Federal Jurisdiction Notes - Prof. Cochran - Fall 2011
(Disclaimer: This is not a polished outline, but notes. Subsequent users are encouraged to update it into an
“outline.” It is recommended you review the assigned reading and Chemerinsky’s Fed. Jur. Book.)
Table of Contents
I. Standing ................................................................................................................................................................ 2
Political Question Doctrine ................................................................................................................................................................ 2
Mootness .................................................................................................................................................................................................... 2
Allen v. Wright ......................................................................................................................................................................................... 4
Redressability .......................................................................................................................................................................................... 7
Lujan v. Defenders of Wildlife ........................................................................................................................................................... 7
Statutory Standing - Citizen Suit ...................................................................................................................................................... 8
Federal Election Comm’n v. Akins ................................................................................................................................................... 9
State Standing ....................................................................................................................................................................................... 10
Tax Payer Standing ............................................................................................................................................................................. 10
Legislative Standing ........................................................................................................................................................................... 12
Third Party Standing.......................................................................................................................................................................... 12
II. Federal Common Law & Extent of Art. III .............................................................................................. 12
Federal Common Law Background (Osborn & Lincoln Mills)............................................................................................ 12
Protective Jurisdiction ...................................................................................................................................................................... 13
Little Lake Misere ................................................................................................................................................................................ 14
Boyle v United Technologies Corp. .............................................................................................................................................. 15
Sovereign Immunity: § 1346(b) & § 2680 ................................................................................................................................ 16
Feres Doctrine ...................................................................................................................................................................................... 18
Government Contracts w/ Independent Contractors in Iraq & Afghanistan ............................................................. 20
Westfall Act ............................................................................................................................................................................................ 20
Preemption ............................................................................................................................................................................................ 21
Class Actions.......................................................................................................................................................................................... 22
III. Implied Rights & Causes of Action .......................................................................................................... 22
Implying Private Causes of Action ............................................................................................................................................... 22
Title IX & Private Causes of Action............................................................................................................................................... 24
Bivens Suits & Chilicky...................................................................................................................................................................... 26
IV. § 1983 Suits ..................................................................................................................................................... 30
Under Color of Law: § 1983 & Monroe v. Pape ....................................................................................................................... 30
Immunity Doctrine ............................................................................................................................................................................. 36
Qualified Immunity............................................................................................................................................................................. 40
Implied Causes of Action through § 1983 ................................................................................................................................. 46
Municipal/Governmental Liability Under Monell .................................................................................................................. 49
V. 11th Amendment Sovereign Immunity .................................................................................................. 54
11th Amendment Background ...................................................................................................................................................... 54
Ex Parte Young ..................................................................................................................................................................................... 54
11A Consent & Abrogation .............................................................................................................................................................. 56
VI. Abstention Doctrines................................................................................................................................... 61
Younger Abstention ........................................................................................................................................................................... 61
Pullman, Burford, & Quackenbush Abstention ....................................................................................................................... 68
Colorado River v. United States ..................................................................................................................................................... 69
Moses Cone ............................................................................................................................................................................................ 71
Rooker-Feldman Doctrine ............................................................................................................................................................... 72
Anti-Injunction Act - § 2283 ........................................................................................................................................................... 72
VII. Attorney’s Fees ............................................................................................................................................. 73
Vexatious (Defensive) Attorneys Fees ....................................................................................................................................... 73
Plaintiff’s Attorney’s Fees ................................................................................................................................................................ 74
1
I. Standing
 Political Question Doctrine
 Baker v. Carr, 369 US 186
 Tenn. is mal-apportioned and the votes in rural areas counted more than urban areas (rural areas
had more political)
 Jurisdiction
 (1331) - Arising under Constitution
 (1331) - § 1983 case - private cause of action for constitutional violation - Secretary of Tenn.
enforces voting laws
 Interjects federal power between state citizens and their state officials (alters federalism)
 Political Question Argument - States should be able to run their own government
 Political Question Test:
 1) Is there a textually demonstrable commitment to another coordinate branch of government
 Nothing in Const. about this — states’ rights
 2) Are there judicially manageable standards
 Held “one man, one vote”; this is judicially manageable
 3) Possible lack of respect due a coordinate branch
 Frankfurter Dissent:
 Said this was a political question
 Outcome - This worked out (i.e., not a political question)
 Giles v. Harris, 189 US 475 (1903)
 Alabama has adopted the Miss Const. Had things in there about can’t vote unless passage of test,
own property, poll tax (everything short of saying blacks can’t vote)
 Held: Political question; if S. Ct. entered an injunction then there would be no way to enforce it.
 Imagine Plessy v. Fergusson - S. Ct. couldn’t have forced Louisiana to let blacks ride the train
 Luther v. Borden 541 US 267
 Dohr Revolution in Rhode Island. RI government set up by King George. After American
Revolution there was a war b/t two political factions in RI.
 Suit brought saying RI constitution requires republican form of government
 Held: Court backed off (or should have) b/c there was no way they would have stopped that war
 Vieth v. Jubelirer, 541 US 267
 Penn redistricts and gerrymanders districts (draws them around black communities)
 Suit brought to declare gerrymandering unconstitutional
 Held: No judicially manageable standard (unlike one man, one vote). Court can’t explore the hidden
motives. Political question
 Spectrum Stores v. Citgo 632 F.3d 938 (5th Cir)
 Alleging violation of antitrust laws by oil companies and OPEC saying they conspire to keep gas
prices high by limiting production and other things
 Test: (factor 1) Involves foreign nations and the executive branch has say-so over such things
 Largess v. Supreme Judicial Court of Mass., 373 F.3d 219
 Mass S. Ct. holds under Mass Const. that same-sex marriage is Const. (striking down heterosexual couple
law)
 Oppositional suit brought in federal court
 Jurisdiction:
 1331 - Arising under US Constitution: Alleging there was a right to republican form of government
(Luther v. Borden)
 § 1983 - This is a 1983 suit b/c Mass
 Held: Political question and dismissed
 Strategy: Don’t sue entities, sue persons (should have sued the justices in the majority)
 Mootness
2
 City of Mesquite v. Aladdin’s Castle, 455 US 283 (voluntary cessation exception; other exceptions not
listed below: collateral injury and properly certified classes in class action suits)
 Facts: Aladdin’s was building a game room in a mall, had invested much in the game room. Local
police chief believes mafia has infiltrated gaming industry and gets city council to ban Aladdin’s castle
 Claims - First amendment (video games are free speech)
 Jurisdiction: § 1331 arising under Const. / § 1983 cause of action
 Resolution: At 5th Cir city council changes the law. Is it moot?
 Supreme court says isn’t moot b/c looks like intentional mootness
 United States v. W. T. Grant, 345 US 629
 Facts: Sued under something and then W. T. Grant says “no we won’t do it anymore”
 Not moot, can’t trust them
 Niza v. Livingston, 2010 WL 6511
 Guy found guilty of murdering 9-year-old girl. Released on parole and classified as sex offender.
Required to get job under parole law, and parole officer goes with him to explain he is a sex offender
(and must find a place to live). Sues saying he was misclassified as a sex offender. Pattern of parole
officers misusing the sex classification. Promises not to do it anymore.
 5th Cir says no mootness -- Can’t trust them
 Sossaman v. Texas 560 F.3d 316
 Prison reg applicable to all prisons; if on single-cell restriction then can’t go to religious services.
Change regulation after suit is brought
 Voluntary Cessation Factors:
 Moot? 5th Cir gave deference to a significant state body. Not moot — this differs from the parole
officers or the Mesquite city council.
 It is a judgment call (one aspect of mootness)
 Other aspect is the “nature of the case”
 Cross Reference Mootness & Attorney’s Fees
 Do you get attorney’s fees when you bring suit and the other side just gives up.
 Atherton Mills v. Johnson, 259 US 13 (1922)
 Should government regulate businesses? Fed statute relating to use of child labor. Profits taxed more if
you use child labor b/t 14-16 years for more than so many hours or arrive so early or leave so late
 Father sues wanting his kid to work more
 Moot? Upon reaching Supreme Court the kid is no longer b/t 14-16
 See also Craig v. Boren (women can buy 3.2% beer at 18; men 21); Sozna v. Iowa (must live in
Iowa for a year to get a divorce)
 Sozna said you can beat mootness by a class action (when named plaintiff moots out they get
substituted)
 Capable of Repetition but Evading Review
 Have a plaintiff who is litigating a case in a situation where the time period is too short to resolve the
merits, and there is a likelihood it will happen again
 Also is there an omnipresent threat of the issue going moot
 Roe v. Wade
 A pregnant woman will have the kid; and then she could get pregnant again
 Super Tire Engineering v. McCorkel, 416 US 115
 Strike at Super Tire and there is a law that gives welfare to striking employees. Super Tire sues
saying state law conflicts w/ federal labor laws (§ 1331)
 Yes, capable of repetition but evading review because there is an omnipresent threat the workers
will strike again
 Hornbeck Offshore v. Salazar, 2010 WL 3219469
 Post-BP oil spill, DOI placed moratorium on offshore drilling. Hornbeck sues saying moratorium
violates federal statute. After filed, heading to 5th Cir and moratorium is released. Is it moot?
 Moot? 2/1 - Moot (dissent said capable of repetition and there is an omnipresent threat Obama
would do it again)
 Jurisdiction - § 1331 arising under federal statute
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 Allen v. Wright
 Purpose of Reading
 Goal of litigants is to try and run the IRS; set policy through the courts
 Bad Case
 This is like mountain-top removal;
 Facts:
 IRS wanted to make the changes and Congress stopped them. These were bogus regs b/c they were
“check the box” regulations
 SEC Digression
 They had check the box regs but they weren’t actually watching out for what was going on
 Subtext - Private school people were supporting political winds that wanted to pause the IRS issuance
of new regs
 Defendants: Head of IRS & Sec of the Treasury
 Cross ref to Madison v. Marbury
 5 USC § 702 (Administrative Procedures Act)
 Suit for injunctive relief against an officer of U.S. waives injunctive relief
 Issue
 When you look at agencies and what they do, it frequently boils down to which party is in control of
the legislature and presidency
 War over what should be done politically
 Class Actions (Rule 23)
 Class so numerous it would be impracticable (Numerosity)
 Common Qs of law or fact
 Claims of Ds the same
 Representative parties will serve interests of litigants
 Rule 65
 TRO = no notice; Preliminary Injunction = mini hearing
 42 USC § 1981
 Every person in the U.S. has a right to enforce contracts
 42 USC § 1331 (Jurisdiction)
 Federal Question - Alleges IRS is promoting race discrimination
 Boling v. Sharpe - You can bring EPC suit against federal government (i.e., 5A applies to fed government)
 Venue
 Would a black judge need to recuse himself?
 Rehnquist in Laird v. Tatum - General expressed views not grounds for recusal
 McClung v. Silliman, 19 US 598
 State courts do not have jurisdiction to issue injunctions against federal government
 See also Hansen v. Long, 166 P.3d 248
 Bringing state court suit against federal government demanding notary public
 Standing:
 First - O’Connor starts w/ Article III
 S. Ct. has defined Art. III case & controversy requirement to require standing (While some
justiciability doctrines are prudential, standing is constitutional)
 S of P Issues:
 Bork Quote: Separation of Powers quote (he is about as conservative as you can get)
 Ps asking Court to force executive branch to do something
 “Where there’s a wrong there’s a remedy” -Marbury
 Allen v. Wright Injuries
 1) Government is subsidizing segregation and stigmatizing them; 2) being deprived of a right to a
desegregated education
 Allen v. Wright - First Injury - Government is subsidizing segregation and stigmatizing them (generalized)
4
 Not satisfactory for an injury
 Ex parte Levitt, 302 US 633 (generalized injury)
 Appointee to the S. Ct. challenged; claimed he had problem when Black was in Congress
 Who is injured? Everyone basically. It is a generalized injury
 Kerchner v. Obama, 612 F.3d 204
 Obama does not have a US birth certificate
 Generalized injury (See Ex parte Levitt)
 Should she be sanctioned? What is frivolous, how far must it go?
 Schlesinger v. Reservists Committee to Stop the War, 418 US 208
 Suit by Organization about Congressmen serving as reservists
 When do organizations have standing? Hunt v. Wash Apple Comm’n 432 US 333
 Commerce Clause Suit: Wash had superior apples and they weren’t able to use their labels
 Three Part Test for Org Standing:
 1) Must be a member in the Org who has standing in his/her/its own right
 Sure, any apple grower is harmed
 2) Is the suit germane to the interest of the Org
 Goal is to promote Wash apple sales
 3) Does the suit require participation of the individual members
 Damages v. Injunctive Relief - Injunction applies to everyone so no member participation; but
damages would require the members to be part of the lawsuit (unless in a rare exception
Congress has authorized organizational damages, perhaps Unions are an example)
 Jurisdiction: § 1331 arising under constitution and § 1983 person under state law (Hunt)
 1983 + 1988 gives you attorney fees
 Alleged injury is that Pentagon is influencing the representatives
 This was a generalized injury under Levitt - everyone is hurt
 Moose Lodge No. 107 v. Irvis, 407 US 163
 No blacks allowed; Injury: equal protections clause, but he never applied for admission (so
generalized) See Levitt
 O’Shea v. Littleton, 414 US 488
 Illegal bonds and sentences alleged and suit brought to enjoin court action
 We need people presently incarcerated for injunction; past incarceration enough for damages
 City of Los Angeles v. Lyons, 461 US 915
 LAPD uses aggressive chokehold and some people have died. Suit brought by victim of chokehold to
enjoin
 Damages: you need plaintiff who has been hurt; injunction: you need someone who will be (or
someone with a showing of imminent risk of harm)
 There is no one who will be hurt prospectively (can’t show Lyons will get choked again). See O’Shea
 Rizzo v. Goode, 423 US 362
 Suit in Philadelphia about unconstitutional behavior by police. Suit for injunction for imminent threat,
but all speculative
 United States v. SCRAP, 412 US 669 - Quote in Allen case book before: “No standing for innocent
bystanders”
 Suit brought by G. W. Law students; Challenging regulation that increased rail fees for recyclable
materials than non-recyclable (environmental concern lawsuit).
 Alleged Injury: Regulation will cause more trees to be cut down, in parks where they see them
 Held: Standing, somehow. Most liberal standing case;
 Basically it appears the Court wanted to hear an environmental case
 Freedom from Religion v. Perry, 2011 WL 3269339
 Gov. Perry had a huge prayer rally this summer; sought brought to enjoin the rally as state sponsored
religion violating the establishment cause
 Organizational Standing: Hunt - need a member
 Innocent Bystanders: the Freedom from Religion members are just bystanders to the rally and not
required to attend or harmed
5
 Holding: No standing because innocent bystanders
 Lujan v. National Wildlife Federation, 497 US 871
 No “impact statements” were being brought re: US mining permits. Members of Org were using
adjoining piece of land
 Held: Enough for standing with respect to neighboring piece of land if you can see it
 Sierra Club v. Morton,
 Mineral King Valley; Disney wants to build new park; Sierra Club sues to enjoin b/c no environmental
impact statement
 Suit brought as Org saying preeminent environmental group (but no one in the Organization was
claimed to have standing)
 Held: innocent bystander (later remanded and said in amended complaint that someone saw it).
 Japan Whaling Ass’n v. American Cetacean Soc., 478 US 221
 Suit that Japan and US is violating whale law and they can’t go see the whale and that actual members
who study and watch them will see fewer whales
 Held: There was standing
 Note: Standing philosophy - Court uses it sometimes to avoid cases it doesn’t want to hear
 Allen v. Wright - Second Injury - Right to be in a desegregated school
 Allegation: schools are being drained of white kids
 Right: Brown v. Bd. holds there is a right to an integrated education
 Simon v. Eastern Kentucky Welfare Rights Org., 426 US 26 (p.416)
 Suit by Welfare Org saying hospitals in KY are being given non-profit status but they are not
servicing indigent patients; Suit brought against Sec. of Treas.
 Jurisdiction: § 1331 violation of statutes regarding IRS; § 1983
 Even if state official violating Federal Statute — still jurisdiction under § 1983 (const. & laws)
 Reasoning:
 Hospital can either start treating indigents and incur more expenses, or forego
 Held: There was an injury but it wasn’t redressable because there wasn’t a showing that the
Hospital would start seeing indigent people
 Redressability:
 There was nothing in the record to show that the injury would be redressed (who knows if whites
would return to the public schools if the tax break was taken away)
 Separation of Powers Discussion
 Laird v. Tatum for SofP discussion: Court should be hesitant when asked to find standing in a way that
could affect co-ordinate branches; hesitant to issues orders against co-equal branches of government
 Laird v. Tatum, 408 US 1
 Military infiltrating civilian Orgs against the Vietnam war. Suit brought saying interferes with right
to association.
 Held (5/4): Mere existence of subjective apprehension is not enough; mere fact you are chilled is
not enough (subjective apprehension and chilling not enough)
 ACLU v. NSA, 493 F.3d 644
 Wiretapping program by the NSA on US citizen phone calls to “possible terrorists.” Suit by
lawyers and journalists (interfering w/ relationships and can’t get interview w/ journalists)
 Under Hunt must show that someone was actually hurt
 But under government secrets act we can’t find out who was being tapped so couldn’t find a
represented plaintiff
 Amnesty Int’l v. Clapper, 638 F.3d 118
 Amended surveillance statute so that it requires electronic surveillance under certain situations
 Court held that there was standing to bring suit
 NY Times Article: CIA & NYPD collaboration to infiltrate Muslim Orgs and Mosques
 Are Muslims chilled? Laird v. Tatum maybe not
 The Presbyterian Church (U.S.A.) v. US, 870 F.2d 518
6

INS is putting infiltrators into the church and they are recording church services. Presbyterians are
sanctuary for immigrants
 Suit is brought by Presbyterian church
 Held: Standing because there was a decrease in people going to church
 Limits scope of Laird v. Tatum (differentiate perhaps between factual chilling that is actually
occurring and speculative or feared chilling)
 Lujan v. Defenders of Wildlife
 Must show imminent harm
 Redressability
 Warth v. Seldin, 422 US 490
 Facts: City A next to City B. City A is predominantly black. City A has big block zoning which has an
adverse impact b/c large block zoning hurts low income individuals b/c they can’t build a huge house
on a big piece of property.
 No Redressability:
 Record Problems: No facts that contractor would build low income housing even if they one, thus
injury not redressed
 Northeastern Florida Chap v. City of Jacksonville
 Facts: Affirmative Action. Suit brought by contractor saying affirmative action discriminates against
white people. Was nothing to show that the white people would even get the contract (not redressable)
 Held: There was standing b/c the erection of the barrier against the group was an EPC violation. Thus it
was irrelevant that the injury couldn’t be redressed b/c it was “against a group” instead of an individual
in Warth.
 Articulation of the injury as ideological Equal Protection Clause (EPC) violation created standing
because the injury was a “class” was denied equal access
 Justice Thomas hates affirmative action so he tweaked the standing issues
 Duke Power Co. v. Carolina Environmental Study
 Facts: Congress passed law saying if you build nuclear reactor then there is limit to liability. Suit
brought by persons using the river (they don’t want to live near a nuke if they can’t recover in suit).
 District court upheld standing and found the act unconstitutional
 Held: You can have standing because of one reason and actually be suing for another
 Burger FN: Jurisdictional allegation was erroneous in the complaint, but doesn’t matter so long as
facts in complaint show a jurisdictional base that the claim is alright
 Rehnquist - Maybe there wasn’t federal jurisdiction b/c the federal law was used as a defense
 Policy Issue: Court probably heard this case because when the district court struck down the law
nuclear construction everywhere stopped! Needed to get it going again
 Lujan v. Defenders of Wildlife
 Lujan Opinion (forgot to buy a plane ticket case)
 Facts: Law required notice be given re: endangered species when construction projects started.
Regulation issued under endangered species act saying it didn’t apply to foreign countries. Suit brought
saying they misinterpreted it
 Jurisdiction: § 1331 arising under endangered species act
 Named Defendant: Lujan - Secretary of the Interior
 Standing Criteria
 Injury, Causal Connection, Redressability
 Is jurisdictional so it must in the complain, and at summary judgment level must have the
information in the record
 Held (Scalia)
 Imminent Threat of Harm - Says there needs to be an imminent threat of harm (there was nothing
in the record showing they were going to Africa)
 Example:
 Deida v. Milwaukee, 192 F. Supp. 2d 899
7
 City ordinance that you can’t put flyers on car windows. Suit brought saying 1A violation.
City says we aren’t enforcing it; it is just an old law on the books.
 Is the injury imminent?
 Held: plaintiff had to show a credible threat of enforcement.
 How do you show a credible threat of enforcement?
 Depose police chief; ask if you’ll arrest client if they violate city ordinance?
 Redressability
 If the Plaintiffs won Lujan then all they would get was a referral to the DOI, but that doesn’t
mean the DOI would do anything anyway
 Also, the projects and Egypt and elsewhere might still go on anyway b/c these are third parties
who can make their own choices and might go forth w/ the dam project anyway
 Lujan Dissenting Opinion
 Reasonable people know these are professional animal researchers and they will of course go back
to those places, but those
 Cited in Lujan
 Sierra Club v. Morton
 Must show land is actually being used
 Japan Whaling Ass’n v. American Cetacean Soc.
 United States v. SCRAP
 This super liberal case is in trouble (i.e., an aberration), but it is still being cited by Scalia
 Summers v. Earth Island Institute, 555 US 488
 Facts: Forest service has jurisdiction over hundreds of millions of acres of federal land. Federal law
requires activity on this land be done pursuant to an environmental statement. Regulation that if there
is salvage timber on a small portion of land (250 acres or less) then no environmental study needed
 Approximately 3,000 sales of 250 acres or less each year . . . .
 Complaint said this involved a certain piece of land and that there are members who camp in the
250 acre plot in the Nat’l Forrest that you are selling w/o a environmental impact study
 Standing Holding (5/4)
 For the one Plot: There was standing b/c people were actually using that one plot
 For everywhere else: There was not standing for all other acres under Lujan for the requirement for
an imminent injury
 Dissent (Liberals)
 Says if all members of the organizations that are the Plaintiffs in the lawsuit then there is more than
a probability that they will be using many acreage and that was good enough for them
 Friends of the Earth v. Laidlaw, 528 US 167 (2000)
 There was a 60 day notice requirement before bringing suit under clean water act (give them time to fix it).
On the 59th day the polluting company drafted a complaint for S.C. DEQ and colluded with them to sign it
and bring suit against the company itself. They “admit” wrong and promise not to do it again (shenanigans).
 Laidlaw argued it was moot because of the earlier confessed suit in the S.C. courts
 Judgment for damages was entered
 Issue arose whether a damages judgment was enough to cure the injury making it redressable (there
was no injunction)
 But the company was out of business from the damages so the court said that was good enough
 Held - There was standing
 Clean Water Act Remedy - Under clean water act if you sue and win then the money damages go to the
government, but there are also attorney’s fees
 Attorney’s fees give incentives for lawyers to enforce the constitution
 Statutory Standing - Citizen Suit
 Lujan - Procedural Injury
 Citizen Suit: Provides that any person may bring civil suit on his own behalf against anyone for the US
who violates the statute
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Scalia: Congress violates Article III when it creates a procedural “injury” citizen suit — Congress can’t
expand standing
 Even if congress creates citizen suit COA, there must still be at a minimum constitutional standing
(injury, causation, redressability)
Schlesinger - Generalized injury insufficient to give standing. See Levitt
Separation of Powers - Scalia in Lujan
 Worried it would allow for co-equal branches of government to control one another
Tropicana
 Suit brought by tenants of Apt complex saying they discriminate against African Americans.
 Standing: Yes, Congress expanded standing to the largest extent possible (Court allowed it basically for
policy purposes)
Linda R. v. Richard D, 410 US 614 (1973)
 Law in Texas that women don’t get child support for illegitimate children (unconstitutional sex and
illegitimate child discrimination).
 Standing: There was no redressability b/c the Texas law puts husbands in jail for two years for not
paying the child support.
 Thurgood Marshall said that there was no redressability b/c the Plaintiff wouldn’t get child support
necessarily anyway
 Data Processing Service Organization v. Camp, 397 US 150 (1970) (Zone of Interest Test)
 Facts: Federal Statute that banks can only engage in banking business. While Nixon was Pres. the secretary
of treasury issued regs saying banks could engage in data processing business and travel business. This
was in direct conflict with the statute. Sec. of Treas. was just making the banks happy
 Jurisdiction: § 1331 arising under a statute
 Plaintiff: a data processing company claiming they are losing business
 New Test (only applied when bringing suit contesting a regulation)
 1) You have injury
 2) You have causation
 3) Redressability - if you win the case is the harm gone?
 4) Is the plaintiff arguably protected or regulated by the law (Zone of Interest/Regulated Under factor)
 Is a data processing company arguably protected or regulated by a federal statute that says banks
can only engage in banking
 Note: Limit Data Processing to its facts (i.e., to situations where you aren’t being regulated, but
claim the regulation affects you and you were in the one of interests protected by the statute)
 To understand standing you must get a feeling of how the courts play the standing game
 Doe v. Tangipahoa Parish, 494 F.3d 494 (Example of how awful it is)
 Suit brought to enjoin school board from saying prayers
 After procedural wrangling and thousands of hours by lawyers
 Held no standing b/c parents weren’t at the school board meetings
 Federal Election Comm’n v. Akins
 Federal Election Comm’n v. Akins, 524 US 11 (1998)
 Facts: If you are a political group supposed to register with FEC. Comm’n didn’t make them register.
Ps sue saying they are injured by not having the information.
 Jurisdiction - § 1331 arising out of federal laws. Federal law tied in with the Comm’n act that any
aggrieved party who is injured.
 There is a first amendment right to receive information
 Injury - They were denied the right to access the information that would affect their voting
 Cf. Baker v. Carr - Injury is diminution of voting strength
 Data Processing? (Remember only use for suit against a federal agency)
 Voters are arguably regulated under the Data Processing test (i.e., in the zone of interest)
 Interpreting Cases
 United States v. Richardson, 418 US 166 (1974) (like Schlesinger)
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Facts: Specific provision in Const. saying all budgets must be disclosed, and CIA budget is not
disclosed. Basically they want to know that
 Standing? - No. Target population in this case is the whole general population (generalized)
 Akins was limited to a certain few voters who are distressed about Israel/Palestinian affairs
Edwards v. First American Corp, 610 F.3d 514 (cert granted)
 Facts: At home closing you get a title search. First American at closing of home sales is paying a
title company to check title. First American bought about 30% of the stock of that title company.
First American gets a kick-back from title company, and there is an anti-kickback statute.
 Suit brought by Edwards claiming there are kickbacks and this is class action.
 There is an Ohio statute saying that all charges in closings have to be the same
 Injury - Doesn’t look like there is one because the statute says the charges are all the same
 9th Cir Held - Mere violation of federal statute gives standing . . . .
 Think Lujan about mere violation of statute not being enough
 State Standing
 Background Cases
 Missouri v. Illinois, 180 US 208
 Chicago sewage flowing into Missouri.
 Quasi Sovereign interest violated
 Georgia v. Tenn. Copper, 206 US 230
 Copper smelting smoke going into Georgia
 Quasi Sovereign interest violated
 Alfred E Snapp & Sons v. Puerto Rico, 458 US 592
 Statute saying US citizens must be given preference on some jobs. They weren’t getting the jobs
 Said that Puerto Rico had standing as parens patria
 Massachusetts v. EPA, 549 US 497 (2007)
 Facts: EPA won’t enforce emissions standards on automobile industry.
 Suit brought by Mass saying EPA is being violated and we want standing
 Jurisdiction: § 1331 arising out of federal law (EPA)
 Injury? - Coastal waters will submerge the coastline because of global warming and the EPA is causing
this by not regulating car emissions
 Held (5/4) - Standing. Held that if the EPA takes jurisdiction there is a possibility pollution will be
reduced to some extent
 Roberts Dissent - This was lawyer created garbage that is worse than SCRAP
 Connecticut v. American Elec. Power, 131 S. Ct. 2527
 Facts: 8 states bring suit against 6 coal power companies operating in 20 states. Requesting federal
court order curtailing emissions.
 Held (4/4) (Sotomayor recused): Lower court affirmed, which held there was standing based on Mass.
v. EPA.
 Political Question?
 Judicially manageable standards: Court said don’t sweat it, the courts will figure something out
 Bond v. United States, 131 S. Ct. 2355 (2011)
 Facts: Wife’s husband goes and screws the next door neighbor. Wife gets pissed and goes over and
throws acid on the woman. There is a federal statute that says it is criminal to possess a chemical
without peaceful purposes capable of hurting someone.
 Injury - Ongoing federal prosecution is an injury
 10th Amendment - Argument this is the state’s right to enforce, but lower court said this was the
state’s right to seek to be enforced (only state can raise 10th amendment defense)
 Held (9/0) - Citizens may raise the 10th Amendment rights of a state (citizens have standing)
 Tax Payer Standing
 Frothingham v. Melon, 262 US 447 (1923)
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Facts: Federal statute giving a tax to kids of widows who aren’t being taken care of. Frothingham (and
the State of Mass) bring suit and say that the statute helping these people was unconstitutional.
 Injury? - Claim tax money being used improperly b/c more progressive states are getting ripped off
because the poorer states need more money
 Held: No standing; otherwise as a generalized grievance any tax-payer could come and sue the
government and the Federal Courts would be overrun
Flast v. Cohen, 392 US 83 (1968)
 Facts: Federal law gave $100 million to private and parochial religious schools. Suit brought to enjoin
statute as violation of establishment clause
 Held: Standing; two part test
 Limited Two Part Test for Tax Payer Spending
 Must be a link between the taxpayer and the enactment
 Link was that tax payer gives money and enactment spends money
 Must be a connection between the enactment and a specific limit in the Constitution
Valley Forge Christian College v. Americans United, 454 US 464 (1982)
 Facts: Federal government gives a piece of property being shut-down to a religious institution in
Pennsylvania under the Property Clause of the Constitution. Suit brought to enjoin that gifting.
 Held: No standing. Also didn’t meet Flast because there was no congressional act
Bowen v. Kendrick, 487 US 589 (1988)
 Money spent by executive branch under Congressional enactment that mentioned religiousness
Hein v. Freedom from Religion Foundation, 551 US 587 (2007)
 Opinions
 Alito Opinion (3 justices): Flast isn’t met
 Scalia (2 justices): Want Flast overruled; house of cards; should go back to Frothingham
 Souter (4 justices): “Government cannot force a citizen to contribute three pence” - That you
always have standing under James Madison’s approach when the government is supporting religion
 Political Philosophy
 This is the same split we have had about liberals v. conservatives fighting over expansive v. limited
access to the courts
 State Taxpayer Standing
 There is language out there suggesting that Flast extends to state taxpayer complaints
 Doremus
 There is dictum that if you are talking about local government taxes then you can bring suit
Catholic League v. San Francisco, 624 F.3d 1043
 Facts: The Vatican issues edict that Catholic agencies shouldn’t place children for adoption in
homosexual household. San Francisco passes an ordinance criticizing the Vatican as being stupid
basically. Suit brought to enjoin the city council edict.
 Standing? - What is the injury here; just bystander standing.
 Target Population - There was a more limited group here like in FEC v. Akins because only a
specific amount of Catholics were injured.
 Held - This was specifically targeted enough and showed seclusion and degradation of a group
Baur v. Veneman, 352 F.3d 625
 Facts: Suit brought against Dept. of Agriculture saying cattle slaughtering regulations are invalid and
specifically target cattle that fall down (which is a sign of mad cow disease)
 Standing - He says he eats meat and if he continues to eat meat he might get sick
 LA v. Lyons - There was no standing b/c couldn’t show he would be choked again
 Held - There was standing, but it may have been political b/c maybe the judges were afraid and
wanted to hear the case
Helen v. McKinney, 509 US 25
 Facts: Inmate sues says he is being exposed to second hand smoke
 Injury - Second hand smoke causes injury
 Held - There was standing
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 Legislative Standing
 Coleman v. Miller, 307 US 433 (Only Legislative Standing Case)
 Facts: Tie vote in state legislature; Lieutenant governor votes and argument is his vote is invalid
 Held (5/4) - There was standing (but there usually isn’t; i.e., you lose the vote you lose the vote)
 Raines v. Byrd, 521 US 811 (1997)
 Facts: Line item veto; Congress passes law saying president has right to line-item veto the budget.
Senator Byrd brings suit saying giving line-item veto results in a loss of political power in the US
 Held - No standing here; mere fact that you lose the vote isn’t sufficient
 Clinton v. City of New York, 524 US 417 (1998)
 Facts: NY City was harmed by a specific line item veto
 Held: Standing because they were harmed
 Third Party Standing
 Singleton v. Wulff, 428 US 106 (1976)
 Facts: Doctor brings suits on behalf of patients saying federal law cuts access to abortions
 Three Part Test:
 1) Must have an injury
 Doctor won’t get paid, but third party
 2) Activity must be inextricably bound up with the activity the litigant wants to pursue
 Some close nexus here
 I want to give abortions and it is bound up with women getting them
 3) There must be a genuine obstacle to the third party being present
 Some women want to be anonymous
 This is similar to Craig v. Boren or Griswold v. Connecticut where people couldn’t sell their booze or
their birth control because third parties couldn’t buy it.
 Overbreadth Doctrine (a type of third party standing)
 Interest is such that you can argue the rights of third parties b/c their speech is being affected by the
overbroad statute
 Although you may be guilty of the legitimate scope of the statute, if others would also be included then
you can bring the suit on their behalf
II. Federal Common Law & Extent of Art. III
 Federal Common Law Background (Osborn & Lincoln Mills)
 Osborn v. Bank of United States, 22 US 738 (1824)
 Facts: Ohio breaks into the U.S. bank and steals the money for taxes. U.S. goes to court to get an
injunction to get the money back
 Jurisdiction - John Marshal created jurisdiction where there was no jurisdiction; there was merely a
statute creating the bank
 Held (Marshall) - There is jurisdiction under the Constitution if there is an ingredient of federal
jurisdiction (this test is no more); or
 Protective jurisdiction - Court will take jurisdiction where there is a strong federal interest that
needs to be protected
 This was Marshall creating protective jurisdiction for the bank, which was hated by the states
 Note: § 1331 - Not enacted until 1885
 Textile Workers Union v. Lincoln Mills, 353 US 448 (1957)
 Federal Common Law - contrary to what you learn in Civ. Pro., there is federal common law
 This case sets the ground work for Boyle and Little Lake Misere
 Jurisdiction - Labor Relations management act (gives jurisdiction to hear cases between labor dispute
contracts)
 Federal Interest - There is a U.S. interest to have uniform labor relations laws
 If this was something in the state courts then it would be unfair and discriminating against unions
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 Issue: the statute only gave jurisdiction; there is no law to be applied (Art III - cases arising under laws of
U.S.)
 Didn’t care that there wasn’t a law here, was going to develop it under federal common law (judicial
activism)
 Post-Lincoln Mills Jurisdiction: 301a + 1331 (arising under judge made law)
 Frankfurter Dissent - Criticizes this judicial activism
 If congress had tried to include this in the statute, then it wouldn’t have had the political capital for
such a states’ rights incursion
 Two Choices in Lincoln Mills
 1) Dismiss the case (as Frankfurter says and as John Marshall could have done)
 In Osborn the states would have pillaged the U.S. Banks. Was this judicial activism or was this
Marshall protecting the U.S.’s interest
 In Lincoln Mills - if the dissent were adopted then we would have fragmented labor relations
among 50 different jurisdictions
 2) Address the case and create protective jurisdiction
 Protective Jurisdiction
 Court will determine as a policy matter b/c there is a strong federal interest that needs to be carved out.
 Protective Jurisdiction
 Whether federal government employees can be shielded from state prosecution
 In re Nagle, 135 U.S. 1
 S. Ct. justice Fields has a family (Terry) that hates him and he has body guards. Terry points a gun at
fields and the Secret Service body guard (Nagle) shoots Terry. Body guard charged and convicted of
murder. Habeas sought for official
 High federal interest: Yes. Anytime federal official is carrying out necessary and proper conduct for
carrying out the duty of his official duties, then immune from state prosecution.
 Nagle goes free.
 Art. 6 cl. 2 - Supremacy Clause
 We needs to live in a structure where states can’t disrupt federal activities
 In re McShane, 235 F. Supp. 262 (N.D. Miss. 1964)
 Prosecution brought against U.S. Marshall during James Meredith situation at Ole Miss. He is charged
with inciting a riot
 High Federal Interest: There is a high federal interest in keeping government employees from being
charged under state laws
 28 USC § 1442(a) - Removal jurisdiction for anytime a federal officer is sued under color of
authority
 Mesa v. California, 489 U.S. 121
 Facts: Postal worker caught speeding; removes under § 1442(a).
 Held: Speeding was not necessary and proper in pursuit of the federal duty. There was no federal
defense (no need to be speeding)
 New York v. Tanella, 374 F.3d 141
 Facts: DEA agent chasing known drug offender and a wrestling match ensues. DEA agent ends up
shooting the guy in the back. DEA agent sued in state court for murder; removes under § 1442(a)(1).
 Issue: Necessary and proper in pursuit of duties
 Two Part Test
 1) Is there a subjective belief that the act is justified
 There is no S. Ct. decision on this part of the test, and subjective tests are B.S.
 2) Objectively reasonable under the circumstances that this was necessary and proper
 This is the proper part under Nagle and what other Circuits are using
 Held: Was necessary and proper under Nagle
 Clifton v. Cox, 549 F.2d 722
 Facts: DEA agent engaged and drug bust. Helicopter is causing confusion (noise/dust). A DEA agent
falls to the ground and officer thinks that one is shot. The observing DEA agent shoots the suspect
thinking the falling-DEA agent was shot
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 Held: Under these extraordinary circumstances it was objectively reasonable
 United States v. Louis, 200 US 1
 Facts: Suspect fleeing; screams halt or we’ll shoot; suspect raises arms and is shot.
 Held: Not necessary and proper under objective test
 Minnesota v. Webber, 589 F. Supp. 2d 1170
 Facts: Female border patrol agent charged with DUI when she hits a guy who is trying to clear obstacle
from the road. She removes
 Issue: Does she have a federal defense, no—looks like the speeding postal worker case.
 She claims the charge is manufactured because the state is after federal agents b/c the state doesn’t
like border patrol agents
 Held: Court dismissed saying the removal was improper b/c no McShane facts.
 Wyoming v. Livingston, 443 F.3d 1211
 Facts: DOI agents tagging wolves in Wyoming to protect and follow them. Are using helicopter w/
GPS; see pack of wolves; land helicopter and dart the wolves to tag them. Wolves on private property
and then there is a charge of trespassing against DOI.
 Farmers don’t like wolves . . . .
 Held: Ends up as a necessary and proper decision; the GPS system gave them reasonable belief that
they were on state property. This is an In re Nagle case but it looks like private person hating the
federal Government
 Randy Weaver Case, 215 F.3d 986
 Guy who hates the federal government. They shoot his kid unintentionally
 Was it necessary and proper? Court held that it was for some reason.
 Little Lake Misere
 United States v. Little Lake Misere Land Co., 412 US 580 (1973)
 Facts: Feds purchase land under Migratory Bird Act in 1936 & 1937; State law passed in 1940.
Transaction said the mineral rights expired after so many years; legislation said the mineral rights never
expire (in direct contradiction to the federal law).
 Held: Unconstitutional - There is a high federal interest in accomplishing the goals of the Migratory
Bird Act
 Use federal common law when:
 1) There is a high government interests, and
 2) A need for uniformity
 This is judicial activism; States’ rights are being contracted
 But the flip-side is that there are policy considerations b/c it will undermine a federal act
 But this is not really a protective jurisdiction b/c this is really only protecting against a single incursion
by Louisiana
 There is instead a high need for federal uniformity
 Stuart & Rehnquist Concurrences: Focus only on Contracts Clause & McCullough v. Maryland
 Two avenues to Federal Common Law
 Protective Jurisdiction
 High Federal Interest
 Traditional Rule for Proprietary Government Activities
 Cotton v. United States (1850); Mason v. United States (1923) (p.134)
 Held: Traditional holding was that when the government purchases property/local land you use
state law
 United States v. Yazell, 382 US 341
 Facts: Small Bus. Admin gives loan to Texans for their business. Husband dies and wife claims
some state law right to dowry. SBA says you don’t and that federal law should be applied.
 Issue: Is there a high federal interest?
 Held: No high interests b/c this differs from Clearfield b/c this is a local SBA office that should
have been aware of the Texas law.
 Clearfield Trust Co. v. United States, 318 US 363 (1943)
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 Clearfield Trust Doctrine
 Facts: Dispute over what law should be applied for federal issuance of commercial paper
 Held: Federal law applies b/c there is a high government interest in uniform federal laws for money
emanating from the National Treasury
 Similar to Lincoln Mills
 Bank of United States v. Parnell
 Facts: Suit b/t private persons over a federal check
 Held: There is no high federal interest in a suit b/t private persons suing on a federal note
 Borrowing State Law
 De Sylva v. Ballentine, 351 US 570 (1956)
 Facts: If an author dies, who gets the rights of the copyright? There is no definition for a “child” under
the federal statute.
 Held: Since there was no definition for “child” under the federal statute; the court adopted the state’s
definition of children (partial adoption of state law)
 Boyle v United Technologies Corp.
 Facts: Defense contractor sued after building helicopter door to military specifications
 Jurisdiction: There is no jurisdiction here; it is diversity but local law isn’t applied.
 Just b/c there is a federal diversity jurisdiction doesn’t mean that federal common law is excluded
 Removal Possible: If there were no diversity; yes under § 1442(a)(1) b/c this contractor is a “person
acting under that officer” acting under the color of federal law
 Held: Develops federal common law for military contractors providing tort immunity
 This is Scalia, the strict constructionist, creating common law against states’ rights
 Anytime we talk about federal common law we are talking about judicial activism; dreaming up
law where congress didn’t provide it
 Bases this finding of a high federal interest on a policy interpretation that allowing the lawsuit would
create more expensive contracts and harm business
 Boyle Revisited
 It was a suit b/t private parties and the government was not involved
 Generally for federal common law the government is involved in Clearfield trust
 Scalia Must Distinguish:
 Parnell from Clearfield and Miree from Clearfield
 Parnell - Private parties suing on a federal note
 Miree - FAA had contract w/ DeKalb County specifying how land could be used near airport
 Had to limit use of land near airport to activities compatible w/ normal airport operations. A
garbage dump was built near the runway and birds caused a wreck. The regulation was identical to
a statute
 § 1983 Suit? (Could be but not brought under it)
 Who to Sue - DeKalb County Bd. of Supervisors
 Who was deprived - people died when the plane crashed
 Has a law been violated? - Yes, identical to the regulation
 Jurisdiction in Miree - Diversity jurisdiction against DeKalb, but US wants federal common law for
third-party beneficiaries to the federal contract.
 The law was obviously intended to benefit airline passengers
 Rehnquist - Didn’t find federal common law (b/c he is conservative), and this is merely litigation
b/t private litigants and there is no federal interest
 Scalia Distinguishment - Contrary to what the FAA said in Miree (there would be no impact on the
FAA’s duties) the federal interest in Boyle would be impaired because the military contracts would cost
more
 Boyle v. United Techs. Corp.
 Who is responsible: The U.S. Gov. (they built it to their regs)
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Can you sue the United States for an injunction?
 5 USC § 702 - Injunction asking for change to the design
 Standing - Lujan - Have to have plaintiff who can show an imminent injury. Can’t sue for
injunction
Damages suit: § 1346(b)
 Sovereign Immunity: § 1346(b) & § 2680
 § 1346(b) - Waiver of sovereign immunity for damages (just like § 702 is a waiver for injunctions)
against the U.S. to be brought in the district court if an employee of the U.S. acting in scope of office if
the U.S. as a private person would be liable under the law of the state
 United States v. Olsen 546 US 43
 Facts: Federal mine inspectors; infringement on state rights? Fed mine inspector didn’t do his job and
people got hurt. Suit brought.
 Must show (1) he was negligent, and (2) that U.S. as private person would be liable under state law
 Maybe some private employee of the employer who would inspect the mine
 But, Federal mine inspection said that mine inspection is a special federal conduct
 You have to go “spacey” with this thing to dream up state activity
 Indian Towing v. United States, 350 US 61
 Facts: Light bulb goes out and the ship crashes.
 Who would be the private person theoretically under state law
 Look at the state law as to the liability when a private person undertakes to warn someone and induces
them and fails to protect them
 Xue Lu v. Powell 621 F3d 934 (remember, don’t memorize cases, just learn the pattern)
 Facts: Immigration officer has sex in exchange for immigration papers
 § 2680(h) (exceptions to § 1346(b)) - No § 1346 for things like assault and battery
 Held: Said there could be assault, but there is emotional distress b/f the act so the damages are related
to that, not to conduct that would be excluded from
 Private State Action - Employer’s liability and issues of respondeat superior liability if the
employee was acting under scope of employment
 Maybe extortion would have flown?
 Figueroa v. United States, 739 F. Supp. 2d 138
 Facts: Mother kidnaps child and goes to foreign country using forged passport. Father sues US for
damages for negligence in allowing use of forged passport.
 Held: There was no private state law equivalent, so there was no suit
 Villafranca v. United States, 587 F.3d 257
 Facts: DEA agents go into a barber shop and handcuff everyone in the barber shop, but one patron
resists and DEA breaks his shoulder.
 Second sentence of § 2680(h) says that you can sue a federal investigative officer for assault and
battery (when you normally couldn’t do that for regular federal officials)
 There was a pattern of abuse by DEA agents
 Held: There is no private equivalent for law enforcement officers . . . .
 Under Texas law there is a peace officer privilege law that there is no liability if you use excessive
force if you are a peace officer and you ID yourself as such and you reasonably believe the person
you are arresting is resisting
 5th Cir said this looked like an arrest, but Olsen says you have to find a private person, not a police
officer
 76 Brooklyn Law Rev 175
 5th Circuit really flubbed-up
 Discretionary Functions
 Boyle - Scalia talks about discretionary functions
 § 2680(a) - No liability if the US was engaged in a discretionary function
 Indian Towing v. United States
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There is no discretion, but a mandatory duty, to install a new light when the old light burns out
Discretionary function exemption only applies at the planning level and not the operational level
 Ex.: Putting light house in the wrong place would be discretionary negligence at planning level
Dalehite v. United States, 346 US 15
 Facts: Texas City, TX, and post WWII and lots of ships have a spill of sodium nitrate and harbor blows
up entire town.
 Held: Negligence at the planning level on the discretion of where to put the ships—so not sue able
liability
United States v. Gaubert, 499 US 315
 Facts: Savings & Loans debacle, and US took over failing S&L companies. US took over solvent
company and negligently run the bank out of business. Stockholders sue for the loss of their bank
 Discretionary function exemption now includes negligence at the planning and operation level
 Two-Part Test
 1) Activity complained of must have a discretionary element of judgment or choice
 People running the bank had discretionary decisions on how to run the bank
 2) Decision has to be based on social, economic, or political policy
Berkowitz v. United States, 486 US 531
 Facts: NIH had program for polio vaccinations, but the vaccine was defective and people were injured.
 Activity that is exempted from discretionary function exemption is activity that is mandatory
 There was a reg that said you cannot use a drug w/o certain tests being done on the drug and this
was not followed
 There was no discretion b/c there was a mandatory requirement (P won)
Reichhart v. United States, 408 F. App’x 441
 Facts: Slip & Fall on Corp pier. They knew the pier was in disrepair but did nothing.
 Look for some mandatory requirement in these types of cases
 Held: In deciding not to repair the pier to Corp. considered cost, policy, etc.—so this was a social and
economic decision not to repair the pier
Green v. United States, 630 F.3d 1245
 Facts: Forest Service starts a back fire to stop a forest fire and they incidentally burn down the
plaintiff’s house
 Steps: Is there a mandatory rule - Look in the forest service manual for something about not starting
backfires in your client’s situation
 Held: There was total discretion in the area of backfires and where they are started
 Failure to Give Notice: One claim was failure to give notice
 Held: there was nothing policy related about failing to give notice b/c it doesn’t take any time at all
Hart v. United States, 630 F.3d 1085
 Facts: Indian Affairs Bureau arresting guy for sex crime in front of house; he asks to go inside to get
something; they let him and he goes in and blows his head off. Suit that it was negligent to allow him to
go in.
 Steps: Was it discretionary to allow him to go in/out of the house; or is there anything mandatory about
how much you can release someone
 Held: This was a pure discretionary function by the officers; so even if they should or did know he
might commit suicide, there is no liability b/c it was discretionary
Perez v. US, 2010 WL 3927628
 Facts: Kid’s foot in water in Virgin Islands and barracuda eats part of his feet. Suit brought that there
should have been a sign warning of barracudas.
 Steps: Mandatory Rule
 Park regulation said that the park should try to recognize cognizable threats consistent with the
goals of the park
 Park didn’t want to clutter the scenery.
 No liability b/c discretionary
Bailey v. United States, 623 F.3d 855
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Facts: Couple boating on river; boat swept over damn. There was a mandatory regulation governing
the park that there will be large warning signs at least three miles prior to damn. Four days b/f the
accident the sign was washed away. Decision made after the storms not to replace the signs b/c there
was issues of turbulence and danger.
 Held
 Is the decision made in the context of social, economic, and political parameters.
 2/1 (9th Cir.) - There was a discretionary period despite the mandatory regulation.
 Dissent said it was mandatory
 Schuler v. United States, 531 F.3d 930
 Facts: FBI informant tells where drug boss is located, but says don’t arrest him right now b/c only I
know where he is and they’ll know it’s me. This guy ends up as a paraplegic b/c the FBI got him
 Discretionary
 Discretionary Function and § 2680(h)
 Even though subsection (h) revives liability, there is still discretionary protection for Law Enforcement
Officers
 In re FEMA Trailers
 Facts: Damages resulting to people b/c the trailers had chemicals hurting them
 Steps: Look for a mandatory rule as to the characteristics of the trailers they are using
 There was nothing about the presence of the chemical
 No liability; this was discretionary.
 In re Katrina Breaches, 647 F. Supp. 2d 644
 Facts: Suit brought b/c of breaches by structures erected by Corp. of engineers.
 There were mandatory requirement in an environmental act
 District Court found 40 years of mandatory violations w/ respect to construction projects.
 Held: Liability in the context of breaches of these mandatory duties re: the erection of levies
 Castro v. United States, 608 F.3d 266 (5th Cir)
 Facts: Deporting illegal alien; living w/ woman who is his common law wife and has a child (that was a
citizen). When they deport the illegal he takes child w/ him. Mother sues re: negligence of INS for
allowing US citizen child to be deported by illegal father.
 Held: This was discretionary judgment so no liability
 Smith v. Metro Transit Authority, 184 F. App’x 311
 Facts: DC metro; guy has heart problem and an escalator isn’t working. Guy has to walk up the stairs
and has a heart attack and dies.
 Steps: There is a mandatory maintenance program that they weren’t following
 Have to look for anything, something, that curtails discretion
 Held: Not a discretionary function exemption here
 Howard v. United States District Court, 2011 WL 1043961
 Facts: Suit for $27 million claiming US magistrate was negligent in granting summary judgment
against the plaintiff.
 Steps:
 § 1346(b) - US as private person under state law?
 There is no state law equivalent for a private person of what a judge does
 Discretionary Function: Judges making decisions is the ultimate discretionary function exemption
 Both of these knocked this out and limited liability.
 Boyle
 Can’t sue b/c of discretionary function
 Feres Doctrine
 Boyle
 Issues - Decedent was on duty at the time
 § 2680(j) - Exemption for liability on the US during wartime — Feres Doctrine
 Feres v. United States, 340 US 135 (the Feres Doctrine)
 Facts: Barracks burn down and a lawsuit is brought.
18

Held: S. Ct. extends governmental (non-?)liability to peacetime injuries
 Under the Feres doctrine if a serviceman’s injury occurs incident to their service, then there is no
liability under the Torts Claims Act.
 Heart of Feres doctrine is to not have the courts second-guessing military decisions
 Feres Doctrine Examples
 Stencel Aero Engineering Corp. v. US, 431 US 666
 Facts: Pilot in a jet has to eject; pulls the eject lever and hits the cockpit cover and is injured.
 Held:
 He can’t sue the government b/c this injury was incident to his service
 Sue the engineering company, but Stencel impleads the US
 Holding: Can’t do indirectly what you can’t do directly
 Boyle Three-Part Test for Government Contractor Immunity (p.147)
 No liability for government contractors when
 1) United states approved reasonably precise specifications;
 2) The equipment conformed to those specifications; and
 3) The supplier warned the United States about the dangers in the use of the equipment that were
known to the suppler but not to the United States.
 United States v. Johnson, 481 US 681
 Facts: Military helicopter pilot flying in fog asks for directions; FAA controller directs him into the
side of the mountain.
 Feres Doctrine: This was incident to service although the FAA was a civilian entity
 Four Factor Test for Determining if Incident to Service
 1) Location:
 Accident occurred here b/c he was on military mission
 2) Duty Status
 He was on duty
 3) Benefit to plaintiff b/c of status
 I.e., are you on furlough but benefiting b/c the military arranged it?
 4) Nature of the activity
 Brooks v. United States, 337 US 49
 Facts: Serviceman on furlough and he is hit by an army truck
 Feres?
 1) He is off base
 2) Not under military control
 3) Was just on vacation
 United States v. Brown, 348 US 110
 Facts: Guy has a knee injury when he is in the military
 Can’t sue while in military b/c of injury under Feres, but
 Years after leaving military they sever his nerves at the VA when getting it worked on
 Compare with - Brown v. US 451 F.3d 411
 Facts: Guy in Saudi Arabia and picks up parasitic infection. Getting married years later and goes in
for a VA medical exam. Exam done negligently, and then his wife and kids are infected
 Held: Injuries occurred as independent acts unrelated/not-incident to service, so Feres doctrine didn’t
apply b/c these were separate from their service to the military.
 United States v. Shearer, 473 US 52
 Facts: Military guy is off-duty and murdered by another soldier while he is off-duty. Suit under FTCA
claiming that military should have known that the murder was a pathological bastard and that they were
on notice.
 This was off-duty but sufficiently connected to the military machine, so don’t want courts second
guessing. Not Feres
 Lovely v. United States, 570 F.3d 778
19


Facts: ROTC cadet harasses female cadet and is turned over to the honor council. Sues claiming US
violated his privacy by turning his name over.
Incident to Service?: This guy was contracted but case implies that this applies to all ROTC cadets.
 Boyle & Immunity Review
 Boyle and § 1346(b) cited by Scalia in Boyle
 US can be named a D in FTCA cases, not the employee (name the US)
 US as Private person causes issues
 Boyle & 2680(a) Discretionary Function Exception
 If the US isn’t liable under § 2680(a), then a private contractor acting under the US also should not be
liable based on derivative immunity.
 The private contractor was doing only what the Government ordered it to do
 Boyle & Feres Doctrine (not in case book)
 US not liable b/c the activity occurred incident to service in the military
 Derivative Feres?
 If you apply derivative Feres doctrine to contractors then even if they ignore the specs they would
still be immune . . . this would be too much immunity
 Under Feres it doesn’t matter that it wasn’t part of the contracted specs
 Boyle & 3-Part Test and Its Scope
 This test is for military contracts (dissent), but if something is manufactured based on government
specs then this 3-Part test is likely to be used as defense
 Page 148 3d ¶
 Government Contracts w/ Independent Contractors in Iraq & Afghanistan
 Uncommon, but Need to Know
 Political Question
 Many of these cases involve political questions (Blackwater Etc.)
 Saleh v. Titan Corp., 580 F.3d 1 (military contractors & FTCA)
 Facts: Military contractor allegedly torturing detainees in custody. Defense is 2680(j) - immunity for
claims arising out of combat activities
 §2680(j)
 Applies to US, but should it derivatively apply to contractors in combatant activities, yes
 Held: Derivative 2680(j) immunity if:
 Military contractor is following and under command of the military
 Actions of the military contractor are pursuant to military oversight
 In re KBR, 736 F. Supp. 2d 954
 Facts: KBR performing water/waste disposal services (they were repairing things). Navy serviceman
electrocuted while showering and sickness from odors.
 Held: Water/waste services are not combatant activities
 Boyle? - No, these were service contracts. Boyle is only good when products are being produced
for the government
 Even if Boyle did apply mandatory instructions were given
 Westfall Act
 Background Cases (pp.157-58)
 Howard v. Lyons, 360 US 593 (1959)
 Facts: Military report released to newspaper and there is allegedly defamatory information in the
release. Diversity jurisdiction
 Held: Statements were privileged b/c anytime a federal official is discharging his official duties and
is subject to a state cause of action then he is totally immune.
 Compared to Nagle: Criminal immunity for necessary and proper
 Barr v. Matteo, 360 US 564 (1959)
20

Facts: Press release issued by government official, and the release was designed to destroy the
reputation of some employees
 Held: Privilege from liability for defamation is not limited to high ranking officials b/c exercised
pursuant to their official duties
 “Better to let wrongs go un-redressed by a dishonest official than to have the constant dread of
retaliation” -Learned Hand
 Can you sue for a name-clearing hearing?
 Bd. of Regents v. Roth - Procedural Due Process Hearing
 Have to first have a property or a liberty interest
 These are borderline criminal allegations, so you might could get a hearing for liberty interests
 Westfall v. Erwin, 484 US 292 (1988)
 Facts: Government installation; sulfur filled barrels stored incorrectly; guy injured
 FTCA Case?
 1346(b) - Have a suit against the US when there is negligence. Is someone negligent here
 Note: All FTCA cases the defendant is the United States
 Is there a defense? Discretionary Function - 2680
 Look for a mandatory duty as to how barrels are supposed to be stored.
 This isn’t a FTCA case; it is straight negligence
 Held: There was no immunity here because it was a nondiscretionary duty
 Test:
 1) Act has to be within the outer perimeter of the official’s duty
 2) Must be discretionary in nature
 Does this change the test for individual liability for government employees when sued under state
law? Yes, this is a difference from Howard and Barr and is worse for government employees
 Westfall Act - 28 USC § 2679
 (b)(1) Gives the court exclusive jurisdiction over negligence lawsuits against the government and
federal employees (exclusive of state law claims)
 (b)(2)(A) Excludes suits about violations of the Constitution (this is Bivens)
 (d)(1) - When government employee takes the lawsuit papers to the local US attorney, the US Attorney
determines if this was in the scope of employment; if so then this turns into a FTCA lawsuit and the US
is substituted as the party defendant (if the case is in state court then it is also removed)
 Scope Certificate
 Result - Overrules Westfall
 Preemption
 Three Types of Preemption
 1) Actual Preemption:
 Congress enacts statute and the statute includes a provisions saying that federal law will control
pursuant to Supremacy Clause
 2) Implied Preemption:
 Reading the whole statute, the general purpose was to override state law
 This is a difficult area; think Lincoln Mills where the grant of jurisdiction was an implied
indication that Congress wanted control
 3) Conflict Preemption:
 A state law is in direct conflict with a federal statute
 Wyeth v. Levine, 129 S. Ct. 1187
 Facts: In regards to a drug, drug was administered to P intravenously and because of that gangrene set
in and arm was lost. State law claim brought claiming negligence for lack of warning label on drug.
 Defense: FDA approved the drug and that the approval is sufficient to override any state law claim
b/c the approval includes approval of the label
 State Law Claim Preempted?
 Held (6/3)
 Majority: No conflict preemption
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 Factors: 1) There is no presumption of preemption and the court should be wary of any
preemption arguments; 2) There was no evidence the state law presented any obstacles to FDA
approval; 3) Manufacturer could change the label without consulting the FDA; 4) there was a
state interest in protecting people
 Dissents (Alito, Roberts, Scalia): FDA was altering the labels and thought that it was ensuring a
safe label and the mere fact they had been monitoring the drug was sufficient to override state tort
law
 Pliva Inc. v. Mensing 131 S. Ct. 2567
 Facts: Generic drug reglan has a problem that if you take it for more than 12 weeks causes neurological
damage. Suit brought that label didn’t specify not to take it over 12 weeks.
 FDA law for generics is that the generic has to have the same label as the original manufacturer
 It was against FDA law for a generic manufacturer to change the label (unlike Wyeth)
 Held (5/4): No liability here
 Dissents (Sotomayor, Ginsburg, Stevens, Kagan): Doesn’t make sense that you can sue the original
drug maker but not the generic drug maker
 Preemption & Removal
 Issue: When a federal law preempts state law and its brought in state court then can you remove it?
 This would be a defense, and to remove the federal question has to be on the face
 In this circumstance the state should apply the federal common law
 You can always bring suits in state courts for things involving federal law
 Complete Preemption Removal Exception: When the cause of action is such that the only COA is federal
and there is an exclusive federal cause of action, then removal is proper
 I.e., Lincoln Mills: Federal labor law totally preempts in this area
 Class Actions
 (notable for extreme split on the Court)
 Wal-Mart v. Dukes, 131 S. Ct. 2541 (background information)
 Facts: Class action suit brought by female Wal-Mart employees claiming sex discrimination
 Fed. R. Civ. P. Rule 23
 Numerosity: Yes, there are too many for a single case
 Common Question of Law & Fact: Could not prove common law/fact questions of discrimination
b/c discrimination takes many forms
 AT&T v. Conception, 131 S. Ct. 1740
 Facts: AT&T says they have free phone offers but they charge you $30 in taxes. When you get the free
phone you sign a contract containing an arbitration agreement. Class action suit brought saying these
were contracts of adhesion, etc.
 Class must be certified (finding of all four factors met):
 Once you get the class certified the leverage is there for bargaining b/c you have suddenly
aggregated tons of small claims
 Held (5/4): Conservatives said that the use of class actions does not override the Federal Arbitration
Act (you can’t use a class action to override arbitration agreements)
III. Implied Rights & Causes of Action
 Implying Private Causes of Action
 Cort v. Ash
 18 USC § 610
 Penalties: Up to two years imprisonment and fines
 Policy: Congress was saying that Corp. contributions to political campaigns are evil
 Facts: Corp was paying for campaign contributions. No prosecution was brought against the Corp,
because the person they contributed to won. Shareholders bring derivative suit.
 Issue: You have a criminal statute, so does this authorize a federal civil cause of action
 Moot:
 No: 1) capable of repetition; 2) there was a claim for damages
22

Especial Benefit
 Rigsby (cited in opinion)
 1916 case; congress passed safety appliance act requiring all RR cars have handholds as a
safety requirement. Civil fine exists for noncompliance. RR violates requirement.
 Especial benefit was for RR workers
 Canon
 Title 9 says that no person on the basis of sex may be excluded, etc.
 Especial benefit was for women.
 J.I. Case v. Borak (cited in opinion)
 Facts: Can’t lie in proxy statements
 Especial benefit for people who are getting shafted
 Why wasn’t an express Private COA provision in the act?
 Business lobbyists preferred enforcement to only happen via an understaffed federal
agency
 Held: The courts should be alert to provide such remedies as are necessary to effectuate the
congressional purposes of the act
 Cort Holding: Limits J.I. Case v. Borak
 Four Part Test
 1) Is the statute designed for an especial benefit to someone
 Main purpose was to clean up federal elections
 2) Is it consistent w/ the legislative purposes; legislative intent
 Note: Courts can’t psychoanalyze legislators, but Brennan includes this
 Said no intent
 3) Consistent with the underlying legislative scheme
 No, point was preserving elections
 4) Area traditionally relegated to state law
 Yes, derivative suits are state law
 Cannon v. University of Chicago
 Facts: Canon wants to get into Med School in Chicago. She sues for injunctive relief claiming she was
kept out in violation of Title 9. Enforcement under Title 9 is that all federal funds are removed (but this
is a huge penalty and nothing is being done)
 Four Part Test
 1) She was part of the especial class to benefit from the law
 2) Claim there was legislative intent, but they didn’t quote any legislative intent
 3)
 4) Sex discrimination is not typically relegated to the states
 Held: Private COA under title 9 for injunctions
 Powell Dissent: Only Congress has the power to give jurisdiction to the lower federal courts
 Franklin v. Gwinnett County
 Held: Extends Cannon to include damages as available for Private COA for title 9 violations
 Is Cort v. Ash still good law?
 See Stonebridge v. Scientific Atlanta
 Stonebridge v. Scientific Atlanta
 Facts: There is a suit against aiders and abettors. After an implied right was found for § 10(b), congress
created a different act giving aider & abettor enforcement to the SEC
 Reasoning:
 It is judicial activism when the court creates Private COAs b/c it is for congress to decide
 The only thing that should matter is congressional intent
 Pp. 182-83: discussing contrary intent
 Alexander v. Sandoval
23
 Facts: English is becoming the official language in Alabama, and this is having a disparate impact; this
looks okay on its fact, but there is discriminatory impact
 Title 6 has been extended as a Private COA only for intentional discrimination (§ 601)
 Regulations have been made saying that the government can pursue discriminatory effect
 Scalia Opinion: He is not fond of the 4-part test
 The enforcement of the discriminatory effect under § 602 is not meant to create a Private COA
 There must be intent, and there must be “rights creating language”
 If Congress provides a remedy then that is conclusive that there was no implied Private COA
 Is Rigsby Still alive? There was a remedy there. Cannon: There was technically a remedy, and
Scalia still goes along with
 In Canon there was pretty clear “rights interpreting language”
 Majority Rule: You only look at the first factor
 Minority Rule
 Effect of Alexander v. Sandoval
 Gets rid of the 4-part test; contains the rights creating language; and alternative remedy available issues
 Said it is certainly incorrect to presume that a regulation can conjure up a Private COA that was not intune with the statute.
 “Agencies may play the sorcerer’s apprentice, but not the sorcerer themselves.” Congress is the
sorcerer.
 If Congress gives
 Alexander v. Sandoval: Fallout
 Love v. Delta Airlines 310 F.3d 1347
 Facts: Fed statute specifically says airlines can’t discriminate against the disabled (this is rights creating
statute). Woman is wheelchair bound and has problems using the bathroom. Plane has no
accommodative facilities. Suite for injunction and damages.
 Injunction Proper: Not moot, it can happen to the same person again (capable of repetition)
 Statute & Regs provide that FAA shall investigate complaints & impose penalties. AG is
authorized to bring private civil suit if violation
 Held:
 First look at legislative intent; because there was an alternative remedy provided there was no
Private COA intent b/c of the remedy
 Astra USA Inc. v. Santa Clara County, 131 S. Ct. 1342
 Facts: Fed statute w/ respect to drug prices for those that are prescribed by public hospitals in Medicaid
program serving indigents (can’t charge more for your drugs than for an avg. mfg. price [formula
provided]: designed to ensure low drug prices for public health programs). Suit in Cal. under state class
action law alleging violation of this Fed statute.
 Statutes authorizes HHS to bring suit and impose penalties
 Held: Under Alexander v. Sandoval there is no intent to create Private COA b/c of alternative remedies
 Note: If you allow Private COAs would it effectuate congressional intent in the statute? No, b/c
you would have multitudinous lawsuits everywhere
 Issue 2 (8/0) Ginsburg: Hospitals also say federal common law should apply
 Cases: Clearfield trust, Parnell, Boyle
 This is a suit b/t private parties; Boyle is the only case.
 Miree found no federal common law b/t private parties
 Held: No federal common law here b/c no high federal interest
 Implying Private COA Review
 We have federal laws that don’t preempt and don’t expressly create a private COA
 Current Test: Legislative intent &/or Rights creating language (these two mesh in Alexander v. Sandoval)
 Agency Regulation - Creation of rights under agency regs cannot go any further than what is in the
agency creating law
 Existence of an alternative remedy implies there is no Private COA
 Title IX & Private Causes of Action
24
 Gebser v. Lago Vista Indep. Sch. Dist.
 Sequence: Follows Canon and Franklin v. Gwinnet County
 Facts: There was molestation
 Who do you sue: the recipient of federal funds (the school)
 Stevens Dissent: There is a Title 9 violation, and you have teacher/student issues.
 Is there a Constitutional Claim/Violation
 Bodily Integrity (fundamental right): You can’t have valid consent in the school situation b/c there
are power dynamics where the teacher has control over the grade (this would be a § 1983 suit)
 Can’t be liable under Title 9 unless you receive federal funds
 If an entity only receives X amount of funds, but can then be sued for X times 1,000? Is it good
policy to impose respondeat superior Title 9 liability for a wack-o teacher
 Held: Someone with authority to address the violation has to have actual knowledge; so liability should
be imposed only if someone who has authority to fix the violation (the school itself) has notice; and
acts with deliberate indifference (not adequately responding in the circumstances of the case).
 Rejects argument for knew or reasonably should have known (tort-type) test.
 Mere negligence is now not enough it seems to win a Title 9 case under Gebser.
 Title 9 & Gebser Review
 You have to have notice for a Title 9 suit b/c you have to have someone who if they had notice could
take corrective action
 Standard was deliberate indifference (is not negligence; is something more)
 Deliberate Indifference: Failure to Adequately Respond Unreasonable under the circumstances
 Fitzgerald v. Barnes Table, 555 US 246
 Held: You can bring a Title 9 case alleging sex discrimination along with a § 1983
 Title 9 gives rights secured
 5th Cir School District Case
 Facts: A report is given to the principal that something has happened, but principal doesn’t believe
them b/c of past things the person has said.
 Held: This isn’t deliberate indifference; this is mere negligence
 Teacher/Student in College:
 Jennings v. UNC, 482 F.3d 686
 Facts: Women’s soccer team at UNC. Coach gets on one player about her sex life; she is about to quit
the team; complains to counsel about the coach; university counselor says you have to take a joke
 Under Gebser: Is there actual notice to someone who can take corrective action and is there deliberate
indifference
 University counsel was
 Davis v. Monroe County, 526 US 629
 Facts: 5th grader is harassed for 6 months by another student; she drops out of school; Parents sue
under Title 9
 This is student-on-student sexual harassment
 Test:
 Activity in question has to occur in the context where the school has substantial control
 Has to be actual knowledge of someone who can take corrective action
 Deliberate indifference: failure to respond adequately under the circumstances
 O’Connor:
 Harassment has to be severe, pervasive, objectively unreasonable, so as to deprive the victim of
equal access of the school’s programs (this is much higher standard than under Gebser).
 Discusses spending clause and that if the standard is too low then schools will be buffeted by
vexatious litigation
 Kennedy Dissent:
 Harassment is what goes on in high school and this test isn’t enough (worried about schools being
open to liability - i.e., this test is too easy for plaintiff’s?)
 He is worried that people will win suits too easily
25
 Is this case limited to student-on-student? See below circuit cases
 Williams v. Board of Regents of University of Georgia, 477 F.3d 1282
 Facts: Employ coach who has prior sex crimes. He gets to Univ. of Ga. and rapes a coed. Plaintiff had
to drop out of school
 Test: If the female is super resilient and can’t show that her education activities have been hindered
(her ability to learn and participate), then there is no case
 Cases are really tough to win
 Pre-sexual activity notice (especially) is required
 Simpson v University of Colorado, 500 F.3d 1170
 Facts: Goodwill ambassadors for recruiting football students. Word gets out that you can get anything
you want from these girls. Student invited to ambassador girl’s apartment; she passes out drunk; three
high school recruits rape her. Title 9 suit brought by parents of the girl
 Held: Liable; there was common knowledge here that the recruits could have these girls whenever they
want
 Doe v Bellefonte Area School District, 106 Fed. App’x 798
 Facts: Harassment of a homosexual student that is on-going. School suspends some students over the
harassment. After they took action and set up policies, other students do the same thing. Corrective
action for some students, but not enough for others
 Deliberate Indifference? They tried in good faith, so although this was negligence, they didn’t win
 Note: Cases almost unwinnable at HS level
 Note: Mere banter is not enough (harassment for BJ on the bus); it has to be so severe that student is
unable to learn.
 Kennedy’s concern hasn’t come to fruition
 Bivens Suits & Chilicky
 Bivens v. Six Unknown Named Agents, 403 US 388 (1971)
 Discussion
 Bivens Compared to Cort v. Ash
 We are no longer implying COA from statutes; this is implying statutes from violations of Const.
 FTCA Amendments
 Amended the act after Bivens so that now you can bring torts claims against federal investigative
officers (basically if there is going to be liability under Bivens then we might as well add it to the
FTCA)
 Suit Dynamics
 Who are you Suing Under Bivens
 You are suing the actual federal officials
 Note: Under FTCA you are suing the US Government
 Suit brought in Official or Individual Capacity?
 Bivens in the individual capacity b/c you are wanting money from their personal bank account
(individual liability)
 Bivens & Westfall Act
 Westfall Act kicks in when there is a state law claim
 Bivens is a federal claim so there is no Westfall issue
 Cites J.I. Case (language about “effectuate the purposes . . . .”)
 But the test is now purely legislative intent under Stonebridge
 Thus, one problem then with Bivens is that it is citing to an obsolete case (J.I. Case)
 Bivens Test:
 You can bring a suit for damages for violations of a constitutional right save for two circumstances
 When there are special factors counseling hesitation in the absence of affirmative action by
congress
 When there is another remedy equally effective in the view of Congress (that illustrates an intent to
preclude the damages suit)
 Harlan’s Opinion
26

Discussing Federal Common Law and the Need for Uniformity
 This is what’s called a constitutional tort, molded from a state tort
 Under FTCA you look at what would be liability of the state for a private person
 He thinks there is a need for uniformity here b/c sometimes it would be a violation depending on
which states
 “For people in Bivens’ shoes, it is damages or nothing” (exclusionary and other things don’t help)
 S of P issues: Congress has power to give the jurisdictional base for lower federal courts under Art. III
 Is Bivens doing what Cort v. Ash did?
 If we had a local sheriff, then there would be liability b/c of § 1983
 Congress did it for state officials but not for federal officials; all you have is § 1331 for cases
arising under the Constitution or laws
 S of P Issues - Comment on p. 202 following Bivens
 Was this an abridgement of constitutional limits on the court?
 The court has now held (Stonebridge) that the test for implying a Private COA is legislative intent (it’s
not just “Several Justices”)
 Schweiker v. Chilicky
 Schweiker v. Chilicky, 487 US 412 (1988)
 Facts: SSA says, if disabled then you get disability payments. Program has a fraud problem (people
aren’t really hurt). Before the test was changed, then you only got reviewed every so often so it was
easier to rip-off. Then the law was changed and you had to have an exam every three years. Congress
told the states to review these cases; and 200,000 people were cut off; bogus doctors were giving
review; quotas were in place (and it was implicit for admins cutting disabled people off to meet these).
 SSA Admins are acting in their own personal interests (hope of promotions and continued
employment) to violate constitutional rights of disabled persons
 Claimed violations of due process; this was a Bivens suit
 FTCA - 1346(b) - Liability when there is negligence; doesn’t cover intentional torts.
 Under 2680(a) - Intentional torts are excluded unless done by investigative officers
 Individual Liability Suits Against Rumsfeld and Yu under Bivens
 Rumsfeld for Extraordinary Rendition, etc.
 John Yu wrote memos authorizing torture
 Grounds:
 Following orders / Respondeat Superior: Doesn’t work in a Bivens case
 You would say they are directly responsible b/c they implemented the policy
 The torture, etc. acted/occurred under their orders
 The following orders defense doesn’t get it (think Nuremburg trials) b/c you are violating the
constitution
 Policy Implications: Bivens would probably apply here unless the two exceptions
 Cites Bush v. Lucas, 462 US 367 (1983):
 Facts: Federal NASA employee claimed his 1A rights were violated. He said the space shuttle
was poorly made (this is pre-challenger). His career is iced via retaliation.
 He claims Bivens under 1A instead of 4A
 Held: No Bivens COA b/c there were all types of administrative remedies for federal
employees who are passed-over or retaliated against
 Congress Amended the Law in 1983 to provide remedies and back pay
 O’Connor said it doesn’t matter if Congress’s remedy was sufficient, if that was what they
intended
 Would otherwise open up liability and expose many SSA officials to liability (who would take the
job)
 Held: Narrows scope of Bivens and gives meaning to (1) special factors for hesitation, and (2)
alternative remedies
 Dissent (Brennan)
27
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When we are talking about constitutional torts (including Bivens and maybe § 1983 or FTCA) we
need something more than mere negligence . . . it is an intentional tort
 “Moreover, in order to prevail in an Bivens action, recipients such as respondents must both prove
a deliberate abuse of governmental power rather than mere negligence.”
 Bivens Winners & Losers
 Bivens Winners
 Davis v. Passman, 442 US 228 (1979)
 Facts: Congressman Passman from La. sends out memo saying he doesn’t want women working in
his office anymore.
 Jurisdiction: § 1331 case arising under the Constitution 5th Amend for EPC & Boling v. Sharp
 Held: Can bring a damage suit against Passman
 We have Three winners: Bivens, Davis, Carlson
 Carlson v. Green, 446 US 14 (1980)
 Facts: Medical Malpractice in federal prison. This is tantamount to deliberate indifference
 Suit brought for against director of prisons; but he isn’t liable in respondeat superior unless you
see a memorandum from him/his office identifying a problem (but can’t use Respondeat
Superior)
 Under FTCA intentional torts are excluded except for intentional torts of investigative officers
 Held: You can bring Bivens and FTCA claims
 Brennan: This is a better deterrent for Bivens because you have personal damages at issue; you
get a jury trial; you get federal law
 State law is used w/ FTCA
 Note: Daniels v. Williams
 Mere negligence is not enough for Bivens
 You need deliberate indifference
 Bivens Losers
 Chappell v. Wallace, 462 US 296 (1983)
 Facts: Company officer in military doesn’t like black people
 Held: Carries Feres over to Bivens; can’t sue incident to service
 Stanley v. United States, 483 US 669 (1987)
 Facts: Military is working w/ CIA and tests LSD on servicemen. Stanley had been tested on and
had problems.
 He brings Bivens suit
 Held: Under Feres cannot sue if incident to service; this is a special factor cautioning hesitation
 Bush v. Lucas, see supra
 Wilkie v. Robbins, 551 US 537 (2007)
 Facts: Guy owns ranch in Wyo., deed to US DOI that gives right of way through his ranch. Deed didn’t
happen by mistake, so landowner says screw you and won’t let them in. DOI mounted an extreme
harassment campaign.
 He brings Bivens suit saying a takings w/o due process, etc.
 Held (Souter): No liability under Bivens
 Might be possible causes of action under state law that might be viable.
 Basis of this suit is bad motive actions by the united states employees, and if we allow liability here
the impact would be bad policy
 If there was only a requirement that P prove “bad motive” then there would be an explosion of
frivolous litigation
 Concurrence (Scalia)
 Bivens sucks b/c it is judicial activism; this is up to Congress to create a COA and USSC should
not read in a COA.
 Bivens should be limited to its facts
 Bivens & Chilicky: Civ. Pro. Review
 Bivens
28
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Caption: Bivens v. the Unknown Agents . . . acting in official (need to show that were acting under
authority) & individual (means you get damages from their bank account) capacity
 First ¶: Jurisdictional Sentence; § 1331 — describe where they are citizens (residence not needed b/c
not a diversity suit)
 Second: State the facts of what happened
 Third: Based on the forgoing, (blank) rights were violated . . . wherefore . . . .
 Chilicky
 Probably couldn’t be a class action b/c although numerosity, there is no common question of fact
 Violated procedural due process rights . . . .
 Bivens Review
 Two Things About Bivens
 1) You can have a Bivens claim if you have a fed officer in the line of duty that causes a Constitutional
violation; and the only restrictions are (a) factors counseling hesitation, and (b) is there a remedy
equally effective as deemed by congress
 2) Only three cases where Bivens cases have been won; the others have been losers.
 Current State of Bivens
 Vance v. Rumsfeld, 2011 WL 3437511
 Facts: Two college grads went to Iraq to help Iraq achieve democracy. They get employed w/ Iraqi
agency to help the people. While working they discovered the agency was taking payoffs and getting
weapons to bad guys in Iraq: they were going to blow the whistle. They were caught-up by the military.
 Iqbal - Have to allege facts; colorable allegations in your complaint
 Complaint (here & in Doe) - Allege that under Rumsfeld’s instructions they were taken into
custody and harassed, etc. Alleged Const. violations pursuant to orders of Rumsfeld
 Defense:
 Factors Cautioning Hesitation: Claimed there was a war zone exception and this was political
questions
 Argued this was an expansion of Bivens, and that Bivens was limited to its facts
 Held
 No War zone exception for these types of things b/c then you could just shoot a citizen
 No independent remedy authorized by congress
 The suit could go ahead
 Doe v. Rumsfeld, 2011 WL 3319439
 Similar to Vance v. Rumsfeld
 Padilla v. Yoo, 633 F. Supp. 2d 1005
 Facts: Wrote a memo for Pres. Bush saying torture was authorized. Claimed injuries inflicted on
Padilla pursuant to this memo authorized torture
 Held: Suit could go ahead
 Correctional Services Corp v. Malesko, 534 US 61
 Facts: Suit against a federal prison run by a private company
 Held: Can’t bring a Bivens suit against a private company that is operating under a federal law
 FDIC v. Meyer, 510 US 471
 Facts: Bivens suit against a federal agency
 Held: Bivens suits can only be brought against individuals
 Pollard v. GEO Group, 629 F.3d 843, on cert.
 Facts: Private company running federal prison; suit against the actual guards and doctors for
insufficient care
 Held: 9th Cir. held he can bring suit against individual doctors, etc.; but cert. has been granted
 Hui v. Castaneda, 130 S. Ct. 1845 (p. 225)
 Facts: INS picks him up and he has a growth on his penis; goes to public health dept., turns out to be
cancer and he dies. Bivens suit against public health doctor
 42 USC § 233(a) - Provides exclusive remedy when suing employees of public health service
 Held: § 233 says exclusive so you can’t bring a Bivens suit
29
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Although with § 1983 and FTCA there is no exclusive mention so they can be brought along with a
Bivens suit
IV. § 1983 Suits
 Under Color of Law: § 1983 & Monroe v. Pape
 Why read . . .
 We were talking about constitutional torts inflicted by federal officials in Bivens
 Now we are taking the same Bivens approach by looking constitutional torts committed by state
officials and we don’t have to imply a private COA b/c there is § 1983 for jurisdiction
 Monroe v. Pape, 365 US 167 (1978)
 Facts: Chicago detectives being sued in official capacity (color of state law) and individual capacity (for
personal damages) (strait damages suit).
 Jurisdiction Note: Sued under 28 USC §§ 1343 & 1983 (1331 used to have an amount in controversy so
§ 1343 is no longer needed).
 Held: It was still under color of state law b/c this was an abuse of power only occurring b/c of their status
as law enforcement
 It was only b/c of the power granted the detectives under Ill. Law
 See p. 1136
 Discussion in Monroe
 § 1983 Enactment Discussion
 Background
 Enacted in 1871 to deal with lawlessness and KKK control in the reconstructionist south
 This was the first time § 1983 was properly interpreted (up until this time there was no way to
enforce this against the south)
 14A says that states can’t violate federal rights of their own citizens — state’s rights issues go
out the window
 § 1983 Function
 Passed pursuant to § 5 of 14A (no state shall abridge) (cross reference to 11A)
 Ex Parte Virginia
 Facts: No blacks allowed on juries
 Dissent: Argued this was political question and states’ rights
 Since this opinion, there has been no discussion regarding states rights (11A) and 14A
 Purpose of § 1983 (p. 1134)
 1) Override certain racist state laws
 2) State remedy was inadequate
 3) State remedy was adequate in theory, but not in practice
 Applies nationwide - so doesn’t matter that this was Illinois
 No Exhaustion Requirement for § 1983
 You do not have to exhaust the remedies in the state court before you can go to federal court (this
was the whole purpose of the act b/c state law presented problems)
 With § 1983 you can go straight to federal court, but you can go to state court if you want (but it
may be removed b/c federal question on face of complaint
 Patsy v. Board of Regents, 457 US 496
 Facts: Teacher in Fla. claims rights violated and she didn’t get due process. Brings § 1983 suit
in federal court, but there were administrative strategies in Fla.
 Held: You don’t have to exhaust state court remedies
 What Law Applies in a § 1983 Suit - See 42 USC § 1988
 Cf. in FTCA you use state law
 Use federal law when bringing a § 1983 suit, when such laws are suitable
 If federal law is unsuitable (or no federal law) then you can look to state law
 Unless the state law is inconsistent under the Constitution and laws
 Cases Interpreting § 1988 (are these inconsistent with . . . )
 Martinez v. California 444 US 277
30
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Facts: Parole board releases dangerous felon who hurts people. § 1983 suit brought against parole
bd., which has sovereign immunity under state law
 Held (n.8): If you used state law immunity defenses then it would alter constitutional guarantees
into illusory promises
 Converting a tort to a constitutional tort allows you to override state immunity
Howlett v. Rose, 496 US 356
 Facts: Car at school parking lot and it gets searched for drugs. § 1983 COA against school; claim
that under Florida schools have immunity
 Held: State immunity laws are not defense to § 1983 COA
Haywood v. Brown, 129 S Ct 2108
 Facts: NY passes statute saying you cannot bring state law tort suits or § 1983 suits in NY state
court if you are an inmate in a prison in NY
 Held: Can’t deny state court jurisdiction to hear § 1983 lawsuit
Felder v. Casey 487 US 131
 Facts: State statute saying if you are going to bring damages claim against state agency or
employee then you have to give the agency 120 day notice b/f suit (point is to give chance to settle)
 Held: Under § 1988 this is inconsistent with the purposes of § 1983 b/c the 120 day window is too
short and people would be hurt
Robertson v. Wegmann, 436 US 584
 Facts: After Kennedy assassination, guy sues prosecutor saying he brought frivolous criminal
lawsuits against him. Guy dies during litigation. La. statute says that where P dies during lawsuit
and has no living relatives then the suit will be dismissed
 Held: This is a statute that very rarely interdicts with a lawsuit, so it is okay
State Law Statute of Limitation (SOL) Issues
 Wilson v. Garcia, 471 US 261
 Looking at history of § 1983 what SOL should apply: They were focused on intentional
conduct and intentional torts
 Use personal injury SOL
 Owens v. Okure, 488 US 235
 When you have a number of SOL statutes, then you use the general residuary state statute of
limitations
 Under Color of State Law - Interpreting Cases
 Bennett v. Piper, 74 F.3d 578 (5th Cir.)
 Facts: Sheriff investigating crime and interviewing a female witness. He leaves and comes back and
almost breaks down the down and goes in her bedroom to rape her. She fights her off and he says I am
the sheriff and I can do anything I want.
 Right to body integrity
 Evaluate from the victim’s viewpoint
 Held, this was under color of state law
 Huffman v. Country of LA 147 F.3d 1054
 Facts: Off duty deputy gets in a fight and then shoots someone. Under color of state law?
 Did victim know? Well when he pulled the gun he didn’t say he was using the power of his office
 Delcambre v. Delcambre, 635 F.2d 407
 Facts: Police chief has argument w/ sister-in-law and beats her up
 Had nothing to do with power of office
 United States v. Tarpley, 945 F.2d 806
 Facts: Guy making out w/ deputy sheriff’s wife. Has wife call the suitor to come to the house. When he
gets there sheriff beats the hell out of him and then puts a gun in his mouth and says he can kill him
anytime he wants to; then drives him out of town and says stay out.
 Held: From the victim’s viewpoint the power of the office is being used
 Bustos v. Martini Club, 599 F.3d 458
31
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Facts: Off duty cop beats the hell out of a bar patron. One cop beats the guy up while the other cops
watch.
 Held: Not the beating merely b/c no evidence he used his authority, and also not the failure to help (no
liability for merely observing)
 DeShaney v. Winnebago County, 489 US 189
 Facts: Josh DeShaney is 3 years old and father has custody. There are reports that the father is abusing
the kid. Social services worker goes to look into it and does nothing. 3 year old is now brain dead b/c of
father
 Held: Under normal state tort law and under § 1983 the refusal of the state to protect against injuries
inflicted by a third person is not a constitutional violation unless there is a special relationship
 Special relationship is when the state takes someone into custody
 Only applies when you have injuries inflicted by a private person
 NOTE: 18 USC § 242
 Criminal laws are under Title 18
 Felony for anyone under color of state law to deprive another of rights under the constitution
 This is § 1983, but with criminal instead of civil penalties
 State Action Under Color of State Law - Differs from 11A immunity
 State action applies to local policemen, etc.; this is different from state immunity
09/29/2011
 When the Courts Talk About Color of State Law Under § 1983 they are also Talking about State Action
 Anderson v. Warner 451 F.3d 1063
 Facts: Off duty plaints clothes officer rear ended by pickup truck. Officer beats up driver. People come
to stop him and he says stay away I’m on police business.
 Suit: Assault & Battery
 Held: From the victim’s perspective did the abuse of power occur under color of state law (i.e., power
of office). When he said “stay away, police business” he altered the components here and this became
“under color of state law”
 He was proclaiming that he was doing this as part of his duty as a policeman
 Frankfurter Monroe v. Pape Dissent:
 State law didn’t authorize it; wanted a state law authorization test.
 But Majority test was “abuse of power”
 US v. Giordano, 442 F.3d 30
 Facts: 18 USC § 242 criminal action (§ 1983 in criminal parallel). Giordano has a hooker in his office,
but got bored & asked her to bring her daughter and a friend. Tapped his phone and then bring a
criminal prosecution against Giordano for violating the women’s civil rights through his office.
 Put prostitute on stand, she says she did it b/c guy had power and if we didn’t then bad things
would happen
 Held there was abuse of power b/c she was afraid of him
 Rossignol v. Voorhaar, 316 F.3d 516
 Facts: Sheriff’s election and local newspaper prints article that sheriff sucks. Deputies go out and buy
all the newspapers. Suit is brought for curtailment of newspaper free speech
 Test: Victim’s perspective that there was an abuse of power
 Held: Newspapers is the victim and they got on the stand and said they were afraid something bad
would happen if they didn’t let the deputies buy all the papers
 DeShaney Revisited: State Created Danger
 DeShaney Part 2: State Created Danger
 Court also held that Winnebago SS played no part in creating the danger (state created danger
exception to DeShaney basically)
 Hernandez v. Tex Dept. of Protective Services, 380 F.3d 872
 Facts: Place child in foster care home. Child dies from suffocation. Tex. Dept. had notice that the foster
care place was dangerous.
32
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DeShaney: No duty to protect absent a special relationship (i.e., when the state has taken custody or
arrested someone)
 Special Relationship: Held there was a special relationship here b/c they put the kid into the foster
home (this is a custodial type thing)
 But, the Test: Deliberate Indifference (need something more than negligence).
 Found the welfare dept. was inept, made an erroneous decision, but didn’t reach deliberate
indifference!
Walton v. Alexander, 44 F.3d 1297 (5th Cir.) (en banc)
 Facts: Parents place kid in Miss. school for the blind, and classmate sexually assaults kid.
 Held: This was a voluntary placement (kid wasn’t placed there involuntarily by the parents)so no
liability
 Distinguished b/t voluntary and involuntary placement re: responsibility whenever there is a special
custodial relationship
Doe v. Hillsborough Independent School District, 113 F.3d 1412 (5th Cir. 1997) (en banc)
 Facts: 13 year old student at public school abused by janitor.
 Policy: This would open up schools to way too much liability b/c this kind of thing and fights, etc., go
on all the time
 See Title 9 O’Connor Opinion: Strict test for severe issues
 Held: NO special relationship in a sense b/c the student could always leave during the day.
 No regard for the mandatory school attendance issue
Doe v. Covington County, 649 F.3d 335 (5th Cir. 2011) (en banc rehearing pending)
 Facts: Doe is 9 year old girl; school has a pick-up policy requiring list of who can pick up the school.
Uncle Charlie, who isn’t on the list picks up Doe and molests her. School had received complaints that
pickup policy wasn’t enforced.
 Suit brought against school
 Discussion
 Young age students are restrained as to when they can leave
 The incident occurred apart from the teachers etc.?
 Dissent: You can’t start distinguishing, because all circuits agree that DeShaney doesn’t apply to public
schools
 State created danger assumes some knowledge? See below.
 Can’t use state created danger exception b/c there was no knowledge by the school that the wrong
person picking up was dangerous.
State Created Danger
 LW v. Grubbs, 974 F.2d 119
 Facts: Female prison employee assigned to work with known violent inmate and he hurts her. They
didn’t tell her inmate was a violent offender.
 State Created Danger: Did they with knowledge place her in a position where harm could occur
 Held: There was a state created danger b/c they placed her there
 Wood v. Ostrander, 879 F.2d 583
 Facts: Trooper arrests at 2:30 AM and says he will impound the car. Car is impounded and he
leaves a female passenger alone on the highway in a high crime area.
 State Created Danger: By leaving this woman alone in a high crime area at this time it was a state
created danger
 Stemler v. City of Florence, 126 F.3d 856
 Facts: Man and two women at saloon. Man gets upset when a lesbian puts the moves on his
girlfriend. Conni gets in Susan’s car. Man chases them and rams them. They all stop and the police
came into things. Man says the drunk lesbian stole girlfriend. Police arrest drunk lesbian driver and
place other girl in Man’s truck (he is drunk too). Man drives off and woman ends up dying.
 State Created Danger: Yes, this was a state created danger.
 State Created Danger Exception to DeShaney: This was the state taking the person and putting them in
an environment where they know harm will occur
 State has no obligation to protect absent:
33
 Special Relationship
 State Created Danger
 Public Function Exemption: Another Exception when Private Persons Can Be Sued
 Marsh v. Alabama, 326 US 501
 Facts: Private town kicked out Jehovah’s witnesses
 Held: You may be a private town, but you are performing a public function so the Constitution applies
 Utah Gospel Mission v. Salt Lake City, 425 F.3d 1249
 Facts: Mormon church bought downtown SLC, so that now the downtown is a private place. This was
so that SLC could try and stop people protesting.
 Marsh Applies? No, 10th Cir said Marsh didn’t apply
 Shopping Center Cases
 Supreme Court has said no, they don’t look like town
 Jackson v. Edison Electric, 419 US 345
 Facts: Private utility cutting off power w/o notice of hearing. Suit brought saying private utility is
serving a public function
 Rehnquist: Is the defendant you are suing performing a function that is a traditional exclusive
prerogative of the state
 Has running power companies historically been a exclusive state function
 Held: No. This is a hard Test to meet
 Roseborough v. Mgmt. & Training Corp, 350 F.3d 459
 Facts: Private prison and suit brought against private prison guard.
 Held: 5th Cir. said that the incarceration of people has been the traditional prerogative of the state
 Conflicts w/: Pollard v. GEO (cert granted) of whether you can bring a Bivens suit against private
prison doctors
 This was Bivens: But what of the Bivens exceptions (special factors cautioning hesitation and
adequate alternative remedy)
 These were state created alternative remedies, and Bivens only looked
 West v. Atkins, 487 US 42
 Facts; Private doctor on contract w/ federal prison is alleged to be deliberately indifferent
 State Action under Public Function Doctrine?
 Is providing medical care to prisoners a traditional exclusive prerogative of the state
 Held: Yes
 Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir. 2011)
 Facts: School has subcontracted out to a private company bussing kids to school. Bus driver molests
one of the students on the bus. Suit brought against bus company
 State Action: In Puerto Rico has this not been a traditional exclusive historical function to bus kids to
school
 Rendell-Baker v. Kohn, 457 US 830
 Facts: Teachers in private school fired w/o notice & hearing. School receives 90% state and federal
funds.
 Held 1: Receipt of governmental monies is not enough to transform a private entity into a public one
for purposes of § 1983 or § 1331
 Held 2: No Public Function Action b/c - Providing schooling has never been the exclusive prerogative
of the state
 Regulations? State regulates here just like regulating power companies
 When you bring a lawsuit there has to be a connection b/t the regulation and the lawsuit
 Can give rise to a state action if that state regulation has a direct nexus to lawsuit you are bringing
 Flaggs Bros. Inc. v. Brooks, 436 US 149
 Facts: UCC is passed and allows lien on warehouses for money due w/o notice and hearing. Suit
brought against private warehouse claiming state action b/c they were regulated under the UCC
 Held: No state action b/c it was discretionary whether the lien was imposed or not
 Sullivan v. Barnett, 139 F.3d 158
34
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Facts: Private insurance company employed w/ respect to workers’ comp claims. Suit brought b/c
workers’ comp claim of plaintiff was terminated w/o notice and hearing
 Held: The workers’ comp statutes were pervasive in nature and they could be sued b/c there was direct
line b/t the private company and the state regulations
 Focus on the Families v. Pinellas Suncoast Transit Auth., 344 F.3d 1263
 Facts: Private company has contract w/ Transit Auth. to place ads on bus stops and control advertising.
Focus on the family wants to put ads on the bus stops that homosexuality can be cured and private
company refuses. Suit that this violates 1A rights.
 Held: Pinellas Transit Auth. had final approval rights over the advertising that was sent to the private
company under a regulation
 Thus they could bring a § 1983 suit
 Another way to tie in private persons under § 1983 Suits: Conspiracy
 Adickes v. S.H. Kress, 398 US 144
 Facts: Agreement b/t department store and police department that when trespass occurs the police will
come and arrest. Suit brought claiming constitutional violations claiming that b/c of this previous
agreement b/t the police and the private company the private company could be sued
 Held: There was a conspiracy?
 Ginsberg v. Healy Car & Truck 189 F.3d 268
 Facts: Rents truck and then returns it. They say he owes $X amount. Argument ensues. Healy calls the
cops and they show up. They say if you don’t pay I am going to arrest you for larceny. Suit brought for
false arrest.
 Held: No private liability b/c there was no joint activity/conspiracy; this was an independent choice
 Weaver v. James Bonding, 442 F.Supp.2d 1219
 Facts: Once you jump bond the bonding company sends the bounty hunter for you. Bounty hunter beats
a guy up. Suit brought against private company.
 Public Function? No, looking deep in history there was sometimes when state didn’t provide law
enforcement
 Held: Acting alone or w/o state law directly governing them then there is no state activity; but
 If they use local law officers to assist then that could be Adickes.
 Dennis v. Sparks, 449 US 24
 Facts: In Duval County Texas, there was a conspiracy b/t the private litigant and the judge.
 Suit brought naming the private litigant in the § 1983 suit
 Held: This was joint activity
 Courtroom Actions
 If Supreme Court held that court proceedings could meet the state action exemption then there would
be an overflow
 Court action alone isn’t enough
 Burton v. Wilmington Park Auth., 365 US 715
 Facts: Restaurant surrounded by public park is discriminating on race
 Held: Restaurant could be sued under public state action b/c there was a symbiotic relationship b/t a
private entity and the government
 This case has been limited to its facts similar to Marsh v. Alabama
 Villegas v. Gilroy Garlic Festival, 541 F.3d 950
 Facts: Private garlic festival but you have contracts w/ the city and services being rendered by the city,
there is a strong connection b/t the city and the private festival
 Held: Symbiotic relationship cannot be used for state action here; this was a private thing
 Wasn’t sufficient pervasive entwinement
 NCAA v. Tarpon, 488 US 179
 Facts: NCAA goes after basketball coach w/o any due process. Suit brought claiming it is state action
and that due process rights were violated
 Held: NCAA is a private organization composed of private people and although there are symbiotic
relationship, etc., they held insufficient connection to sue the NCAA under § 1983
 Brentwood Academy v. Tenn. Secondary School Sys., 531 US 288
35
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Facts: Private academy seeks out football players and the school will move you for free. The private
school sports organization comes down hard on the private school for violating the football sports rules.
 Held: Most of the members of the private school organization were public schools, the directors were
on state retirement, funds came from state institutions, and this was an area the state usually acted alone
 There was a pervasive entwinement b/t the state and this organization that was regulating athletics
 Multi-factor to see if nexus b/t the state and the private entity to see if there was private
entwinement
 Policy
 If you make the state action difficult then you cut down on the federal case load
 These were all § 1983 suits, but it carries over to § 1331 b/c when you bring a Bivens suit you have to
show a connection b/t the private official conduct and the federal government connection
10/04/2011
 Last Class Review
 McClendon v. City of Columbia 305 F.3d 314 (5th Cir)
 Facts: Detective has an informant, informant comes in and says someone is threatening him. Detective
gives informant a gun and the informant kills the guy. Detective liable?
 State Created Danger: He could predict that by giving him that gun he could hurt that guy
 Fifth Circuit: Now says that it doesn’t entertain state created danger cases
 Anwar Al-Alwaki
 He was put on the CIA hit-list; he was an al Qaeda mouthpiece
 His father had brought a lawsuit when he learned his son was on the hit list; suit brought to enjoin the
CIA from killing his son
 Standing:
 Third Party Standing: Is the father hurt; is there a close nexus b/t the two parties; is the injured
party unable to bring the suit himself
 Immunity Doctrine
 Immunity
 Total Immunity - Only president gets that
 Qualified Immunity (i.e., good faith immunity) - Can be a defense, but not a total defense
 Common law immunities have not been overridden by § 1983 (or Bivens)
 Were there common law immunities, and
 Is there a good policy reason to keep the common law immunity
 Absolute / Total Immunity
 Overview - No matter how dastardly or malicious the motive, they are still immune
 Only applies to damages, not injunctions
 Cooper v. Aaron, 358 US 1
 Facts: Governor of Arkansas refuses to integrate Little Rock school system. He said he had the right to
interpret the constitution.
 Held: Governors and legislators cannot war against the Constitution (Marbury said that USSC is the
final interpretive authority)
 Injunctive decree against the governor
 USSC Confidence: Order would be enforced b/c Eisenhower had sent in federal troops
 Scheuer v. Rhodes
 Case Caption: Rhodes is the governor and he is being sued in his official capacity (signals color of law)
and his individual capacity (signals damages sought from Rhodes’ bank account)
 11A Issue - If this were seeking damages from the state treasury, then this might be an 11A issue; but
here they are seeking individual damages from Rhodes, et al bank accounts.
 Like Bivens, we are using § 1983 to seek individual damages from Gov. Rhodes
 S of P Issue: There is no S of P issues when federal courts mess around with states
 S of P is found in articles I, II, & III
36
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Federalism Issue:
 No, 14A inserts federal power to protect citizens from their states
 There is no federalism problem when you have 14A suits
 This is a 14A suit through § 1983
 Person (Governor) under color of law (he abuse his governor power) depriving P of rights
secured (no notice and hearing before being killed)
Allegations of Complaint
 State facts of the event (anti-Vietnam protest), put the Governor’s order in the complaint (to send
out the Nat’l Guard).
 Deliberate Indifference needed (much more than negligence and almost intentional)
 Can’t win w/ negligence alone (negligence alone isn’t enough)
 Governor knew that under the facts at Kent state that calling out the Nat’l Guard would likely result
in some sort of harm
 Legislative Immunity
 Tenney v. Brandhove, 341 US 367 (cited in Scheuer)
 Facts: People on committee are talking bad about mayor getting reelected
 Held: Establishes total legislative immunity when they are performing a legislative function regardless
of the motive
 Good reason to keep these common law immunities? Yes, would disrupt the legislative process
 Note: The legislative immunity also bars injunctions (they have total immunity against both damages
and injunctions, for injunctions see Consumers Union)
 Supreme Court of Virginia v. Consumers Union 446 US 719 (expands legislative to injunctions)
 Facts: Va. S. Ct. issues code of conduct that cuts down on lawyer advertising.
 Held: This was essentially legislating by the Va. S. Ct. so they were totally immune from damages and
injunction
 To the extent they were enforcing them, they were acting as prosecutors and were only immune
from damages suites
 Bogan v. Scott-Harris, 523 US 44
 Facts: Black woman hired by city and really pisses off on the mayor and the town. If they fire her they
worry about a race discrimination suit. Instead they just come up with a new budget and line-item her
out of a job. Motive is to give her the shaft. Suit against individual city council members
 Held: You cannot explore motives and the legislative function covers this with immunity
 Note: Can the city be sued? This case only involves suits individually
 Kamplain v. Curry County Bd. of Commissioners, 159 F.3d 1248
 Facts: City council meeting and competitor gets a city contract; loser of the bid blows-up and is banned
from the meeting. Sues saying his 1A rights were violated. He sues wanting damages
 Held: This was not a legislative function when you throw someone out of a meeting (not necessary for
the passage of the bill)
 Sable v. Myers, 563 F.3d 1125
 Facts: City council condemns P’s property after he brought suit against the city to quiet title and won.
While they are doing this, the deputy mayor turns to the city lawyer and says can we do this and the
city lawyer says if it is for a public purpose you can do whatever you want. He brings suit for damages.
 Held: Is a motion to condemn property a legislative function? Yes, it is a legislative function. They
make a motion and then vote on it.
 Russell v. Town of Buena Vista, 2011 WL 288453
 Facts: Proposal for city to acquire land and one of the city council members writes letter to the editor
suggesting pay-offs and that people should not vote for it. The vote passes and now they want to
remove that city council member. The victim city-council member wants an injunction
 Held: Is it a legislative function when removing someone? Court said we don’t know, but this is a quasi
judicial function which brings in at least judicial immunity of whether he can stay on the council
 Bagley v. Blagojevich, 646 F.3d 378
37
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Facts: Illinois legislature is changing its budget. Mayor is working w/ police department and there is a
competing union that he works with. When the bill comes to him he line-item marks out the positions
for the policemen in the competing union
 Held: This was part of the legislative process so there was total immunity
 Empress Casino v. Blagojevich, 638 F.3d 519
 Facts: RICO suit claiming Blagojevich is taking bribes to influence state legislature to pass a horse
racing bill. He signs the bill, is it a legislative act
 Held: Signing the law was a legislative act and under federal law it was a legislative act (but there was
no state law immunity but it has no relevance to interpreting federal law)
 Miller v. City of Michigan (p. 1153)
 Facts: City council members fired police chief
 Held: Once case holding that individual city council members who fired police chief were not engaged
in a legislative act
 Judicial Immunity
 Bradley v. Fisher, 80 US 335
 Facts: Bradley is lawyer for John Suratt (member of Lincoln assassination team) and Fisher is the judge.
Judge comes down from the bench and Bradley tells fisher he is a no-good, SOB. Fisher enters order
disbarring Bradley. Bradley sues Fisher for $20k for deprivation of practicing law
 Held: Judicial immunity b/c he was performing a judicial function
 Dissent: Should have been liability b/c judge was acting in excess of his jurisdiction and w/ malicious
intent
 This case differs from current law
 Stump v. Sparkman, 435 US 349
 Facts: Mother has hot daughter sleeping around, and to reward her judge stump issues an order for a
tubal ligation sterilizing her. Law in Illinois is that no court has jurisdiction to do this (it is done
through administrative procedure)
 Held: Total immunity if judge is acting in his/her judicial capacity, and judge has to be acting totally
without jurisdiction to be held liable
 Zarcone v. Perry, 581 F.2d 1039
 Facts: Judge fired someone for bringing bad coffee
 Held: This was an administrative act not a judicial act
 Turner v. Raynes, 611 F.2d 92 (5th Cir.)
 Justice of the peace convicted defendant of a non-existent crime
 Held: No liability
 Only in the most extreme circumstances will liability be shed for judicial
 Cleavinger v. Saxner, 474 US 193
 Facts: Prison disciplinary committee was acting like a court, but everything was basically fixed before
you come in
 Held: No immunity b/c not like a regular court (was not an unbiased board)
 Morales v. Waco, 502 US 59
 Facts: Public defender in another courtroom; judge orders marshal to retrieve the public defender and
use as much force as you can to make him miserable (slams him down and drags him into the
courtroom). Suit brought against judge for ordering excessive force
 Test:
 Acting in judicial capacity
 Acting totally without or in the absence/excess of all jurisdiction
 Held: Was a judicial act in issuing the order so total immunity
 Ceparano v. Southhampton Justice Court, 404 F. App’x 537
 Facts: Court clerk carrying out a judicial order
 Held: There immunity when someone is carrying out a valid judicial order
 Dennis v. Sparks: Conspiracy issue? Sue one but not the other?
 Malley v. Briggs, 475 US 335
38
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Facts: X goes to the judge to get an arrest warrant. Judge signs off on it and it is an invalid arrest
warrant under 4A. X doesn’t like Y b/c Y is messing w/ X’s wife. X gets a warrant and then harasses
the guy, but he is safe b/c he is following the judge’s order
 Held: If the arrest warrant (or whatever is being secured) is subject to what a reasonably well trained
officer would know if it fails to meet constitutional criteria
 If it is a bogus warrant, and a reasonably well trained officer would know, then there is liability
 Concurrence: Decision of judge should be given great weight in determining validity
Mays v. Sudderth, 97 F.3d 107
 Facts: Sheriff serving material witness warrant
 Held: Absolute immunity b/c an order of the judge
Martinez v. Winter, 771 F.2d 424
 Facts: Judge assigns a case to himself b/c he wants to get the litigant. Procedure is random selection
 Held: Assigning the case was a judicial act; so damage suit is preclude.
 Injunctions are still available for judges
Dean v Byerley, 354 F.3d 540
 Facts: Graduate of Cooley Law School; didn’t fill out bar application correctly and wasn’t allowed to
take the bar. Cooley graduate starts picketing the house of the bar administrator (he hires helpers too).
Bar administrator says “you’ll never practice law in this state!” Suit brought for being run-off from
picketing. Bar admin claims it was a judicial act (citing case involving medical board that was acting as
a judicial body)
 Held: His conduct had no judicial function, so no immunity
 State Action: Although this guy was at home, but from the recipients viewpoint he was exercising state
action
Keystone Redevelopment Partners v. Decker, 631 F.3d 89
 Facts: Penn and there is a guy denied a license for slot machines. Suit against regulatory board claiming
bias.
 Held: Board was performing adjudicative function and gave the board total immunity for acting like a
court
Dotzel v. Ashbridge, 438 F.3d 320
 Facts: Bd. of Supervisors denied zoning
 Held: Immune b/c acting like a court
 Prosecutorial Immunity
 Imbler v. Patchman, 424 US 409
 Facts: Introducing false testimony into a case
 Prosecutorial Immunity Test: Prosecutors have total immunity for any act intimately associated with
the judicial phase of the criminal process
 Burns v. Reed, 500 US 478
 Facts: Police do a hypnosis on someone to get testimony
 Held: Instructing police to do hypnosis is not part of prosecutorial immunity (but the probable cause
hearing was)
 Buckley v. Simmons, 509 US 259
 Facts: Prosecutor says lies during a press conference. Can he be sued
 Prosecutor also fabricated evidence b/f probable cause for arrest
 Held:
 Press conference is not intimately associated with judicial phase
 Fabricating evidence - This was before the start of the process so not associate
 Kalina v. Fletcher, 522 US 118
 Facts: Prosecutor swears out a warrant. Law says complaining witness don’t have total immunity (only
qualified)
 Held: When prosecutor swears out a warrant he I acting as a witness
 Spivey v. Robinson, 197 F.3d 772 (5th Cir.)
 Facts: Advising police on what should be in the warrant
 Held: No liability; only loses liability when prosecutor himself/herself swears out the warrant
39
 Van de Kamp v. Goldstein
 Facts: Prosecutor has a jailhouse snitch who takes the stand and implicates plaintiff in crime.
Prosecutor is required to turn over information to the defense. This snitch had testified in other cases.
 Prosecutor who put on the snitch is immune under Imbler
 Suit brought against administrators for not having a snitch alert program
 Held (9/0): This was an act that was intimately close to the judicial phase/process of the criminal
 Policy: If you didn’t have this, any administrative decision relating to how prosecutors put-on trials
could be challenged and cause vexatious litigation
 Butz v. Economou, 438 US 478
 Facts: Economou is a farmer and he feels Dept. of Ag is retaliating against him. Sues secretary of
agriculture and employees w/in the department claiming due process rights violated by admin
procedures. Groups inside the department acted as prosecutors
 Held: Gave some of these internal actors prosecutorial immunity b/c they were the functional
equivalent
 Can happen for prosecutors or judges
 Abdouch v. Burger, 426 F.3d 982
 Facts: Social worker initiated termination of parental rights
 Held: She was immune for acting functionally as a prosecutor
 Miscellaneous Immunities
 Witness Immunity
 Briscoe v. LaHue, 460 US 325
 Facts: Witness lies on the stand, can he be sued?
 Test:
 Was there immunity at common law? Yes
 Are there good policy reasons to keep it in place? Yes, everyone lies.
 Held: Can’t sue witnesses
 Juror Immunity
 White v. Hanger Horse 418 F.2d 894
 Held: Had immunity at common law and good reasons to keep it
 Court Reporter Immunity
 Antoine v. Buyer 508 US 429
 Facts: Court reporter screws up the transcript
 Held: There was no common law immunity for court reporters (never get to the second prong)
 Injunctions & Immunity: Most immunities are only for damages. You can bring injunction suits against
everyone who has total immunity except for legislators.
 Qualified Immunity
 Note - This is qualified immunity from suits for damages only (not injunctions)
 Background Case
 Wood v. Strickland, 420 US 308 (1975) (overruled by Harlow)
 Facts: School board was performing a judicial function and kicked these girls out of school
 School boards are viewed as not like courts because they are biased b/c they engage in a dual
function: (1) decisions of guilt/innocence, (2) concern about running the school taints their
decision making
 Jurisdiction: § 1983 denial of due process rights
 Suit against: School board members sued in individual (your bank account) & official (color of
law) capacity
 Discussion
 How could school board type people know what is clearly established constitutional law
 Now school boards have to hire lawyers . . .
 Held: Can sue them if you (1) acted with malice, or (2) violated a clearly established constitutional
right
40
 Two Part Test (overruled by Harlow)
 Harlow v. Fitzgerald, 457 US 800 (1982)
 Facts: Fitzgerald testifies before Congress about Air Force cost overruns and Nixon says to can the son
of a bitch. Fitzgerald is fired by presidential aide who carried out his orders.
 Jurisdictional base: § 1331 & Bivens (b/c 1983 only applies to state actors)
 Held: Objective test only (eliminates the subjective test which allowed for expansive discovery)
 Note: Barr v. Mateo
 If the suit is not meritorious objectively then you can get summary judgment
 Test: Government officials performing discretionary functions are shielded from liability for civil
damages in so far as their conduct does violate clearly established statutory or constitutional rights
 Same test applies for § 1983 and § 1331 Bivens suits
 Exception: “If the law was clearly established, the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law governing his conduct. Nevertheless, if
the official pleading the defense claims extraordinary circumstances and can prove that he neither
knew nor should have known of the relevant legal standard, the defense should be sustained. But
again, the defense would turn primarily on objective factors.”
 How do you Determine What is a Clearly Established Constitutional Right (Hope & Lanier)
 Hope v. Pelzer, 536 US 730 (2002)
 Facts: Alabama prison guards were stringing prisoners up to a hitching post
 11th Cir was requiring substantially similar facts to overcome immunity (almost impossible)
 Held: This was a violation of the 8th Amendment
 United States v. Lanier, 520 US 259 (1997)
 Facts: Lanier is a judge in rural Tenn. from a politically powerful family. Women who go to see the
judge about things get molested. Federal prosecutor brought suit under 18 USC 242 (this is the criminal
version of 1983) violation of constitutional bodily integrity rights
 Defense was no constitutional right involved and no case in point
 6th Cir said there is no similar case to carry-over Jacobsen bodily integrity
 Held: Is there “fair warning” of a constitutional violation
 NOTE:
 How do you determine fair warning? Look at Supreme Court cases; Circuit court cases?
 Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc)
 Facts: Elementary school and kids are having Christmas parties. Religious kids want to hand out items
that say “Jesus loves you.” School banned giving away pencils w/ Jesus. Suit for damages
 Issue: Under existing questions was there a clearly established constitutional right to hand out
pencils (and do elementary school students have 1A rights)?
 Majority:
 Held: There are 1A rights for elementary school kids, but not clearly established
 Dissent: This involved elementary school children like West Virginia v. Barnett so the right was clearly
established, i.e., can’t discriminate on the basis of religion.
 West Virginia v. Barnett: Don’t have to salute the flag
 Preceded by Gobitis (8/1): Flag issue was a political question and if they didn’t like it they
could elect a new school board
 Facts: Jehovah witnesses’ elementary age kids don’t want to salute the flag based on their
religious views. Were expelled from school.
 Held (8/1 the other way): Policy decision here that there was a right not to salute the flag
 Extraordinary Exceptions
 Reliance on Counsel - Should you be able to also sue the lawyer who authorized it
 Overview
 What about John Yu and the authorization of the torture memos?
 Hope v. Pelzer? 8A violation
 Rochin v. California? Shocks the conscience
41
 Why aren’t there more cases
Cochran v. Gilliam, 2011 WL 3873782
 Facts: Call by policeman to the DA to get legal advice
 Held: This circuit has never held that there is an extraordinary circumstance where relying on legal
advice has been sufficient
 Four Part Test (not on EXAM)
 1) Unequivocal and tailored to the facts
 2) Complete info given by the attorney
 3) Competence and prominence of the attorney
 4) ___ about advice given and disputed advice
 Lieu v. Philips, 234 F.3d 55
 Facts: Gang member w/o green card. Policeman and immigration officer go to make arrest. His
immigration status is clean so he shouldn’t be arrested based on immigration, and being a gang
member isn’t per se illegal. The arrest and violate clearly established federal law as to immigration
status. Suit brought
 Held: Immigration officer was held liable, but the state policeman was not held liable b/c he was
following what the immigration officer said and you can’t expect the state policeman to understand
immigration law
 Reliance on this advice was enough to meet the extraordinary circumstances exception
 Why aren’t there more cases? Maybe third prong of test
 Anderson v. Creighton
 Facts: 4A violations for unlawful search. Whether reasonable officer would have believed these lawful
and asked for a search warrant (objective test)?
 Jurisdiction: § 1331 and Bivens
 Defending these Cases: If you get one of these suits for official and individual capacity, then the first
thing you do is see if a violation of a clearly established constitutional right on the face of the
complaint (if not then motion to dismiss)
 If after discovery you find out facts on complaint don’t bear out then file motion for summary
judgment and say facts are different then in the complaint
 Held: Whether a reasonable officer would have believed that the search was objectively reasonable; if
not then the case is over!
 Interpretive Cases
 Brosseau v. Haugen, 534 US 194
 Facts: Cop shoots guy in the back when he is fleeing
 Held (8/1): The cases were confusing and there was no clearly established constitutional right
 Dissent: This was fair notice and should have gone to the jury
 Fair Notice: not really a good test b/c no one knows what it means
 Scott v. Harris
 Facts: Police chase at 11:00 at night; technique used to wreck the car and guy becomes a paraplegic
 Walker v. Davis, 649 F.3d 502
 Facts: Guy on a motorcycle and he is speeding; cop chases him; motorcycle driver goes into a
muddy field only going 5 mph. Officer rams the motorcycle and driver falls off and is decapitated
 Held: Said there was no case and no clearly established right (but this is wrong b/c all you need is
fair notice)
 Dissent: Said there was no case and relies on Pasco
 Pasco, 566 F.3d 572 (suspect speeding, chase, rams car, guy dies)
 Cites Scott v. Harris about there being an inherent danger

10/11/2011
 Lawyers Being Held Liable for Advice:
 John Yu again
 He was sued for writing the torture memo authorizing torture
 He was working for the General Counsel’s office for the president; so arm of the government
42
 School Bd. Attorney
 You are a private attorney and can’t be sued w/o a state action (need conspiracy)
 Adickes v. SH Kress & Sparks (prearranged conspiracy)
 A private lawyer just giving advice differs (except for Yu) because there is no prearranged
conspiracy (typically)
 Brosseau & Scott v. Harris: Revisited
 Tennessee v. Garner
 Facts: Fleeing felon is shot
 Held: Only if there is a threat to the officer or a 3d person is deadly force authorized
 Brosseau & Scott v. Harris
 Deadly force is authorized b/c there was a possibility of harm where people were speeding off, but this
seems like a lousy rationale
 These are 4th Amend cases and under Anderson v. Creighton
 Was there an objective analysis of what a reasonable officer would have thought
 Lytle v. Bexar County, 560 F.3d 404
 Facts: Ex-girlfriend calls cops and says ex-bf is in stolen car. They spot him; chase ensues for 1/4 mile
for 30-60 mph. He stops and pulls over; officer stops 15 ft. away. Officer claims car started backing-up
towards him and then he shot; other side of story is that he shot from 4 blocks away
 District court denied qualified immunity; appealed under Mitchell v. Forsyth
 Mitchell v. Forsyth and Harlow v. Fitzgerald secure right to be free from suit under qualified
immunity: there is an interest in keeping government employees out of court
 Held: There is a conflict in testimony: (1) would be reasonable under the first story that car was
backing up towards him, but (2) under the second story it would not be reasonable (b/c no potential
harm). This is a jury question b/c conflict in testimony.
 Dissent: Citing Scott v. Harris arguing for qualified immunity: was in a stolen vehicle, committed a
felony when he evaded, let officers on high speed chase (but was it really “high speed”?)
 Two-Part Qualified Immunity Procedure (now optional)
 Saucier v. Katz, 533 US 194 (2001)
 2 Part Test: If you violate a right is it clearly established, then is there immunity
 Pearson v. Callahan, 555 US 223 (2009)
 The 2 Part Process is now discretionary, not mandatory
 Interpretive Cases
 Butting v. Mellen, 541 US 1019
 Facts: Prayers were being held at Virginia Military Institute mandatorily
 4th Cir Held: There was a constitutional violation, but the right wasn’t clearly established (so
immune)
 Held: Was an un-appealable order b/c Button won on the lower level.
 Courts now have discretion to use the Saucier two-part thing
 Fourth Amendment Law
 Anderson v. Creighton - See supra
 Graham v. Connor, 490 US 386 (1989)
 Facts: Diabetic in car is having an insulin reaction; runs in 7-11 for an orange juice and then runs back
out to the car. Officer believes it is a hold up. Officer stops them and diabetic is having an insulin
reaction seeming like an alcoholic. Officer ends up cuffing him and smashing his head. Suit brought for
damages
 Excessive Force & Brosseau: To determine liability put yourself in the place of a reasonable officer;
officer could have objectively believed it was necessary (i.e., believe he was resisting)
 Held: Remanded b/c there was a good argument there could be immunity
 Cavanaugh v. Wood Cross City, 625 F.3d 661
43
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Facts: Saturday night fight and wife tries to lock husband in closet; she leaves w/ knife; he calls cops
for help to find her; she returns; officer is behind her and Tasered her; she hits the concrete and ends up
with a traumatic brain injury
 Held: Force was excessive (she hadn’t broken any laws)
Wilson v Layne, 526 US 603
 Facts: Press wants to ride along w/ the cops. Cops raid house. TV cameras are there. Does it violate the
4th Amendment to have the press along with you.
 Held: Violates the fourth amendment but wasn’t clearly established
Safford v. Redding, 129 S. Ct. 2633
 Facts: 13 year old stripped searched for potential of having prescription drug
 Held: Was a constitutional violation, but immune so no liability
Ashcroft v. Al-Kid, 131 S. Ct. 2074
 Facts: NYC had rampant arrests post 911 if you looked Arabic under material witness statute saying
they could be held. Al-Kid spent 16 days in jail and 14 months on house arrest, but no trial was ever
held. Motive was claimed to be national security.
 Do you look at motive under Anderson v. Creighton? No, objective test.
 Held: There was a constitutional violation but it wasn’t clearly established
Snyder v. Smith, 2011 WL 3211504
 Facts: Female prosecutor has Snyder arrested as a material witness in homicide trial. Court authorizes
arrest. Snyder was locked up for 54 days (trial supposed to have occurred w/in 8 days but was
postponed and he stayed in jail an additional 48 days). After it was postponed the prosecutor decided to
keep him jail.
 Test for Established Const. Right: Fair notice (not “no similar case” as argued)
 She was on fair notice
 Prosecutorial Immunity Test: Act intimately associated w/ prosecutorial phase
 No way, no immunity.
 Eighth Amendment Test
 Hope v. Pelzer (hitching post case)
 Eighth Amendment Test: Unnecessary and wanton infliction of pain - objective test (look at
surrounding circumstances for whether they should have been on notice b/c of existing case law and
regulations)
 Aside
 Shell v. Gamble
 Deliberate indifference and prison?
 State Created Danger
 This is deliberate indifference of a known danger . . . .
 Fourth Amendment
 Objective reasonableness
 Shock the Conscience Test
 Sacramento v. Lewis, 523 US 833
 Facts: Two 19 year old guys on motorcycle speeding. Officer puts on siren but they take off speeding
~100mph. Attempt left hand turn and they flip. Driver thrown on side of road and passenger gets under
the car and is killed.
 This is an 14A life/liberty case (he wasn’t effectuating a seizure and wasn’t trying to take control)
 Rochin Test: Does it shock the conscience (recall Harlan opinion in Griswold)
 Held: This is a substantive due process analysis where anything that shocks the conscience creates a
constitutional violation; but does not meet the high burden of the shocks the conscience test.
 Rejects 9th Cir. argument that this was deliberate indifference b/c the quickness of this situation
didn’t allow for judgment to be exercised
 Dissent: Scalia/Thomas - there is no substantive due process
 Perano v. Township of Tilden, 423 F. App’x 234
44
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Facts: Procedural due process violation
Held: Shocked the conscience analysis from Rochin doesn’t apply for procedural due process (shocks
the conscience has to do with a human body)
 A.D. v. Markgraf, 636 F.3d 555
 Facts: Woman in stolen car + high speed chase. Finally stops. Officer approaches her on one side of the
car. Tons of other officers are watching while he approaches and pounds on the window. She says
“fuck you.” He loads her with 12 rounds.
 Suit brought and lawyer waives fourth amendment claim, relying on Rochin (shock the conscience
to shoot this woman 12 times in response to her saying “fuck you”).
 Trial court found liability and awarded $500k in attorney’s fees
 Court used objective reasonable test from fourth amendment (despite it being waived) under Scott v.
Harris and found shocks the conscience did not apply b/c none of the other officers shot, etc.
 Jones v. Burns, 585 F.3d 971
 Facts: High speed chase and suspect turns off his head lights. He rams a car as a result and kills a
bystander. Suit brought against police department claiming chase should have terminated when he
turned his lights off
 Held: No liability under Scott v. Harris
 Concurrence: Have found no case in which a high speed chase when death occurred has been found to
shock the conscience.
 Cross-Tie-In w/ High Speed Chases: Supervisory Liability
 There is also an existence of supervisory liability pushing the liability up the chain of command
 Porter v. Epps, 2011 WL 4471051
 Facts: Parchman inmate incarcerated 15 months beyond sentence b/c of bad record keeping. Suit
brought against Epps as the records controller.
 Clearly a constitutional right that has been clearly established
 Due Process Case - Test: Deliberate indifference
 Said there are numerous ways to impute liability: (1) actual knowledge / deliberate indifference, or
(2) failure to train
 Deliberate Indifference: Conscious disregard of known consequences
 Failure to Train: He didn’t participate in anything or have any knowledge and there was no
showing of policy of this happening b/f or lack of adequate training b/c lawyers had trained
staff
 At most this was negligence, but not deliberate indifference
 Hanson v. Callahan, 2011 WL 3913636 (or 3637)
 Facts: Guy arrested for driving w/ suspended license. Has emphysema and pulmonary heart disease.
The jail nurse is called in and tells the guy to wait until tomorrow. They heard moans that evening and
he then dies. Suit brought
 Nurse Liability: Estelle v. Gamble & deliberate indifference under 8A
 The most the nurse did could be labeled gross negligence or malpractice, but not deliberate
indifference
 5th Cir. said gross negligence doesn’t meet deliberate indifference
 Sherriff Who is In Charge of the Jail:
 Must first find a Harlow v. Fitzgerald constitutional violation, and since the nurse didn’t violate his
rights then how could he be derivatively liable
 Atteberry v. Nocona Gen. Hosp. 430 F.3d 245
 Facts: Nurse runs around killing people, and killed around 10 patients. Hospital administrator and
nursing director are sued (plaintiff went up the ladder to a higher paid official). Both administrator and
director knew that the drug the nurse was injecting to kill had been missing 10 times, and they knew the
death rate was 2x normal
 Test: Conscious disregard to known consequence (they knew the deadly drug was missing and death
rate was double)
 Held: Given these facts it was deliberate indifference not to investigate by these individuals
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Note: There was also fair warning that there was a right being violated although no similar case
 Implied Causes of Action through § 1983
 Overview
 We are talking about what are the laws of the US referred to in § 1983
 Maine v. Thiboutot, 448 US 1 (1980)
 Facts: People are claiming denial of benefits entitled under social security act, a federal act.
 Who do you sue: Commissioner of human services, alleging denial of benefits
 Jurisdiction: § 1331 via § 1983 as a suit arising under laws of the US
 Capacity: Official - b/c need to show color of law; Individual - you want him to pay
 Clearly Established Statutory Right? Yes, this is a straight official capacity case
 Relief Sought: Retroactive benefits that weren’t paid
 Cross Reference to Edelman v. Jordan (for whether retroactive benefits violate 11A)
 Exhaustion of Remedies: Patsy v. Bd. of Regents - Don’t have to exhaust judicial or administrative
remedies
 Class action suit, but why?
 You can take small damage amounts and turn it into a large case
 Award of Attorney Fees for § 1983 in State Court: Yes, you get these even with a § 1983 suit in state
court because of § 1988.
 Held: Can bring § 1983 when you claim state officials violate federal right under a federal law
 Note on § 1985(3) (p. 1283)
 Brennan statement about § 1983 not being limited to only “equality of rights” (this would render it
like § 1985 as more limited)
 § 1985(3) - You can bring suit if two or more people conspire to deny equal protection of the law
 This looks powerful, but it isn’t.
 Only involves race-based conspiracies under equal protection clauses (EPC)
 Brae v. Alexander Women’s Health Clinic, 506 US 263
 Facts: Suit brought claiming operation rescue is a group conspiring to deny women of equal
protection under the laws.
 Scalia: Statute is historically only for race based under EPC
 This wasn’t just against women, was against women who happened to be pregnant and seeking
an abortion
 Middlesex County v. Nat’l Sea Clammers, 453 US 1
 Facts: Fishermen losing money and claim state officials are violating two water protection acts
 Fishermen’s fish have been depleted b/c of violations of two water protection acts. They have been
hurt and say there are rights secured by these statutes. Suit brought as third party beneficiaries
 Relief Sought: Injunction & Damages for noncompliance w/ federal statutes
 Held: The test for implied private COA is legislative intent, but Powell said here there are alternative
remedies that show a legislative intent to deny a § 1983 private cause of action.
 Maine v. Thiboutot is good unless you show alternative remedies showing an intent to deny a
§ 1983 cause of action
 There were carefully tailored alternative remedies provided in both of these statutes, thus there
was no § 1983 COA b/c of the other available remedies
 No § 1983 if: (1) no right secured, or (2) alternative remedies (direct parallel to Bivens)
 Maine v. Thiboutot Review
 You can bring a COA under § 1983 when state official violates a federal statute
 There is a direct correlations b/t implied private COA methods and the methods for whether you can
bring a COA under § 1983 for violating a federal law
 Alexander v. Sandoval is key!
 Facts: Alabama English requirement for drivers’ licenses. Suit brought saying there was impact
discrimination
 Held (Scalia)
46
 1) Regulation Case - There was a regulation that was expanding liability to include things
beyond the statute (which it can’t do) - Sorcerer’s apprentice language
 2) Implying Private COA Case - (not § 1983, but could have been). This was a straight Bivens
case
 You have to have a statute with rights secured.
 There was none, it was only for intentional discrimination
 Stevens Dissent: If this were a § 1983 then this would be different b/c we talk about rights secured
by constitution and laws
 Can I use § 1983 and get a result that I can’t get with an Implied COA?
 Maine v. Thiboutot Interpretive Cases
 Wright v. Roanoke
 Facts: Congress establishes public housing through a federal housing program. This is a spending
power program. Regulation that if you take funds from this program then your rent schedule must
include utilities. Roanoke is violating the regulation.
 Jurisdiction - § 1331 & § 1983
 Regulation Issues & Alexander v. Sandoval - The agency cannot issue regulations not authorized by the
statute so you have to look whether it was a right secured by the statute. The regulation here, however,
is in conformity
 Right Secured - There was a right secured here
 Held: was a winner b/c the remedial mechanisms were not sufficient enough to derail a § 1983 suit
 Wilder v. Va. Hosp. Ass’n
 Facts: Medicaid program provides if state accepts fed funds for Medicaid then must provide reasonable
and adequate compensation to hospitals taking Medicaid patients (spending power). Suit brought by
Hosp. association saying they aren’t getting enough compensation.
 Suit against: Wilder, the Governor, who apparently had control over the funds
 Held: Suit could go forward: This gave a right secured to the hospitals and there was no alternative
remedy
 Pennhurst v. Halderman, (p. 1298) 451 US 1 (1981)
 Facts: Federal government provides funds to states for the care of the mentally handicapped. Penn.
receives federal funds for n school (which is more like a concentration camp). Federal statute requires
adequate care standards (bill of rights for the mentally retarded) (spending power case)
 Suit brought as § 1983 & § 1331 against the school and the superintendent
 Spending Power Issues: If the states take the federal funds then the government can impose restrictions
 Rights Secured: These were not rights secured; they were merely hortatory and suggestive, not
mandatory
 Held: Suit doesn’t hold up b/c no rights secured
 Smith v. Robinson
 Facts: Claimant brought a lot of causes of action. They win under the handicapped act which doesn’t
provide attorneys fees
 Held: No attorney fees here win you prevail under something other than § 1983
 Gonzaga University v. Doe (huge case)
 Facts: Federal act (FERPA) says that you have privacy rights in regard to your education information.
This is pursuant to the spending power and the receipt of federal funds. Professor in education
department believes a student is lascivious, and warns the state board about the student (but it was not
true). This guy can’t get a job.
 Violation of Privacy Act - Yes, this was private information
 State Action - Argued this was in joint activity with the state board, but under Adickes v. HS Kress
there has to be a preconceived conspiracy
 Ga. Sup. Ct. - Held there was state action, and lawyers didn’t dispute it
 Held:
 “Our implied right of action cases should guide the determination of whether a statute confers
rights enforceable under § 1983.” Have to look at legislative intent
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FERPA isn’t couched in private rights (no rights creating language like Title IX), but instead this
was just language mostly listing regulations — Was merely a regulatory statute
 There was no individualized language like “no person shall . . . .”
City of Palo Verdes v. Abrams
 There was a comprehensive remedial scheme, so not different than Sea Clammers, and no § 1983 on
account of alternative remedies despite rights secured
Graham v. Joseph J Cain Reg’l Med Center, 570 F.3d 520 (very important)
 Facts: County medical facility for low income people is receiving Medicaid funds. There is an act,
federal nursing home reform amendments, that requires nursing homes to conduct and provide plans
providing for correct dietary needs, residents can perform daily activities, services to maintain highest
possible well being. This is a county facility
 Nursing Home Aside: The industry exists b/c of substantial federal funds
 One Argument - By allowing lawsuits for anyone receiving this type of funds would be bad policy
b/c it would allow lots of suits
 Rights Secured: It appears that there were rights secured by this law that basically if you want the funds
then you must upgrade your services
 Available Remedy: Taking away the funds (draconian)
 In Title IX the only remedy was taking away the funds
 Held (3d Cir):
 Rights Secured: There were rights secured here and that a § 1983 § 1331 was proper
 Federalizing of a State Tort (med mal) - The 3d Cir basically has created a Federal Tort for med mal in
the nursing home context
 Negligence isn’t enough, need something more under § 1983 (deliberate indifference)
 State Immunity State for Local Run Medical Facilities - This overrides the state immunity laws
 Third Party Beneficiaries - The nursing home patients are third party beneficiaries to the contract b/t
the federal government and the nursing homes
 Opinions by Scalia, Thomas, Alito, Roberts — raise an issue in this Case
 There are tons of these types of federal spending laws, & if we allow these then it is bad policy
 Thomas: When § 1983 was passed there was no third party beneficiary issues
 There are four justices who are opposed to spending law statutes
Ray v. Atlantic Richfield, 435 US 151
 Facts: Supertankers pulling into Puget sound. Washington doesn’t like it so they impose regulations on
what types are allowed. There is a federal statute directly controlling ingress/egress of supertankers into
ports. Supertanker wants to sue and sue Governor of Washington (Ray)
 Jurisdiction - § 1331 case under the federal law
 Held: Using the supremacy clause the court held the injunction was proper
Burbank v. Lockheed Air, 411 US 624
 Facts: Ordinance by the airport that you cannot fly in b/t 11:00pm and 7:00am (too noisy). This
ordinance is in conflict with FAA regulations. Lockheed wants planes to fly in. Lockheed sues for an
injunction b/c of conflict in the law.
 Held: Injunction proper under § 1331 and conflict
California Pharmacy Association, 596 F.3d 1098 (cert. granted)
 Facts: Fed statute relating to Medicaid program & hospitals receiving Medicaid (like Wilder) that states
shall make payments consistent with quality of care, etc., that are sufficient to enlist hospitals that
provide care and services to Medicaid patients. California is having budget issues and passes law to cut
Medicaid hospital payments by 10%
 Suit brought under § 1331 and § 1983 claiming California legislature violated that statute seeking
an injunction against the state and the legislature for imposing the budget cut
 Test: (1) Rights Secured and (2) are there alternative remedies.
 Rights Secured:
 Held on this point: Legislative history of this statute is that Congress wants to overrule Wilder.
Legislative intent was not to give private COA under § 1983
 Suit Brought for an Injunction Saying the Federal Law Preempts State Law
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 You can go straight § 1331 if you are alleging preemption?
Held (9th Cir): Issued an injunction saying the federal law preempts and b/f the legislature can reduce
the payments the legislature must conduct a study on the rate reduction and must show that there is
correlation b/t the amount and the study
Oral Argument Notes (was last week)
 Roberts was distressed with trying to rationalize the § 1983 rights secured cases with the cases
where there was a suit under § 1331 for violations of the supremacy clause
 POINT: Basically you can do under § 1331-supremacy-clause-give-me-an-injunction suits, what
you cannot do under the § 1983 rights secured cases (where there is no rights secured)
 There is a big states’ rights issue here of the 9th Cir. telling the Cal. Leg. what to do.
 Municipal/Governmental Liability Under Monell
 Pre-Monell Discussion
 Could Monell have been a Harlow v. Fitzgerald situation?
 I.e., You can bring a damage claim if you have a clearly established constitutional right
 Could I have brought a personal damages suit in Monell (it wasn’t that kind of case though)
 Board of Education v. LaFleur, 414 US 632
 School board regulation that you cannot teach if you are pregnant for six months
 Fair Warning: Does LaFleur give fair warning to Monell? Yes!
 This could probably be a personal damage suit against these people, but do they deserve it?
 Monell v. Dept. of Social Services, 436 US 658 (1978) (Brennan opinion)
 Facts: Can’t go to work if you’re pregnant. Suit brought, but not for personal damages.
 Jurisdiction: § 1331 and § 1983, but who is a person (are we going to overrule Monroe v. Pape)
 This is straight § 1983 for violation of Constitutional EPC
 Board changed the regulation when the suit was brought
 Not moot b/c you can’t trust the board as a political subdivision (City of Mesquite)
 Holding 1
 You can now sue political subdivisions under § 1983, b/c Monroe v. Pape was wrong
 Person has been expanded to include political subdivisions
 Holding 2 - No respondeat superior for political subdivisions
 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 that the
government as an entity is responsible under § 1983
 Official Policy
 Edicts or Acts that amount to official policy
 I.e., Someone with Policy Making authority acting on their own
 This was completely made up (behold the power of Brennan)
 Monell Fallout - You can now take an individual (Harlow) liability case and leverage against a city or
county treasury
 Will v Michigan Dept. of State Police, 491 US 58 (1989)
 Facts: Guy in Hwy Patrol wants to be promoted, but he doesn’t since his brother is a communist. He
sues for denial of promotion. Suit brought against director of Hwy Patrol in official capacity (he sued
the State Dept., but he can’t get them). You want an injunction and damages (which will come from the
state treasury)
 Note line of cases that you can’t punish someone for guilt by association (right sued under)
 Held: When you sue government officials in their official capacity seeking damages, you look to the
entity they represent, and if they represent the state then you are going after the state treasury and the
problem is that the state is not a person under § 1983 and there is 11A immunity
 State has sovereign immunity under the 11th Amend., and the state is not a person under § 1983
 Hafer v. Melo, 502 US 21 (1991)
 Facts: Auditor General of Penn. is running for office and is given a list of democrats to fire if elected.
She wins and then fires them. They sue her in her individual capacity
 Misc. Counts Discussed
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 1 Count - Alleged there was a preconceived conspiracy
 1 Count - § 1985(3) claim for conspiracy, but limited to race
Analogy to Scheuer v. Rhodes - Individual liability claim against the Governor
11A Issues - None, because there is individual capacity suit so the damages would come from the
individual’s bank account and not the state treasury
10/18/2011
 Owen v. City of Independence, Mo.
 Monell Review
 Note the Test on p. 1191. Also have to distinguish b/t those policy and edicts or acts by those who have
policy making authority?
 Monroe v. Pape: Changes Monroe v. Pape and now political subdivisions are considered persons
 Owen Opinion
 Facts: Police Chief gets fired after city council talks about what a crook he is based on a report that was
actually inconclusive. There wasn’t enough for a criminal indictment, but the property room was
horribly mismanaged. He wants a name clearing hearing & his job back.
 Is there a policy or custom: No, this is a single incident case
 Who do you sue: City manager (official capacity), city council members (official capacity)
 Not in individual capacity b/c under Harlow you have to have clearly established constitutional
rights
 It was not clearly established before this happened that you get a name clearing hearing if you
have a property or liberty interest
 Discussion
 1) Establishes proposition that you can have a single incident and fall into Monell liability
 2) Municipalities don’t have immunities for good faith actions
 There is no qualified immunity defense for a municipality
 At the inception of § 1983 there was no:
 (1) common law immunity for municipalities
 (2) there is no discretionary function to violate the 14A of the Constitution
 Policy: deterrent function b/c cities and political subdivisions will now try to predict/anticipate
developments in the law since they have no good-faith/qualified immunity
 City Policy or Edicts or Acts of Policy Makers?: This is an edicts/acts case
 Holding: Not only can cities be sued under § 1983 they also don’t have qualified immunity
 Procedural Issues - He also sued in state court for defamation b/c he could have two cases
simultaneously and try best to get a favorable outcome
 Pembaur v. City of Cincinnati, 475 US 469 (another Brennan opinion like Owen)
 Facts: Policemen come to serve arrest warrants on doctor’s office but they won’t let them in. The
officers call the county attorney and he tells them to “go in and get them.”
 Who do you sue: D.A. (no prosecutorial immunity b/c not intimately associated), sheriff,
 Note: D.A. prevailed on qualified immunity b/c not a right clearly established
 Edicts/Acts Case: Does D.A. have policy making authority
 How do you determine who has Policy Making Authority: Look at state law
 Held: Look at state law to determine whether an official has final policy making authority (they held he
did have the policy making authority in this circumstance)
 City of St. Louis v. Praprotnik, 458 US 112 (1988)
 Facts: Directive issued that city architects can’t have private clients. He doesn’t follow the directive,
gets in trouble, and then goes to the civil service commission. (note: Mayor of St. Louis approved a
sculpture in downtown St. Louis. Praprotnik is quoted as saying the architecture sucked.) He gets laid
off under a claim of budgetary concerns, and is noticed two days b/f Christmas and denied all pension
and health benefits (also 500 days of sick leave).
 Who is sued: City and his supervisors
 Issue: Did the supervisors have final policy making authority (they had final decision making
authority) . . . basically who sets policy in St. Louis for firing
50
 City Policy case or Edicts or Acts? Edicts or Acts case, but a single incident
 8th Cir.:
 Discussion
 Final Authority: Either the civil service commission or the mayor and alderman have dual authority
to set policy
 Was there a Delegation? (p.1227)
 Must show either an actual delegation, or
 A pattern or practice of final decisions being made by subordinates in a policy making capacity,
or the subordinate is making decisions framed in policy and approved by the authority
 Note/Gap: A single delegation won’t make liability here unless it was part of the policy
 The supervisors are constrained by the authority of the civil service commission, not the
supervisors’ own policy (p.1228)
 These decisions were also subject to review (and were reviewed)
 O’Connor is basically limited § 1983 and what it can do under Monell
 p. 1229 Excerpt:
 This case represents the hypothetical in Pembaur . . .
 Failure, by the body w/policy making authority, to investigate the subordinate’s decisions does
not mean you have a Monell case
 If the subordinate’s conduct is case as a policy
 Oklahoma v. Tuttle, 471 US 808 (1985)
 Facts: Police officer shot a guy at a bar.
 Held: You cannot infer municipal liability for failure to train for a single act by a policemen
 City of Canton v. Harris, 489 US 378 (1989)
 Facts: Sick woman got hurt b/c officers weren’t trained to assess if they were well or not
 Failure to Train: Failure to train may constitute Monell liability when the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come in contact
 Talking about something that is common knowledge that is happens in jails
 Hypo: Jail suicides are a good basis for where you might have failure to train
 Alternative: If you could show a pattern or custom then you might also have liability aside from failure
to train
 Municipal/Governmental Liability Interpretive Cases
 Bd. of Commissioners of Bryan County v. Brown, 520 US 397
 Facts: Jill Brown is passenger in car being chased by sheriff’s dept. Office was hired as family member
of sheriff. When he pulls her over he uses excessive force and slams her down
 Improper screening case
 Theory of Case: If there were proper screening in the sheriff’s department then this kid never
would have been hired
 Held: The fact has to be a moving force and there was nothing in his background to show this was
likely?
 Bd. of Commissioners of Bryan County v. Brown (on remand), 219 F.3d 450
 Facts: Same case brought as failure to train
 Is it known that you need to train officers not to use excessive force
 Held: There was a Monell liability for failure to train
 Connick v. Thompson, 131 S. Ct. 1350 (2011)
 Facts: Connick on death row and 1 month b/f execution his lawyers found in prosecutor’s office a lab
report showing DNA of his innocence
 Van de Kamp: Imbler applies under the theory that the failure to train had a direct nexus to the trial.
So there is no individual liability for the prosecutors.
 Brought as a failure to train to turn over Brady material.
 $14mil in jury verdict ($1mil in attorney’s fees)
 Fifth circuit splits en banc and affirms
 Held (5/4 - reversed): no failure to train Monell liability for the prosecutors
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(1) There was no pattern (there have only been four reversals on Brady violations in last 10 years)
(2) It is clear you have to train police officers on deadly force, but w/ regard to prosecutors needing
to be trained to on Brady requirements, these people have been to law school and CLEs so they
should o
 Also there is no deliberate indifference b/c it is presumed they know Brady and don’t need
training on the issue
Saenz v. City of McAllen, 396 F. App’x 173
 Facts: Mentally ill kid is acting up, has a gun. The cops are called and they know about him. The cops
go get the mom and physically drag her to the door to plead with her son. The son comes out and then
fires 9 rounds into mom. The police managed to fire two more rounds into the mother.
 Claims
 Individual/Official Against Police Officers:
 Is there a state created danger here, DeShaney, but this isn’t adopted in 5th Cir.
 Special relationship, DeShaney, they took her into custody essentially
 This was footnoted and presumed waived b/c not raised at trial court
 Monell Liability against City
 Failure to Train w/ Regard to Mentally Ill: Is this something it is common knowledge you’ll
encounter
 This was footnoted as not raised at trial court and thus waived
 Held: No liability b/c these were waived at trial court
Hobart v. City of Stafford, 784 F. Supp. 2d 732
 Facts: Houston police have crisis intervention team for use w/ mentally ill persons. Mother has son who
is being violent and she asks for the intervention team. Instead she gets officer Jesus Estrada and two
buddies. Estrada comes to arrest the guy and gets punched on the shoulders, then cop shoots him.
 Claims
 Failure to train: Develop record that there was no failure to train
 Pattern of Excessive Force: Estrada had a pattern of being excessive and this imputes knowledge
on the policy maker for the Stafford police department
 NOTE: This is a great opinion on Monell liability
Praprotnik
 Ratification paragraph (p. 1227-28)
Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985)
 Facts: There is a police chase. Mr. Grandstaff decides to follow and see what is happening. He then
encounters the entire night shift who has set up a firing squad and shoot Mr. Grandstaff who is not in
the actual fleeing police car
 The mere decision to defend is not a ratification of an officer’s acts
 Individual Liability
 Argued you couldn’t tell who bullets were whose
 5th Cir. - Who cares, joint and several liability
 Following the Incident no Reprimands or Discharges
 By doing nothing after the event the police department ratified the acts
 This is the one instance where the fifth found ratification
Peterson v. City of Ft. Worth, Tex., 588 F.3d 838 (5th Cir. 2009)
 Facts: Married couple goes to Billy-Bob’s Bar, get drunk, decide to sleep it off in the truck bed. Ft.
Worth officers arrive and see them and they start shaking the guy telling him to get out. They pull him
out and use excessive force with a knee strike and it severely hurt his thigh.
 Suit brought under Monell as failure to train.
 Officers were supposed to file a “use of force report,” and none did after this. There was no penalty for
not filing it in this case. This was not enough for ratification (not as extreme for Grandstaff)
 27 Instances of Excessive Force for last 10 years.
 Jolly - 1500 officers on and 60k incidents in 1 year, so not enough for a pattern
 Dissent: There was no training w/ regard to excessive force when there is a no arrest situation
 If there was no power to arrest was there a power to use force?
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 Should be a count for lack of training
 Webster v. City of Houston, 735 F.2d 838 (5th Cir. 1984)
 Practice or custom policy case
 Facts: Guy arrested for speeding, laid on the ground and then executed. The officers put a throw-down
gun in his hand and said they had to shoot as self defense.
 Discussion
 Showed a pattern or practice in the Houston police department about how to use throw-down guns
that the chief should have known about
 Bd. of Commissioners of Bryan County v. Brown, 520 US 397
 Inadequate Training (See supra)
 Barkly v. Dillard’s Dept. Stores, 277 F. App’x 406
 Facts: Dillard’s uses off-duty deputy sheriffs. Shoplifter is spotted and then he runs to his car. Guy gets
in his car and then supposedly has his hands on the car wheel and the security guard shoots him.
 Discussion:
 State Action: Look at victims perspective b/c he was in uniform, but there was no conspiracy under
Adickes so no joint liability for Dillard’s
 Pattern or Practice: There was only one prior instance where he used excessive force, so not
enough for pattern or practice
 Were articles saying officers intentionally put themselves in dangerous situations, but this was
just hearsay/rumors
 Failure to Train: One expert witness wasn’t enough
 James v. Harris County, 577 F.3d 612
 Facts: Deputy county uses excessive force, the claim is Monell failure to investigate and that this
results in excessive force being used repeatedly
 Under Brown v. Bryant County Must show the policy is a moving force behind the constitutional
violation
 Have to show knowledge of the officers, b/c aren’t going to engage in excessive force unless you
know this
 There was inadequate proof that the officers had knowledge
 Clancy v. City of College station, 2011 WL 335148 (S.D. Tex. 2011) (Delegation)
 Facts: Police chief in college station and city council votes to install red light camera. Police chief
testifies at open hearing that this is a scam and is an under the table way of taxing people. City council
not happy and fires him.
 Sues saying 1A retaliation. Wants city liability by the city manager
 Who sets Policy: Needs to show that the city manager had policy making authority to fire, but the city
council had review authority and there was no showing of policy of this. Also no clearly established
pattern.
 Alexander v. Brookhaven, 2010 WL 3614153 (S.D. Miss. 2010)
 Facts: Teacher fired by superintendent claims it was b/c she was black. School board has final authority
to fire under Miss. law.
 Held: Superintendent doesn’t set liability, school board does
 Okon v. Harris County Hospital, 426 F. App’x 312 (5th Cir. 2011) (per curiam)
 Facts: Okon fire by hospital administrator and claims it was race based termination.
 5th Cir. - Says the hospital board has final policy making authority and there was no ratification by the
board b/c no knowledge
 Cat’s Paw Exception: You have a tainted motive by a subordinate, then it is imputed to the superior
who has policy making authority if the recommendation is taken without evaluation
 Jett v. Dallas School District, 491 US 701
 Facts: Jett is football coach and principal has superintendent move the football coach to another
school (Jett is white and principal wants a black coach).
 Suit brought
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 Held: Superintendent didn’t have final policy making authority, but can you impute the motive
of the principal to the superintendent assuming superintendent did have final policy making
authority
 5th Cir. Law is the Cat’s Paw - You impute the bad motive by the subordinate to the person w/
policy making authority if the decision is affirmed w/o investigation
5th Cir. leaves the issue open whether the Cat’s Paw is still valid based on their interpretation of
Staub v. Proctor Hospital, 131 S. Ct. 1186
 Held: Reject the Cat’s Paw analysis, but this isn’t a § 1983 case. Said even if there is an
investigation then there can be liability
Cat’s Paw business isn’t on the EXAM (but know it)
V. 11th Amendment Sovereign Immunity
 11th Amendment Background
 John Marshal - Only applies when state is the named party
 Chisholm v. Georgia
 Facts: Contract suit. Jurisdiction was diversity under original jurisdiction
 Country Passes Eleventh Amendment in Response
 It is hard to get an Amendment to limit the Supreme Court, but you could limit the district courts’
jurisdiction by statute.
 Eleventh Amendment Text: Judicial power is not to be construed to be a suit
 But Chisholm was a diversity case! What about Federal Jurisdiction
 Current Court - Note there is a 5/4 split among the current court as to how the 11A is going to be
construed
 History & Problems w/ State Bonds
 Election of 1876 - Deal cut by democrats that we will support Hayes if troops w/drawn from south.
This happens. ¶ on 1018.
 All the southern states had issued bonds and if they have to pay the bonds then the S. Ct. will have no
enforcement power b/c they will not want private parties attacking their treasuries
 Hans v. Louisiana
 Facts: Contracts clause case. Hans has a ton of money in bonds and La. isn’t paying interest on the
bonds. He is a citizen of La.
 11A text only talks about suits of another state suing another state.
 Judicial Activism
 Held 9/0 - They construe the 11A to include citizens of their own states. They also incorporate state
sovereign immunity into the 11A, which really just said Fed. courts didn’t have jurisdiction.
 Atascadero State Hosp. v. Scanlon (5/4) - Brennan Dissent
 Brennan: Goes into the fact that the 11A was put into place in a diversity case (Chisholm), and that
Hans was a federal question case, then 11A was only intended to apply to diversity and not federal
question cases.
 Also argues that sovereign immunity was not part of the background of the 11A
 Keep in mind that this is a real issue as to whether Hans v. Louisiana and how it should be
interpreted - It is still in dispute
 NOTE: Appealability
 When state raises 11A and loses, then they can directly appeal (just like qualified immunity)
 Ex Parte Young
 Ex Parte Young (Marbury v. Madison of 11A)
 Facts: Shareholders of RR bring suit against the State. They are injured b/c state has limited what they
can charge. Suit for an injunction.
 Railroads were screwing the farmers b/c the farmers had no other way to get their food to
market. Prices were being fixed. Called the Granger movement.
 Today it would be a § 1331 suit under the commerce clause. You could also theoretically bring a
§ 1983 suit against the attorney general.
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Penalty: Up to 5 years in prison and $5k penalty for officers
 Is there an adequate remedy at law? No, is no way to do a test case b/c the penalty is so high
 Suit is brought but doesn’t name the state, they just bring it in Young’s name (AG). State action is
in mandamus to bar Young from enforcing it. Young does and gets arrested for contempt. He
compels enforcement of the act in state court and then seeks habeas relief.
 Holding: State officials cannot violate the Constitution, and when they do they lose their state status
(11A defense lost) but you don’t lose state action for purposes of the suit.
 Harlan Dissent: Argues this gives one federal judge the power to run states; to issue an injunction
telling the state what to do
 Keep in mind 14A - Its concept was to insert federal power, but this is arguably beyond the balance
of federalism
 Three Judge Courts - We went through a period where in response to this threat to federalism we
had three judge panels, but eventually abandoned (originally the 3 judge appeals bypassed COA)
 Can bring injunctive relief against state official; name them in official capacity seeking prospective
relief.
 Edelman v. Jordan
 Held: Can’t seek retroactive relief that ultimately comes from the state treasury (an 11A problem)
 Rehnquist: Relies on Ford Motor Co. case where Ford was paying taxes and then sued to get them back.
Ford cannot get their taxes back under Edelman.
 Alabama v. Pew, 438 US 781
 Facts: Suit for 8A conditions against Alabama prisons. They name Alabama as a defendant (this is
wrong), they should have named the head of the prison
 Held: (remember Marshal) the 11A is definitely a limit when you are suing a state by name
 What is a state/state entity: arm of the state doctrine (if they are an arm then 11A problems)?
 This is not a problem if you are going Ex Parte Young
 Northern Ins Co v. Chatom County 547 US 189
 Facts: Malfunctioning bridge damages boat. Insurance Co. pays for damage then sues the county for
damages. Diversity you can sue counties but not states.
 Held: Look at state law to see who is responsible for the bridge, and whether under state law the state
defined the construction/maintenance of bridge to be state or county responsibility
 Mount School v. Doyle 429 US 274
 Facts: Teacher sues school because he is fired. School says it receives state funds
 Held: Look at the state law and see how it is run: was a county not a state school
 Tests:
 Does the state control it (appoint members of the board)
 Where are the funds derived from
 Who pays
 Hess v. Board 513 US 30
 Facts:
 Held: Determining factor is where are the funds coming from: if from the state treasury then you have
problems; if from counties or cities then you are in good shape
 Stern v. Ahern 908 F.2d 1
 Facts: Case worker ripping off a child from a couple. Suit for damages when the child was removed.
Welfare department had a sign that said Harris county department.
 Held: The sign is an issue, but they really rely on state funds
 Chrissy F. v. Mississippi, 925 F.2d 844 (5th Cir. 1991)
 Held: DA’s offices are arms of the state b/c they get state funds (but this is only when you are suing in
a situation not intimately associated w/ the prosecution)
 Monell Revisited
 City council fires X by line iteming him out. They are personally immune b/c of legislative immunity.
But you can sue the city itself and thus beat legislative immunity.
 Regents v. Doe
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Facts: Guy has a contract w/ Univ. of Cal. and contract is breached so he sues university for damages
for breach of contract. Univ. is an arm of the state. Problem is it is a fed government contract and it
says that if there is litigation w/ re: to the contract, then the federal government will reimburse.
 (9th Held): Since the money wasn’t coming from the state treasury this was okay
 S. Ct. Held - No way
State & Private Partnerships
 Del Campo, 517 F.3d 1070
 Facts: State has bad check collection agency that is retained to go after check bouncers. It is a
contract b/t the state and private company to collect bad checks. Woman has bad check and she
gets a letter ordering her to enroll in their program for the bad check and pay huge fees
 Held: Private companies do not have this type of immunity
 Wyatt v. Cole, 504 US 158
 Facts: Should private persons when sued under § 1983 have qualified immunity? The history
looked at traditions for government officials.
 Held: No qualified immunity for private persons
 Richardson v. McKnight, 521 US 399
 Facts: Prison guards at private prison sued for damages
 Held: No qualified immunity
Misc. (really conflict of law cases)
 Nevada v. Hall
 Facts: Car wreck in one state by a state official from another state
 Held: Nevada law is not binding on Cal. courts
 Franchise Tax Bd. of Cal. v. Hyatt, 538 US 488
 Facts: Cal. resident moves to Nev. and franchise tax board starts harassing for back taxes. He
brings suit against Nevada in Cal. re: the back taxes. Nevada argued they had immunity from Cal.
state law.
 Held: Can’t use the Cal. statute in other courts
Pennhurst State School
 Second of three Pennhurst school cases
 Facts: The 2d Cir. held Penn. liable under state law claim that was pendant to the federal claim. They
are asking for prospective relief.
 Held: Ex Parte Young only applies to stripping of state officials for federal rights/laws, not state
rights/law (b/c state officials are presumed to follow federal law under the supremacy clause, and if
they don’t follow it then they are stripped of state hood under the ex parte young fiction).
 You will then have to bring the state claim simultaneously in the state court (Parallel litigation)
The Atocha (Key West museum)
 Facts: Salvager finds a ship with treasure on it. Florida says it is off their coast and wants it. Salvager
agrees to share with Florida. US then gets involved and says it isn’t in Florida waters, but US waters.
Salvagers bring suit to reclaim the gold that Florida has in its museums.
 Discussion - Is this going to affect the state treasury? No, this was just things that Florida is being
ordered to release. Not Edelman v. Jordan b/c state treasury not involved
 11A Consent & Abrogation
 Waiver - Probably going to be on EXAM
 Atascadero (Footnote “c” on p.1052)
 State had waived sovereign immunity in state(and remember Brennan’s dissent that Hess was no
good?)
 Held: The waiver must be very clear and a state waiver isn’t a federal waiver
 Lapides, 535 US 613
 Facts: If the state removes to federal court
 Held: This is a voluntary act that is sufficient for waiver
 Bd. of Regents v. Phoenix 653 F.3d 448
 Facts: State entity sues in federal court for a trademark issue and defendant counter claims for damages
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 Held: No sovereign immunity b/c you voluntarily brought the suit
 Parden v. Terminal (Overrule by two cases in case book)
 Old case saying participation in a federal program is waiver. But see Edelman saying it isn’t
 Fitzpatrick v. Blitzer
 Facts: Title 7 (enacted pursuant to § 5 of 14A). Specific provision in this law making states liable.
 Held 9/0: Anytime you have a 14A exercise by congress, then they can explicitly overrule 11A
immunity.
 Will - State not a person for § 1983, but you don’t worry about immunity for 1983
 Hutto v. Finney
 Facts:
 Held: In 1988 for attorney’s fees there is nothing in there about state liability. Congress intended for
state to be liable under § 1988, and this is a 14A exercise so okay.
 Atascadero - 1055
 Must have a clear statement that specifically waives 11A - No implied waivers
 Union Gas & Seminole Tribe
 Union Gas (Split Court)
 Held: Congress could override 11A using Commerce power
 Seminole Tribe
 Held:
 Holding 1 - Overrules Union Gas
 Holding 2 - Limits congressional override only to the 14A; theory is that the 14A is the only
thing that came after Art. III and 11A.
 Rule: The only way congress can override 11A is through 14A power
 Ex Parte Young Issue?
 If you are the governor and you are told you have to have meetings w/ someone then you
are pissed off
 Alternative Remedies were available citing Chilicky (a Bivens suit)
 Cannot bring an Ex Parte Young suit if there are adequate remedial aspects to the law
 Idaho v. Coeur d’Alene, 521 US 261
 Facts: Lake in Idaho. Indians bring suit saying that under treaties they own the land
 Don’t name states when you sue.
 Relief: Want a mandatory permanent injunction; name the SOS
 Jurisdiction - § 1331 for treaties; there is a § 1983 also b/c person is denying rights secured
 Lower court found liability
 Held (Kennedy): Ex Parte Young did not apply b/c suit was a functional equivalent of a suit to quiet
title and there was a high state interest
 After this case there has not been another case that has found an Ex Parte Young based on high
state interest
 Verizon v. Maryland, 535 US 635, O’Connor, - Court may only conduct a straightforward inquiry as to
whether (This overrules any language in Idaho by Kennedy)
 College Savings Bank (part of what overruled Parden)
 This wasn’t an exercise under 14A, it was under the Commerce clause (also Parden overruled)
 Federal Maritime v. South Carolina
 Facts: Suit brought b/c South Carolina won’t allow gambling cruise ships in. There was a federal
commission that the cruise ship tried to sue the state in.
 Held (Thomas 5/4): Hauling the state b/f a federal agency is an affront to the dignity of the state.
Dignity of the state is one of the premises of the 11A. Same thing applies to federal agency proceedings.
 Va. Office for Protection v. Stewart, 131 S. Ct. 1632
 Facts: Fed. act provides funds to states for the upkeep and care of mentally disabled (like Pennhurst). If
you accept federal funds you have to set up a state agency or private nonprofit to litigate on behalf of
mentally disabled. Special authority is given to bring suits against state agencies.
 Legislature sets up a state agency to advocate for the mentally disabled. Officers of this agency find
out there are abused patients. Agency won’t turn over records.
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Bring an Ex Parte Young suit naming head of hospital and ask for prospective relief
 Argument that this was demeaning and an affront to state dignity to be hauled b/f federal court
Held (Scalia) (5/4): Was no 11A b/c you knew what you were doing when you took the funds. If they
had formed a private agency then there would be no Ex Parte Young suit; this was a knowing decision.
 Only when you have retroactive relief or special sovereignty interests (Coeur d’Alene) do you have
an Ex Parte Young defense and 11A immunity
Dissent: There is a difference b/t eating and cannibalism, and the state has turned on itself
 City of Boerne v. Flores
 Smith Case
 Facts: Oregon has law against using peyote. Guy gets fired for using it as part of his belief. Suit is
brought to prevent enforcement of the suit.
 Jurisdiction: § 1331 for under constitution for free exercise clause, and a § 1983 for person doing it
 Federal would be Bivens if this were a federal situation
 Scalia Opinion - Finds low scrutiny review for religious impact when you are talking about a uniform
law that touches on religious exercise
 Response: Law at issue in Boerne is passed: RFRA - overrules Smith and reinstates high scrutiny
religious review
 City of Boerne v. Flores
 Facts: Suit brought under the religious restoration act for neutral law affecting church.
 Kennedy Opinion:
 Outline
 Gives history of 14A: first draft said congress could interpret the fourteenth amendment, but
the enacted § 5 only said that congress could enforce the provisions of the 14A (they can
enforce what the S. Ct. interprets, but they can’t define rights). RFRA tried to defined the 14A
 Civil Rights Cases - Have to have state action and can’t use the 14A against private persons
 Is Congress using its power appropriately
 What Congress has to Do To Pass A Constitutional Law
 Whatever it does must be congruent and proportional b/t the injury and the remedy enacted
 Comparison made to South Carolina v. Katzenbach:
 Dealt w/ voting rights act and certain southern states that had to get approval for voting
rules because there was a history of discrimination
 Is this congruent? First ask is there a problem?
 To Kennedy Katzenbach showed a documented pattern of discrimination
 Is this Remedy Proportional to the evil congress saw?
 Yes, this was a limited remedy to these serious issues
 Boerne Record:
 There wasn’t much of a record of uniform laws impacting religions
 Amish being ticketed . . . not much of a record
 The remedy imposed (high scrutiny review) was not proportional to the injury (no record)
 Stuck with the congruence & proportionality test
 College Savings Bank
 Facts: Again, deals with the Lanham act and Seminole. College Savings Bank is being ripped off b/c
universities are stealing the Bank’s plan for college funds.
 Held: Can’t override sovereign immunity under Article I
 Florida Prepaid
 Facts: They lost under the Lanham act and now claim patent infringement. Patent act was amended
after Atascadero (requiring a “clear statement” to override sovereign immunity) to add a clear
statement rule. Following this amendment Seminole came down.
 Issue, there is a clear statement, but was there authority
 Held: Even if there was a 14A exercise, there was no history of state violations
 Doesn’t do anything but build on Boerne — still have to show a pattern of 14A violations
 EEOC v. Wyoming, 460 US 226
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Facts: Disputes arise over what power did Congress use when it enacted a law. Being able to claim that
it was 14A at least gets you near the door.
 Held: Even though Congress says it uses the commerce power, if it could have used the 14A then you
can argue that (you aren’t hamstrung b/c of their claim)
 But still have to meet congruent proportionality
Kimel v. Florida Bd. of Regents
 Facts: Age discrimination. Primary argument is that it was passed under Art. I, § 8. But we still only
have low scrutiny review.
 Held (5/4 just like all these case): If there is a hint that we are looking at low scrutiny review, then
forget the congruence and proportionality
 Dissent: (Federal courts?) are not a guardian of 11A rights; presumably it is the congress’s duty to
protect 11A sovereign immunity
 Marshal - commerce power is plenary, but it is political b/c congress is made up of the states
 O’Connor Opinions (various ones) - The political power that was once there when Marshal was
around is no longer really viable - political system is broken
 Stevens also says that Chisholm was a diversity case and that there is no sovereign immunity for
Federal Question cases (doesn’t like that Union Gas was overruled; Seminole was wrong; and the
two Florida prepaid decisions were wrong)
 NOTE: keep in mind these dissents b/c one vote change would mean these cases could go away b/c
these were all 5/4 splits.
Board of Trustees v. Garrett
 Facts: Title I of the ADA involving discrimination against the disabled. The standard of review from
Cleburne is basically low scrutiny review
 Held: Doesn’t meet congruence or proportionality, but there was also no evidence of state agencies
being discriminated against
 Are they saying you can’t win one of these if it is low scrutiny review?
 FN a @ 1105 - These are damages suits we are talking about. The congruence & proportionality only
has to be met for damages actions; injunction cases can go straight Ex Parte Young.
 Dissent: Claims there are over 300 instances of discrimination in the record
Tennessee v. Lane
 Facts: Title II of the ADA (for restriction for services, programs, or activities). Guy in wheelchair can’t
get up the stairs and is held in contempt.
 Discussion: They didn’t look at the ADA broadly, but narrowly and saw a 6A access to courts issue
 Stevens: Who has been dissenting all the time now rights the opinion & majority b/c O’Connor flipped
 Appear that in high scrutiny review the need for evidence is lessened (Cross reference Georgia)
 Dissent: Says even though it was high scrutiny review there wasn’t enough evidence
 Scalia Dissent - Not only do you need evidence, but you also need evidence by the specific state
involved (i.e., had this particular state engaged in discrimination) (Cross reference Hibbs).
 Saying you need a evidentiary burden of discrimination throughout the US and also for the
particular state being sued
Nevada Dept. of Human Resources v. Hibbs
 Facts: Family Medical Leave Act (FMLA).
 Rehnquist had been dissenting on sex discrimination cases regarding raising review to
intermediate; but ironically he is now at the forefront in this case
 Held (Rehnquist): Upholds the law
 Finds history of discrimination with respect to family medical leave (pattern)
 Find there was proportionality b/c law was narrowly tailored
United States v. Georgia, 546 US 151
 Facts: Inmate (Goodman) who is a paraplegic in prison in Ga. Alleges he cannot move his wheelchair
in his cell; totally restrained 23/24 hours of the day w/o justification. (2) Several instances where he is
forced to sit in his own excrement. (3) He has been denied medical care
 Discussion
 You need the 8A and you need the ADA.
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 You can’t sue the prison director (probably) b/c no respondeat superior for § 1983; sue prison
guards.
 You need to argue that the 8A is incorporated through the 14A with Resweber v. La.
 Scalia - There was a clear statement here, and the power to do it under 14A § 5, but Scalia says you
don’t need any evidence or anything when you have a violation of a Constitutional right.
Nat’l Ass’n of Pharmacists Board v. Regents of Univ. of Georgia
 Facts: Violation of the copyright remedy act. Prof. in Pharmacy schools gives a prep course for people
taking the state board exam. He is lifting questions developed by the Nat’l board and using them in his
review course. School is sorry and enters a contract w/ the Nat’l board hoping their prof. won’t use the
questions again. 2 years later they find out 600 questions have been taken again. Suit brought against
Univ. of Georgia for damages & injunctive relief.
 Is there an 11A claim? Is there a 14A exercise?
 Damages
 Held: Is the copyright enforcement act a 14A exercise; no way, it was Article I
 Even though it says it is enforceable against the state
 Injunction
 Not required to meet the proportionality b/c you can get an injunction for violation of the act
 Mootness - Prof says he is retiring; is it moot
 11th Cir. won’t trust the University of Georgia b/c they somehow let this guy find 600 questions
 Who do you name Defendant in ADA cases?
 ADA deals with receipt of funds and you are only liable if you receive federal funds
 You name the entity receiving the funds as defendant
Constantine v. George Mason, 411 F.3d 479
 Facts: Constantine is a female law student who flunked con law. Claimed she needed extra time to take
the exam b/c she was dyslexic and prof won’t give reasonable accommodations. She sues the law
school saying no reasonable accommodations were made.
 Can she bring a § 1983 against the Professor? Nope, Horowitz
 Horowitz v. Bd. of Curators - Stinky female Jewish student wants a full hearing on whether she
flunked the course
 Rehnquist says there is no due process rights for a grade
 Can you sue the University? This is a disability case where you have Garrett and Lane as precedent
 First, Depends on what constitutional right was involved
 Says her right to education has been violated - low scrutiny review (Rodriguez)
 When you have low scrutiny review you are in bad shape; you lose.
 First Third and Fourth Circuits as examples have upped review for education rights being fundamental
 But see every district court that reject this
Cunningham v. University of New Mexico, 779 F. Supp. 2d 1273
 Facts: Kid gets kicked out of med school
 Held: Said that the Constantine cases are bad precedent b/c they are misconstruing supreme court
precedent. Rejects them.
 Injunctive Relief - You can theoretically keep the kid in Med School.
 Under Ex Parte Young can you get an injunction? No, you need to name the actual person you
would be enjoining.
 But remember that you need to also name the entity for an ADA or funding case. So you want to
name all of them (the entity and the officials)
Clinger v. Dept. of Revenue, 433 F.3d 1078
 Facts: Missouri has a law that for the disabled you must pay $2 for a placard for disabled parking. Suit
brought that this is a violation of the ADA by discriminating and making them pay $2 and nobody else
 Class action suit: Can this be brought under Lane? No, Lane is only good for access to courts.
 Damages: There is no way to get out of low scrutiny review so you lose
 Injunction: Can get an injunction even though you don’t make the congruence and proportionality test
11A doesn’t apply at all to the federal government (see that FN “a” on 1105 again) so if there is standing
they can sue the states
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VI. Abstention Doctrines
 Younger Abstention
 Younger Background
 Kline v. Burke Construction, 260 US 266
 Facts: Burke brings diversity suit in federal court for damages. Kline responds by filing for
injunction in state court. Thus two cases pending
 Held: Federal courts cannot abdicate their jurisdiction in favor of a state court suit, period.
 Theory - you have a right to sue in state court just like in federal court, so that if that happens
then the suits run in parallel
 28 USC 1738
 If you have a state court judgment (i.e., proceeding goes to judgment b/f the federal court
proceeding) then the motion to dismiss the federal suit is proper under the basis of res judicata
and collateral estoppel.
 The federal court would apply the state’s laws of res judicata and collateral estoppel
 Basically, if the state court case gets to judgment first, then you can use that state decision
to dismiss the other suit
 Race to judgment basically; but there is nothing in there about the state courts dismissing
on the basis of federal courts
 Cross Reference 28 USC 2283
 Note: Any court that has possession of the res cannot be involved in duplicitous litigation (presumably)
 Kerotest Mfg. v. C-O-Two Fire Equipment, 342 US 180
 Facts: Multiple suits concurrently/parallel in federal court.
 Held: There is no one solution. The issue is wise judicial administration.
 Circuit Rules - Fifth circuit says the rule is first to file
 Cadle Co. v. Whataburger of Alice, Inc. 174 F.3d 599 (5th Cir)
 Suit in Equity vs. Suit in Damages
 If you are seeking an injunction in equity then it is quite different as to whether to stay or dismiss
for damages/at-law suits. See p.701
 Douglas v. City of Jeannette, 319 US 157 (federal court injunctions of state criminal proceedings)
 Facts: There are two cases going on simultaneously (this one and Murdock). Thousands of
Jehovah’s Witnesses. They surround the city (locust technique). Then they converge and knock on
all the doors. Special ordinance was designed to keep Jehovah’s witnesses out. Murdock on cert
from state court found that the ordinance was void. But simultaneously there was a § 1983 &
§ 1331 case seeking an injunction of future criminal prosecution
 Held: Can’t get an injunction in a pending criminal state prosecution where there is a remedy at law
(i.e., defense to the state prosecution). If it is a single prosecution under even an unconstitutional
statute, then you cannot get an injunction
 Policy: There is a high state interest in avoiding criminal defense lawyers from derailing state
prosecutions with injunctions
 Dombrowski v. Pfister, 380 US 479
 Facts: In civil rights era there is a La. law against communism and La. officials are harassing civil
rights activists and raiding their homes/offices. There was a grand jury proceeding at least going on.
Talk was of threatened
 Held (Brennan): Two reasons the injunction could be issued
 1) Statute was Overbroad - This is kind of like 3d party standing; not arguing client’s 1A rights,
but the rights of those affected by the overbreadth.
 Theory - 1A is so important that the one guilty of unlawful speech should go free to protect
those who have legit 1A concerns
 2) Bad Faith or Harassment - Harassment for harassment’s sake (creates exception to Douglas
and other cases)
 Can get an injunction against a pending criminal case if there is harassment and
jurisdiction - § 1983 (Note: no immunity here b/c this is an injunction)
 Note: Texas for Business v. Earl, 388 F.3d 318
61
 Facts: Grand jury investigation in Texas, and they wanted an injunction
 Held: This was a pending criminal action
 Younger v. Harris, 401 US 37
 Facts: Harris is arrested for violation of the Criminal Syndicalism Act, i.e., advocating overthrow of
private businesses or capitalism (Whitney v. California). He is a quack who is arrested for handing out
leaflets saying businesses suck. Prosecutor was up for election, so this looked good to arrest “known
communist.”
 Discussion
 Cites to 28 USC § 2283 - US Court may not grant an injunction to stay proceedings in a state court
unless: (1) expressly authorized by Congress, (2) where necessary to aid its jurisdiction, or (3) to
protect or effectuate its judgments
 Policy - Federalism concerns that federal courts shouldn’t be able to disrupt state proceedings
 With the exception of three limited circumstances
 But he doesn’t actually rely on § 2283
 Constitutionality of this Law: Doesn’t matter here b/c you can’t bring an injunction for a pending
criminal prosecution anyway
 Says Dombrowski Sucks: There was no independent reasons for issuing injunctive relief for based
on an overbreadth exception
 Comity, Equity, and “Our Federalism”
 This is a comity, equity, and federalism case
 Threatened Prosecutions - Bad Law - Only concerned with pending prosecutions Fenner v. Boykin
 This was bad law maybe? We are only talking about actual pending prosecutions
 Held (p.710)  1) A single prosecution brought under an unconstitutional statute is not bad faith under Younger.
 Cameron v. Johnson (from Hattiesburg)
 Facts: Picketing outside of courthouse over civil rights. Special statute passed making it a
crime to picket. Sheriff arrests the demonstrators. Goes up to the S. Ct.
 Held: Single prosecution under an unconstitutional statute is not bad faith for purposes of
Younger.
 2) There may be extraordinary circumstances where the prerequisites of bad faith and harassment
(series of prosecutions brought w/o expectation of attaining any finalized prosecution) (p.712-13)
 Outcome - Hugo Black has shut down injunctions against pending prosecutions unless you have a
showing of bad faith/harassment or unless the statute is unconstitutional in every clause, sentence, and
paragraph, or exceptional circumstances
 Do not think you can get an injunction in a pending criminal
 Note: Younger doctrine does not apply when suing for damages; only when suing for injunctive relief
 Younger Discussion Cases
 Boyle v. Landry, 401 US 77
 Facts: Standing case. There were other interveners in Younger v. Harris (professors and protestors)
 Held: Hugo Black saying there was no threatened prosecution and no standing
 Samuels v. Mackell
 28 USC 2202 - If there is an actual controversy you can get a declaratory judgment. It isn’t
immediately enforceable, but you can later ask for
 Held: Cannot get a declaratory judgment. Same criteria for injunctions applies to declaratory judgments
(can’t circumvent Younger this way)
 Perez v. Ledesma,
 Facts: Trying to get an injunction against introduction of evidence
 Held: Younger applies to all aspects of trials
 Mitchum v. Foster
 Held: § 1983 is an exception to § 2283; it was an express act by Congress to alter the balance of power
(see legislative history on p.724)
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You can beat Younger by bringing a § 1983, but the you apparently still must show bad
faith/harassment, unconstitutional in every sentence and paragraph, or other exceptions
 28 USC § 1341 - Tax Injunction Act
 Act Itself
 Can’t get an injunction for the collection or levy of taxes.
 Courts were historically using the federal courts to avoid state taxation under the theory of abusing the
system and capitalizing on the litigation delays
 319 US 293
 Held: Cannot beat 28 § 1341 by asking for a declaratory judgment
 Rosewell v. La Salle Bank, 450 US 503
 Facts: I pay my taxes then I sue to try and get them back. Also asked for prospective relief
 Held: The two years it might take to get the money back is still a plain and expedient remedy (i.e., the
remedy provide the
 Fair Assessment v. McNary 454 US 100
 Facts: Suit for damages, not an injunction under § 1341 (remember Younger only applies to injunction
suits). In this case people contested their property taxes and won. When the reassess the property tax
the next year they are penalized b/c the tax officials are pissed. This suit is brought for people who
suffer after successfully contesting their tax levy
 Held: § 1983 imports the traditional practices of giving deference to state mechanisms for collecting
state taxes; didn’t affect the historical tradition of interfering with state taxes (so no damage claim
 515 US 582
 Facts: § 1983 suit brought in state court by trucking company claiming state law violates commerce
clause and wants refunds. State didn’t remove the case to federal court.
 Does Edelman v. Jordan apply (retroactive relief involves the 11A)? The 11A doesn’t apply to state
courts (“The judicial power of the United States . . . .”).
 Held (Thomas): Can’t use the state courts to interdict state collection of taxes based on the same theory
 Steffel
 Schimmer v. Magoode, 621 F.3d 581 (Background for Steffel)
 Facts: Disorderly conduct ordinance; gives police power to order dispersal of persons if in vicinity of
three or more persons who are committing acts likely to cause substantial harm. Police use it to arrest
Schimmer and two buddies (but there weren’t enough people so ordinance misused to arrest). Case
brought and charges ultimately dismissed
 Can you bring a § 1983 while the charges are pending
 Huffman v. Pursue Ltd.
 A case on appeal is considered a pending case
 § 1738  Federal Courts have to give full faith to state court judgments
 Probably not b/c of these two reasons
 Can you bring a § 1983 once the charges are dismissed for damages on violations of 1A rights
 Can’t bring an injunction suit b/c of La. v. Lyons
 Steffel
 Facts: Guy afraid he will be arrested for handing out Vietnam handbills (his friend had already been
arrested). When cops came Steffel left and Becker got arrested
 Jurisdiction: § 1983 & § 1331
 Who to sue: Local prosecutor (no immunity issue for injunctions); shopping center owner (if you
can show conspiracy w/ state)
 Capacity - Official capacity b/c this is a suit for declaratory judgment
 Standing: Court finds he had standing b/c he had been approached twice by the police and he intended
continue to handbill.
 Lawyer got a stipulation from the police chief that he would arrest them if they returned
 Samuels v. Mackell
63
 For a pending criminal you can’t bring a declaratory judgment; but this is just threatened
Discussion:
 Declaratory Judgment Requirement - There are lesser requirements for standing for declaratory
judgments (see discussion below
 Aetna Insurance v. Hallworth, 300 US 227
 Early Case interpreting the declaratory judgment act
 Facts: Hallworth has a policy w/ Aetna and writes asking to be paid on his policy for
illness. Hallworth keeps writing demanding payment. What can Aetna do?
 Ask for Declaratory Judgment - They can ask for a judgment that they aren’t liable to
Hallworth on the policy
 This meets the actual controversy requirement
 Reason for passage: To give insurance companies access to federal courts for resolving
disputes
 Younger problem b/c Becker is actually being prosecuted? Derivative preclusion?
 Hicks v. Miranda - There was a coalition of interests, so younger problem
 Dorem v. Salem Inn - bunch of strip clubs, but there wasn’t a commonality of interest
 Becker is independent of Steffel so there is no commonality of interest
 Rule: A pending criminal against another person in state court that doesn’t have joint interest in
the context of Hicks v. Miranda does not preclude bringing a § 1331 to get declaratory
judgment
 Holding
 Younger does not apply when you have a threatened prosecution sufficient for standing and you
ask for a declaratory judgment
 Mootness - Case got remanded b/c the Vietnam war ended
 Criminal Prosecutions of one person Imputed on another
 Hicks v. Miranda
 Facts: Ticket taker and concession stand person gets charged for an obscenity charge at theater.
The owner wasn’t charged. There is a pending criminal and they are found guilty. Then the owner
brings a § 1983 & § 1331 suit in federal court, and as soon as that happened he is indicted too.
 Held:
 Derivative Preclusion - The interests of the owner of the theater were sufficiently identical that
the pending criminal of the employees was imputed, so Younger applies
 State court can boot you out of federal court once you file a suit, if the state can get the charges
moving against you b/f substantial proceedings in federal court have taken place (or
proceedings on the substantive merits)
 Ally v. Madrano, 416 US 802
 Facts: Prosecutions against migrant workers, and Texas Rangers are basically doing the bidding of
the farmers. Suit brought in federal court to enjoin the prosecutions
 For Younger who can’t be plaintiffs? The people who are charged in state court.
 Migrant Worker Union is one of the Plaintiffs
 Burger had an opinion saying the Migrant worker union represented the migrant workers
 Pending Criminal
 Doran v. Salem Inn
 Facts: Law office next to a strip joint. Ordinance passed shutting down strip clubs. Strip club wants
to sue b/c the law is unconstitutional (and you should tell them not to break the law, b/c then
pending). But one of them had a charge brought against them
 Held: Adds to Steffel (can’t get declaratory judgment when there is a threatened criminal), but also
says you can get a preliminary injunction based on threatened prosecution
 Wooley v. Maynard
 Facts: Jehovah’s witnesses didn’t like the “Live free or Die” on the license plates. They put tape on
the license plate covering it. Every time they pull out they get ticketed
 Court found there was no state interest here in covering this up
 Named Defendants: Chief of police; police director; head of DMV

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Discussion - Is there a Younger problem?
 No, there is only prospective relief being sought, so it is straight Ex parte Young.
 Held (9/0) - Unconstitutional, and can bring the prospective suit
 Compare to Ellis v. Dyson 421 US 426
 Facts: Dallas, Tex. There is a no loitering ordinance. P’s have been arrested and convicted.
Bring § 1983 & § 1331 to enjoin enforcement of the ordinance
 Standing - Get a stipulation that they will be arrested again by the police in a deposition
 Injunction to Expunge Past Convictions - Younger applies to the previous conviction;
 Mootness - Moot b/c the clients were hanging out in NYC
 Younger and Pending Civil
 Huffman v. Pursuit LTD
 Facts: Dirty bookstore. Civil proceeding brought to close the bookstore as a public nuisance
 Held: Suit on appeal is still a pending proceeding.
 The state was a party in the suit, so this was labeled quasi criminal b/c the state was going to
see this suit all the way through for a state interest/purpose
 Facts: Even though it is civil it is quasi criminal; is this Trainer?
 Younger applies to civil proceedings where the state is a party and there is a high state interest; also
can be labeled quasi-criminal in nature
 Factors:
 1) High state interest when state is a party?
 2) Quasi Criminal in nature
 3) Adequate opportunity to raise the constitutional issues
 Trainor

 Juidice v. Vail, 430 US 327
 Facts: Sewer Service: the process server lies and then trashes the process but claims they served it.
Sheriff was trashing the service of process. Suit brought to get an injunction to stop this
 Held: Younger applied to state civil proceeds? High state interest in enforcing their own state rules
 Now we have three cases so far where Younger
 Pennzoil v. Texaco, 481 US 1
 Facts: Pennzoil sues Texaco in state court and gets $10.5 billion judgment. Pennzoil is a NJ
company; Texaco is a Texas company. To appeal you must post a double bond. Texaco brought
suit in NY in a venue where corporate headquarters for Pennzoil is located. Diversity suit asking
for an injunction against enforcement by Pennzoil of the bond requirement in Texas.
 District court in NY issued an injunction. Second Circuit affirms. Cert granted.
 Held: Reversed citing Juidice.
 NOPSI v. Council of City of New Orleans, 491 US 350
 Facts: NOLA public service comm’n is found liable by federal energy regulators for costs on
nuclear reactor b/c of negligence in building a new one. PSC asks city council for a rate increase.
PSC appealed the city council decision into state court and simultaneously brought a federal suit
 Jurisdiction: The law of the united state, for federal agency, is at issue. This is Maine v.
Thiboutot b/c violating federal statute.
 Fifth Circuit - Held Younger and didn’t allow the suit
 Held (Scalia rev’d): This was not a judicial function, but like a legislative function b/c it was rate
setting
 You would name the city council members as a legislative body and go straight ex parte young.
There is no legislative immunity b/c you sue them as a legislative body, and not as individual
legislators
 Middlesex  Facts: Lennox Hinds said there was lynching going on in the courtroom. Is this a first amendment
issue? No, legal ethics issue
 Held
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 State bar is acting under the state supreme court guidance, so there is a high state interest
 State is a party
 Outcome - Yet another case extending Younger into the civil realms
Ohio Civil Rights v. Dayton Christian Schools, 477 US 619
 Facts: Dayton Christian School is a private school, and when teachers agree to teach there they
agree to the “bible chain of command” regarding their rights as an employee. Teacher gets
pregnant and is fired b/c she violated the “bible chain of command.” She goes to Ohio Civil Rights
Comm’n saying she is being discriminated against b/c a woman. Dayton School brings federal
§ 1983 suit to prevent the Civil Rights Comm’n investigation/proceedings
 Questions:
 Is there a proceeding that is judicial or quasi-judicial in nature (NOPSI said we won’t apply
Younger unless we have this)
 Is there a high state interest? Is the state a party to the proceedings? Yes, the civil rights
comm’n is a part of the state
 IS there a chance to argue the Constitutional issues? Yes
 Held: Applied Younger to these quasi judicial proceedings and dismissed the case
Gibson v. Berryville, 411 US 564 (One Case that Beat Younger)
 Facts: In Alabama. Optometrist is having license revoked and is called b/f Alabama Bd. of
Optometry (which is basically working for Lee Optical). Alabama Bd. members are all members of
Alabama Optometrist Ass’n (i.e., Optometrists in private business). Half optometrists in Alabama
work for Lee Optical (big chain) and half work privately. All the board members are private
optometrists.
 Held: Even though this was quasi judicial, this was plainly a biased board and issue the injunction
and didn’t find a Younger problem
Rizzo v. Goode, 423 US 362
 Facts: Philadelphia police are making all types of unconstitutional police practices. Suit brought
seeking injunction to stop these practices.
 Issue: Can I put the police under an injunction? Is there a high state interest in running the
police department
 Held (Rehnquist): Denied injunction b/c (1) La. v. Lyons problem w/ standing; (2) not all the
police were violating; and (3) cites Younger and found there was a state interest in the local law
enforcement agencies
M.D. v. Perry, 2011 WL 2618894 (Dist. Ct.)
 Facts: Suit seeking injunction against the way Tex. runs its foster care program. Defense is
Younger and claiming that lots of things come into play when kids are placed in foster homes. Suit
claims 4A violations b/c bureaucracy isn’t following proper procedures to put kids in foster homes
outside of judicial proceedings
 District Judge - If we were talking about judicial proceedings for placing kids in foster care, then
Younger would apply. But we are discussing an injunction that deals with how Bureaucrats operate
- Younger doesn’t apply
Coggeshall v. Mass Bd. of Psych., 604 F.3d 658
 Facts: Psychologist claims due process rights, etc., harmed by the Psych. Bd. Lawyer brings § 1983
suit on her behalf.
 He named the state board (but this was unwise b/c of 11A)
 Named the Bd. members (but didn’t name them in a certain capacity)
 If official liability them in their official capacity but was seeking damages, then 11A b/c
really coming from the state (Will v. Department of Michigan)
 If individual liability - This would be a quasi judicial function so there would be immunity
 Younger also applied: Quasi judicial in nature, important state interest, and had a chance to
raise the constitutional questions
 Also named the Father as a plaintiff b/c he was deprived of a right to receive medical advice
from child.
 No way; this was Singleton v. Wulff so no third party standing here.
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11/10/2011
 Review
 Ohio Civil Rights v. Dayton
 Facts: Teacher at Dayton school fired b/c didn’t follow biblical chain of command. Complains about
sex discrimination to Civil Rights Comm’n. Comm’n brings investigation against school.
Simultaneously a § 1983 is brought in federal court. This is a coercive proceeding
 Fn.2 - Unlike Patsy v. Bd. of Regents, the administrative proceedings here are coercive - But don’t have
to exhaust state administrative proceedings
 These proceedings, unlike Patsy, are coercive not remedial - Patsy wanted affirmative remedial
relief, and the Dayton proceedings were meant to be coercive
 Deblin v. Call, 594 F.3d 893
 Facts: Employee terminated by Mich. gaming board. Files suit w/ Mich. civil service commission. Also
bring § 1983 suit saying termination violated 1A speech rights. Civil service comm’n brings motion to
dismiss in federal court.
 What kind of Relief is This? This a remedial proceeding
 Held: If the state court proceeding is remedial then Patsy applies, not Dayton Christian Schools.
 Younger & Administrative Proceedings
 If the administrative proceedings are remedial not coercive, then Younger doesn’t apply even if the
state is a party
 Middlesex
 Did the attorney go to the state bar seeking relief, or is the state bar coming down on him.
 This is the distinction b/t the two
 Patsy v. Bd. of Regents
 State Admin vs. Fed. System: How do you decide which to use?
 Which will be better for you; do you know the board; don’t get attorney fees in state system
 If You Lose You State Admin Proceeding, then File § 1983?
 § 1738 - Fed. Cts. give full faith and credit to state judgments, and for res judicata you look to the
state rules about whether that is binding. § 1738 technically only applies to JUDGMENTS, but see
UT v. Elliott
 § 1738
 Univ. of Tenn. v. Elliott,
 Facts: State court employee fired, brings admin claim, loses. Then brings § 1983 claiming lose of
constitutional rights
 Held: Even though § 1738 doesn’t apply to administrative proceedings, the findings of fact by the
administrative board are still binding
 This is an expansion of § 1738 over to administrative proceedings
 Allen v. McCurry, 449 US 90 (§ 1738 applicability to criminal proceedings)
 Facts: Guy convicted, then files a § 1983 in federal court claiming violation of 4A rights.
 Held: § 1738 applies; look at law of the state to determine if issues decided in the criminal
proceeding are res judicata in the § 1983 proceedings.
 Cross reference Rooker Feldman
 Haring v. Prosise, 462 US 306
 Facts: Guy pled guilty, then brings suit saying even though I pled guilty my 4A rights were
violated in the collection of evidence
 Held: What is the state law for res judicata when a civil damages proceedings is brought after a
person has pled guilty to a crime. Straight § 1738
 Flowers v. City of Detroit, 306 F. App’x 984 (or 904)
 Facts: Guy convicted of murder then brings suit of damages claiming there was no proper probable
cause found in his preliminary hearing
 Held: Look to state law as to whether there was sufficient finding of fact
 Warren County 465 US 75
67
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Facts: Teacher fired brings state court suit for breach of contract, loses, then § 1983 suit brought in
court claiming termination violated 1A rights
 What Should the Federal Court Do on the Loss?
 Held: Look at state law to determine whether the 1A claim is one that should have been brought
with the contract breach claim (was it collateral estoppel / res judicata)?
 § 1738 Reversal (federal court first, then state court)
 File First in federal Court, lose on § 1983, then file suit in State court: Is this okay
 Deerin Co v. First Nat’l, 12 So. 3d 516
 Held: Follow the judgment that is last in time. If you use the last in time rule then the federal court
suit is preclusive
 Treinies v. Sunshine Mining, 308 US 66
 Facts: X sues Y in state A, X wins. Y sues X in state B, Y wins. X Sues Y in state C: who wins.
 Last in Time Rule - Y wins.
 X should have brought the judgment over from the other state and argued full faith and credit
clause. X should have appealed the judgment in State B saying the judge messed up by not
applying full faith and credit
 Pullman, Burford, & Quackenbush Abstention
 Pullman
 Facts: Pullman Company was being required to pay for more expensive workers on some trains. The
constitutional issue is EPC for black employees. Pullman is arguing the rights of a third party
(Singleton v. Wulff - 3d party standing). There is a semi contractual right b/t the Company and the
Porters (a 3d party nexus).
 Jurisdiction - § 1331 & § 1983. State is not a person for purposes of § 1983.
 Ex parte Young - Is this an Ex parte Young case? Yes, seeking prospective injunctive relief
 Who to Name - The railroad commissioners in their official capacity (b/c not seeking damages
since no clearly established right being violated?)
 Younger Problem?: We are asking for relief under an Administrative Board
 But under NOPSI, Younger only applies when you have a quasi-judicial determination by the
administrative body.
 This was like a legislative decision of sorts being rendered, so no Younger problem.
 Frankfurter Opinion:
 Note: He dreamed up abstention, but was the main opponent in Lincoln Mills of federal
common law
 Younger Note: You dismiss when the criteria are met
 Pullman Test - If there is an unclear issue of state law, then the court stays the proceedings
 Unclear issue of law was whether under Tex. law the RR comm’n had this regulatory power
 Young v. Hossman, 598 F.3d 184 (5th Cir.)
 Held: Pullman only applies if you have difficult and unsettled issues of state law
 This applies to both federal question and diversity jurisdiction situations
 Miss. R. App. P. 20
 Lawyering Process - If federal court abstains, then you have to litigate the issue in state court
(unpleasant)
 Rule 20 - If the federal court abstains using Pullman, then you can go directly to the Miss. S. Ct. and
have the issue litigated there. The federal court certifies the question of unsettled law.
 Only applies if the certification comes from the 5th Cir.
 28 USC 1292(b) - Interlocutory Appeal
 If district judge thinks there is a controlling issue of law and there is a chance for difference of opinion,
then you can get the district judge enter an order sending it to the 5th Cir, which then sends it to MSSC
 Siler v. Louisville
 Held: Federal courts decide the state claim b/f getting to the Federal Constitutional question
 Reetz v. Bozanich, 397 US 82
 Facts: Alaska in its constitution only allows in-state fisherman to do business, not out of state
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Held: This was an unclear issue of Alaska constitutional law, so let the Alaska court make a decision
first
Askew v. Hargrave (Footnote d. p. 761)
 Facts: Filing suit in Florida saying that using local property taxes for school funding is unconstitutional
 Held: Federal court should stay its proceedings b/c other parties were litigating the issue parallel in
state court, and that once that parallel issue is resolved then we will know the unclear issue
Ziegler v. Ziegler, 632 F.2d 535
 Facts:
 Held: If there is a pending state action b/t different parties likely to resolve the question in the federal
suit, then there is a compelling and persuasive argument for abstention (interpreting Askew v.
Hargrave)
Wisconsin v. Constantineau
 Held: Abstention applies to § 1983 actions; forget the exhaustion requirement; if the federal court
abstains then you are stuck with exhaustion requirements
Windsor
 No good, ignore
England
 Held: File an England certificate with the state court saying you are reserving your federal issue to be
relitigated in federal court once the state issue is resolved
Personhood MS v. Hood, 2010 WL 538302
 Facts: Att’y General of Miss determines for purposes of securing number of signatures for proposed
personhood amendment interpreted the Miss. Const. to say you had 12 months to get the signatures.
Personhood sued saying 12 mo. period was incorrect interpretation.
 Jurisdiction: Claimed 1A right to petition government being violated (§ 1331 & § 1983)
 Ex parte Young: They want an injunction so name Hood in official capacity
 Also said determination by Hood violated state law: Is there an 11A problem? No Ex parte Young
strips the state official of state nature
 Pennhurst and Stripping: Young only allows stripping when there is a federal violation alleged,
not when there is a state law claim also. So federal court doesn’t take the state court issue.
 Held: There was unclear issues of state law b/c never been resolved before; stays the action under
abstention until the state court resolved it.
Burford (p.771)
 Facts: Special court system set up in Tex to determine oil field rights. Suit brought in federal court
claiming this system violates just compensation clause
 Held: Federal court abstains when there are difficult questions of state law and a highly complex
administrative scheme
Moore v. State Farm, 556 F.3d 267 (or 264) (5th Cir)
 Held: There is a federal claim coupled with issues of state law better resolved through the state’s
regulatory scheme, then the federal court will abstain (has only been applied in insurance situations)
 Quackenbush
 Held: Cannot dismiss or remand a case when it is a suit for damages; it stays the suit for damages pending
what is going on in state court.
 Review
 Younger: Court dismisses
 England Certificate: Only applies to Pullman abstention
 Quackenbush: Court stays the case; but can’t file an England certificate when you have damages
 Problem: State resolves the case and the you are screwed by § 1738 (watch out for § 1738)
 Colorado River v. United States
 Colorado River Water Conservation District v. United States
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
Facts: This is the US bringing suit invoking Fed. Ct. jurisdiction for Indians. McCarran Amendment
says that US can be sued in state court involving water rights. US gets joined in state court for water
rights case after they
 McCarran Act - Congress decided this was a substantial state interest and was an exercise of the
political system to allow states to resolve it
 Jurisdiction - Exclusive or Parallel: This is parallel; doesn’t specify but just says they can be sued.
 Some statutes say it is exclusive, like the Sherman act.
 Discussion
 Is this an abstention case? Brennan says this is kind of an abstention case but also kind of a casemgmt. situation (p.780).
 Court should dismiss (then you are DOA; but you are also DOA if you get “stayed” because of
§ 1738).
 Kline v. Burke Constr. - If there is jurisdiction then take the case, but Brennan misconstrues this.
 Congress has given an indication that the state courts should look at the water rights issue
(McCarran Amendment)
 Coeur d’Alene  Solicitor general argued that state courts can hear water rights, but argued that Indians would
get screwed in state court
 Abstention is extraordinary and narrow, but there are nebulous factors to deal with
 Multi-Factor Test
 Who filed first
 Piecemeal litigation
 Inconvenience of the Federal Forum
 LAC Real Estate v. Biloxi Marsh, 320 F. App’x 267 (or 367)
 Held: Colo. River only applies when you have the same parties in state court as in the federal court
 Compare to Askew: You can get abstention in federal court when you have different parties on the
same issue
 Declaratory Judgment Diversion (Then back to Colo. River)
 Wilton (p.788)
 Held: For purposes of declaratory judgment, the declaratory judgment act says the federal court may
enter a declaratory judgment.
 If you are only seeking declaratory judgment relief, then a district court decision to abstain when
there is similar litigation ongoing in state court with the same parties: then review only by abuse of
discretion (i.e., district court isn’t held to the Colo. River standard)
 Only applies for purely declaratory relief
 New England Ins v. Barnett, 361 F.3d 392
 Facts: parallel proceedings in federal and state court. Federal court suit for declaratory relief. Involved
a counter claim for damages
 Note: this case outlines all the 5th Cir law on this issue
 Held: If asking for declaratory relief and damages, then Wilton doesn’t apply (must use Colo. River
factors), but if only asking for purely declaratory relief then the federal district judge has discretion.
 B/c the counterclaim was for coercive relief, then you don’t give broad discretion under Wilton and
you instead use the Colo. River factors
 Something more than declaratory relief can be a counterclaim or some other relief plaintiff is
seeking
 Class Fact Discussions
 Healthcare Discussion
 § 1341 - Tax injunction act
 Federal Tax Injunction Statute Also Exists
 Healthcare bill contains mandatory requirement for purchasing health insurance (charge = 2.5% of
total income or a $695 penalty)
 6th Cir held that the 2.5% is a tax, and that you can’t get an injunction against it
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 This is part of the Cert. grant on Obama Care
 Penn State Discussion
 § 1983 - There is state action crawling all over this. He semi-retired in 1999, but still has offices and
access to the Penn State facilities
 Constitutional Violation - Bodily integrity
 Title 9 Sex Discrimination? Maybe b/c they were boys
 11A? Title 9 you sue the recipient of the funds, but Title 9 is a 14A § 5 exercise of power so it
overrides sovereign immunity
 Statute of Limitations - Look at the state law
 When does it accrue - Looks like savings until much past majority
 Second Mile  Need to show a preconceived conspiracy or conspiratorial behavior
 Paterno
 Based on inconsistencies in the grand jury testimony and the timing of Paterno telling higher-ups, it
looks like Paterno was up to his neck in this stuff
 18 USC § 242 - The criminal equivalent of § 1983
 Makes it a felony to violate the constitutional rights of someone under color of state law
 Moses Cone
 Declaratory Judgments - p.787
 There is discretion b/c the act says the district court may enter a declaratory judgment
 Will v. Calvert Ins. - Shouldn’t be here in the case book
 Facts: Mandamus case that goes up to the S. Ct.
 Held: This is a mandamus case
 Brillhart
 Wilton
 For Declaratory judgments the district court has broad discretion
 Colorado River Factors
 The Factors are not the law, b/c more factors have been added by Moses Cone
 Moses Cone
 Facts: Hospital in Raleigh, NC, wants to build an extension to it contracts with a construction company
to build the wing. Contract includes arbitration clause and architect will be the arbiter. Lawyer for
hospital calls lawyer for construction company to meet re: a cost overrun. 2 days b/f meeting, hospital
sues in state court naming construction company (there is diversity) and the local architect, seeking a
declaratory judgment that contract has been breached. Case isn’t removable b/c of in-state defendant.
Also seek an injunction against construction company lawyer from filing a suit in federal court. There
is a statute that says you can get a federal injunction to enforce an arbitration agreement. State court
granted the injunction (but shouldn’t have, and it gets tossed eventually). Suit brought in federal court
seeking injunction of the state court proceedings and an order to force arbitration.
 Is it Colorado River  There are parallel proceedings
 Supreme Court - There are parallel proceedings involving the same parties, but in addition to Colorado
River, the law that controls the case if the Federal Arbitration Act (this is a new factor), and the
adequacy of state proceedings to protect that right (another factor)
 Adds two more factors
 Fifth Circuit Criteria Interpreting the Six Moses Cone & Colorado River Factors
 (1) Is there a res
 Then if the state court has a res the fed court can’t get involved
 (2) Relative inconvenience (i.e., one court might be 300 miles away)
 (3) Avoidance of piecemeal litigation
 (4) Order in which jurisdiction is obtained (who gets it first)
 (5) Extent to which federal law provides a rule on the merits
 (6) The adequacy of State proceedings
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
Carpenter v. Wichita Falls, 44 F.3d 362
 Facts: Teacher fired and sues for breach of K in state court; violation of 1A rights in federal court
 Removable - No, unless federal question on face of complaint
 Enjoin - Court can’t enjoin
 Stay/Dismiss - Suit for damages so . . . under Quackenbush, there is discretion to stay but then
you run into the full faith and credit federal statute
 Rooker-Feldman Doctrine
 Rooker
 Facts: State court judgment then suit in federal court by losing-state-court-plaintiff, trying to nullify the
state court thing
 Held:
 US District Courts are not courts of appeal, but courts of original jurisdiction
 When a party tries to essentially appeal their loss in state court, they can’t bring it to the district
court
 Exxon Mobil v. SABIC, 544 US 280
 Held: Rooker-Feldman is confined to state court losers (see p.791) going to federal district court
seeking in essence a judgment to overturn the state court judgment. You don’t use the full faith &
credit statute, but you use Rooker-Feldman
 Doesn’t apply when state court proceeding is still on-going, only when it is finished and there is
essentially a review of judgment sought
 Anti-Injunction Act - § 2283
 Atlantic Coastline
 Note - Black also wrote Younger v. Harris
 Facts:
 1) There is a strike at Atlantic Coastline port. RR goes to federal court to get an injunction of the
strike by the union workers. Federal judge denies the injunction (on the basis that “I don’t have
time for it; go engage in self-help”). RR goes to state court and gets an injunction. Union boss did
nothing in response to this injunction.
 Jurisdiction - § 1331 arising under federal labor law
 Federal judge denies the injunction
 2) In the meantime the S. Ct. hands down an opinion that state courts can’t issue injunctions in RR
relations situations. Union boss then goes to the state court judge and says “you can’t do this” but
state court judge won’t budge. [Union boss should have appealed to state court, and then up to
federal court.]
 3) Union boss then goes back to the federal district court and tries to get an injunction against the
injunction on exceptions to § 2283
 Held (Black):
 § 2283 - No injunctions unless the statute expressly authorizes it, aids in jurisdiction, or to
effectuate judgments
 There is not much different b/t “aid in jurisdiction” and “effectuate judgments” language.
 The exceptions in § 2283 will be strictly construed
 There was no express exception, it didn’t aid in jurisdiction, and it was not effectuating a
judgment
 Mitchum v. Foster, 407 US 225
 Fn. f. - is all messed up.
 Vendo Co. v. Lektro-Vend Corp., 433 US 632
 Facts: Vending machine company was ruthlessly trying to buy up all vending machine in the US. They
buy out Stoner, and he signs a non-compete agreement (these can violate anti-trust laws). Stoner wants
to reenter the vending machine business, but Vendo sues Stoner in state court. Stoner then files in suit
against Vendo federal court claiming anti-trust violations under § 16 of Clayton Act that says you can
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get an injunction for state law violations. Federal suit laid dormant while they focused on the state court
suit. Then they returned to federal court and tried to get an injunction.
 Held (Rehnquist) - The Clayton Act authorizes injunctions, but it doesn’t say anything about
injunctions against state courts so it isn’t sufficiently expressly authorized to be an exclusion under
§ 2283.
 Problem would be tons of federal statutes would then be considered exceptions to § 2283
 Parsons Steel v. First Alabama Bank, 474 US 518
 Facts: Bank is being sued by Parsons Steel in federal court and in state court. Federal court went to
judgment first (if state court had gone to judgment first then the full faith & credit statute would apply).
 § 2283 - Can get an injunction to protect and effectuate the judgment.
 Lawyers didn’t do this, they go to state court and claim res judicata (state court said no).
 Then they went to federal court to try and seek an injunction on the state court judgment, but then
they are screwed b/c of § 1783 (last judgment in time controls, Treinies v. Sunshine Mining)
 Held: Can get an injunction if there is parallel litigation and the federal court goes to judgment first, but
you have to get the injunction b/f the state court goes to judgment, otherwise § 1783 applies to the
later-in-time state court judgment (as the last judgment).
 Interpreting Case
 Chick Kam Choo v. Exxon, 486 US 140 (1988)
 Facts: Suit in federal court goes to final judgment. Then suit filed in state court re: same parties and
some additional issues. Injunction sought in federal court against the state court proceeding.
 Held: Can get an injunction from a federal court to protect against a proceeding in the state court if
the issues have actually been decided by the federal court; but if there are new issues that haven’t
been decided then the effectuate or protect judgment exception doesn’t apply
 Hale v. Bemco Cement, 306 US 375
 Facts: Fla. law that says we will inspect out of state cement for safety, but in state cement not
inspected. Suit brought by in state cement company to enforce the statute and judge says he’ll
enforce it. Suit brought then in federal court by out of state to enjoin the federal court.
 Held: If you are a stranger to the state court proceedings, then you can get an injunction b/c a lack
of privity
 Imperial County v. Minaz, 447 US 54
 Facts: County brings suit in state court to stop the seller of water from selling it to anyone not in
the county; wins suit. Out of state person desirous of water brings suit in federal court for
injunction.
 Held: No preclusion if you are a stranger to the state court proceedings.
 § 1738 vs. Rooker-Feldman
 Ginsburg in SABIC - She says lower courts confuse § 1738 and Rooker-Feldman, but that RookerFeldman only applies as an exception to applying § 1738 in very limited exceptions (state court loser
seeking review of final state court judgment).
VII. Attorney’s Fees
 Vexatious (Defensive) Attorneys Fees
 Overview
 § 1988(b) - when you are the prevailing party and bring suit under § 1983
 Note: There is a body of law when you are representing a defendant
 Defense Attorney’s Fee Claims for Frivolous Suits
 Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 US 412 (p.1319)
 Held: If you are a defense lawyer & the person suing you brings a § 1983 suit that is frivolous, unreasonable, & without foundation, then you get att’y fees for all time spent defending the case
 You use an objective standard for determining if the case was frivolous (parallels Rule 11)
 Can get the att’y fees at any time that it appears the suit is frivolous (don’t have to wait until
the end)
 Fox v. Vice, 131 S. Ct. 2205
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
Facts: Fox is running for sheriff, and Vice is running against him. Vice sends an anonymous letter
to Fox that says if he continues to run then he will say bad things to the press about him. Fox loses
and then files state court suit saying that Vice in campaigning against him engaged in nefarious
conduct violating state election law; and included a § 1983 claim that it violated his constitutional
right to run for office.
 Removable: Federal question on the face of the complaint
 Discovery - Lawyer for Fox says the § 1983 claim was no good. Vice’s lawyers then ask for
att’y fees b/c the § 1983 was frivolous, unreasonable, without foundation. Then the federal
court sent the remaining state claim back to the state court
 Held - This was absolutely a frivolous § 1983 claim. How much was it worth?
 Since there were state court claims that were litigated while they were in federal court, how do
you segment the hours
 Test: You get fees for time that you would not have spent but for the frivolous claim (good
luck separating them)
 § 1927 - You can get att’y fees reasonably incurred if the suit brought is unreasonable, vexatious, and
without foundation (meaning opposing counsel has to pay this).
 Amlong & Amlong v. Denny’s, 457 F.3d 1180 & 500 F.3d 1230 (two cites)
 Facts: Haitian refugee worked at Denny’s and claimed she was raped and pillaged every day at
work. Law firm brings Title 7 case on basis of violations against her on basis of sex. She keeps
changing her story (lie detector tests given). 8 days of depositions and she has to have an
interpreter to interpret Haitian creole into English. Asks if it was a circumcised penis, asks how she
knows it, then she says she has seen a thousand penises. Deposition is shut down.
 District court judge imposed huge sanctions for bringing this lawsuit.
 This has been litigated for 9 1/2 years since the district judge imposed the sanctions
 Issue: Is § 1927 subjective or objective (does there have to be actual bad motive)
 Plaintiff’s Attorney’s Fees
 Pre-Riverside
 Equal Access to Justice Act, 28 USC § 2412
 Only applies to injunction/declaratory judgment suits (not to Bivens), and only get fees if bringing
suit for injunction/declaratory relief against federal officer or agency and they are capped at $125
an hour, almost must show that the government’s action wasn’t substantially justified (leads to
satellite litigation into legal and factual arguments)
 Social Security Benefits
 Lawyers can collect 25% of award for back social security benefits
 Astru v. Ratliff, 130 S. Ct. 2521
 Facts: Lawyer got social security benefits for clients, but the amount of attorney fees are off-set
by anything the client owes the government
 Note: In these cases the fees are paid to the client; the client brings suit in the name of the client to
recover the fees
 18 USC § 3006(a)
 Criminal Law - If a federal prosecution brought against your client and you can show it is
vexatious, frivolous, or in bad faith and client found not guilty, then can get $125 an hour in fees
 Handout Statutes also
 City of Riverside v. Rivera, 477 US 561
 Facts: Police bust into a Chicano party in California and humiliate these guys. There was a pattern and
practice of essentially harassing these individuals.
 Jurisdiction: § 1331 + §§ 1981 (can enter into contracts), 1983 (1A & 4A), 1985(3) (conspiracy
limited to race based-they were Chicano), 1986
 Who sued: 30 Officers, police chief, and the city. Verdicts against: The city and 5 officers
 City Liability - Monell (show some policy/edicts/acts - acts of policemen imputed to the city
by the police chief); Chief - somehow wasn’t liable himself b/c Praprotnik came after this case
 p.1229 - There are some things that are so visible that you can impute them of the officer
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Discussion
 Rizzo - Rehnquist hinted that there is a high state interest in police departments against granting
injunctions on the grounds of Younger
 But personal damage suits against the officers may be more effective at discouraging this
 History of Att’y Fees
 American Rule: Don’t get att’y fees unless congress authorizes them
 Alyeska Pipeline Service Co. v. Wilderness Society, 421 US 240
 Severe litigation over att’y fees and this led to § 1988
 If you want constitutional rights protected, then pay lawyers for them
 English rule would chill litigation
 Riverside Issue - $30k in damages and $250k in fees
 How do you compute fees (under Hensley v Eckerhart, 461 US 424)
 1) Must prevail
 2) Lodestar - look at reasonable hours multiplied by the reasonable rate
 Keep track of all your hours
 Get affidavits from other lawyers stating their hourly rate
 Alexandra v. City of Jackson, 2011 WL 1059293
 In Jackson MS Reasonable Rate: Partners $250, Associates , Paralegals $60
 3) Also consider the 12 factors in fn.3 on page 1304.
 On remand, judge gave them precisely what they wanted again
 Message: Kiss up to the district judge (don’t piss him off)
 Scope of Review: Whether Findings of Fact are Clearly Erroneous or as matter of law Abuse of
Discretion
 This is the lowest scope of review available by a court of appeals
 Policy: Means fewer people will appeal these attorney fee decisions by district court judges
 Burger & Rehnquist Dissents
 The things they were charging in their fees were ridiculous
Garland
 Held: Get att’y fees if you win on “any significant issue” then you are a “prevailing party” for purposes
of § 1988
 Has to be a legal alteration b/t you and the opposing party
 Garland Example
 Rorick v. City of Austin, 522 F.3d 533
 Facts: Austin TX passed ordinance saying no smoking in enclosed spaces. Guy brings 1A suit
for right to smoke (was thrown out), and also argued no constitutional procedure with the
ordinance (no expedited judicial review). District judge said there was a problem b/c of the
lack of expedited review
 Held; No att’y fees b/c this wasn’t a material alternation
Farrar v. Hobby, 506 US 103
 Facts: Suit for hundreds of thousands in damages, but only awarded $1 in nominal damages
 Held: Even though you are the prevailing party, you don’t get att’y fees if you have a nominal or de
minimus verdict in a damages suit
Venegas v. Mitchell, 495 US 82
 Facts: Contract w/ client said 40% contingency as well as any fees awarded for being the prevailing
party
 Held: The award of the § 1988 fees come from the defendant, but then you reduce that amount from the
40% contingency, but the court awarded fees don’t automatically mean you don’t get the contingency
Fees
Virginia Hospital
 No expert witness fees - skip
Webb v. Board of Education
 Don’t have to exhaust, but if you do then you get fees only for the discrete portion of the administrative
record that can be used for you r § 1983 case later on
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 Lodestar Multipliers / Enhancements
 Steps
 (1) Prepare a Johnson affidavit going through all 12 of the factors trying to show what the Lodestar
is
 (2) Argument for Enhancements (shot down by Purdue)
 (a) This is a hard case and we might not win it (high risk)
 (b) Great results b/c I am a great lawyer
 Purdue v. Kenny, 130 S. Ct. 1662
 When you compute the reasonable hours and reasonable rate, that imports the Johnson factors for
that cover the enhancements
 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
 (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
 McClain v. Lufkin, 649 F.3d 374
 Facts: Bring in out of state counsel as co-counsel. Should the out of state counsel get their home
state fees or the fees in the state where they were practicing?
 Held: Only in circumstances where there is no att’y locally that can provide the out of state att’y’s
expertise, then the out of state att’y gets the same rates as the state where the case was litigated
 There is almost an irrebutable presumption that lodestar is always sufficient
 Can you Depose the Defense Lawyers for their Fees?
 No, the defense lawyers are doing different work so the fees don’t equate
 Maher v. Gagne
 Facts: Consent decree and the case is over
 Held: If you get a consent decree, then you can get att’y fees b/c if a consent decree is violated you can
sue for enforcement just like a judgment. Being so enforceable then it has materially altered the
relationship b/t the parties
 Mareck v. Chesny
 Offer of Judgment - Ten days b/f trial, D can make an offer of judgment and if it is rejected and the
ultimate award is less than the amount awarded then it cuts attorney fees off at the time the offer was
made
 Evans v. Jeff D.
 Facts: Settlement offer made to client, but the settlement offer includes a waiver att’y fees
 Held: Client can waive att’y fees b/c it says “prevailing party”
 Buchanan Care Home v. West Virginia, 532 US 598
 Facts: W.Va. statute said all nursing homes must provide residents means of escape for selfpreservation. This is problematic for nursing homes (how do you do this). Suit brought saying statute
violates the Fair Housing Act and the ADA. After suit brought the legislature amends the statute
 Jurisdiction: § 1331 & § 1983
 Who to Name: Whoever is enforcing the statute
 Rights Secured: The statutes must say that there are rights secured
 Mootness - Yes, this is a legislative change (not Mesquite) so it is mooted out
 Held: No fees b/c case was dismissed when it was mooted.
 Message to States: If you bring a potentially expensive att’y fee suits, then states have an interest to
moot out the case
 Interpretive Cases
 Willis v. GAO, 448 F.3d 1341
 If you have problems getting att’y fees b/c of a dispute w/ your client, then the att’y personally
can’t sue for att’y fees; only the client can. You name the client and then sign it.
 Prison Legal News v. Schwarzenegger, 608 F.3d 446
 Facts: Prison regulation w/ respect to prison newspaper. Suit brought and prison agrees to change
the regulation, but they got a settlement agreement w/ the prison att’y that was filed with the court
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

Held: The only way to beat the mootness in Buchanan is to try to get either a consent agreement or
a settlement that you file with the court (this way you can resurrect the fees)
Pony v. County of L.A., 433 F.3d 1138
 Facts: (another Evans v. Jeff D.) case settles out for $30k and it includes a waiver of fees.
 Held: Under § 1988 clients are entitled to sue for fees, not att’y’s; once client waives the fees then
the att’y cannot pursue them
 Q&A
 Bivens is just for damages; you can always bring a suit for injunction based on the history of § 1331 under
the theory that where there is a wrong there is a remedy
 Preemption - Where there is conflict or field preemption then you can bring suit under US Const. art. VI
 Exam: short answers, no Exam4, written, straight forward (not tricky) basic questions
 VMI - B/c there was a determination in the two-step process it kept them from losing on qualified
immunity grounds, but they couldn’t appeal the substantive issues b/c they technically won
77