstain, even
absent some special state interest, so long as the case was stayed and not
dismissed
Not automatically required just b/c involves eminent domain scenario = must
be unclear law

o Bottom line - lower courts are divided and confused over when abstention in diversity
suits is appropriate
§ 12.2.3

Burford abstention: defer to complex state administrative procedures
Burford v. Sun Oil Co. (1943)
o Federal court should abstain when

State has comprehensive administrative and regulatory schemes to answer
unclear state law issue, And

there is a high state interest in resolving the matter on its own (in Burford the need for centralized decision-making as relates to oil rights in the state)
o Result of Burford abstention - case should be completely dismissed by federal court
(nothing for the federal court to decide)
 Vs. Pullman and Thibodaux where cases sent back to state court for
clarification and then can come back
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
Ala. Pub. Service Comm’n v. Southern Railway (1951) - extending Burford
o Abstention appropriate because of the presence of important local interest and
existence of state regulatory structure

BUT: How broad is Burford abstention?
o New Orleans Public Service, Inc. (NOPSI) (1989): Burford abstention is
appropriate only where there is a danger that federal court review will disrupt the
State’s attempt to ensure uniformity in the treatment of an essentially local problem


Mere existence of state administrative procedures, even complex ones, does
not necessarily warrant abstention by itself

Administrative system must have primary purpose of achieving uniformity
within a state and the danger judicial review would disrupt this desired
uniformity
Burford limited to suits for declaratory and equitable relief
o See Quackenbush
§ 12.3

Procedures for Abstention
Procedures depend on type of abstention
o Pullman abstention - England v. Louisiana Board of Medical Examiners

England Certificate: to prevent res judicata problems when federal court
abstains, parties can reserve right to return to federal court if federal court
issues England Certificate reserving right to return to federal court for
determination of federal claims

San Remo Hotel v. San Francisco (2005): England reservation does not
allow party to re-litigate a matter in federal court if fully litigated in court

Thus, don’t present federal law claims in state court if only going to
state court to clarify state law
o Thibodaux abstention - England

Case goes to state court for clarification and can return to federal court for
resolution of any remaining issues

However, in most instances there will be nothing remaining to be decided in
the federal court - there are only state law questions to resolve - thus, sending
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the case to the state for clarification effectively ends federal court proceedings

Certification as an alternate procedure
o Almost all states have statutes that allow federal courts to certify questions to state
courts for a decision on a particular question of state law

U.S.S.C. or U.S.C.O.A. can always certify issues

Fed. D.C.: can usually certify questions

Chapter 13
§ 13.1
28 U.S.C. 1292(b): Allows district judge to issue certificate that there
is unclear issue of state law and substantial grounds for difference of
opinion
Federal Court Abstention to Avoid Interference with Pending State
Proceedings
Intro
Younger v. Harris held that federal courts may not enjoin pending state court criminal
proceedings - the decision was not based on the Injunction Act (see Chapter 11), rather a new
abstention principle that has been expanding ever since (though Younger began as a bar in
criminal matters, the courts have expanded it so far that it could be read to prevent federal courts
from interfering with actions of state and local executive agencies, such as the police).

Relationship to Rooker-Feldman
o Rooker-Feldman prohibits federal district court review of completed state court
proceedings
o Saudi Basic Industries v. Exxon Mobil (2005) - Rooker-Feldman is limited to
situations where the state court judgment has been rendered before federal
proceedings have commenced
o Lance v. Dennis (2006) - Rooker-Feldman applies only when a party from state court
is seeking to have the federal court overturn the state court’s judgment

DOES NOT BAR actions by nonparties to the state court judgment even if
they were in privity with the party of judgment
§ 13.2 Younger v. Harris (1971)

Pre- Younger precedents
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o Douglas v. City of Jeannette (1943) - federal court cannot enjoin ongoing state
prosecutions even if the state law is patently unconstitutional

S.C. emphasized traditional principles of equity - adequate alternative
procedures for constitutional review made an injunction unnecessary
o Dombrowski v. Pfister (1965) - federal court may interfere with state criminal
proceedings under statutes that were unconstitutionally broad under the First
Amendment (Douglas was the rule, Dombrowski the exception)

Younger v. Harris
o Facts: P sought relief in form of federal injunction (distributing leaflets which
violated CA syndicalism act)
o Federal courts are prohibited from interfering with pending/ongoing state
prosecutions except under “special circumstances”

S.C. pointed to “basic doctrine of equity jurisprudence” and indicated courts
should not act when the moving party has an adequate remedy and will not
suffer irreparable injury if denied equitable relief

Another rationale - comity, i.e. the proper respect for state functions,
which criminal prosecutions are particularly the province of

1st Amendment does not itself present a special problem for the courts

However, bad faith and harassment in prosecution of case does raise such
circumstances (distinguishing Dombrowski)
o Younger test:



Pending state proceeding
High state interest
Adequate opportunity to present constitutional claims in state proceeding
Irreparable Harm:



A flagrantly unconstitutional statute (overbroad statutes) –
unconstitutional in every line, sentence and paragraph (will never
happen)
A series of bad faith prosecutions brought to harass, w/ no valid
expectation of a guilty verdict/conviction
These can be thought of as the “extraordinary circumstances” that are
needed (see § 13.4)
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
Relationship to the Anti-Injunction Act
o Court explicitly stated decision was not based on AIA - instead principles of equity,
comity, and “our federalism” mandated the decision
o Mitchum v. Foster provides exception to AIA when Congress specifically authorizes
an injunction - § 1983 was held to be such an express authorization - but Younger
was brought under § 1983 . . . so?
o Younger abstention is best understood as creating a separate and independent barrier
to federal injunctions - in order to obtain injunction under Younger - the case must fit
an exception of the AIA and an exception of Younger

§ 13.3
Theoretically, Younger evinces the belief that state courts are to be trusted to
protect civil rights; a view that Mitchum wholly rejects
Extension of Younger v. Harris
*KIM: declaratory relief is lighter/less serious than injunction
§ 13.3.1

Declaratory and monetary relief when there are pending state court
proceedings
Application to suits for declaratory judgments
o Samuels v. Mackell (1971) - federal courts may not provide P with declaratory relief
when he is subject to a pending state court prosecution (criminal)


S.C. refused to accept the distinctions between injunction and declaratory
judgment, since it has the same practical effect of interference and disruption
Monetary relief
o Ex: a person is prosecuted under an unconstitutional statute - can he receive money
damages for injuries suffered while at the same time defending a prosecution in state
court?
o Deakins v Monaghan (1988) - may be somewhat unresolved the extent to which
Younger also applies to damage suits; however, federal court should stay suits for
money damages
o The Court’s opinion in Quackenbush (speaking in terms of all abstention doctrines)
seems to be a strong indicator that Younger abstention applies only in suits for
injunctive or declaratory relief (& NOT damage suits)
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o What if criminal proceedings are over?
§ 13.3.2


If convicted, § 1738 says this was decided in state prosecution. No civil
damage suit.

If acquitted, § 1983 claim is legit.
Federal court declaratory and injunctive relief in the absence of pending
state proceedings
Steffel v. Thompson (1974)
o Declaratory relief could be provided by a federal court when there was no ongoing
state prosecution (rationale of Younger inapplicable) - prosecution must be
threatened, if not pending (real threat)
o What constitutes a pending prosecution?


Indictment, arrest (some states), grand jury investigation (Deakins)
Hicks v. Miranda (1975) (deep throat film case)
o Federal courts may not provide declaratory relief if a state prosecution is commenced
before the federal proceedings are substantially completed

Derivative Preclusion: where different parties in parallel litigation (e.g.
employees & employers, migrant workers & union) have identical economic
interests, a pending criminal against one party will be imputed to preclude a
suit in fed’l ct by the other party, even though they’re not the same parties

substantial completion - before any proceedings of substance on the merits of
the case
o Problem under Hicks reasoning - offers prosecutors a tool to remove cases from
federal court by retaliating against federal P by initiating state prosecutions

Injunction when no state proceedings are pending
o If the view of Samuels is accepted, then there is no difference between declaratory
and injunctive relief; however, the majority in Steffel seemed to think that injunctions
are more disruptive and should therefore be treated differently . . .

Doran v. Salem Inn, Inc. (1975) (3 topless bars case)
o Preliminary injunction allowed against threatened state prosecution - if prosecution is
pending, or not begun, then there is no disruption caused by the preliminary
83
injunction (not clear if this logic would extend to permanent injunctions)

Wooley v. Maynard (1977) (license plate tape case)
o Upheld permanent injunction in the absence of pending state court proceedings injunctions are appropriate in “exceptional circumstances” upon “clear showing that
an injunction is necessary to afford adequate constitutional protection” (Maynard had
been subjected to 3 prosecutions within 5 weeks)
o What is the scope of Wooley?

Permanent injunctions are allowed in the absence of ongoing state
proceedings

But see Ellis v Dyson - § 1983 suit brought seeking expungement of state
criminal proceeding and prospective injunctive relief against enforcement


§ 13.3.3

Rule: Younger applies if injunctive relief has an effect on past
criminal convictions (seeking to expunge record)
Vs. this case where only worried about future convictions (no effect or
relief sought for past convictions)
Application of Younger to pending state civil proceedings
Huffman v. Pursue, LTD (1975)
o Civil nuisance proceeding against dirty bookstore - Younger applies whenever
pending state action is “quasi-criminal” in nature (when state has option to bring
either civil or criminal)


The vital consideration of comity counseled restraint
Trainor v. Hernandez (1977)
o Younger applies if the state can characterize their proceedings as:



i) having a high state interest; and
ii) quasi-criminal in nature
Juidice v Vail (1977)
o Even if private litigants (state not a party), Younger applies in civil proceedings where
state has a high interest, e.g. civil contempt proceedings

Pennzoil Co. v Texaco Inc (1987)
84
o Younger abstention applies to request for injunction against state court’s supersedes
bond requirement (to appeal a judgment). State has a high state interest in their own
court procedure

NOPSI (1989)
o Younger only applies to state judicial proceedings (either by administrative agencies
or courts), NOT legislative decisions. Here, a decision by the city council to deny
NOPSI’s rate increase request was a legislative decision.
 Must be judicial for Younger to apply
§ 13.3.4

Application of Younger to pending state administrative proceedings
Middlesex County Ethics Committee (1982)
o Younger can apply to state administrative proceedings if they meet the three part test
(high stat interest - quasi-judicial - closely related to functioning of judicial system)
o Facts: state bar ethics committee; judicial b/c reviewed by S. Ct. & closely related to
functions of judicial system)

Ohio Civil Rights Comm’n v. Dayton Christian Schools (1986) (pregnant teacher fired by
religious school)
o Younger principles apply when there are state proceedings “in which important state
interests are vindicated” so long as those proceedings afford P full and fair
opportunity to litigate the constitutional claim
 Facts: state courts were available (reviewed committee decisions) to raise
constitutional claims)
o Does not alter previous doctrines that state administrative proceedings need not be
exhausted before filing in federal court - however, once administrative actions are
initiated, federal court cannot interfere if important state interests are at stake
§ 13.3.5

Application of Younger to prevent federal court injunctive and declaratory
relief against the executive branches of state and local government (i.e. police
departments)
Rizzo v. Goode (1976) (evidence of racially motivated police brutality)
o Suit dismissed on justiciability grounds (too conjectural about what a small group of
police might do in the future)
o Rehnquist suggested an extension of Younger as a possible limit on federal review of
state and local executive action
85
o Lower courts read this to indicate proceed with caution when dealing with important
state and local government activities (which would likely include law enforcement)
§ 13.4

Exceptions to the Younger Doctrine
“extraordinary circumstances”’ federal courts may enjoin pending state court proceedings
o
o
o
o
bad faith prosecutions
patently unconstitutional laws
unavailability of an adequate state forum
waiver (i.e. can’t be raised by court; must be raised by parties)
Chapter 14
Federal Court Abstention to Avoid Duplicative Litigation
Facts giving rise to issue: “reactive suits” - A party sued in state court might react by filing suit
over same subject matter in federal court (or reverse); the party might perceive an advantage in
one forum over the other
Make sure it’s same parties and same issues.
§ 14.2

When Should Federal Courts Abstain Because of Duplicative Litigation in
State Courts?
Real property exception - first court with jurisdiction decides
o This is the one firmly entrenched exception to the rule

No preclusion of concurrent jurisdiction in other areas

Federal courts generally need not abstain to avoid duplicative litigation
o However, Brillhart v. Excess Insurance Co. (1942)


Abstention was appropriate where federal court was convinced that the
controversy would be settled by the state court proceeding
Colo. River Water Conservation District v. United States (1976) (NOT AN ABSTENTION
CASE)
o Rule: There are exceptional/extraordinary circumstances when a federal court should
(for reasons of “wise” judicial administration) surrender jurisdiction
o Exceptional Circumstances Test

Inconvenience of federal forum (location)
86



Desirability of avoiding piecemeal litigation:
 Piecemeal litigation will exist if fed’l ct wants only to hear fed’l
claims. If litigation is merely duplicative, no problems with this prong.
Order in which jurisdiction was obtained by the concurrent forums (Moses
Cone altered this to “how much progress has been made in the two actions”)
Problems that occur from parallel litigation over the same res.
o The existence of duplicative state litigation is not, by itself, sufficient to justify
federal court abstention

Will v. Calvert Fire Insurance Co. (1978) (plurality)
o Rehnquist block - the decision to abstain when there is parallel state court litigation is
left to the sound discretion of the court (citing Brillhart)
o Brennan block - abstention is rare and limited to exceptional circumstances (citing
Colo. River)

Moses Cone Memorial Hospital (1983) - added more factors
o Applicability of federal law
o Adequacy of the state forum
o Existence of a federal question or high federal interest weighs heavily against
abstention

Result of abstention under Colo. River
o Stay in the federal litigation - staying a case stops SOL and if problems arise in state
court litigation, can return to federal court
o However, a stay may be a hollow victory because of res judicata effect of state
decision
EMAILS FROM COCHRAN:

1)
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