ClassNotesFederalCourtsSubrin

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Federal Courts

Prof. Steve Subrin

Tuesday, November 26, 2002 (Class 1)

• Why take a Federal Courts course?
  • In many years of practice, many will never encounter a 'federal courts' case.
  • Intimately related to history and context of legal system.
  • Examines federalism and separation of powers.
  • 'Stretches the mind'
  • Like talmudic study; playing with text just because it's fun

• First two rows are 'on' for Wednesday, Class 2

History

• Edmond Wilson, To The Finland Station, on Michile, reading Vicco: human institutions are product of "real-live people with real problems, trying to work out those problems through government."
• "Woe be to him who tries to isolate one dept from the next, all science is one..." Can't understand one discipline without looking at them all together.
• American culture and history as 'law-infused', and suspicious of centralized power.
• De Toqueville commented on how critical decisions end up in courtroom, unlike other countries.
• Tendency to consider United States as English country; evolution from English law. But New York was colonized by Dutch; Delaware by Swedes; each colony colonized by dissidents in different directions.
• 1790: only 60% of people were of English origin.
• Country was never homogeneous. Early divisions trying to work out tensions: Urban/rural, Plantation owner/farmer, Northern/Southern?...
• Michael Kamen's "People of Paradox"--ideological divisions.
• Uncertainty about boundaries: Colonists/Native? Americans; Colonies/States?; relationship with England; who has what power where.
• James Madison, son of plantation owner, goes to college, becomes radical republican, knows that States didn't pay taxes during war for independence, but also hates monarchy/centralized power. Virginians support religious tax; understands risks of majoritarian rule. Colonies are voting to forgive debts, so creditors don't get paid, Madison will inherit plantation. Doesn't trust masses, but knows he needs popular support.
• Most colonists had never left their colony before Constitutional Convention.
• Federalists at time were really nationalists (unlike today when it tends to mean "states rights"). Hamiltonian types--Adams, Washington--wanted National Government, National Bank. Other side were republicans or liberals, looked more to States Rights, and individual freedoms.
• Established dual loyalties, concept didn't fit political thought at time. Balance of powers, bill of rights, representative democracy.
• Did everything possible to diffuse power to prevent anyone from getting too much, reflected in Federal Courts system.
• Separations of powers cases are always federalism cases and vice-versa.

Problem Set

• Potential defendants: Department of Mental Health/Commissioner? (could be sovereign immunity problems); Biofix (maybe private corporation, are they acting as private actor?); FDA; Ocean-View Hospital (private or public?); Crick; Doctors.
• Potential sources of law: Common law, state statutes, state constitution, State Regulations, Federal Regulations, Federal Constitution.
• Causes of action for estate of deceased patient: medical malpractice (negligence)--death action; assault and battery; intentional infliction of emotional distress.
• State statute/regulation possibilities.
• State Constitutional right to privacy.
• Federal Constitution: § 1983, 14th amendment substantive due process, procedural due process, lack of notice and right to be heard before assault on body. Equal protection of disabled people.
• FDA rules and regulations on informed consent.
• Criminal possibilities: manslaughter, criminal battery.
• Why favor federal or state system: judges, juries, clerks, rules of procedure, etc..

Reading Notes

Abbott Laboratories v. Gardner

[387 U.S. 136] 1967 United States Supreme Court (cb102)

• Congress amended FDA to require generic names on labels; Sec. of HEW promulgated regulations requiring generic names "every time" trade name is used; pharmaceutical companies challenging regulations as beyond statute.
• District Court granted relief; Court of Appeals reversed: pre-enforcement review is not within jurisdiction, no case or controversy.
• Pre-enforcement review not barred by Administrative Procedure Act.
• Court will look at fitness of issues for judicial decision and hardship to parties for not considering in determining ripeness.
• Regulations are "final agency action".

Wednesday, November 27, 2002 (Class 2)

• Would we care about which court system we could enter, assuming both state and federal courts would have jurisdiction?
  • Difficult to predict which judge in either system you will be assigned
  • Possible differences: better funding, different judicial culture, elected vs. appointed judges.
  • Rules of Evidence may be different
  • Interaction with State Legislature vs. Federal Congress
  • Length of time for decision
  • Federal litigation may be more expensive

Justiciability

• Letter from Thomas Jefferson to Chief Justice Jay:
  • France and England at war; Washington wants to know interpretation of treaties and laws.
  • Jay responds that they don't have power under Constitution to give advice.

• Article III does not grant jurisdiction to Supreme Court, rather lays out outer boundaries in which Congress can act.

• Why no advisorial opinion?
  • "Quality of Decision"
    • No adversarial process
    • Common law judges think they work better with concrete facts in front of them.
    • May be political/military decisions

Muskrat v. United States

[219 U.S. 346] 1911 United States Supreme Court (cb26)

• 1902, Congress allocated land to Indian tribes; 1904, allowed Government to run pipelines over land; 1906, bruaden group of people who receive land; 1907, Statute giving Muskrat and Dick standing to challenge latter law, and Brown and Gritts standing to challenge former law.
• No adversarial process because the United States is not defending the laws.

Abbott Laboratories v. Gardner

[387 U.S. 136] 1967 United States Supreme Court (cb102)

• Statute required proprietary name to be accompanied by generic name, FDA regulations interpretted statute to mean "every time" proprietary name occurred, pharmaceutical companies sued claiming FDA exceeded authority.
• Should drug manufacturers have a cause of action before government has taken any action on regulations?

Tuesday, December 3, 2002 (Class 3)

Abbott Laboratories v. Gardner

[387 U.S. 136] 1967 United States Supreme Court (cb102)

• Government agency promulgated regulations requiring drug companies to print generic name at least half as large as proprietary name whenever name appears; question is whether drug companies have standing before regulation has been enforced--ripeness.
• Court finds case is justiciable, even though there is no actual conviction or order yet.
• If there is good reason to believe party will suffer great harm, may be justiciable even if controversy hasn't "fully developed".
• Dispute may not be sharpened by more concrete facts, thus could be decided now.
• Might more time give more facts? Perhaps FDA would give more time before enforcement; might not enforce strictly; maybe details about cost to companies would be better developed.
• Hard to come up with clear rule from these cases; generally give you a sense for how to argue about ripeness, etc..

Problem Set P1Q3

• Will a Court find the claims ripe? If ripeness will be a problem, how can we frame our case to avoid this difficulty?
  • 2 deaths should be fully ripe.
  • Other patients who were injected should also be ripe for past intrusions as battery or intentional inflection, or constitutional violation, or regulatory violation.
  • For patients who are about to reinjected:
    • Hardship of not deciding now could be great, since some may died from last injection.
    • Would dispute be sharpened by making patients undergo injections? We know from past injections whether or not hearings were given, whether consent was given, etc..
  • Protocol 201, experimental protocol, has been submitted but not yet approved. May not be ripe.
  • Could argue that clients are in fear and will continue to be in fear until Crick makes decision, but this is not particularly compelling argument.

Standing

Allen v. Wright

[468 U.S. 737] 1984 United States Supreme Court (cb34)

• Plaintiffs claiming IRS is not adequately enforcing regulation denying tax-exempt status to discriminatory schools.
• Have plaintiffs suffered concrete and nonspeculative injury traceable to defendant, redressable by Court? (factors considered as constitutional and not prudential).
• Constitutional considerations can't be overriden by Congress, while prudential ones can.
• Stigmatic argument: tax breaks for discriminatory school implies approval (imprimatur).
• Actual harm: subsidies harm desegregation efforts; plaintiffs' children lose ability to have desegregated education.
• Norwood v. Harrison--state giving textbooks to discriminatory private schools, found to be unconstitutional, court claims difference is that plaintiffs were party to desegregation order.
• Standing factors: precision of harm; traceability; redressability.
• Question: why does this case seem so "non-judicial" to Court? Do factors of harm, traceability, and redressability help make this distinction?
• Is there any way to bring this case?

Wednesday, December 4, 2002 (Class 4)

Allen v. Wright

[468 U.S. 737] 1984 United States Supreme Court (cb34)

• Core concepts: injury, traceability, redressability
• Do these concepts effectuate the "case or controversy" goals?
• Wouldn't 12(b)6 be a better route? Fletcher argues that all standing cases should really be 12(b)6 cases.
• Is there any way this case could be brought so that parties would have standing?
• Government is not bound to non-mutual collateral estoppel in same way that private individuals are; otherwise, every district court decision would bind the whole country. This is why plaintiffs brought national class action.
• Scalia/Thomas?/Rehnquist?: if Executive is not properly enforcing laws, election can fix that.
• Difference from Norwood: this would require continued Court supervision of IRS, more of an executive function. Court does not want to act like Warren Court in Brown and its progeny.
• Brennan wing (now Souter, Breyer, Stevens, Ginsburg): job is to make sure the law is enforced; other wing, job is to decide simple cases.

Federal Election Commission v. Akins

[524 U.S. 11] 1998 United States Supreme Court (cb58)

• If AIPAC were political organization, would be required to disclose information about membership and finances. Voters suing to get FEC to force AIPAC to disclose.
• Injury/redress may be less speculative than in Allen v. Wright.

Friends of the Earth, Incorporated v. Laidlaw Environmental Services, (TOC), Inc.

[528 U.S. 167] 2000 United States Supreme Court (sp2)

• Core tests for Constitutionally-mandated standing on page 6, and what it means for organization to have standing.
• Although company is out of business, they still have permits. Would have to pay fee--argument is that penalty would deter future parties.

• What's the difference between majority and dissenters on 12(b)6 and summary judgment?
  • Dissent wants more concrete evidence of injury
  • Scalia can't show how in this case the decision will make the environment more desirable to plaintiffs

National Credit Union Administration v. First National Bank & Trust Co.

[522 U.S. 479] 1998 United States Supreme Court (cb75)

• 5 banks challenging FCUA.

Friday, December 6, 2002 (Class 5)

• Difference between prudential and constitutional standing requirements (cb37, last full paragraph)
  • "Judicially self-imposed"
  • "Core components"--constitutional.
• But where does prudential component come from?
  • Not legislation, not treaties, etc., must be federal common law, despite what we learned in Erie.

National Credit Union Administration v. First National Bank & Trust Co.

[522 U.S. 479] 1998 United States Supreme Court (cb75)

• Zone of interest test; where does it come from?
• For plaintiff to have prudential standing under APA, "the interest sought to be protected by the camplainant must be arguably within the zone of interests to be protect or regulated by the statute in question."
• Question: can non-credit union bank attack definition of common bond--permit multiple units to be one bank.
• Two lines of cases:
  • Data Processing, Arnold Tours, ICI, Clarke, where credit unions engaged in something other than banking, attacked by non-credit union banks. Majority holds these cases permit First National Bank to be within zone of interest; dissent claims same cases prove opposite.
• How is this different from FOE case? Isn't injury-in-fact as speculative? Would be many steps for non-credit union banks to actually get customers.
• Dissent notes that Credit Union banks survived depression better, were more secure, etc., thus Credit Union Statute was intended to protect Credit Unions.
• Air Courier case: Postal Service employees not within zone of interest to be protected by postal monopoly statute--instead purpose of statute was solely to increase revenues for post office.

DeFunis? v. Odegaard

[416 U.S. 312] 1974 United States Supreme Court (cb111)

• Plaintiff DeFunis? challenging rejection from law school on equal protection claim; District Court granted him admission, by the time case got to Supreme Court plaintiff was third-year student and would finish regardless of decision.
• Dissent: there is still a chance that plaintiff won't finish this year, various things could happen, and thus case should not be moot.
• Mootness doctrine: similar to advisory opinion; may detract from adversariness.
• Four exceptions:
  • Case might be mooted but there are secondary or collateral circumstances.
    • E.g., person is contesting some criminal conviction, but is already out of prison, but they have real interest in getting rid of conviction for other reasons.
  • Case capable of repetition but avoiding review.
    • E.g., Roe v. Wade, school prayer cases.
  • Voluntarily ceasing allegedly illegal activity under circumstances where party might later resume.
    • E.g., Laidlaw case.
  • Certified class action where class representatives are given relief they seek.
• Rehnquist claims this long list of exceptions prove mootness is prudential.

Political Question

• Other doctrines are related to posture of case and parties; political question has more to do with role of judiciary with respect to other branches.

Nixon v. United States

[506 U.S. 224] 1993 United States Supreme Court (cb122)

• Impeached Judge argues that Senate is sole arbitor of case--that it violates constitution to have smaller group review impeachment.
• Court holds that this is a non-justiciable question.
• White/Blackmun? concurrence: just because Constitution gives all legislative powers to legislature doesn't mean judiciary doesn't conduct judicial review of legislation.

• Usually political question doctrine is applied to foreign affairs and military.
• Lyons case reviews four out of the five doctrines we've covered.
• For Tuesday, Lyons and next problems on problem set.

Tuesday, December 10, 2002 (Class 6)

City of Los Angeles v. Lyons

[<461 U.S. 95]> 1983 United States Supreme Court (mt1)

• Plaintiff was put in strangehold after traffic stop, seeking damages and injunctive relief.
• Since case was filed, City has put moratorium on practice. Plaintiff argues that issue is mooted while city argues that voluntary cessation does not mean activity won't resume.
• After arguing that case is not mooted, defendant argues that plaintiff has no standing for injunction, because he can't show likelihood that he will again be a victim of the practice.
• O'Shea and Rizzo: activity is past, thus no future injunction.
• Alternatives to injunction: action for damages, or in criminal case as a defense.
• Role of federal judges: less conservative justices see their job as to make sure the federal law is applied; the conservative wing sees the court's job as deciding individual cases--standing etc. is more important.
• Dissent: we thought we were in an era were law and equity were merged.
• Graphic description of damage vs. abstract opinion in majority.
• Difference between damages and injunctive relief: damages cases will have to prove case over and over again; while police can be found in contempt for violating injunction.
• Other differences: comfort with judicial supervision of behavior
• Advisory opinion argument: if damage won't happen to Lyons again, than injunction might be "advisory opinion".

Questions

• Part 1, Question 4: Does Samantha Smith's family have standing to seek damages from Biofix?
  • Seems clear harm, traceability, redressability.
• Obtain an injunction against Crick's approval of Protocol 201?
  • No future harm to Samantha Smith (she's already dead), and was harmed by 101 rather than 201.
• Could Smith family obtain injunction against continuation of 101?
  • No, under Lyons no chance that 101 will happen against Smith again.

Federal Question Jurisdiction

• Article III gives Congress parameters for power that can be granted to Federal Courts. Have to look at 1331/1332 or other statutes to find out what Congress chose to give to Federal District Courts.

Osborn v. Bank of the United States

[22 U.S. 738] 1824 United States Supreme Court (cb198)

• Bank seeking to recover funds taken by state, common law replevin or trespass case. (state cause of action from this perspective).
• Question is whether bank has access to federal courts; does Congress have power to grant access to courts under Article III § 2?
• When federal question "forms an ingredient" of the initial cause, then Congress can grant Federal jurisdiction.* State law is giving right to sue for trespass and replevin, but it is possible that issue will be: did State of Ohio have right to tax?
• cb200: Article III, powers of government are potentially coextensive, so that judiciary's power is coextensive with executive or legislative. If this is taken literally, then anything that legislature or executive could think about doing, federal courts can hear.
• Other test (cb202): any time a federal law would change the results of the case (plaintiff's complaint, or defendant's answer), then there is sufficent federal law for Congress to grant right to courts to hear case.
• By laying out broad judicial powers, allows Supreme Court to ultimately hear every federal issue.

Wednesday, December 11, 2002 (Class 7)

Osborn v. Bank of the United States

[22 U.S. 738] 1824 United States Supreme Court (cb198)

• Dispute about enabling statute
  • Could give subject matter jurisdiction to bank to always be in federal court
  • Alternatively, could simply be "competency" statute--bank is competent to sue in any court where case could otherwise be brought
  • Distinguish from Deveaux, which doesn't specifically mention any particular courts
• Dissent: this could lead to all cases being heard in federal court--every case may have some minor tangential question of federal law.

American National Red Cross v. Solicitor General

[505 U.S. 247] 1992 United States Supreme Court (cb207)

• Similar question; majority holds that Red Cross can sue in Federal Court, same language was used since Marshall's time and Congress hasn't changed behavior.

• § 1331 jurisdiction has been construed in a more limited way than outer limits of Osborn.

Textile Workers Union v. Lincoln Mills

[353 U.S. 448] 1957 United States Supreme Court (cb209)

• Federal jurisdiction over employment disputes granted by Taft-Hartley, but no substantive law yet exists.
• Majority grants jurisdiction, Frankfurter dissents.
• Dissent: this is grant of Congress to hear cases in federal court where all law is state law.
• Naked grant of jurisdiction: the only reason it is in federal court is because Congress said it could, although there is no tie with federal law.
• If Congress can grant naked jurisdiction to federal court, this suggests that federal courts are better in some way; and that state courts are biased.
• But framers thought that diversity cases were ones where state bias would be an issue; other state bias was not recognized. All that's left is federal question--but there is no federal law to be applied here.
• Anticipation of federal question has never been sufficient for jurisdiction; if question emerges, case can be removed.
• Bankruptcy cases, provide "protective jurisdiction". But if Congress can put anything in Federal Court that they could legislate about under Article I, then there is no cut off.

National Mutual Insurance Co. v. Tidewater Transfer Co.

[337 U.S. 582] 1949 United States Supreme Court (cb218)

• Can Congress pass law giving diversity of citizenship to Washington, D.C. citizens?

• Thus far, we've examined "outer limits" on Article III. Marshall's definitions are expansive. In 1875, Congress passes equivalent of § 1331, granting Federal Question jurisdiction to Federal Courts.

Louisville and Nashville Railroad Company v. Mottley

[211 U.S. 149] 1908 United States Supreme Court (cb222)

• Settlement of railroad negligence case gave family free railroad passes; Congress then made it illegal to give free passes, so railroad cancelled passes. Family sues for breach of contract.
• Supreme Court finds no federal jurisdiction because federal law is only implicated in the defense.
• Well-pleaded complaint has to show that cause of action is grounded in federal law in that sense that federal law grants the cause of action.
• Question: does this case overrule Osborn? Osborn was trying to determine outer limits of Congress' to confer jurisdiction; this case is trying to determine limits of 1331.
• In this case, Johnson's dissent from Osborn prevails, by reading 1331 narrowly (similar to how Johnson wanted to read outer limit of Article III).
• Congress is allowed to give Federal Courts much more jurisdiction than § 1331 is interpretted to permit.
• Rule: Does Federal Law give the cause of action in a well-pleaded complaint?

Gully v. First National Bank

[299 U.S. 109] 1936 United States Supreme Court (cb226)

• Cardozo narrows Mottley, holding that federal law must determine the outcome of the lawsuit.

American Well Workers Co. v. Layne & Bowler Co.

[241 U.S. 257] 1916 United States Supreme Court (cb235)

• Slander case involving violation of patent.
• "A suit arises under the law that creates the cause of action."
• The fact that justification may involve federal law doesn't make it a federal case.

Shoshone Mining Co. v. Ruttner

[177 U.S. 505] 1900 United States Supreme Court (cb237)

• Cause of action grounded in federal law, but only local law applies as to dispute between miner's claims to land.
• Court interprets § 1331 to exclude these sorts of cases.

Smith v. Kansas City Title & Trust Co.

[255 U.S. 180] 1921 United States Supreme Court (cb238)

• Federal law authorizes certain stock investments. Cause of action is breach of fiduciary relationship--stockholders suing management for making unconstitutional investment.
• Cause of action is still state law, but court has jurisdiction.

• For Friday: how can we possibly reconcile Mottley and American Well with Shoshone and Smith?
• Majority in Merrell Dow tries to reconcile this.

Friday, December 13, 2002 (Class 8)

Merrell Dow Pharmaceuticals, Inc. v. Thompson

[478 U.S. 804] 1986 United States Supreme Court (cb243)

• State cause of action under FDCA
• Court of Appeals tries to avoid deciding issue because other counts were state causes of actions
• Federal decisions on state law are not binding on state courts; state courts even go out of their way not to cite federal court decisions.
• Resembles justiciability question somewhat; where Court will not hear things that Congress has given them jurisdiction and within Constitutional mandate. Prudential considerations.
• Maybe Congress is giving jurisdiction to federal courts because they trust federal courts more, e.g., Textile Workers.
• Congress specifically decided it did not want a private federal cause of action for violations of Federal Drug and Cosmetic Act; thus they wouldn't want Federal Courts to be interpretting FDCA in connection with a state cause of action.
• Dissent: separate issues; if federal law needs to be decided in state cause of action, same advantages are still there.
• Not much left of Smith after Merrell Dow -- more constrained reading of § 1331.

Problem P2Q1

• Can Smith's estate bring an action for damages against Biofix in federal distirct court under 28 U.S.C. § 1331? On what theory?
  • § 1983 claim: State Action -> Federal Law -> 14th amendment -> Due Process Clause -> Substantive Due Process Clause of Violation of Privacy, or Procedural Due Process argument that Samantha Smith's rights were invaded without due process. Unclear whether Biofix could be state actor, however.
  • If Biofix acted negligently, and proof of negligence is violation of federal law, then situation resembles Merrell Dow.
  • Would be hard to get Biofix into Federal Court on § 1331 cause of action.
  • Maybe declaratory judgment?

• Will do Declaratory Judgment assignment (#8) again on Tuesday; look at Franchise Tax and the other one.
• Assignment #9 will be front row again, on Wednesday.

Declaratory Judgment

• § 2201-2202 (cb 1102).
• Precipitated by Chicago case, where 99-year lessee of building that had become useless wanted to take down and put up new building, but didn't want to do it if they were going to be sued by landlord. People thought it was absurd that you couldn't discover legality of action like taking down building before actually doing it.
• Presents potential ripeness problems, could also be like advisory opinion.
• Can't get declaratory judgment without putting defenses in complaint, what happens when well-pleaded complaint includes federal law.

Tuesday, December 17, 2002 (Class 9)

• Overview/review
• In vast bulk of cases, Mottley well-pleaded complaint rule is still good law.
  • At edges, if no federal law is going to be interpreted even when federal law grants jurisdiction, Court won't take it. Shoshone.
  • In other direction: Smith, even under State Cause of Action, Federal Courts can have jurisdiction. Farm-bond case, involving contested Constitutional issue.
  • After Merrell Dow and declaratory judgment cases, it may seem that Smith is an anomoly.
• § 1331 is now complicated by Declaratory Judgment cases, where complaint may need to anticipated federal defense to get into Court at all.
• Declaratory judgment cases frequently raise ripeness concerns

Skelly Oil Co. v. Phillips Petroleum Co.

[339 U.S. 667] 1950 United States Supreme Court (cb259)

• Pipeline company had contract with oil supplier that would terminate on a certain date if no certificate were issued by Federal Power Commisssion.
• Certificate is issued with several conditions by Federal Power Commission.
• Pipeline company brings declaratory judgment case to declare that contract is not terminated, and that certificate was issued within the meaning of contract.
• Question: is the certificate issuance a question of federal law (Natural Gas Act) or state law?
• One potential source of federal jurisdiction: was the certificate issued within the meaning of Natural Gas Act?
• Or: under federal law, what day is the certificate issued? On the date the opinion is given, or on the date the conditions are met.
• If these questions are state law questions, then there is no way to get into federal court.
• If these are federal law questions, then issue remains: can declaratory judgment be used to get federal law question into federal court?
• Four ways to read Declaratory Judgment act:
  • Declaratory judgment as grant of federal jurisdiction--this is rejected.
  • If, under a declaratory judgment, there is a substantial federal question to be decided, then that should be enough for federal jurisdiction. (would be fine under Osborn).
  • If case was brought by plaintiff in "normal" sequence for damages or injunction, would there be a federal question within meaning of Mottley?
  • If either side brought enforcement cause of action, would there be a Mottley cause of action?
• Frankfurter uses third option: would there be a cause of action with "normal" sequence, applying Mottley.
• Not surprising that Frankfurter takes narrow interpretation, given his dissent in Textile Workers.

• This is not always the rule, however. Edelmann and its line of cases allow federal jurisdiction when alleged patent infringers bring declaratory judgment that patent is invalid.
• Edelmann cases allow declaratory judgment plaintiffs to anticipate defense on federal question and still have federal jurisdiction.

Franchise Tax Board of California v. Construction Laborers Vacation Trust

[463 U.S. 1] 1983 United States Supreme Court (cb262)

• State of California Tax Board wants to get taxes from Trust Fund unpaid by Fund's beneficiaries. Trust Fund claims exemption under ERISA.
• Defendant removes declaratory judgment case to Federal Court, which must have jurisdiction over original case (§ 1441).
• Question: why is this federal case within § 1331?
• Sounds like Smith; State Cause of Action involving Federal Question. But in Smith did not need to anticipate a defense to have federal question.
• Avco: can't call something State Cause of Action if it is totally preempted by Federal Law, then it must be Federal Cause of Action.
• This case relies on state declaratory judgment act rather than federal declaratory judgment act, but uses same analytic approach, because otherwise you could get cases into Federal Court that couldn't be brought under § 1331. (unfair, sometimes unconstitutional).
• Justifications for denying federal jurisdiction
  • Congress, in passing ERISA, did not give cause of action to State of California in these circumstances.
  • Under Skelly and Mottley, there would be no federal cause of action in well-pleaded complaint.

• Franchise Tax Board along with other cases may lead one to conclude that Smith is no longer good law.

Wednesday, December 18, 2002 (Class 10)

Erie Railroad Co. v. Tompkins

[304 U.S. 64] 1938 United States Supreme Court (cb327)

• Under Swift v. Tyson, Federal Courts could develop their own body of common law.
• Bad results: forum shopping, vertical inconsistency.
• Nothing in Constitution gives Federal Judges to make federal law (federalism/separation of power issue).
• No transcendental/natural law for federal courts to "discover" (legal realist).
• Thought was that state courts would follow federal courts' example, but this didn't happen. No trend towards uniformity.
• Erie does not really mean no federal common law, see Textile Workers case and others. Prudential considerations in justiciability.

Clearfield Trust Co. v. United States

[318 U.S. 363] 1943 United States Supreme Court (Douglas) (cb339)

• Question remains: under what circumstances should federal courts create a common law? Where do they get power? To what extent should federal courts look to state law as basis?
• Government check fraudulently endorsed; government seeking reimbursement.
• Under Pennsylvania law, check issuer has to give prompt notice of fraud in order to recover.
• Court says Federal Common Law would require defendant to show manifest loss as result of delay.
• Court holds that in this case Federal Common Law applies.
• Federal Emergency Relief Act Funds are Federal statutory creation, should be governed by Federal Law. But railroads are in interstate commerce and highly regulated by federal government, why shouldn't Erie allow federal common law by same logic?
• Can't mean that federal jurisdiction always means federal common law, or would be back to Swift v. Tyson.

National Trust & Savings Association v. Parnell

[353 U.S.29] 1956 United States Supreme Court (cb342)

United States v. Yazell

[382 U.S. 341] 1966 United States Supreme Court (cb343)

Boyle v. United Technologies Corporation

[487 U.S. 500] 1988 United States Supreme Court (Scalia) (cb358)

• Family of Marine killed in helicopter accident suing manufacturer of helicoptore. Issue is whether private party can take advantage of government immunity.
• Lurking federal interest: defense contractors wouldn't do business if they could be sued; or contractors will raise prices in response to liability.
• Contractor's defense was defeated five times in Congress.
• If argument concerns "what is better for US Government" then Congress would normally decide this sort of question.

• For Friday, finish Federal Common Law assignment. Ask when federal courts should look to state law in Erie sense vs. "federalizing" sense?
• Next assignment: front two rows on implied federal causes of action.

Friday, December 20, 2002 (Class 11)

United States v. Kimbell Foods, Inc.

[440 U.S. 715] 1979 United States Supreme Court (cb347)

• Issue of liens in federal loan program: does federal common law or state common law apply?
• Possibilities:

1. Follow state laws -- rules of decision act
2. Federal common law -- need total uniformity
3. Federal common law which follows state law
4. Federal common law which follows state law with exceptions

• What is difference between 1 and 3?

Atherton v. Federal Deposit Insurance Corporation

[519 U.S. 213] 1997 United States Supreme Court (cb374)

• Suit by FDIC against directors of bank; under state law simple negligence is required, federal law requires gross negligence.
• Court holds that where state standard is stricter than federal standard, state standard should apply.
• Question: is Court making federal common law consistent with state common law, or saying state common law applies?
• Kimbell: Federal programs that by their nature are and must be uniform in character throughout the nation necessitate formulation of controlling federal rules....
• Here: The guiding principle is that a significant conflict between some federal policy or interest and the use of state law must first be specifically shown. Conflict is precondition.
• Under Atherton test state law will be applied more frequently.

Semtek International Incorporated v. Lockheed Martin Corporation

[531 U.S. 497] 2001 United States Supreme Court (sp24)

• Full faith and credit clause--both constitutional and statutory. But neither Constitution nor Statute says anything about where initial case was in a federal court.
• But need to make sure state and federal courts give full faith and credit to federal district court decisions, even though it is not in statute/constitution. Source must be federal common law.
• Where does Supreme Court get federal constitutional power to create federal res judicata law?
  • Don't want to make decisions that have no effect, would look like advisory opinion
• Makes sense to provide preclusion law of rendering state, so parties to original case know what future consequences might be.
• Federal Rule of Civil Procedure right on point: 41(b) (involuntary dismissal is treated as if it was on merits). Hanna v. Plummer says if there is Federal Rule within enabling act that is constitutional than supremacy clause requires application of Federal Rule. Federal Common Law, looking to state preclusion law suggest the other result.
• Scalia takes strict construction of Rule 41(b). 41(a) talks about without prejudice; 41(b) "on the merits" but really means opposite of without prejudcie--i.e., with prejudice, which means with prejudice towards bringing case again in same court.
• State court in Maryland will have to follow federal common law (under supremacy clause) in order to discover preclusive effect of prior decision in federal district court.

• Open question: when we say federal common law is to look to rendering court's law, there is good argument that rendering court should take into account needs of substantive law to be applied. Another level of complexity hidden by statement that federal law follows rendering state's preclusion law.

Friday, January 3, 2003 (Class 12)

Part II Question 3

Implied Causes of Action

• Frequently, statutes prohibit activity but don't provide private cause of action for failure to comply with statute.
• Very common at State level for State Courts of general jurisdiction to imply private causes of action from state statutes.
• Cyclical nature of federal judicial presence.
• High water mark for implied right of action Borak case (cb404), Supreme Court implied private right of action for violation of Securities Exchange Act.
• Cort v. Ash [422 U.S. 66] (cb404) suit against corporate directors for violating law prohibiting campaign contributions; Court found no private right of action under four-part test.
  • Is it for plaintiff's especial benefit that statute was enacted?
  • Legislative intent for or against private right of action?
  • Consistent with underlying purposes of statute?
  • Is cause of action one traditionally relegated to state law?

Cannon v. University of Chicago

[441 U.S. 667] 1979 United States Supreme Court (cb406)

• Plaintiff denied admission to Medical School on basis of gender, Title IX provides no explicit private right of action.
• Court applies four part test, and finds it implies private right of action.
• Title IX paralleled Title VI of Civil Rights of Act, which had been construed to permit private cause of action.
• Powell dissent: criticizes Cort test, says it violates separation of powers; legislature should specify private right of action.
• Cort test allows Congress to avoid responsibility for figuring out private right of action, leaves it to the Courts.

California v. Sierra Club

[451 U.S. 287] 1981 United States Supreme Court (cb419)

• Sierra Club suing State of California for violation of "Rivers and Harbors Appropriation Act of 1899".
• Supreme Court applies first two factors of Cort test, finds no Congressional intent, no need to go to other two factors.

Alexander v. Sandoval

[532 U.S. 275] 2001 United States Supreme Court (sp31)

• Department of Public Safety in Alabama issues driver's licenses, began requiring English-only tests.
• Plaintiffs claim policy discriminates on basis of national origin in violation of Title VI.
• Majority holds that there is a cause of action for violation of Statute; there is right to make regulations pursuant to Statute; but violation of regulation does not give private cause of action.
• Dissent: Court has already decided that disparate impact case is valid (Cannon).
• Every circuit court had held that regulations could be enforced through private cause of action.
• Congress and administrative agencies would have thought there would be private cause of action.

• Start of Tuesday with question of whether Constitutional Provisions should be different in kind.

Tuesday, January 7, 2003 (Class 13)

• Overall Gestalt View of Division in Court

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

[403 U.S. 388] 1971 United States Supreme Court (cb388)

• Prior to change in votes in Court.
• Narcotics defendant suing federal agents as private cause of action for money damages for Constitutional violation.
• No federal statute that holds that federal officials can be sued for Constitutional violations; unlike state officials who are subject to §1983.
• Need to find implied right of action in Constitution.
• If there were no Constitutional implied right of action, would have to go to state court, bring trespass action or intentional inflection of emotional distress (etc.); Police would claim federal authority to do actions they were doing; plaintiff would then claim federal authority is limited by 4th amendment.
• Could also be enforced by "poisoned tree" evidence.
• Could also enforce Bill of Rights injunctively; but would have to show recurrence. Will have ripeness, mootness, and standing problems.
• Thus if Court had found otherwise, 4th amendment would still have meaning.
• Under § 1442, Federal Courts will apply 4th amendment law.
• Might there be a case where there is a negligent violation of 4th amendment but without any of the requisite intent for tort law? I.e., are there cases in which this makes a difference?
• Brennan's argument: we've all agreed there is a right, isn't issue just what the remedy is? If there is equitable relief, shouldn't there also be damages? Federal judges frequently determine remedies.
• cb394-395: "...restraining the Government as an instrument of the popular will." Constitution is fundamentally counter-majoritarian force. Brennan's view of broader role for Supreme Court judge.
• Dissent: Congress could have created a federal cause of action for damages, as could the states, but they haven't. (federalism and separation of powers arguments).
• Rules of Decision Act, since 1798: if there is no federal law, apply state law.
• Arguments for dissent:
  • Court can continue to enforce 4th amendment through other doctrines (defense to defense of tort action, injunctive relief, poisoned tree). This would be preferable because it defers to legislature when possible while preserving bill of rights.
  • Other branches of government also take oath to Constitution, if they've made the judgment that federal courts should spend their time on diversity etc. actions, then that's a valid judgment.
  • Judges are not well suited to these sorts of decisions. Many of the Supreme Court justices have executive or legislative experience, don't think Judges have practical experience to make these decisions.

Schweiker v. Chilicky

[487 U.S. 412] 1988 United States Supreme Court (cb427)

• Plaintiffs illegally had social security benefits terminated; question is whether they can get money damages.
• Majority holds that Congress has provided comprehensive scheme that does not include monetary damages, thus no damages.
• Dissent: Scheme is detailed but not on point. Congress realized there was a large problem and tried to do something about it, but weren't thinking about remedies for person who is wronged.
• Also, Constitutional breach is left without relief, even if the benefits are restored under social security legislation.

• Tomorrow, start with question: Is there any way two sides of Supreme Court could connect or change each other's mind on these questions?

Wednesday, January 8, 2003 (Class 14)

Schweiker v. Chilicky

[487 U.S. 412] 1988 United States Supreme Court (cb427)

• Arguments for dissent: Congress knew about Bivens, could have overturned case if they had wanted.
• Concern for federal courts being inundated with cases (floodgates), some would be fraudulent.

Supreme Court Review of State Court Decisions

• Governed by Congressional action, mandated by Constitution (Article III, Section 2, Paragraph 2)
• Osborn is outer limit of what can be heard on review.
• Judiciary Act mandated that Supreme Court must hear cases (on appeal) where state court acted against Federal interest; where authority of United States has been drawn into question and state court acted against federal authority; or where state action is questioned based on federal law, and state court found in favor of state action; or where anyone is making right or claim of defense under federal law rejected by state court.
• Don't have right to get to Supreme Court anymore.
• Two ways to get to Supreme Court:
  • Start at district court, go to circuit court, then Supreme Court. Here Supreme Court is normal highest appellate court deciding all issues whether state or federal.
  • Start at state court, go to Supreme Court on certiorari from highest court of state court that could here the issue. Here Supreme Court is much more restrained in determining state law issues.
• 1816: Martin v. Hunter's Lessee, claims to land in Virginia by English subjects (under treaty) and Virginia citizen (under Virginia law). Virginia Supreme Court decides for Virginia Hunter's Lessee; United States Supreme Court reverses, Virginia rejects decision. Supreme Court reverses rejection.
• Seven states in 1789-1860 denied United States Supreme Court right to reverse state Supreme Court.
• Constitution says diversity and federal question cases can go to federal court; pendant/supplemental jurisdiction allows certain other matters to be included; nothing in Constitution says that Supreme Court can reverse state Supreme Court decisions. Might be inherent in supremacy clause, but not explicitly included.

Murdock v. City of Memphis

[87 U.S. 590] 1875 United States Supreme Court (cb840)

• Murdock gave land to City of Memphis with understanding that U.S. Navy would build depot in City; if not the land would revert.
• Highest Court of State dismissed claim, City wins (City keeps land even though it is no longer being used as depot).
• Murdock appeals to United States Supreme Court.
• Justice Miller needs to answer question whether 1867 act repealed any part of 1789 act to see if Court can review federal aspect of case.
• Statutory question: did 1867 act grant Supreme Court when hearing cases from highest court of state the power to hear entirety or only federal question for which the right of appeal came to begin with? Miller holds that only federal issue can be decided under 1789 act ("But no other error shall be assigned or regarded ...") Can only reverse State Supreme Court on federal questions that State Court had found against Federal law.
• Act of 1867 omits restrictive paragraph, however. Miller reads new statute as if it has language of old statute.
• Osborn and Gibbs, Courts have supplemental jurisdiction over state law issues; thus Congress could constitutionally grant review of state law issues to Supreme Court.
• Would have to read case differently for appellate jurisdiction than for Article III.
• Supreme Court has read grant of appellate jurisdiction from highest court in State only to decide Federal Question issue.
• Having decided that Supreme Court will only look at Federal Question part of case, if there are both state and federal issues, what does their relationship have to be for Supreme Court to address federal issue?
  • If the state issue was independent sufficient grounds to determine case, then federal question immaterial. ("separate and independent state grounds.") -- Otherwise might resemble advisory opinion.
• Under Erie, highest court of State is interpreter of state substantive law. Under Murdock, highest interpreter of federal law is United States Supreme Court (binds all courts).

• Finish assignment on Friday and move onto next assignment (last row).

Friday, January 10, 2003 (Class 15)

• § 1331 vs. § 1257
• More narrow definition of Federal Question under § 1331, but broader ability to hear all questions.
• Because of Osborn and § 1257 interpretation, Supreme Court can ultimately review any Federal Question but will only accept if there are not independent state law grounds.

Fox Film Corp. v. Muller

[296 U.S. 207] 1935 United States Supreme Court (cb856)

• Antitrust case: first Court granted certiorari, found decision below was not final, remanded, and finally granted certiorari again.
• Suit for money damages for breach of contract; defendant defends on basis that whole contract is void because it included unenforceable arbitration clause (according to state law); and if contract is enforceable, it might violate Sherman Antitrust Act.
• Even if federal defense was bad, plaintiff still can't win because of state court grounds. Thus there is independent state grounds.
• Reasons for doctrine: possibly advisory opinion, but also possibly 'needless friction with state courts'--why correct them if it doesn't matter. On the other hand, could leave bad federal law in state decision uncorrected.

Michigan v. Long

[463 U.S. 1032] 1983 United States Supreme Court (cb866)

• Question of whether search of defendant's car for weapons was legal under 4th amendment. State Court found search violated both State and Federal Constitution search and seizure provisions.
• How does Court know whether there are independent state grounds? State Supreme Court may be reading its constitution to give greater protection than federal constitution; but not clear from lower court opinion whether it is entirely independent state grounds.
• Possible ways to decide when ambiguous:
  • Ask Supreme Court directly
    • Might put state court in position of "advisory opinion", delay, inefficient solution.
  • Discern from all sources of law whether there was an independent state grounds
    • But Supreme Court is unfamiliar at interpreting state law.
  • Presume there is an independent state grounds
  • Presume there is no independent state grounds
• O'Connor assumes last choice (assuming state court was bound by federal law) is more protective of state decisions.
• Stevens dissent: we should never grant cert when we aren't using federal law to protect somebody who is otherwise not getting protection.
• History of § 1257: statute was amended because states were "over"-reading federal rights to protect railroad corporations.

Standard Oil v. Johnson

[316 U.S. 481] 1942 United States Supreme Court (cb878)

• California State Gas Tax Law exempts federal government; California Supreme Court held that Army Post Exchanges were not included in federal government.
• Could be Constitutional decision about states taxing federal government; but instead Court focuses on State's interpretation of State Law and whether or not Army Post Exchanges would be covered.
• Murdock: "clear rule" that when cases reach Supreme Court under § 1257 you cannot interpret state law. State Court is highest interpreter of its own law.
• But Court reviews definition of Federal Government and overturns State Supreme Court. Not constitutional issue, not state law definition, thus must be federal common law.
• Why does Court defy Murdock?

Reconstruction Finance Corporation v. Beaver County

[328 U.S. 204] 1946 United States Supreme Court (cb881)

• Reciprocal situation from Standard Oil.
• Balance is not perfect, however, because of supremacy clause.

• For Tuesday, assignment 14, for last row.
• Assignment 15 for first two rows, Tuesday and Wednesday.

Tuesday, January 14, 2003 (Class 16)

• When §1257 was amended to allow cert when Constitutional rights were vindicated, this was seen as progressive move because State Supreme Courts were using federal Constitution in Lochner-like way to deprive employees of rights at State level.

Bush v. Palm Beach County Canvassing Board

[531 U.S. 70] 2000 United States Supreme Court (sp92)

• United States Supreme Court remands case to Florida Supreme Court to see if decision was based on Federal vs. State law; seems to run contrary to Michigan v. Long.
• Many United States Supreme Court wanted to avoid any Constitutional question by remanding.

Procedural Law as Bar to Federal Review

• Question of which §1257 cases can get to Supreme Court.
• 1st amendment cases: e.g., State passes law with respect to nudity; question is "what is nudity" for purpose of statute. Depending on how State defines "nude" will alter Federal Constitutional question.
• Comes up most frequently in procedural due process.
• Procedural due process covers deprivation of life, liberty, and property: need to decide what property interest before deciding if there is deprivation.
• What about new entitlements? Are they property? Cases in 1960s and 1970s creating new property.
• No Federal General Common Law on definition of property. Supreme Court would usually look to State Law unless State Law is so aberrant as to destroy 14th amendment. Under those circumstances, State definition might itself be violation of due process clause.
• Most frequent cases: criminal law cases where there is procedure prior to appeal at State Level. Could be separate and independent state grounds in which defendant has failed to follow state procedure with respect to protecting record for appeal at state law or has failed to appropriately appeal to State Supreme Court.
• Creates problems from State Supreme Court
  • States need procedure; e.g., evidence, jury rules.
  • Need presumption of 'good behavior' on part of states, or else federal judiciary will always be reviewing state procedural rulings
  • Bad history of state procedural requirements with respect to black mails in the criminal justice system.

Herndon v. Georgia

[295 U.S. 441] 1935 United States Supreme Court (cb898)

• African-American male from New York coming to Georgia in 1930s to enlist communists.
• Issue: extent to which, consistent with 1st amendment, one's inciting activity needs to create "clear and present danger" of insurrection? Can State find violation if, in long haul, speech might cause insurrection rather than immediately?
• First Carr cases was decided in 11/32, involving circulation of revolutionary documents. Hinted that incitement might not need immediate effect.
• Herndon verdict, on different statute, issued on 1/33. Jury instruction said "immediate serious violence" (favorable to defendant).
• New construction of §56 on 3/33 (statute applied to Herndon); adopted new test saying that Schenk rule was unclear.
• 7/33 motion for new trial was pending. Motino denied under new rule.
• United States Supreme Court holds that State Law requiring objection be raised earlier controls, thus cannot review.
• Under this decision, Herndon would have had to contest jury charge even though it was favorable at time, in order to raise Constitutional issue. First Carr case was not even directly on point, involved different statute.

Orr v. Orr

[440 U.S. 268] 1979 United States Supreme Court (cb908)

• If there was state procedural grounds that could have been used in appeal at state law but wasn't used, can't be used as independent state grounds to insulate state decision.

Ford v. Georgia

[111 S.Ct. 850] 1991 United States Supreme Court (mat)

• Unanimous case, surprisingly protective of defendant.
• African-American male was indicted of raping and murdering white woman, claimed that prosecution had tendency to use racially-based peremptory challenges.
• Defendant requests order not to exclude black jurors; Judge denies motion.
• District Attorney removes 9 black jurors (out of 10 possible challenges).
• Meanwhile, Supreme Court decision occurs removing requirement for demonstrating pattern of discrimination in jury impanelling. Under new standard in Batson modifying Swain, prima facie evidence of discrimination puts burden on state to explain each peremption of black juror, then defense can rebut by showing white jurors with similar characteristics were not perempted. Equal protection claim.
• Under State Law, need to make complaint after jury is impanelled. Defendant brought wrong challenge--Swain rather than Batson; and brought challenge before rather than after jury was impanelled.
• Souter holds that Batson and Swain are same in substance, just different requirement of proof. Thus because defendant make Swain claim he had also made Batson claim.
• Deals with timeliness claim because Sparks time-requirement was not decided until two years after this case began. Thus under James v. Kentucky practice was not firmly established at time, and thus cannot be procedural bar.

• Three types of cases in which Supreme Court will intervene, when there is independent state procedural grounds:

1. Procedural rule is unconstitutional
2. Constitutional rule, but haphazardly applied (as in Ford)
3. No legitimate state interest served by rule

Sovereign Immunity and 11th amendment

• Historically, King "could do no wrong".
• Why not?
  • King was perfect, would disrupt hierarchy.
  • Problem with enforcement.
  • Affronting the sovereign or attacking dignity.
• King's officials were not immune, however, because King would not want his officials acting illegally.
• Sheriffs, for example, could be sued for breaking law and enjoined from breaking law (sometimes damages).
• What to do in democracy?
  • Liberal wing of Court takes position that Constitution was made by individuals at time who joined into compact. Did not go to States for ratification, but rather went to conventions within each State to confirm Constitution.
  • If no one is above the law, what's wrong with allowing people to sue "themselves"?
• British political theorists believed sovereignty was indivisible (Kingdom); American system "split" sovereignty between Federal and State governments.
• From the beginning, it was thought that United States Government had sovereign immunity.
• Article III discussion of suits involving United States would be where United States was plaintiff, or where United States waived immunity.
• In 1976, Congress amended Administrative Procedure Act to allow United States to be sued for injunctive relief.
• Federal Torts Claim Act allowed United States to be sued for negligent acts of United States employees.
• Tucker Act allows United States to be sued for breaches of contract in monetary claims.
• Will not address Federal Sovereign Immunity as much as State Sovereign Immunity.
• Problem at State level
  • Most of Constitution and Bill of Rights prohibits State Action
  • Civil War established federal government supremacy
  • §1983 was passed after Civil War to permit suits against those who act under color of state law in violating federal law

Chisholm v. Georgia

[2 U.S. 419] 1794 United States Supreme Court (cb559)

• Four Justices held that State could be sued by a South Carolinian in Federal Court as diversity case.
• Dissenter Judge Iredell held that Sovereign Immunity survived Constitution, and was still true. Held that State could not be sued without consent.
• Congress adopted 11th amendment immediately thereafter (ratified within one year). Three years later proclaimed law.

• Tomorrow, start with language of 11th amendment. Move on to Hans etc..

Wednesday, January 15, 2003 (Class 17)

• Possible literal interpretations
  • Citizen of one State (or foreign citizen) can never sue other State.
  • Language tracks Article III diversity clause and diversity statutes; Chism was diversity case; thus possibly literal interpretation is that judicial power does not extend against State in diversity action. Narrowest possible reading.
• Possibly four justices today who take narrowest possible interpretation (only diversity cases).
• Other possible approaches
  • Structure of the Constitution: "rock bottom" concept of State Sovereign Immunity--not mentioned because it was so integral.
    • But why did Congress have to pass 11th amendment?
    • Possibly Court got it wrong in Chisholm; 11th amendment corrected Court's interpretation of Constitution.
  • Souter's interpretation in Seminole Tribe: common law principal.
  • Lincoln's view: colonies -> confederacy of colonies -> Constitution made by people; never were sovereign States. Just needed politcial divisions for practicality.
• Under Common Law view, much easier to get abrogation by Congress or waiver by States.
• Any view contains possibility of waiver. Unlike subject matter jurisdiction, which can be raised at all times under 12(h).
• Sometimes Court holds sovereign immunity to be jurisdictional, sometimes can be raised sua spontane, sometimes must be raised by State.
• Other theme is abrogation.
• Another question: is waiver/abrogation in State court or Federal court or both?

Hans v. Louisiana

[134 U.S. 1] 1890 United States Supreme Court (cb560)

• Hans sought payment on State Bonds that had been invalidated by amendment to Louisiana Constitution.
• Issue is whether citizen can sue his own state for violation of contracts clause of Constitution.
• Underlying claim is common law collection on contract; State's defense is that Louisiana Constitution invalidates bonds; plaintiff responds with claim that Louisiana Constitution is unconstitutional; State responds with 11th amendment sovereign immunity.
• But if this is claim, why is there subject matter jurisdiction at all? Cause of action needed to arise under federal law.
• Two arguments in favor of Hans on narrow reading of 11th amendment
  • Amendment only bars citizens of other states
  • Amendment doesn't bar federal question cases
• Federal Constitution Article III addresses issue of suits between states and other parties. Possible explanations:
  • Constitution deals with states as plaintiffs, not as defendants
  • Constitution deals with §1257-type cases, appeals from State Supreme Court
  • Constitution deals with waiver situation
• Another possible reading of case: anti-reconstruction restoration of states' rights

• Background for Seminole Tribe
  • Fitzpatrick v. Bitzer 1976 United States Supreme Court
    • Rehnquist acknowledges that Congress can abrogate State sovereign immunity under § 5 of 14th amendment.
    • Unanimous Supreme Court decision--all agree that there can be some abrogation of ability to sue States in federal court (and state court).
  • Pennsylvania v. Union Gas 1989 United States Supreme Court
    • Four votes, lead by Justice Brennan, plus ambiguous concurrence by Justice White, holding that Congress could pass statutes under commerce clause abrogating sovereign immunity.
    • Union Gas, under Federal Law, had to clean up a location, brought up third-party claim against a State; majority found that federal environmental statute passed pursuant to commerce clause permitted abrogation of State Sovereign Immunity.
    • Hans never dealt with abrogation.
    • If justification for 14th amendment abrogation of sovereign immunity is that 14th amendment postdates sovereign immunity, then Constitution itself should postdate sovereign immunity, assuming that sovereign immunity is "rock bottom" principle.
  • Ex parte Young: notwithstanding sovereign immunity, officials of State can be sued. When officials are breaking law, they are considered to be 'private individual', (under concept that "sovereign can do no wrong").

Seminole Tribe v. Florida

[517 U.S. 44] 1996 United States Supreme Court (cb635)

• Congress establishes framework for Indian Gaming
  • Tribe has to request State to negotiate
  • State has obligation of good faith negotiation
  • If State fails to negotiate, Court can order State to negotiate
  • If that fails, then mediator can select between best offers to determine which is most in line with federal statute
  • Then, Secretary of Interior is empowered to set out guidelines
• Tribe sues State of Florida, claiming defendant is refusing to negotiate in good faith.
• Rehnquist and majority ultimately hold that state of Florida cannot be sued; and that Governor cannot be sued under Ex parte Young.
• Needs to deal with 11th amendment, Union Gas, fact that Congress has total, exclusive, power over Native Americans (under Indian Commerce Clause), Fitzpatrick v. Bitzer decision.
• 11th amendment issue
  • No one thinks 11th amendment can be read literally anymore; at time amendment was passed there was no federal question jurisdiction.
  • State sovereign immunity was inherent in structure of Constitution. Cite to Hans and "larger constitutional principle".
• Union Gas issue
  • Reasoning was only supported by plurality
  • Dissent called decision "unstable" at the time
• Fitzpatrick
  • 14th amendment was subsequent to 11th amendment, thus sets out exception.
  • Constitution included sovereign immunity even though it was never mentioned, thus solving the "prior in time" problem if sovereign immunity precedes Constitution.
• Ex parte Young
  • Cites Schweiker for the proposition that Court will not create cause of action where one isn't present in the law when Congress provides alternative remedial scheme.
  • Thus, since detailed remedy process is provided, Bivens remedy will not be available; so no Ex parte Young possibility.

Friday, January 17, 2003 (Class 18)

Seminole Tribe v. Florida

[517 U.S. 44] 1996 United States Supreme Court (cb635)

• Souter dissent: Even if Hans were rightly decided (11th amendment state sovereign immunity goes beyond diversity); that case did not involve Congressional abrogation. Hans did not answer question of whether Congress, acting under Article I, could have total power.
• Furthermore, State sovereign immunity is from common law, and thus can be modified be legislation.
• Congress has total power over Native Americans (Indian Commerce Clause) except where Native Americans themselves have State Sovereignty.
• Thus, of any area, Congress should have abrogation power with respect to Indian Commerce Clause, since there is no delegation to states.
• Supremacy clause: where Federal Law is Constitutional, it is law of the land, all have to respect. Shouldn't this mean IGRA should be enforceable?
• Court is worse than Lochner; they are not trying to give effect to another written provision of the Constitution.
• Ex parte Young: once Congress lays out some remedies, judiciary should not assume they wanted another one.
• Don't know at this point whether Congress will go to mediation; thus case could be moot or advisory opinion.

• Other option: waiver; but requires extreme explicitness. Particularly requires explicit agreement to be sued in federal court, not just in state court.
• New area: using Congressional spending power to condition money on consent to suit.

Lapides v. Board of Regents

[122 S.Ct. 1640] 2002 United States Supreme Court (sp64)

• Unanimous holding that State waives sovereign immunity when it removes to Federal Court.

Alden v. Maine

[119 S.Ct. 2240] 1999 United States Supreme Court (mat)

• Maine Supreme Court awards damages to plaintiffs under Fair Labor Standards Act, United States Supreme Court reverses.
• Holding: States are immune to suits for damages in their own courts under federal law.
• 11th amendment only talks about Federal Jurisdiction, why should it apply to State Jurisdiction?
• Majority opinion holds that State sovereign immunity is inherent in Constitution.
• Idea that "states entered Union with sovereignty intact."
• Myriad ways in which States did not keep sovereignty when entering Union, however.
• Silence in Constitution, according to majority, means "everyone knew it was true."
• 10th amendment dissent argument: if 10th amendment granted sovereign immunity, why wasn't it mentioned in Hans?
• Municipalities can be sued; United States can sue states; United States can withhold funds; why bar only citizen suits against States?

Tuesday, January 18, 2003 (Class 19)

• Through Section 18 for Friday.

Kimel et al. v. Florida Board of Regents et al.

[2000 U.S. LEXIS 498] 2000 United States Supreme Court (mat)

• ADEA prohibits age discrimination; amendment applied Act to State employers.
• Question: did Congress intend to abrogate States sovereign immunity, and did it have power to do this under section 5 of 14th amendment?
• Court holds that Congress did intend to abrogate sovereign immunity, but abrogation was not constitutional because it didn't meet the congruence and proportionality test.
• No "real evidence" of age discrimination sufficient to support legislation; similar reasoning applied to disability, religious discrimination.
• Thomas and Kennedy concurrence: disagree that Congress even intended to abrogate sovereign immunity.

Federal Maritime Commission v. South Carolina State Ports Authority

[122 S. Ct. 1864] 2002 United States Supreme Court (sp70)

• South Carolina refused to allow gambling ships to use ports; Federal Maritime Commission brought case before administrative court.
• All justices agree that United States can sue in Federal Court to enforce Federal Law; issue is how this can happen.
• Traditionally, Federal Law is enforced through administrative agencies, which share attributes from all three branches of government: have rulemaking authority; enforcement authority; and hearings.
• Thomas: States never gave up sovereign immunity; how could they have given up sovereign immunity against administrative agencies since they didn't exist at time of convention?
• Affronts States' dignity to have to appear before administrative law judge.
• Stevens dissent: Hans was misdecided, etc..
• Breyer dissent: individual can go to Congress and seek legislation; can go to administrative agency and request that agency bring action; why can't Congress set up scheme where federal law is enforced through administrative agency hearing initiated by private citizen?

• Supreme Court realizes supremacy clause applies; there must be some way of insuring that States obey federal laws.

Ex parte Young

[209 U.S. 123] 1908 United States Supreme Court (cb571)

• State of Minnesota regulated railroad rates; railroad shareholders claim violation of substantive due process and interstate commerce, seek injunction against Minnesota Attorney General from enforcing rate regulation.
• Although it appears that shareholders are suing State, instead Court holds they are suing officer of state who is not acting officially once he violates law.
• Apparent paradox with 14th amendment: Attorney General is acting officially sufficient to constitute state action, but not enough to be State for 11th amendment.

• Start with Harlan's dissent tomorrow.

Wednesday, January 19, 2003 (Class 20)

Kimel et al. v. Florida Board of Regents et al.

[2000 U.S. LEXIS 498] 2000 United States Supreme Court (mat)

• Section 4A of opinion: Congress does have power to pass age discrimination Act under Commerce Clause but not under 14th amendment.
• Issue is just whether Congress can abrogate 11th amendment immunity, not whether Congress can pass Act.

Ex parte Young

[209 U.S. 123] 1908 United States Supreme Court (cb571)

• 11th amendment forbids suit against State by private individuals in Federal Court, State Court, Administrative Agencies. Attempts to "have your cake and eat it too"; to keep sovereign immunity while still preventing illegal activity.
• Reasoning: when official is acting illegal he is stripped of power, and thus is not acting as State (yet still is acting as State for State Action purposes).
• Other justification: doesn't make Attorney General do something positively, rather restricts him from doing something illegal. Different because "it isn't make the State do something."
• Harlan's dissent: coequal courts, shouldn't distrust states to enforce federal law.
• Majority: can't trust state courts to protect railroads.
• (ripeness issue--if we were to analyze under Abbott, probably wouldn't learn more about issue if it developed more; and harm to railroads of following or not following regulation could be great)
• (standing--"prudential" argment, statute wasn't passed to benefit railroad, thus no standing; Allen v. Wright--might be difficult to show concrete injury in fact, traceability, redressability)
• Essentially Bivens-type remedy, finding cause of action in Constitutional harm.

• Home Telephone: municipalities are not the State for 11th amendment purposes, but are State Actors for 14th amendment purposes.
• Hess: multistate agency is not protected by State sovereign immunity. Because New Jersey and New York treasuries were not ultimately responsible, entity is not State. Also, Congress has to prove interstate compact, thus there is federal dimension.

Edelman v. Jordan

[415 U.S. 651] 1974 United States Supreme Court (cb587)

• Plaintiffs allege that State officials administered federal-state program for aged, blind, and disabled, inconsistent with regulations and 14th amendment, seek damages.
• Rehnquist: because remedy is money damages from State Treasury, then effect of suit is to actually sue the state.
• Thus, cannot sue for retroactive compensatory damages, only for prospective relief.
• Douglas dissent: nothing in 11th amendment pertains to difference between injunctions and monetary relief.
• Brennan: original language of 11th amendment should apply.
• Marshall: waiver occurred when State participated in Federal program.

• Milliken v. Bradley: prospective school desegregation, even though it costs State lots of money, is still under Ex parte Young.

• Can still get monetary relief from officials "personally" when they are indemnified by State.

• Quern v. Jordan: issue of notice to plaintiffs for prospective funds; court could enter order advising plaintiff class of possibility that funds might be recovered and furnishing a form.

Idaho v. Coeur d'Alene Tribe

[521 U.S. 261] 1997 United States Supreme Court (cb598)

• Coeur d'Alene Tribe claiming ownership of submerged lands around reservation. Sued numerous State officials in official and individual capacities.
• Kennedy/Rehnquist?: want to use balancing test as to use of Ex parte Young. Says should not use Ex parte Young when State Court is available to equally apply Federal Law.
• Dissent: state court is not realistic opening (similar to Abbott ripeness reasoning).
• Plurality disagrees, however, so rock bottom Ex parte Young still stands.
• Sovereign land is analogous to state treasury, under plurality opinion, thus falls under Edelman exception to Ex parte Young.

• Finish Coeur d'Alene on Friday, go to last row on § 1983.

Friday, January 21, 2003 (Class 21)

Idaho v. Coeur d'Alene Tribe

[521 U.S. 261] 1997 United States Supreme Court (cb598)

• Souter dissent: relief sought does not violate state sovereignty any more than in Young.

Pennhurst State School & Hospital v. Halderman

[465 U.S. 89] 1984 United States Supreme Court (cb671)

• Ex parte Young exception to 11th amendment does not apply when cause of action is state law.
• Dissent theory: Ex parte Young simply says state official is not state when acting illegally under state or federal law

Problems

• P3Q1: first need to decide what sort of entity defendant is. If Ocan View Hospital is State, then it cannot be sued for violations of Constitutional rights. 11th amendment: cannot sue state (period) in federal or state court unless you have consent, waiver, or constitutional abrogation.
  • Likely that everyone will agree Hospital is state under these facts.
  • Could Congress abrogate sovereign immunity? No, not clear intent here, also would not pass congruence and proportionality under section 5 of 14th amendment.
• P3Q2: plaintiffs could obtain injunction against Crick if they can show he is state official acting illegally under federal law.
  • Would still need to deal with justiciability issues.

1983

• How much can one get monetary relief in addition to injunction against State public officials?
• Key concepts: need to figure out which question is being answered
  • person
    • State qua state is not person for 1983 purposes.
    • Municipalities are persons for 1983.
  • acting under color of statute, ordinance, regulation, custom, or usage of state
  • violate federal law
    • Violation of federal law--for the next cases, look to 14th amendment
• Provides for concurrent jurisdiction in State Court

Hafer v. Melo

[502 U.S. 21] 1991 United States Supreme Court (mat)

• State officials sometimes act in individual capacities, in which case they are subject to monetary relief (also true of municipal officials).

Monroe v. Pape

[365 U.S. 167] 1961 United States Supreme Court (cb465)

• Question is whether challenged behavior falls under color of state law.
• Possible 1983 interpretations:
  • Person is being told to do something illegal by state statute.
  • State law is okay, but official is being permitted to behave illegally.
  • Disobeyed federal law while being a federal official
• Under third option in worst case scenario (loosest interpretation of state action), run of the mill tort cases could end up in federal court. E.g., postal worker sued for injuring someone with truck.
• Douglas opinion taken literally: if you're acting while you have authority, it doesn't matter what State says.

• Will try to get to next assignment on Tuesday.

Tuesday, January 28, 2003 (Class 22)

Monroe v. Pape

[365 U.S. 167] 1961 United States Supreme Court (cb465)

• Home Telephone and Telegraph Co. v. City of Los Angeles [227 U.S. 278] held that person is State Actor under 14th amendment when acting in official capacity.
• Issue is color of state law under § 1983.
• Court takes broadest reading of color of state law; "if you're in uniform and you act, then you are acting under color of state law."
• Frankfurter dissent: could go through state courts.
• Plaintiff would sue in state court for tort; officer would claim he was doing his job; plaintiff could respond that action was unconstitutional.
• No reason to believe states wouldn't apply federal law as much as federal courts, thus you don't need § 1983 and jurisdiction in US District Court.
• Frankfurter would still allow custom to count under color of state law.

Parratt v. Taylor

[451 U.S. 527] 1981 United States Supreme Court (cb552)

• Prison inmate deprived of hobby kit, sues under §1983.
• Rehnquist focuses on 14th amendment "deprive of life, liberty, property without due process":
• Line of cases holds that due process clause was not meant to cover random acts.

Zinermon v. Burch

[494 U.S. 113] 1990 United States Supreme Court (cb556)

• Person held in mental health institution for five months but was unable to give consent, Court finds that plaintiff was deprived of due process (unlike Parratt cases).
• Court focuses on foreseeability analysis--police could know this would happen.

• Lyons analysis: could be deprivation under 14th amendment due process clause; another is equal protection, another is substantive due process.

P3Q3

• Can Samantha Smith's family get monetary damages from Crick for allowing 101 protocol to be performed?
• §1983 analysis
  • Is Crick a person? Yes.
  • Is he operating within color of state law? Yes, if anything is left of Monroe v. Pape; Crick is officer of state acting as officer of state.
  • Is there a deprivation of federal law? Under 14th amendment, could be procedural due process, substantive due process, or equal protection.
  • Procedural due process: no process, state remedies available afterwards. Could require hearing under Zinermon, would need to make situation look more like Zinermon than like Parratt.
  • Substantive due process and equal protection arguments tend not to work in these situations.
• County of Sacramento v. Lewis [523 U.S. 833] (cb555): only purpose to cause harm would meet substantive due process requirements.

• Question: is municipality a person for purposes of § 1983? At what point can misdeeds of municipal employee be attributed to municipality?
  • Sovereign immunity does not apply to municipalities.

Monell v. Department of Social Services

[436 U.S. 658] 1978 United States Supreme Court (cb485)

• City of New York departments required female employees to take medical leave for pregnancy earlier than was necessary, plaintiffs suing for back pay and injunction.
• Policy was modified, rendering injunction moot, and back pay denied on basis of Monroe immunity.
• Extensive discussion of legislative history of § 1983; amendment that was rejected didn't mean that municipalities were meant to be exempt.
• Once Court decides that City is not exempt under § 1983, have to decide whether City is liable for acts of employees.
• Brennan rejects respondeat superieur theory; not enough for employee to violate federal right, § 1983 was meant to cover activity in which municipality does something wrong on its own.
• Rehnquist dissent: depends mostly on stare decisis.

• Tomorrow: what are rules for when municipality will be responsible for federal violations of employees?

Wednesday, January 29, 2003 (Class 23)

Monell v. Department of Social Services

[436 U.S. 658] 1978 United States Supreme Court (cb485)

• Additional requirement for city employees that you need to attribute employee's act to town.

• Various ways of trying to connect city employee action to city.

City of St. Louis v. Praprotnik

[485 U.S. 112] 1988 United States Supreme Court (mat, cb507)

• Architect, working for City of St. Louis, suspended for 15 days, challenged suspension and got reinstated with backpay. Ultimately, plaintiff's job is phased out and he is laid off.
• Plaintiff claims City and Mayor knew that he was fired for asserting his rights.
• Question is to what extent town can be held responsible.
• Concurrence: difficult to ever prove that employer didn't have authority to fire architect.
• Stevens dissent: officials who acted were "high enough".
• Problem with suing individual directly: qualified immunity.
• Problem with suing municipality: how to attribute employee's actions to employer.
• Difficult to say police officer on the beat has "final authority"; need to look at training or supervision.

Board of the County Commissioners v. Brown

[520 U.S. 397] 1997 United States Supreme Court (cb509)

• Couple driving through Texas to Oklahoma, turned around at checkpoint, were chased and hunted down by police. Sheriff points gun at driver, forces woman out of car who is injured. Couple sues individuals and county under § 1983.
• Question: can allegedly unconstitutional act of Deputy be attribute to county?
• Deputy had pleaded guilty to several misdemeanors including assault and battery, resisting arrest, public drunenness; hired by great-uncle who may have known about his history.
• Can single hiring decision by sheriff be considered "policy" triggering municipal liability?
• Municipality must have been "moving force" behind conduct; must demonstrate "deliberate indifference to risk" that violation will follow decision.
• Seems to require that employer would know that person would have done this sort of unconstitutional act.
• Sheriff Moore is the county for purposes of analysis.
• Seems to tighten up standard from prior law; unclear how specifically foreseeable unconstitutional conduct would be.

Qualified Immunity

• What if you are seeking damages against individual, rather than city, county, state, etc.?
• Doesn't apply to injuctions.
• Absolute immunities
  • Judicial acts
    • Pulliam v. Allen can injoin Judge who was requiring bail for non-jailable offenses
    • Congress responded by passing statute requiring declaratory judgment prior to injunction
  • State and Local Legislators
  • Prosecutors
    • Everything in trial, including using perjured testimony
    • Qualified immunity for investigations
  • Police Officers, even while committing perjury
  • President, while acting as President, but not for alleged illegal acts prior to Presidency
• Qualified immunity--in Bivens or § 1983 cases.

Harlow v. Fitzgerald

[457 U.S. 800] 1982 United States Supreme Court (cb534)

• Bivens case
• Decided about Federal Official, but also applied to § 1983 cases against State or Municipal employees.
• Harlow was accountant for federal government, claims he was fired because he was about to blow whistle on federal government purchasing policy.
• Claims his Constitutional rights were violated when he was fired.
• Employers claim qualified immunity.
• Why should government officials have any immunity?
  • Officials might be target of lawsuits
  • Could discourage people from entering into public service
• Old rule had objective and subjective component of "good faith" immunity.
  • Reasonable person standard--objective--"should have known".
  • Clearly subjective: malicious intent, and what one actually knew.
• Applies equally to violations of federal law as well as Constitution.
• Court finds old standard required discovery on state of mind, summary judgment will rarely be given on state of mind issue.
• Holding: "government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
• Court wants to remove subjectiveness, so trial judge, by looking at the complaint could dismiss case without discovery.

Anderson v. Creighton

[483 U.S. 635] 1987 United States Supreme Court (cb541)

• "[W]hether it was objectively legally reasonable to conclude that a given search was supported by probable cause of exigent circumstances will often require examination of the information posessed by the searching officials... whether a reasonable officer could have believed search to be lawful in light of clearly established law and infomation possessed..."
• Seems to get back to standard of needing discovery again.

(sp50)

• Three part test:
  • Was there a violation at all?
  • Was it clearly established (would reasonable person have known)?
  • Then, look at law and information possessed.

• Apply qualified immunity to P3Q4 (Crick) for Friday.

Friday, January 31, 2003 (Class 24)

• P3Q4
  • § 1983: is Crick a Person (yes), under color of state law (yes), violating of law?
  • Start with 14th amendment. State action? Yes.
  • Deprivation of life, liberty or property, without due process of law.
  • Clear violation of constitutional law.
  • Qualified immunity: Unless it is well known violation of constitutional law that reasonable officer would know in advance that he was violating (Zinermon), then Crick would have qualified immunity...
  • Could have given hearing; harm was foreseeable; Crick had authority; policy was in place. Question is whether it is clear enough to get around qualified immunity?
  • I.e., would reasonable person have known that doing this without a hearing and without an appointed guardian would have been unconstitutional?
  • Saucier v. Katz [533 U.S. 194]
    • First, did officer's conduct violate constitutional right?
    • Was right clearly established?
    • Harlow v. Fitzgerald [457 U.S. 800]: conduct does not violate clearly established constitutional rights that a reasonable would have known.
    • Judge would ask is there anything more I could know based on facts that would establish whether this was a clearly established constitutional right that a reasonable person should have known.
• Ultimately, cannot decided difficult constitutional questions in qualified immunity cases; must be clearly established to get through qualified immunity bar.

Violation of Federal Statutes by State Officials

• § 1983 applies to Federal Rights, not just Constitutional Law.
• Since "super clear statement" is needed for federal private cause of action, § 1983 is alternative route when no cause of action is present.

Pennhurst State School and Hospital et al v. Halderman et al.

1981 United States Supreme Court (mat)

• First part of case that later returned to Supreme Court (no Ex parte Young sovereign immunity).
• District Court and Appeals Court have appealed injunction requiring patients to have care in least restrictive setting.
• Needs to be unambiguous that "patient bill of rights" in federal bill established actual cause of action rather than statement of policy.
• § 6010:
  • "Treatment...should be provided in the setting that is least restrictive of the person's personal liberty."

• Maine v. Thiboteault: § 1983 welfare benefits case. Court permitted § 1983 cause of action to enforce right to welfare benefits.
• Roanake Redevelopment and Housing Authority: plaintiffs were paying more rent than allowed under regulations, Court permitted § 1983 cause of action.
• Sea Clammers: If legislation gives comprehensive remedy, than § 1983 is not available.
• Golden State Transit v. City of Los Angeles: three part test:
  • Did Statute create binding obligation rather than just suggestion?
  • Was it intended for benefit of plaintiffs?
  • Was it sufficiently specific for courts to apply?
• 1990 Virginia Hospital Association v. Wilder: Can medical care providers collect funds for "reasonable and adequate" reimbursement.

Sue Suter v. Artist M. et al.

1992 United States Supreme Court (mat)

• Adoption Assistance and Child Welfare Act
• Can you use § 1983 even without implied federal cause of action?
• Court holds stautory language is advisory, not mandatory.
• There are other remedies, other than cutting off funding, but doesn't go so far as to say there is a comprehensive scheme as in Sea Clammers.
• Dissent: majority doesn't follow its own decisions with respect to three part test from Golden State Transit.

• For Tuesday, do assignment 22, maybe get to assignment 23 (front row).

Tuesday, February 2, 2003 (Class 25)

• Exam: one three hour question with lots of defendants, claims, etc.. One one hour "opinion" question.
• If there is more information you need, say so on exam.

Blessing v. Freestone

[520 U.S. 329] 1997 United States Supreme Court (mat)

• State program to track down derelict child support payments; plaintiffs claim state officers not following federal statute to collect child support.
• Statute must:
  • Bind state
  • Mandatory (not precatory) provisions
  • Sufficiently specific to be enforced
• Benefit is for families
• Language does appear to be mandatory rather than precatory
• Case is remanded to District Court for plaintiffs to make rights specific enough to be more easily enforceable.

P3Q5

• Could Smith bring suit against Crick under §1983 for violation of Food, Drug and Cosmetic Act?
• Should be able to bring suit against person acting under color of state law.
• Injunction: mootness problem.
• Damages: against state and municipal employees, personally or individually.
• Probably couldn't find implied cause of action in Food and Drug Act.
• § 1983: try to find implied right under federal law that could be enforced.
• Need to three part test from Blessing:
  • Whose benefit? Could argue that potential human subjects are supposed to be benefit from statute. (alternatively: maybe to benefit federal government who is disbursing money; or pharmaceutical companies ... etc.).
  • Is law mandatory rather than precatory? Statute says "shall".
  • Vagueness? Informed consent definition seems fairly specific.
• Somewhat strong argument that statute could thus be enforced through § 1983.

Doctrines of Restraint

• Cases that Federal Court won't take even though they are within jurisdiction.
• Exhaustion of administrative remedies: requirement that all administrative remedies be sought prior to going to federal court.
• Why require exhaustion?
  • Filter out frivilous cases--efficiency/economy.

Patsy v. Board of Regents

[457 U.S. 496] 1982 United States Supreme Court (cb712)

• Marshall finds that administrative remedies do not need to be exhausted for §1983.
• 1983 was created to allow access to Federal Courts (but dissenters say administrative structure was also to remedy these problems).

• Where does power to refuse cases come from?
  • Would be easier if these cases were all equity cases, but they're not

• What if state law requires exhaution for similar cases, and §1983 claim is taken to state court?

Wednesday, February 5, 2003 (Class 26)

Railroad Commission v. Pullman Co.

[312 U.S. 496] 1941 United States Supreme Court (cb724)

• Texas Railroad Commission passes law requiring conductors in railroad cars, railroad and porters sue for due process and equal protection.
• Supreme Court refuses to hear case since there is pendant state law claim.
• Principles
  • Avoid constitutional issues
  • Avoid friction
  • State competency to interpret its own law
    • Federal Courts are already applying state law in diversity cases or pendant jurisdiction.
• Currently certification is more common than abstention.
• Abstention is expensive and time-consuming.
• Where does the power come from for Court to abstain?
• Factors
  • Ambiguous state law
  • Determination of state law might obviate the federal/constitutional issue
  • Path to state court to get clarification

P4Q1

• No Pullman abstention since there is no ambiguous state law issue that could decide case.

Arizonans for Official English v. Arizona

[117 S.Ct. 1055] 1997 United States Supreme Court (mat)

• Arizona constitution amended to state official language of state is English.
• Spanish-speaking state employee sued state as individual.
• Plaintiff left state employment, mooting injunctive relief, but Circuit Court held she could still sue for damages.
• Possible interpretations of constitutional amendment: could mean all documents need a seal in English; or all documents need to be in English; or all communications need to be in English; etc..
• Attorney General gives amendment narrow interpretation.
• Arizonans for Official English attempted to intervene, court held that they had no standing, but then court allows them to "make arguments".
• Errors found by Supreme Court
  • Case was moot, since it wasn't class action, should have been dismissed. Was moot even at District Court level.
  • Intervenors, who promoted amendment, didn't have standing ("grave doubts"). Sounds like generalized tax-payer or citizen standing.
  • Should have abstained in the certification sense--ask for clarification of amendment from State Supreme Court.
  • Governor has official capacity and personal capacity: cannot collect money in official capacity; and in personal capacity she opposed the amendment.
  • No case or controversy--parties seemed to agree with each other.

Atlantic Coast Line Railroad Company v. Brotherhood of Locomotive Engineers

[398 U.S. 281] 1970 United States Supreme Court (cb697)

• Railroad seeking injunction against picketing by Union at railroad terminal.
• Injunction was denied in federal court.
• Railroad then seeks injunction in state court, which grants injunction.
• Meanwhile, United States Supreme Court hears another case at companion terminal, holding that federal law makes such pickets clearly permissible (primary, non-violent picket).
• United States Supreme Court now deciding whether anti-injunction act allows the federal court to injoin the state courts.
• Anti-injunction act: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
• §1983 has been held to be exempt from AIA under first exception.
• For Friday: when federal district court injoined state court it could do that because initial case when railroad lost is "necessary in aid of its jurisdiction or to protect or effectuate its judgments (of not granting injunction earlier."

Friday, February 7, 2003 (Class 27)

Atlantic Coast Line Railroad Company v. Brotherhood of Locomotive Engineers

[398 U.S. 281] 1970 United States Supreme Court (cb697)

• Possibilities for federal District Court initial decision (in 1967).
• Need to figure out what this decision was based on.
• Union needs Court to interpret previous action as meaning state law played no part in District Court decision; i.e., even if state law said Union couldn't picket, federal law says they could.
• Railroad wants Court to interpret previous action as relying on Norse-LaGuardia? act. (?)

• Anti-injunction amended with three exceptions above, which have been interpreted narrowly.
• Mitchum v. Foster: anti-injunction act does not apply to §1983 cases. Criticized because §1983 doesn't say it's an AIA exception. Mitchum Court found implied in §1983 distrust of State Courts, thus exception to AIA.
  • How do you have "implied express authorization"?
• Younger v. Harris: huge exception to exception.
• Dombrowski v. Pfister: exception to Younger v. Harris exception to Mitchum exception to AIA.

Younger v. Harris

[401 U.S. 37] 1971 United States Supreme Court (cb738)

• Harris indicted in State Court, filed for Federal injunction against prosecutor for 1st and 14th amendments.
• District Court issued injunction, finding that indictment was overly broad and vague; Supreme Court overruled.
• For purposes of Younger v. Harris, indictment is already a proceeding.
• Key concepts
  • Equity
    • Don't give injunctions unless there's no remedy at law--just because AIA doesn't apply doesn't mean we always have to give injunction.
  • Comity
    • Respect for state court's ability to address federal question that would appear in defense
    • How does this different from federalism? Borrowed from international law.
    • Hard to reconcile with §1331.
  • Federalism
• Dumbrowski: extreme circumstances. Prosecution threatened plaintiffs after state judge held that documents had been obtained illegally.
• Gibson v. Berryhill: whether Alabama, through board of optometry, could rescind licenses of those who work for other people.
• Gerstein v. Pugh: pretrial detention without probable cause hearing; no way to raise unconstitutionality.
• Once you reach indictment, Younger v. Harris prohibits injunctions except under extraordinary circumstances.

Steffel v. Thompson

[415 U.S. 452] 1974 United States Supreme Court (cb753)

• Between arrest and indictment.
• Cannot use declaratory judgment in lieu of injunction. But no pending case, just threat of pending case.
• Declaratory judgment should have effect of precluding cases on same facts against same defendants.
• Court tries to distinguish Younger.
• Pullman abstention.

Tuesday, February 11, 2003 (Class 28)

• Ex Parte Young: can sue individual for prospective relief to enjoin them from enforcing unconstitutional law. Can also get declaratory judgment when it doesn't infringe on state treasury.
• Areas of law implicated: US Constitution, Ex Parte Young, §1983, declaratory judgment act.
• Anti-Injunction Statute: Federal Court cannot enjoin State Court pending proceeding except for three exceptions (notwithstanding Ex Parte Young).
• Mitchum': Anti-Injunction Statute doesn't apply to §1983 suits--Ex Parte Young'' is "back in"--federal court could enjoin state court.
• Younger: Can't enjoin state criminal proceeding except Dumbrowski exception--patently unconstitutional, seems egregious. Stresses equitable nature; discretion is implicit.
• Dumbrowski: repeated harrassing indictments.
• Steffel: allows declaratory judgment if criminal proceeding is not yet pending.

Hicks v. Miranda

[422 U.S. 332] 1975 United States Supreme Court (cb765)

• Police seize pornographic films, file criminal charges against employees; owner of theater suing in federal court to have obscenity statute declared unconstitutional; owner then brought up on criminal charges.
• Court holds that, even though criminal case started after the federal case, Younger abstention applies.
• Could be collateral estoppel (issue preclusion): criminal case was not appealed, federal court should give full faith and credit to state decision. But not addressed in opinion (not raised by parties).
• Dissent: no proceedings against plaintiffs at time they file case.
• U.S. Constitution, §1983, declaratory judgment act: statements by Congress that they wanted you to be able to do this.
• Could be inviting state prosecution by filing federal suit.
• At time, three judge panel including one circuit court judge would hear constitutional challenges of state statutes with automatic right of appeal to United States Supreme Court (no longer the case).

• State court enjoin federal court.
• Parallel proceedings are possible, but whoever decides first is res judicata.

• Hawaii Housing Authority v. Midkiff: preliminary injunction is considered to be a 'proceeding of substance on the merits' under Hicks standard for federal proceedings prior to state criminal case.
• Up until NOPSI in 1989, it appeared that there was no stopping point to Younger abstention.

Huffman v. Pursue, Ltd.

[420 U.S. 592] 1975 United States Supreme Court (cb773)

• State nuisance (civil) suit, similar to criminal suit, Court allows Younger abstention.
• Nuisance suit was against prior owner, plaintiff is now current owner.
• Congress has told District Courts, however, that can hear these cases under §1983 (and §1443).
• But isn't federalism more implicated in criminal case where state has taken some action, rather than civil suit where individual can file complaint and thereby potentially deprive plaintiff of federal forum?

• Trainor v. Hernandez (cb782): Civil fraud suit brought by State; District Court found unconstitutional attachment; Supreme Court reverses, saying State was a party and District Court should have abstained.
• Juidice v. Vail (cb782): Contempt order in civil suit between non-state actors; Supreme Court again requires abstention, State has interest in integrity of judicial integrity.
• Moore v. Sims (cb783): State takes children from house; District Court found process unconstitutional; Supreme Court again requires abstention because this is judicial action and constitutional issues could have been heard at state level.
• Ohio Civil Rights Commission v. Dayton Christian Schools, Inc. (cb785): Pregnant woman fired by Christian school, files state administrative complaint; School seeks to have Federal District Court enjoin state administrative proceeding; Supreme Court again requires Younger abstention: administrative proceeding was judicial in nature, State has strong interest in prohibiting sex discrimination (note this is different from prior explanations of state interest in process).
• O'Shea v. Littleton (cb786): Civil rights action against county attorney, investigator, magistrate, and judge, claiming racial discrimination. Court requires Younger abstention.
• Rizzo v. Goode (cb787): Abstention required when plaintiffs seek to enjoin Philadelphia police and Mayor from discriminatory unconstitutional action.
• Pennzoil Company v. Texaco (cb787): Texaco sues in Federal District Court to enjoin $13B judgment against it from State Court; Texas law required bond for amount of judgment in order to appeal. Court agains requires abstention, either under Younger or Rooker-Feldman doctrine (federal courts cannot act to review state court decisions).

New Orleans Public Service, Inc. v. Council of City of New Orleans

[491 U.S. 350] 1989 United States Supreme Court (cb788)

• Court finds against abstention; Scalia seems to be giving dissenters view: "When Congress tells us to hear cases, we should hear them."
• Hard to distinguish from Rizzo and O'Shea.

Wednesday, February 12, 2003 (Class 29)

• Abstention could be stay of Federal case, to give state court time to elucidate state law; or case can be thrown at altogether.
  • Pullman abstention: case isn't being thrown out, rather asking for clarification of law.
  • Younger and others: case is thrown out of federal court.
• Discussion of equitable discretion: abstention comes in at early stage of case, but equitable discretion usually applies to temporary restraining order or injunction, on the question of irreperable harm.

Burford v. Sun Oil Co.

[319 U.S. 315] 1943 United States Supreme Court (cb792)

• Complex system for drilling oil wells; drawing from one well can deprive another area of oil.
• Some wells getting special allotments, others not, claim of Constitutional violation.
• Supreme Court decides case should not be heard in federal court for "equitable reasons".
• Texas has integrated system with administrative agency working in tandem with state courts who have localized hearings to get specialization in technical area.
• State needs one coordinated system because of sophisticated "cause and effect" from any decision.
• Why couldn't federal court decide federal question issue without addressing state law?
• Supplemental jurisdiction doesn't relate to diversity issues, however, which is how state law questions are here.
• Highly regulated and technical area; centralized method of appeals.
• Frankfurter dissent: the whole essence of diversity jurisdiction is that federal courts are supposed to decide state law issues.

• Alabama Public Service Comm. v. Southern Railway Co.: regulatory scheme running throughout State found to justify Burford abstention.

• Louisiana Power & Light Co. v. City of Thibodaux: Special nature of eminent domain as sovereign prerogative justifies abstention. District Court keeps jurisdiction awaiting clarification.
  • Dismissal vs. stay is not necessarily all that different given issue preclusion.

Quackenbush v. Allstate Insurance Company

[517 U.S. 706] 1996 United States Supreme Court (cb805)

• California insurance commissioner is trustee of private insurance company, suing Allstate. Allstate removes to federal court under diversity jurisdiction, seeking to enforce Arbitration; Allstate moves to remand to state court because of unclear, complex state law (Burford).

Colorado River Water Conservation District v. United States

[424 U.S. 800] 1976 United States Supreme Court (cb815)

• Ongoing lawsuits in state courts determining water rights; also federal suit brought by United States government to determine water rights for American Indians.
• Court holds that this is not Pullman, Younger, or Burford abstention situation.
• Not unclear question of state law; not pending state case where state party and not criminal; could have some elements of Burford.
• Plaintiff has right to be in federal court, specifically given by Congress.
• Unique characteristics:
  • Parallel litigation
  • State litigation may be "first in time" if we consider United States addition not to be start.
• Moses H. Cone Memorial Hospital v. Mercury Construction Corporation: just because parallel state litigation is occurring doesn't mean case should be dismissed. If court has jurisdiction it should keep going.

Wilton v. Seven Falls Company

[515 U.S. 277] 1995 United States Supreme Court (cb826)

• Does language in Cone concerning limited application of Colorado River Water abstention mean that court should weigh all the variables in Cone for declaratory judgment cases?
• Two questions
  • What should federal District Court is declaratory judgment case consider with respect to dismissal?
    • Basically seems to be question of efficiency, based on word may in declaratory judgment act, relies on Brillhart to say you don't need exceptional circumstances for declaratory judgment.
  • What is standard of review of Circuit Court reviewing District Court's decision to dismiss?
    • Abuse of discretion, even when state case starts after federal case.
• Diversity case; question still remains whether this would be appropriate in federal question.

• Start on Friday with Question 4 Part 2

Friday, February 14, 2003 (Class 30)

Migra v. Warren City School District Board of Education et al.

1984 United States Supreme Court (mat)

• Claim preclusion issue to be decided on basis of state preclusion law.

Kremer v. Chemical Construction Corp.

1982 United States Supreme Court (mat)

• Question of whether state administrative proceeding is claim preclusion for federal §1983 suit.
• Title VII: Federal Agency can give weight in examining what state agency did, but to say "substantial weight" requirement implicitly repeals §1738. If court review of state agency decision has occurred, it will have estoppel effect.
• Dissent: review only decided that decision was not arbitrary or capricious; did not decide on the merits, thus should not be given full faith and credit.

University of Tennessee et al. v. Elliott

1986 United States Supreme Court (mat)

• Agency decision, not followed by court review, then new case brought both under §1983 and Title VII.
• Issue preclusion on §1983 claim but not based on full faith and credit clause or statute, because ALJ decision was not a court decision.
• Court creates federal common law for §1983 cases: unreviewed state administrative decisions present issue preclusion in federal court.

• Leaves question of why have federal District Court system?