· Web viewFed Courts Outline. Robert Day – John Jeffries Fall 2014. State and Federal Law8....

State and Federal Law

Fed Courts OutlineRobert Day – John Jeffries Fall 2014

STATE AND FEDERAL LAW................................................................................................................................ 8STATE LAW IN FEDERAL COURT............................................................................................................................ 8ERIE DETAILS......................................................................................................................................................... 8FEDERAL COMMON LAW....................................................................................................................................... 9

CHOICE OF STATE LAW IN FEDERAL COURT............................................................................................ 10Klaxon Co. v. Stentor Electric Manufacturing Co., Inc. (1941)............................................................................................................... 10

Substantive/Procedure Divide in Erie and in Choice-of-Law.....................................................................10Sampson v. Channell (1st. Cir. 1940)................................................................................................................................................................ 10

FORUM SHOPPING............................................................................................................................................... 10

FEDERAL PROCEDURE IN STATE COURT................................................................................................... 12 Dice v. Akron, Canton & Youngstown RR Co. (1952)......................................................................................................................... 12 Felder v. Casey (1988).................................................................................................................................................................................... 13Johnson v. Fankell (1997)...................................................................................................................................................................................... 13

TESTA & VALID EXCUSE.................................................................................................................................... 15Testa v. Katt (1947).................................................................................................................................................................................................. 15Howlett v. Rose (1990)............................................................................................................................................................................................ 15

“VALID EXCUSE” – EXCEPTIONS TO TESTA........................................................................................................ 15Douglas v. New York, H.H. & H.R. Co. (1929)................................................................................................................................................. 15Haywood v. Drown (2009).................................................................................................................................................................................... 16

SCOTUS REVIEW OF STATE COURT DECISIONS.......................................................................................18Martin v. Hunter's Lessee (1816)........................................................................................................................................................................ 18Murdock v. City of Memphis (1875)................................................................................................................................................................... 18Indiana ex rel. Anderson v. Brand (1938)....................................................................................................................................................... 18Bush v. Gore (2000).................................................................................................................................................................................................. 19

Remote Federal Premise.............................................................................................................................................20Standard Oil Co. of CA v. Johnson (1942)........................................................................................................................................................ 20

ADEQUATE AND INDEPENDENT STATE GROUND...................................................................................21Procedural AISG // Inadequate State Ground...................................................................................................22

NAACP v. Patterson (1957)................................................................................................................................................................................... 22Substantive AISG // Non-Independent State Ground....................................................................................22

Michigan v. Long (1983)........................................................................................................................................................................................ 22

FEDERAL COMMON LAW RULE OF DECISION........................................................................................... 23Clearfield Trust v. United States (1943).......................................................................................................................................................... 23US v. Little Lake Misere Land Co. Inc (1973)................................................................................................................................................. 23

SUITS B/W PRIVATE PARTIES (IMPLICATING A FEDERAL INTEREST)..............................................................24No Federal Rule of Decision cases:.........................................................................................................................24

B of A v. Parnell (1956)........................................................................................................................................................................................... 24Miree v. DeKalb County (1977)........................................................................................................................................................................... 24

Post-Boyle Cases (No Federal Rule of Decision):..............................................................................................25O’Melveny & Myers v. FDIC (1994)..................................................................................................................................................................... 25Empire Healthcare v. McVeigh (2006)............................................................................................................................................................. 25

MILITARY CONTRACTOR EXCEPTION (YES FED. RULE OF DECISION)...............................................................26Boyle v. United Tech (1988).................................................................................................................................................................................. 26

PRIVATE RIGHTS OF ACTION......................................................................................................................... 27PRAS TO ENFORCE FERAL STATUTES...............................................................................................................27

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History of Implied PRAs..............................................................................................................................................27JI Case v. Borak (1964)............................................................................................................................................................................................ 27Cort v. Ash (1975)...................................................................................................................................................................................................... 28Cannon v. University of Chicago (1979).......................................................................................................................................................... 28

Remedies to Enforce Implied PRAs........................................................................................................................29Franklin v. Gwinnett County Public Schools (1992).................................................................................................................................. 29Gebser v. Lago Vista Independent School District (1998)........................................................................................................................ 30

Decline of Implied PRAs = Sop + Federalism.....................................................................................................30Stoneridge Investment Partners v. Scientific-Atlanta, Inc (2008)....................................................................................................... 30

PRAS TO ENFORCE CONSTITUTIONAL RIGHTS..................................................................................................31Bivens.................................................................................................................................................................................. 31

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971)......................................................................31Rationale for limiting Bivens.....................................................................................................................................32

1) Beyond Judicial Authority................................................................................................................................................................................. 322) Inference from statutory alternatives......................................................................................................................................................... 323) Military Context.................................................................................................................................................................................................... 344) Not a Good Idea..................................................................................................................................................................................................... 34

Decline of Bivens PRAs.................................................................................................................................................34Minneci v. Pollard (2012)...................................................................................................................................................................................... 34

CUSTOMARY INTERNATIONAL LAW.................................................................................................................... 35Paquete Habana (1900)......................................................................................................................................................................................... 36Filartiga v. Pena-Irala (2d Cir. 1980)............................................................................................................................................................... 36Sosa v. Alvarez-Machain (2004)......................................................................................................................................................................... 36Kiobel v. Royal Dutch Petroleum Co. (2013).................................................................................................................................................. 37

Arguments for the Yes CIS Cause of Action.........................................................................................................38

JUSTICIABILITY................................................................................................................................................... 39MARBURY – JUDICIAL REVIEW........................................................................................................................... 39

Marbury v. Madison (1803).................................................................................................................................................................................. 39Judicial Supremacy.................................................................................................................................................................................................... 40Justiciability and Marbury..................................................................................................................................................................................... 40

STANDING............................................................................................................................................................ 40Allen v. Wright (1984)............................................................................................................................................................................................. 41

STATUTORY STANDING....................................................................................................................................... 41Lujan v. Defenders of Wildlife (1992)............................................................................................................................................................... 42

Yes Statutory Standing:............................................................................................................................................... 42Friends of the Earth v. Laidlaw (2000) – Aesthetic Injury..................................................................................................................... 42FEC v. Akins (1998) – Informational Injury.................................................................................................................................................. 43Massachusetts v. EPA (2007)............................................................................................................................................................................... 43

TAXPAYER STANDING.......................................................................................................................................... 43Doremus v. Board (1952)....................................................................................................................................................................................... 43Schlesigner v. Reservists Committee to Stop the War (1974)................................................................................................................ 44Flast v. Cohen (1968)............................................................................................................................................................................................... 44Valley Forge Christian College v. Americans United (1980)................................................................................................................... 44Bowen v. Kendrick (1988)..................................................................................................................................................................................... 44Hein v. Freedom from Religion Foundation, Inc. (2007).......................................................................................................................... 44Arizona Christian School Tuition Org. v. Winn (2011)............................................................................................................................. 44

STANDING TO APPEAL........................................................................................................................................ 45Hollingsworth v. Perry (2013).............................................................................................................................................................................. 45US v. Windsor (2013)............................................................................................................................................................................................... 45

THIRD PARTY STANDING.................................................................................................................................... 47Singleton v. Wulff (1976)....................................................................................................................................................................................... 47Barrows v. Jackson (1953).................................................................................................................................................................................... 48Eisenstadt v. Baird (1972)..................................................................................................................................................................................... 48Craig v. Boren (1976) – Dilution of 3rd Party Rights............................................................................................................................... 48

Restriction on 3rd Party Standing..........................................................................................................................48Kowalski v. Tesmer (2004).................................................................................................................................................................................... 48

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Over-breadth.................................................................................................................................................................... 48RIPENESS (PREMATURITY)................................................................................................................................. 49

Poe v. Ullman (1961)............................................................................................................................................................................................... 49Ripeness & Declaratory Judgments........................................................................................................................49

Aetna Life Ins. v. Haworth (1937)...................................................................................................................................................................... 49Ripeness and Standing.................................................................................................................................................50

Duke Power (1978)................................................................................................................................................................................................... 50Ripeness and Structural Reform Litigation........................................................................................................50

O’Shea v. Littleton (1974)...................................................................................................................................................................................... 50Los Angeles v. Lyons (1983).................................................................................................................................................................................. 50

MOOTNESS........................................................................................................................................................... 51Voluntary Cessation of Illegal Activity..................................................................................................................51

US v. WT Grant Co. (1953)..................................................................................................................................................................................... 51Northeastern Florida Chapter v. City of Jacksonville (1993)................................................................................................................. 51

Capable of Repetition, but Evading Review........................................................................................................52Honig v. Doe (1988).................................................................................................................................................................................................. 52

Mootness & Class Actions (Not Moot)...................................................................................................................52Sosna (1985)............................................................................................................................................................................................................... 52Roper (1980)............................................................................................................................................................................................................... 52Geraghty (1980)........................................................................................................................................................................................................ 52

FLSA Collective Action (Yes Moot).........................................................................................................................53Genesis Healthcare v. Symczyk (2013)............................................................................................................................................................. 53

APPEAL BY PREVAILING PARTIES...................................................................................................................... 53Constitutional Torts – Qualified Immunity.........................................................................................................53

QI Cycling....................................................................................................................................................................................................................... 54Problems w/ Merits-First Adjudication............................................................................................................................................................ 54Camreta v. Greene (2011)...................................................................................................................................................................................... 54

POLITICAL QUESTION DOCTRINE........................................................................................................55Luther v. Borden (1849)......................................................................................................................................................................................... 56Baker v. Carr (1962)................................................................................................................................................................................................ 56Davis v. Bandemer (1986)..................................................................................................................................................................................... 56

Congressional Procedures..........................................................................................................................................57Powell v. McCormack (1969)............................................................................................................................................................................... 57Nixon v. United States (1993).............................................................................................................................................................................. 57

Foreign Affairs.................................................................................................................................................................57Zivotofsky v. Clinton (2012).................................................................................................................................................................................. 57Marbury & the PQ Doctrine.................................................................................................................................................................................. 58

CONGRESSIONAL CONTROL OF FEDERAL COURTS.................................................................................59Art. III................................................................................................................................................................................... 59Congressional Control of the Lower Federal Courts.......................................................................................60

Sheldon v. Sill (1850).............................................................................................................................................................................................. 60Ex Parte McCardel (1868)..................................................................................................................................................................................... 60Webster v. Doe (1988)............................................................................................................................................................................................. 60INS v. St. Cyr (2001)................................................................................................................................................................................................. 61

Congressional Control over SCOTUS.....................................................................................................................61Hamdan v. Rumsfeld (2006)................................................................................................................................................................................. 61Boumediene v. Bush (2008).................................................................................................................................................................................. 62

CONGRESS CHANGING THE LAW......................................................................................................................... 62Klein (1872)................................................................................................................................................................................................................. 63

Changing the Law Prospectively.............................................................................................................................63Wheeling Bridge II (1856)..................................................................................................................................................................................... 63Miller v. French (2000)........................................................................................................................................................................................... 63

Changing the Law Retroactively..............................................................................................................................64Plaut v. Spendthrift Farm (1995)....................................................................................................................................................................... 64

Changing the Law Specifically..................................................................................................................................64

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Sioux Nation (1980)................................................................................................................................................................................................. 64Robertson v. Seattle Audubon Society............................................................................................................................................................... 64Schavo v. Schavo (Ca 11, 2005)........................................................................................................................................................................... 65

PROTECTIVE JURISDICTION........................................................................................................................... 65Tidewater Transfer (1949)................................................................................................................................................................................... 66

CONSTITUTIONAL LIMITS ON “ARISING UNDER” JURISDICTION.......................................................................67Osborn v. Bank of US (1824)................................................................................................................................................................................. 67Pac. RR Removal Cases............................................................................................................................................................................................ 67

Bankruptcy........................................................................................................................................................................67Schumacker v. Beeler (1934) and Williams v. Austrian (1947)...........................................................................................................67

Sovereign Immunity......................................................................................................................................................67Verlinden v. Central Bank of Nigeria (1983)................................................................................................................................................. 67Gutierrez de Martinez v. Lamagno (1995)..................................................................................................................................................... 67

Labor Management Relations Act...........................................................................................................................68Textile Workers Union v. Lincoln Mills (1957)............................................................................................................................................. 68Professor Wexler: Art. I authorizes Protective Jurisdiction..................................................................................................................... 69

Rejection of Protective JX...........................................................................................................................................69Mesa v. California (1989)....................................................................................................................................................................................... 69

NON-ART. III COURTS....................................................................................................................................... 70Bankruptcy Background to Northern Pipeline...................................................................................................70

Northern Pipeline Construction Co. v. Marathon Pipeline Co. (1982)................................................................................................71Approval of Non-Art. III Courts:...............................................................................................................................71

Thomas v. Union Carbide Agricultural Products (1985).......................................................................................................................... 71Schor (1986)................................................................................................................................................................................................................ 72Stern v. Marshall (2011)......................................................................................................................................................................................... 73

Administrative State and Art. III..............................................................................................................................73

“ARISING UNDER” JURISDICTION................................................................................................................. 74Mottley (1908)............................................................................................................................................................................................................ 75United Mine Workers v. Gibbs (1966)............................................................................................................................................................... 75Finley v. US (1989).................................................................................................................................................................................................... 75

§ 1331 “Arising Under”................................................................................................................................................75American Well Works (1916).............................................................................................................................................................................. 75

Exceptions to American Well Works.......................................................................................................................76Shoshone Mining Co. v. Rutter (1900).............................................................................................................................................................. 76Smith v. Kansas City Title & Trust Co. (1921)............................................................................................................................................... 76Moore v. C&O Ry. (1934)......................................................................................................................................................................................... 76

Debate Roils...................................................................................................................................................................... 76Merrell Dow (1986).................................................................................................................................................................................................. 76Grable & Sons (2005)............................................................................................................................................................................................... 77Gunn v. Minton (2013)............................................................................................................................................................................................. 77

DECLARATORY JUDGMENT ACTIONS AND ARISING UNDER JX.........................................................................78Skelly Oil (1950)......................................................................................................................................................................................................... 78Federal Tax Board (1983)..................................................................................................................................................................................... 78

Arbitration Analogy.......................................................................................................................................................80Vaden v. Discover Bank (2009)........................................................................................................................................................................... 80

COMPLETE PREEMPTION................................................................................................................................ 80Avco Corp. v. Machnists (1968)............................................................................................................................................................................ 81Taylor (1987)............................................................................................................................................................................................................... 82Beneficial National Bank v. Anderson (2003)............................................................................................................................................... 82

DIVERSITY JURISDICTION............................................................................................................................... 83Exxon Mobil Corp. v. Allapattah Services (2005)......................................................................................................................................... 84Owen Equipment v. Kroger (1978).................................................................................................................................................................... 84

ABSTENTION........................................................................................................................................................ 85

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YOUNGER ABSTENTION.................................................................................................................................... 85Background to Younger...............................................................................................................................................85

Douglas v. City of Jeanette (1943)...................................................................................................................................................................... 85Dombrowski v. Pfister (1965).............................................................................................................................................................................. 86Ex parte Royall (1886)............................................................................................................................................................................................ 86

Younger.............................................................................................................................................................................. 86Younger v. Harris (1971)....................................................................................................................................................................................... 86Samuels v. Mackell (1971)..................................................................................................................................................................................... 86Mitchum v. Foster (1972)...................................................................................................................................................................................... 87

No Pending State Proceedings..................................................................................................................................87Steffel v. Thompson (1974)................................................................................................................................................................................... 87Stay if Necessary......................................................................................................................................................................................................... 87

Application of Younger to Civil Suits......................................................................................................................88Huffman v. Pursue (1975)...................................................................................................................................................................................... 88Juidice v. Vail (1977)................................................................................................................................................................................................ 88Trainor v. Hernandez (1977)............................................................................................................................................................................... 88Middlesex County (1982)....................................................................................................................................................................................... 88

Younger in Hamdan & Kowalski...............................................................................................................................89Hamdan and Younger.............................................................................................................................................................................................. 89Kowalski and Younger............................................................................................................................................................................................. 89

PULLMAN ABSTENTION.................................................................................................................................... 89Meredith v. City of Winter Haven (1943)........................................................................................................................................................ 89Siler v. Louisville & Nashville R. Co. (1909).................................................................................................................................................... 89RR Comm. of Texas v. Pullman Co. (1941)...................................................................................................................................................... 90

Administration of Pullman.........................................................................................................................................90Gov’t Employees v. Windsor (1957)................................................................................................................................................................... 90England v. Louisiana State Board of Medical Examiners (1964).........................................................................................................91

BURFORD ABSTENTION................................................................................................................................... 92Burford v. Sun Oil Co. (1943)................................................................................................................................................................................ 92

Eminent Domain and Burford...................................................................................................................................92Mashuda (1959)......................................................................................................................................................................................................... 92Thibodaux (1959)..................................................................................................................................................................................................... 92

CONCURRENT LITIGATION – COLORADO RIVER ABSTENTION...........................................................93Colorado River Water Conservation District v. United States (1976)................................................................................................93

Declaratory Judgment Actions..................................................................................................................................94Brillhart v. Excess Ins. Co. of America (1942)............................................................................................................................................... 94

ROOKER-FELDMAN DOCTRINE............................................................................................................................ 94Rooker (1923)............................................................................................................................................................................................................. 94Feldman (1983)......................................................................................................................................................................................................... 95

SCOTUS Severely Limits Rooker-Feldman...........................................................................................................95Exxon Mobil v. SABIC (2005)................................................................................................................................................................................ 95Lance v. Dennis (2006)............................................................................................................................................................................................ 95

STATUTE-BASED ABSTENTION..................................................................................................................... 95ANTI-INJUNCTION ACT § 2283......................................................................................................................... 96

Toucey v. NY Life Ins. (1941)................................................................................................................................................................................ 96Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers (1970)......................................................................96

Express Authorization of an Act of Congress.....................................................................................................97Mitchum v. Foster (1972)....................................................................................................................................................................................... 97Vendo Co. v. Lektro-Vend Corp. (1977)............................................................................................................................................................ 97

Necessary in Aid of Jurisdiction...............................................................................................................................97Protect or Effectuate its Judgments.......................................................................................................................97Litigation by the United States.................................................................................................................................98

NLRB v. Nash-Finch Co (1971)............................................................................................................................................................................ 98

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HABEAS................................................................................................................................................................. 99BACKGROUND...................................................................................................................................................... 99

Exhaustion.........................................................................................................................................................................99Ex parte Royall (1886)............................................................................................................................................................................................ 99

Relitigation........................................................................................................................................................................ 99Brown v. Allen (1953).............................................................................................................................................................................................. 99Townsend v. Sain (1963)..................................................................................................................................................................................... 100

Procedural Default......................................................................................................................................................100Daniels v. Allen (1953)......................................................................................................................................................................................... 100Fay v. Noia (1963).................................................................................................................................................................................................. 100

Non-retroactivity.........................................................................................................................................................101Linkletter v. Walker (1965)................................................................................................................................................................................ 101

SCOPE OF HABEAS REVIEW.......................................................................................................................... 102STONE: NON-GUILT RELATED FEDERAL CLAIMS.............................................................................................102

Stone v. Powell (1976).......................................................................................................................................................................................... 102POST-STONE DECISIONS................................................................................................................................... 102

Withrow v. Williams (1993)............................................................................................................................................................................... 103Brecht v. Abrahamson (1993)........................................................................................................................................................................... 103

AEDPA AND STONE......................................................................................................................................... 103

PROCEDURAL DEFAULTS.............................................................................................................................. 104Wainwright – Cause and Prejudice......................................................................................................................105

Wainwright v. Sykes (1977)............................................................................................................................................................................... 105Murray v. Carrier (1986)..................................................................................................................................................................................... 105Cause............................................................................................................................................................................................................................. 105Prejudice..................................................................................................................................................................................................................... 106IAC and Murray........................................................................................................................................................................................................ 106

Inadequate State Ground.........................................................................................................................................106Lee v. Kemna (2002).............................................................................................................................................................................................. 106

Actual Innocence..........................................................................................................................................................106House v. Bell (2006)............................................................................................................................................................................................... 106

Fact Hearing on Procedurally Defaulted Claims: § 2254(e)(2)...............................................................107Michael Wayne Williams v. Taylor (2000).................................................................................................................................................. 107

RETROACTIVITY OF “NEW” RIGHTS – TEAGUE......................................................................................108Teague v. Lane (1989).......................................................................................................................................................................................... 108

Teague does NOT bar Habeas Review When:.................................................................................................109Teague after AEDPA § 2254....................................................................................................................................109

ACTUAL INNOCENCE....................................................................................................................................... 110Herrera v. Collins (1993)..................................................................................................................................................................................... 110House v. Bell (2006)............................................................................................................................................................................................... 111

Guilty Pleas and Actual Innocence.......................................................................................................................111Bousley v. United States (1998)........................................................................................................................................................................ 111

HABEAS: STANDARD OF REVIEW OF STATE CONVICTIONS..............................................................112AEDPA and Capital Cases.........................................................................................................................................112

Terry Williams v. Taylor (2000)....................................................................................................................................................................... 112Unreasonable Application.......................................................................................................................................113

Bell v. Cone (2002)................................................................................................................................................................................................. 113Renico v. Lett (2010)............................................................................................................................................................................................. 113

Adjudicated On the Merits.......................................................................................................................................113Harrington v. Richter (2011)............................................................................................................................................................................. 113Greene v. Fisher (2011)........................................................................................................................................................................................ 113

No Factual Hearing – Exhausted Claims............................................................................................................113Cullen v. Pinholster (2011)................................................................................................................................................................................. 113

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HABEAS: PROCEDURAL LIMITATIONS..................................................................................................... 114EXHAUSTION AND “MIXED” PETITIONS...........................................................................................................114

Rose v. Lundy (1982).............................................................................................................................................................................................. 114ABUSE OF THE WRIT (SUCCESSIVE PETITIONS).............................................................................................114

History.......................................................................................................................................................................................................................... 114§ 2244 AEDPA........................................................................................................................................................................................................... 115Tyler v. Cain (2001)............................................................................................................................................................................................... 115

STATUTE OF LIMITATIONS: § 2244(D)..........................................................................................................115Initially recognized.....................................................................................................................................................115

Dodd (2004).............................................................................................................................................................................................................. 115Stay and Abeyance......................................................................................................................................................116

Rhines v. Weber........................................................................................................................................................................................................ 116Equitable tolling...........................................................................................................................................................116

Holland v. Florida.................................................................................................................................................................................................... 116Actual Innocence..........................................................................................................................................................116

McQuiggan................................................................................................................................................................................................................. 116

STATE SOVEREIGN IMMUNITY.................................................................................................................... 117Chisholm v. Georgia (1793)................................................................................................................................................................................ 11711th Amend................................................................................................................................................................................................................ 117

Immunity Interpretation..........................................................................................................................................117Hans v. Louisiana (1890)..................................................................................................................................................................................... 117

Diversity Interpretation...........................................................................................................................................117Atascadero State Hospital v. Scanlon (1985)............................................................................................................................................. 117

Ex parte Young (1908)...............................................................................................................................................118RETROACTIVE RELIEF...................................................................................................................................... 118

Edelman v. Jordan (1974)................................................................................................................................................................................... 118§ 1983 and 11th Amend...........................................................................................................................................119

Monell v. Dep’t of Social Services (1978)...................................................................................................................................................... 119Will v. Michigan Department of State Police (1989)............................................................................................................................... 119

Official Capacity v. Personal Capacity.................................................................................................................120Hafer v. Melo (1991).............................................................................................................................................................................................. 120

CONGRESSIONAL ABROGATION OF STATE SOVEREIGN IMMUNITY...............................................121Background Cases................................................................................................................................................................................................... 121

Art. I – No abrogation.................................................................................................................................................121Seminole Tribe of FL v. Florida (1996).......................................................................................................................................................... 121Seminole Tribe in state court............................................................................................................................................................................. 122State as Commercial Actor.................................................................................................................................................................................. 122Bankruptcy Powers................................................................................................................................................................................................ 122Administrative Adjudication.............................................................................................................................................................................. 122

§ 5 OF THE 14TH AMENDMENT.......................................................................................................................123Congress’ Enforcement Powers of the Civil War Amendments..............................................................123

City of Boerne v. Flores (1997).......................................................................................................................................................................... 123Means/Ends Analysis................................................................................................................................................ 123

Hibbs (2003)............................................................................................................................................................................................................. 123Coleman v. Court of Appeals of Maryland (2012)..................................................................................................................................... 124

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State law in federal courtSwift v. Tyson (1842) – Old Regime

Authorized federal general common law Rationale:

o Practically, state decisions were not reported. o Lawyers learned the law from treatises – believed the law existed in

general terms.

Erie v. Tompkins (1938) Constitutional ruling

o Intersection of Federalism and Separation of Powers Constitution imposes limits on federal power vis a vis the state

(Federalism) And Constitution assigns lawmaking to the legislator (SoP)

o Combination: Any assertion of federal law displaces state law (b/c Supremacy

Clause) and the right institution to displace state law is Congress.

Federal Common LawExists where there is a federal interest at stake

Dice — FELA pro-plaintiff policy forces states to follow federal rule of procedure

Semtek International — Federal judgment carry w/ it federal rules for preclusion.

Dormant Commerce Clause — Federal policy barring states from discriminating against out-of-state interests are not “unconstitutional” b/c Congress can authorize such action (so Dormant Commerce Clause is better described as federal common law)

Erie DetailsErie v. Tompkins (1938)

Backgroundo Tompkins (P), citizen of PA, injured by train

P was walking near train tracks when he was struck by an open door on the train

o RR wanted PA law to apply Under PA common law:

P was a trespasser (no duty owed to P) Under general common law (see Swift v. Tyson)

P was a licensee (RR owed duty to P)

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SCOTUS (Brandeis) o No more federal general common law

Federal courts sitting in diversity apply state substantive law o Statutory Interpretation – flimsy

Brandeis says “several states” = each state’s laws Others say “several states” = general reference to the states as

one body, phrased this way to exclude English common law from applying.

o Constitutional Rationale – most important Federalism

Constitution imposes limits on federal power vis a vis the states

Separation of Power Congress has not created federal general common law,

therefore the federal Courts lack this power. Cross-section of Federalism and SoP:

Any assertion of federal law displaces state law (b/c Supremacy Clause) and the right institution to displace state law is Congress.

Federal Common Law still exists Erie banned general federal common law But Federal Common Law still exists where there are federal interests

involved. Examples of Federal Common Law:

o FELA pro-plaintiff policyo Dormant Commerce Clauseo Preclusive Effect of Federal Judgments

Dice v. Akron, Canton & Youngstown RR Co. (1952) Background

o P, a railroad employee, sued D, a railroad, in Ohio state court under the Federal Employers’ Liability Act (FELA)

o D asserted the defense P had signed a release (contract),

o P alleged fraud in execution -- D misrepresented to P as a release from back wages.

o Trial Court Jury verdict for P Judge reversed, finding that under Ohio law, the release was

binding on Po In federal court, Jury’s determination on the validity of the release is

final. P appeals, argues

This is a federal claim (FELA) so federal procedure applies.

SCOTUS

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o Yes federal procedure of giving the decisions to the Jury applies when state courts hear FELA cases

o FELA – is extremely pro-plaintiff SCOTUS sought to uphold pro-plaintiff federal policy by

demanding state court procedures to protect that federal interest.

Semtek International — Federal judgment carry w/ it federal rules for preclusion.

Dormant Commerce Clause Doctrine: States cannot regulate interstate commerce

o Court routinely refers to these violations as “unconstitutional” Since Congress can overrule Dormant Commerce Clause judgments,

Dormant Commerce Clause is not constitutional law, but federal common law.

Judge made law (no discrimination against out of state interests) made to implement an implicit constitutional policy.

o Not con law — which is not subject to legislative correctiono Judge made law — which is always subject to legislative correction

Choice of State Law in Federal CourtKlaxon Co. v. Stentor Electric Manufacturing Co., Inc. (1941)

Rule:o When a federal court applies state law, it applies the choice of law

analysis of the state in which the court sits.

Opportunities for Home-State Bias: 1) Law of Conflicts –

o States defines their own; treated as substantive under Erie 2) Substantive/Procedural divide

o States define what counts where. The more MA defines as procedural, the less MA law is displaced. – See Sampson v. Channell (1st. Cir. 1940)

3) Another State’s Rules that are Contrary to Forum State’s Public Policy (not all that relevant to us)

Substantive/Procedure Divide in Erie and in Choice-of-Law

Sampson v. Channell (1st. Cir. 1940) Crux

o At the same moment, a state rule can be substantive under Erie and procedural under the forum state’s Choice of Law.

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Inconsistencies b/w Erie and Choice-of-Law provide additional opportunities for horizontal forum shopping among federal courts – see Ferrens.

Backgroundo Car wreck in Maine, led to a diversity suit in Mass. o Contributory Negligence

Maine = substantive; burden is on Plaintiff to disprove Mass. = procedural; burden is on Defendant to prove

o First, Erie – which States’ law? Erie treats burden of proof as substantive, so Mass. State law

applies b/c the federal court sits in Mass.o Second, Choice of Law

Mass. Choice of Law rules indicate burden of proof is procedural, and governed by the law of the forum (Mass.). So a federal court sitting in Mass. reached the same result.

Forum ShoppingRundown

Expansion of forum shopping caused by interaction of:o 1) Erie – introduced horizontal forum shopping among federal courts.

Federal Courts act like the state courts in which they sit. o 2) Expansion of PJX – World-Wide, Asahi

Choice among state court is hugely expanded by expansion of PJX.

The more the plaintiff can choose, the more pronounced the difference among states becomes.

o 3) Indeterminacy of the Law of Conflicts – Klaxon Each state applies a different set of Conflict-of-Laws rules, each

w/ home state biases (old law of conflicts each state applied the same rules = no variability in what law applied)

Another Twist:o Even if state court lacks pjx over a person, Federal may still exercise

pjx over that person when sitting in diversity. o 1) Federal Interpleader Act

Griffin v. McCoach (1941) Rule: Klaxon might command that federal courts apply a

state’s law to litigants who could not be reached by that state’s courts.

o 2) Transfer: 1404 – transfer for convenience (proper proper)

Van Duesen v. Barrack – 1404 transfer carries with it the transferor forum’s choice of law rules.

Ferrens v. John Deer (1990) Even if P initiates the 1404 transfer, the choice of law

rules of the transferor forum applies.

Problems with Forum Shopping Forum Shopping undermines appearance of rule-of-law

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o Liability turns on tactics – lots of options for which set of rules are most beneficial.

SCOTUS has not acted b/co a) Status Quo

Klaxon: horizontal forum shopping “is attributable to our federal system”

o b) No good answer Choice of Law questions are incredibly complex

o c) Lack of institutional capacity SCOTUS cannot hear thousands of cases to establish a coherent

and comprehensive set of rules for choice of law in Federal Courts

Note: Connection b/w Sampson and Ferrens

o In both cases, the forum state treated a rule as procedural for choice-of-law, although that rule is substantive under Erie.

Sampson – Burden of Proof was procedural in Mass. choice of law, but substantive under Erie.

Ferrens – SoL was procedural in Miss. Choice of law, but substantive under Erie.

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Federal Procedure in State CourtBackground Rule:

Gulf Offshore Co. v. Mobil Oil Corp. (1981)o State courts have concurrent jurisdiction over federal

questions But Congress may confine jx to federal courts 3 ways:

1. Explicitly statutory directive;2. Unmistakable implication from legislative history; or 3. Clear incompatibility b/w state-court jx and federal interests

General Rule: When litigating in state court, State Procedure applies.

Exceptions (Federal Procedure applies in state court when): A) Unconstitutionality of state procedure

o Jackson v. Denno (1964) Required a separate hearing to determine voluntariness of D’s

confession under 5th Amend. – Applies in state court. o Chapman v. California (1967)

If a state appellate court in a criminal case finds a Constitutional error (here, 5th Amend), the state court must reverse unless the error was “harmless beyond a reasonable doubt” (federal standard).

B) Burden on Federal Rightso Crazy situation: Federal interest can outweigh the interest of

upholding state procedureo FELA cases

Dice v. Akron, Canton & Youngstown RR Co. (1952) Crux:

o Pro-plaintiff policies of FELA may require federal procedures be applied in state courts, where state procedures benefit defendants.

Background:o P was seriously injured when an engine jumped the

tracko P sued in state court under FELAo D defended: P signed a releaseo P argued: Fraud to sign the release (thought it was

only back-pay)o State law – judge decides validity of the releaseo Federal law – jury decides validity of the release

Issue:o Whether state or federal law governs the validity

of the release? (Federal procedure applies in state court)

SCOTUS

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o Right to jury-trial is “too substantial a part of the rights accorded by [FELA] to permit it to be classified as a mere 'local rule of procedure’”

o Federal Interests: FELA Pro-Plaintiff policies

SCOTUS was protecting FELA’s pro-plaintiff policies by requiring state court jury to decide the validity of the release.

Federal divide b/w Law and Equity – maybe playing a role here

o § 1983 SoL Felder v. Casey (1988)

Backgroundo P filed a § 1983 action in state court but failed to

comply w/ a state 120 day notice-of-claim requirement for § 1983 suits, which operated much like a SoL and barred P’s claim.

o Under federal law, SoL for § 1983 suits is tied to state personal injury SoL (usually three years)

SCOTUSo P wins - State 120 day notice-of-claim requirement

does not apply. § 1983 SoL is a substantive federal right

that cannot be overridden by state law. o Federal law takes state courts as it finds them only

insofar as those courts employ rules that do not “impose unnecessary burdens upon rights of recovery authorized by federal laws.”

Profo If you analyze this as a SoL case, this is very

simple State tried to override Congress’s provision

for SoL (3 years) and Supremacy Clause says they lose.

o But SCOTUS took a reverse “outcome determinative” test for some crazy, unknown reason, reviving Guarantee Trust.

Johnson v. Fankell (1997) Example of Federal Procedure did NOT displacing state procedure in

state court, despite substantive federal interest at stake. Background

o P sues his employer, the state of Idaho (D), in state court o D lost QI 12(b)(6) motion at trial o Idaho rule: QI loss is not appealable until final judgmento Federal Rule: QI loss is appealable on interlocutory appeal (under §

1291, as construed in the Cohen Doctrine, aka Collateral Order Doctrine)

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Federal interest: Gov’t officials avoid (a) Trial Costs, and (b) Liability.

Issueo Whether Ds in a § 1983 action, in state court, have a federal right to

an interlocutory appeal from a denial of qualified immunity? SCOTUS

o No federal substantive right to interlocutory appeal of denial of QI in state court – D loses.

o Cohen Doctrine is not a sufficiently substantive federal interest to displace state procedure.

Prof:o This is simple: Interlocutory appeal is a procedural issue, and

governed by state law. o Surprising thing here: Stevens wrote a long opinion to tell us that

state courts follow state procedures. Reason for this: Cohen Doctrine sits where substantive issues

bleeds into procedure Federal substantive policy of preventing trial costs for

gov’t officials v. procedural move of appealing denial of QI motion.

Rundown: Almost always true that state courts follow state procedure. But when

litigating a federal claim, a strong federal interest may require application of federal procedures in state courts.

o Hannah v. Plumer (a rule is procedural if it’s in FRCP) doesn’t always work in reverse.

Unconstitutional state procedureso Chapman (harmless error standard on appellate review of criminal

cases)o Jackson (separate hearing for voluntariness of confession)

Burden on Federal Interesto Dice

pro-plaintiff FELA policy requires jury, not judge, to decide validity of a release

o Felder states cannot substitute their own SoL for § 1983 claims –

Congress says 3 years State Procedure applies, despite burden on federal interest:

o Johnson v. Fankell Collateral Order Doctrine, appealability of denial of QI motion

to dismiss, blurs line of substantive (federal policy protecting gov’t officials from undergoing trial cost) and procedure (interlocutory appeal rules)

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Does not apply in state court, b/c federal substantive policy is not sufficiently strong to displace state procedure.

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Testa & Valid ExcuseTesta v. Katt (1947)State courts have an obligation to hear Federal Claims, unless Valid Excuse –

There is very little reasoning in Testa behind this proclamation. Gulf Offshore est. concurrent jx (power of state courts to hear federal

claims), but Testa pushed that further by requiring state courts to hear federal claims.

Howlett v. Rose (1990) Crux

o No Valid Excuse here. o State defense cannot apply to a federal claim — that violates

the Supremacy Clauseo State court cannot dismiss a claim w/ prejudice and call it

“jurisdictional” dismissal. Background:

o P, a former high school student, sued school board under § 1983o Under federal law, school boards are proper defendants in § 1983

suits FL-SC

o FL’s statutory waiver of sovereign immunity only extends to state claims (applied a state defense to a federal claim)

o Dismissed the suit w/ prejudice for "lack of jurisdiction” — me: doesn’t quite jive.

SCOTUSo Federal claims are ordinarily enforceable in state courto “Valid Excuse” for declining to hear federal claims cannot violate or

be inconsistent w/ federal lawo State court ordinarily can refused jurisdiction under a “neutral state

procedural rule"o Here

FL’s position is not a neutral state rule or valid excuse FL courts must hear § 1983 suits and follow federal law on

waiver of sovereign immunity. Prof

o Everyone agrees: State court cannot dismiss a claim w/ prejudice and call it

“jurisdictional” dismissal. o This case does not address Testa – that state courts have an obligation

to hear federal claims. Testa does not come from the Supremacy Clause.

“Valid Excuse” – Exceptions to Testa Valid Excuse Doctrine:

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o State Court can decline jx over a federal claim when the reasoning for refusal is:

1) Non-Discriminatory Rule treats state claims and federal claims the exact

same. 2) Neutral

Rule is not hostile toward federal policy – refusal is not motivated by a policy clash b/w state and federal law

Douglas v. New York, H.H. & H.R. Co. (1929) Crux: Example of a Valid Excuse to refuse jx over a federal claim. Background

o NY court refused to hear P(CT) v. D(CT) - suit over injuries that occurred in CT

o NY law: state court has discretion to abstain from hearing suits brought by non-resident Ps against Foreign corporations

SCOTUS:o Yes valid excuse o NY state courts exercised a valid excuse. Refusal of jx here was both:

Non-Discriminatory: No matter the claim P brought (state or federal), NY-SC

would have abstained Neutral

Refusal of jx over the FELA claim was not motivated by hostility toward federal policies.

Note: All Valid Excuse cases before Haywood involved rules that were Both—or Neither—(a) Non-Discriminatory and (b) Neutral. The rule at issue in Haywood is only Non-Discriminatory.

Haywood v. Drown (2009) Crux

o Maj.: State Refusal to hear federal claim must be both Non-Discriminatory and Neutral.

o Thomas Dissent: States can refuse to hear federal claims, even if refusal is both discriminatory and hostile to federal policy.

Original meaning of Supremacy Clause: Founders did not intend to force state courts to hear federal claims

o Prof Federal Common Law, not command of Supremacy Clause, is a

more accurate description of the authority supporting Testa and the Valid Excuse doctrine.

Backgroundo P (prisoner) filed § 1983 in state courto NY § 24 Rule – banned prisoners from suing state prison guards

NY § 24 was motivated by the belief that prisoner suits (mostly § 1983 claims) are by and large frivolous

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Instead, prisoners can sue the state in a different court for torts, but do not have access to 1983 rights such as attorney’s fees, punitive damages, etc.

o Note: § 24 = Yes, Non-Discriminatory b/c it bars state prisoners suits

against guards under both state and federal law § 24 = Not Neutral b/c it is hostile toward policies of § 1983

(attorney’s fees, etc.) SCOTUS (Stevens)

o § 24 violates Supremacy Clause – b/c it’s Not Neutral. Supremacy Clause: Ensures neutral treatment of all statutes

(other states’ and federal statutes, specific federal statutes, etc.)

o Valid Excuse must be both (a) Non-Discriminatory and (b) Neutral. Thomas - Dissent

o § 24 is valid – state legislatures are free to discriminate against and be hostile to federal laws.

o Original Meaning of Supremacy Clause: Founders did not intend to force state courts to hear federal

claims In fact, the founders rejected proposals to require state

courts to hear federal claims — Rejected Proposal Canon indicates No requirement for state courts to hear federal claims.

Only purpose of Supremacy Clause Invalidate state laws that are substantively inconsistent

w/ federal law “If the state court does not reach the merits of the

dispute for lack of statutory jurisdiction, the preeminence of federal law remains undiminished.”

o Thomas maneuvers his way through the Precedent that est. the Valid Excuse doctrine by distinguishing:

(a) State Statutes can be discriminatory and hostile against federal claims

(b) State judges cannot be discriminatory or hostile against federal claims

This strange distinction allows Thomas to to support Testa, where RH-SC unilaterally refused to hear a federal claim, and Douglas, where state statute stripped state courts from hearing federal claim.

o Jurisdictional point: So long as the State Refusal to hear the case is truly

“jurisdictional” (defined as dismissed w/o prejudice) – then claimant can still sue in federal court and is not harmed by state refusal to hear the claim.

Profo Thomas’ Originalism analysis is compelling.

Contrary to Maj. in Haywood, the Supremacy Clause does not require Testa (that state courts must hear federal claims) and

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Valid Excuse doctrine – those have been developed by Federal Common Law

Dormant Commerce Clause comparison: States cannot be hostile against other

state’s laws. Valid Excuse: States cannot be hostile or

discriminate against federal law. o SCOTUS couches both doctrines in terms of

“constitutional,” but really both are products of Federal Common Law.

o Better rationale for Valid Excuse doctrine requiring both (a) Non-Discriminatory and (b) Neutral state refusal to hear federal claim:

Federal Common Law Functionally, Congress can allow any state to be hostile

or discriminatory against federal law (and SCOTUS would allow it).

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SCOTUS Review of State Court Decisions Underlying theme here: No trickery in state court to defeat a federal

right – Brand Typically:

o SCOTUS reviews only the federal claims from a state’s highest court, and yields to the state courts on issues of pure state law (Murdock).

Trickery:o If state court burdens a federal right, but presents the decision in

state law terms (in attempt to avoid SCOTUS review), SCOTUS will then review the state claim in light of state precedent.

Cases

Martin v. Hunter's Lessee (1816) Rule

o SCOTUS has statutory and constitutional authority to review state court decisions that decide federal claims

o Property issue (state) tied up w/ Treaty interpretation (federal) – creates a Brand situation. From there we know: No trickery in state court to defeat a federal right.

Murdock v. City of Memphis (1875) Rule

o SCOTUS review of state decision is available only to a state’s highest court ruling on a federal issue.

Note: this is a statutory holding under § 25 of the Judiciary Act of 1867.

Profo Murdock and Erie are first cousins – by yielding to state law

determinations on appeal (Murdock) and applying state law in diversity trials (Erie). Combined, state law is treated the same in federal appellate review as it is in diversity.

Murdock: Cases w/ mix of federal and state issues, SCOTUS only review Federal issue

Erie: When a federal trial court hears a state claim — it follows the high court’s decisions

o Reason for 63-year space in time b/w the cases: Erie was foreclosed by a practical hurdle that state court opinions were rarely published.

Indiana ex rel. Anderson v. Brand (1938) Background

o State fires Teacher, Teacher argues that state statute violates federal Contract Clause.

o State law gives tenure after 5 years, Brand teaches for five years, but then state eliminates tenure.

o 2 issues:

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i) Did P have a contract? (state); ii) Was Contract Clause violated (federal)?

o State Court: No contract – no need to reach federal issue State decision purportedly resolved only state law issues.

o P appeals, claims State court manipulated state law in order to subvert P’s

federal right. Problem:

o Cannot determine whether the Contract Clause (Art. I § 10) was violated without first examining state law to find if a valid contract existed.

SCOTUSo When state law issue is antecedent to federal law issue,

Supreme Court can review the state law for “manipulation” of federal rights.

o First Deep dive into state law on contracts. SCOTUS determines IN-SC here manipulated state precedent

to make D lose.o Second

IN statute violates the Contract Clause. o Stands for

State Law cannot be manipulated to evade or defeat a federal law

o Note Same approach in Bush v. Gore, though there, there wasn't

much history to look at in Fla. to find inconsistency. Procedural Due Process architecture:

Federal Constitutional Right (due process) is present only when a State right exists (property right in gov’t job)

SCOTUS will review if P had the Property Right to determine if the State Court manipulated state law in order to defeat P’s federal right to procedural due process

Bush v. Gore (2000) Background

o FL Recount Procedure at issueo Federal constitutional delegation of authority (Art. II § 1) to the state

legislature to determine how their electors are apportioned State Recount Statute gave lots of power to FL Attorney

General, who ordered no recount o FL-SC: Ordered a recount

Highly non-technical opinion, construction of the state statute. Issue

o Whether FL-SC manipulated state law to undermine a federal right? SCOTUS

o Yes SCOTUS review, FL-SC manipulated state law w/ intent of making Al Gore win.

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o Under Brand, SCOTUS reviews state court decisions that purport to rest on state law but subvert a federal right (Art. II § 1)

Profo SCOTUS review here is untethered. There was no state precedent

on which to gauge whether FL-SC manipulated state law. Unlike Brand, where SCOTUS could easily ascertain state

contract precedent.o To override FL-SC, Maj. had to believe that FL-SC construed the state

law w/ intent to make sure Al Gore won the election.

Remote Federal PremiseStandard Oil Co. of CA v. Johnson (1942)

Backgroundo CA Law - imposed a gas tax

§ 10 exception - Gas Tax does not apply to fuel sold to US gov’t, or any department thereof for official use

o P sold gas to the US Army Post Exchanges (PX) in CAo CA forced P to pay the taxo P sued in CA state court, argues on 2 grounds:

State - § 10 exception applies, Federal - Alternatively, If § 10 does not apply, then the gas tax

violates the federal Constitution (states can’t tax the federal gov’t)

Proc Historyo Trial court and CA SC held for CA - P lost on both grounds

CA-SC: PX is not a “federal department” Issue: Whether SCOTUS can review the CA-SC decision that PX ≠ US Dep’t SCOTUS

o Remote Federal Premise Yes SCOTUS review over a State Court decision of a federal

question embedded in state law. Remand back to State Court to re-decide the state

question in light of the clarification. o Here

Federal question: PX = US Dep’t CA-SC got that wrong, so remand for reevaluation.

o Prof Remote Federal Premise (remand) is called “Cooperative

federalism”

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Adequate and Independent State GroundYes AISG = No SCOTUS Review

AISG: Supreme Court jurisdiction (power to hear the case) is limited if there is an AISG

Typical situations: o Federal claim is barred by adequate and independent state procedure

(e.g. failure to prosecute)= No SCOTUS review b/c State ground is A&I (routine bar to SCOTUS review)

o State Court decides federal issue on federal grounds= Yes SCOTUS review (NOTE: this is standard practice, AISG doctrine is not implicated)

AISG debate occurs wheno Federal Claimant lost below on manipulated state procedure, oro Federal Claimant won below on substantive grounds, D appeals,

argues federal claim was wrongly decided.

2 Types of AISGs:Procedural State Ground Substantive State Ground Exactly analogous to Brand (no

trickery in state courts) Federal Claimant Lost below b/c of

validly applied state procedure, P cannot appeal = Yes ASIG, No SCOTUS review

If state court manipulates otherwise valid procedures to defeat federal claims = No AISG, Yes SCOTUS review

Examples:o NAACP v. Patterson (AL state

court rejected federal claimants on novel procedural requirement) State Procedure is not invalid,

but it was manipulated and applied in a novel way

o Staub v. City of Baxley (1958) – Arcane state procedure precluded review of federal claim in state court.

o Prof: Federal Common Law = If state procedures are manipulated to defeat a federal right, the state ground is inadequate, and SCOTUS will review and remand after vindicating federal rights.

Exactly analogous to Standard Oil (Remote Federal premise) – Supremacy Clause issues.

Federal Claimant Won below on valid and pure state substantive grounds, D cannot appeal = Yes AISG, No SCOTUS Review

If state court construes federal protections as equal to the higher level of state protections = No AISG, Yes SCOTUS Review.

Example:o Michigan v. Long (parallelism in

state and federal constitutional rights)

Concern:o Advisory Opinion – SCOTUS

declares federal rights and remands, State court still reach the same outcome on clearly adequate and independent state grounds.

Not – P necessarily won below on the Fed. Claim. If P lost, there would direct appeal to SCOTUS, no implication of AISG.

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Adequacy The state ground is sufficient to determine the outcome, no matter how the

federal issue is decided. Adequacy is very similar to Brand (no trickery in state courts to defeat a

federal right) 2 Types of Inadequate state grounds:

o 1) Unconstitutional (Chapman) o 2) Manipulated to defeat a federal right (NAACP v. Patterson)

Independent Yes Independent if State decision no way relies on federal law Not Independent if State decision in any way intertwined with federal law

(see Standard Oil – Remote Federal Premise; Michigan v. Long)

Procedural AISG // Inadequate State GroundNAACP v. Alabama ex rel Patterson (1957)

Alabama Court denied P’s appeal b/c he requested “cert” not “mandamus” – completely arbitrary application of arcane rule that had never been applied this way

“Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance on prior decisions, seek vindication in state courts of the federal constitutional rights.”

NAACP v. Alabama ex rel. Flowers (1964): Alabama Sup. Ct.: P’s brief didn’t conform with rules of the court; SCOTUS

reaffirms NAACP 1: rules that show “pointless severity” won’t be AISGs.

o Compare: Brand No Trickery in State Court to defeat a federal claim (SCOTUS examines state law looking for consistently applied rules)

Substantive AISG // Non-Independent State GroundMichigan v. Long (1983)

Backgroundo Criminal D challenges search and seizure under (a) 4th Amend and (b)

MI State Constitution MI-State Court:

o Mixed decision – unclear whether it relied solely on state law, or also on federal constitution.

o Criminal D won o State appeals to SCOTUS, D argues: No SCOTUS review b/c decision

was based only on MI Constitution. SCOTUS:

o Presume that State Court relied on federal constitution, unless state opinion clearly indicates otherwise.

o Here, MI-SC got the 4th Amend. issue wrong. Remand for further proceedings.

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Profo Compare: Standard Oil In a “mixed” case involving both state and

federal law, SCOTUS will review only the federal issue and kick the rest back to the state court.

History Administration of Mixed state opinions in Substantive AISG:

o SCOTUS has done a lot of different things over the years: 1) Ask MI-SC directly

SCOTUS sends back to state court to ask for clarification 2) Attempted to infer what MI-SC meant 3) Presume that adequate state grounds are independent unless

it clearly appears otherwiseo New Rule in Michigan v. Long

Presume that adequate state grounds are not independent, unless it clearly appears otherwise.

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Federal Common Law Rule of Decision Traditional, Formalistic Rule (that has been revived recently):

o If the United States is a party, federal law applies. o If the United States is not a party, state law governs.

Clearfield Trust v. United States (1943) Cited for:

o “Even in the absence of statutes, federal law governs the rights and liabilities of the United States, in cases where the United States is a party”

Holding 1 (the Erie question)o Does state law apply of its own force? (If US is a party – federal law

applies) Holding 2

o If federal law applies, should the court (a) adopt the state law standard, or (b) create a Federal Rule of Decision?

Presumption in favor of (a) – adoption of the state law. But (b), the Court will create a federal common law rule if:

i) Uniformity is important, or the ii) State law is “aberrant” (weird), or hostile to federal

law

US v. Little Lake Misere Land Co. Inc (1973) Rule: If US is a party, and state law is hostile to federal interest, federal

common law applies. Background

o Dispute b/w US and a Developer over ownership of land in Louisiana and the application of the Migratory Bird Act (MBA)

Court (Burger) o 1) State law does not apply of its own force (Erie doesn’t apply) – b/c

US is a party. o 2) Federal Rule of Decision does not adopt state law – b/c the LA law

here is hostile to Federal law. Two reasons not to adopt state law:

State law is hostile to federal law (applies here) State law is “aberrant” (weird) (does not apply here)

Concurrenceso Both turn Clearfield Trust into one step:

State law governs unless and until a federal statute or precedent speaks to the issue.

o Stewart: LA statute here violates Contracts Clause, so Federal Law governs.

o Rehnquist: “Implicit in the holdings of a number of our cases dealing with

state taxation and regulatory measures, applied to federal government, is that such measures must be

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nondiscriminatory.” (could have cited Brand; NAACP v. Patterson)

Generally: State law applies of its own force, unless it’s hostile toward federal law

Here, LA statute here is hostile to MBA, so Federal Law governs

Federal Common Law: Congress can allow state courts to be hostile toward

federal law, but the default rule is hostility is not allowed (see Brand).

Noteo Federal rule of decision if

Burger: State law is either hostile or aberrant to federal law (more likely to displace state law w/ federal law)

Rehnquist: State law is hostile to federal law Crux

o Lake Misere expanded the rule in Clearfield Trust to any suit involving the U.S. (before, many assumed Clearfield Trust only applied to transactional disputes over money).

o Prof’s rules 1) If US is a party, state law never applies of its own force 2) If State law is hostile toward federal interest, federal

rule will govern, regardless of need for uniformity –

Suits b/w Private Parties (implicating a federal interest) No Federal Rule of Decision cases:

B of A v. Parnell (1956) Background

o B of A sues in diversity for conversion of 73 gov’t issued bearer bonds — held by 4 defendants (one of them Parnell)

o the bonds were stolen, but not by Do B of A sues D b/c D was acting for people who received the bonds for

value CoA

o Under Clearfield Trust, federal rule of decision governs disputes over bearer bonds. D wins.

SCOTUSo Clearfield Trust is inapplicable b/c this dispute is b/w private

parties. o State Law applies, and P wins. o Uniformity of Law governing bearer bonds is far too remote of a

federal interest to justify creation of a federal rule of decision. Dissent

o If only private parties dispute over federal bonds — state law applieso If US gov’t is a party to the dispute over federal bonds — federal law

applies

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o This means Same dispute, different outcomes, depending on the parties the

lawsuit

Miree v. DeKalb County (1977) Background

o P’s decedent died in plane crash P sues County under Georgia Law, as 3rd party beneficiaries to

a federal contracto Federal Contract

County promised FAA to keep the airport safeo County argues

federal law precludes 3rd party suits on FAA contracts o P responds -- State law applies

SCOTUSo No federal rule of decision, state law applies - P wins

“since only the rights of private parties are at issue here, we find the Clearfield Trust rationale inapplicable.”

Profo Scalia distinguishes DeKalb County from Boyle b/c in DeKalb County,

the Plaintiff’s and US’s interests were aligned (both wanted County to keep the airport safe).

Post-Boyle Cases (No Federal Rule of Decision):O’Melveny & Myers v. FDIC (1994)

Background o FDIC overtook a bank, and in those shoes, the FDIC sued a law firm

that had represented the bank in real estate transactions for malpractice

o Law firm argued FDIC is barred from bringing suit b/c the knowledge of the

bank’s officers should be imputed to the corporation and the FDIC as receiver

Issueo Whether the standard for “imputed knowledge” should be determined

by state law or a Federal Rule of Decision? if state law, Law firm wins FDIC argued in favor of creating a federal common law rule so

they could win 9th Cir: Created a Federal Rule of Decision favoring FDIC Court

o State law applies, no federal rule of decision; Law Firm wins o FDIC is not really a party here, but is acting in the shoes of the bank

that it overtook (received) o no sufficient federal interest at stake to create a Federal Rule of

Decision

Empire Healthcare v. McVeigh (2006)

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Backgroundo Healthcare for gov’t employees is provided through OPM (agency) and

private carriers Private carriers merely administer the programs - OPM does

everything elseo Contract b/w OPM and private carries provides full subrogation rights

in the name of the private carriero Here

Private carrier (P) sues D’s estate for healthcare costs $150k - D’s estate had won $3 million in tort case

Award from the suit would go directly into the US treasury account

o P sues in federal court, alleging 1331 federal question jurisdiction District and CoA

o No 1331 jx — the subrogation suit arises under state law and no diversity

SCOTUSo affirmed - no 1331 jxo Court will not extend Boyle (note: Brennan’s dissent there was wrong)o For federal rule of decision to be made, federal interest and

hostile state law are required. State law governing subrogation is not hostile toward an

identifiable federal policy Dissent

o Private D’s only role here is to administer the program, everything else about the program is federal

o Federal common law should govern — and displace state law P’s claim is based on interpretation of a federal contract

Prof: O’Melveny and Empire Healthcare are two cases where a Federal Rule of

Decision would make a lot of sense. Strong federal interests are at play. But SCOTUS applies the traditional rule formalistically:

o If U.S. is not a party to the suit, state law applies.

Military Contractor Exception (Yes Fed. Rule of Decision)Boyle v. United Tech (1988)

Backgroundo Personal Injury P v. Military Contractor (Not U.S.) o Boyle was a marine, flying a helicopter

Crashed off the coast of VA beach Survived the impact, but Boyle drowned b/c the escape hatch

was outward openingo Boyle’s father (P) sued the manufacture (D) in federal court

Bringing design defect action for escape hatch SCOTUS

o State law is pre-empted by Federal Common Law. See Clearfield Trust.

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o “the imposition of liability on gov’t contractors will directly affect the terms of government contracts … either

the contractor will decline to manufacture the design specified by the gov’t, or

it will raise its price. Either way affects federal interests

o Prof This is a micro-economic argument

Virtue of these arguments — it’s correct. Weakness — the level of harm (increase in cost) is

impossible to determine o Easy for lawyers to talk about the direction of an

economic impact, but impossible for a lawyer to measure that impact

If this micro-economic argument were truly the motivation behind Boyle, then DeKalb County (P as a 3rd Party beneficiary of an FAA contract) would have come out differently.

In DeKalb, imposition of liability on the County will increase costs of FAA contracts w/ counties.

o Real Motivation here: Military Exception – Federal Common Law governs defense

contractors in products liabilities suits. This is not a general exception to Clearfield Trust or Parnell,

but rather a military exception.

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Private Rights of Action

PRAs To Enforce Feral Statutes Prof believes Implied PRAs do not actually show Congressional intent,

rather, Implied PRAs are a product of federal common law.

History of Implied PRAs JI Case v. Borak (1964) – Easy case, bad law (false proxy statement, lack of

capacity at SEC) Cort v. Ash (1975) – No PRA for criminal statute; 4 factors; Absence of

Congressional Intent point Cannon v. Univ. of Chicago (1979) – Powell Dissent: Implied PRAs are

unconstitutional

JI Case v. Borak (1964) Background

o § 14 of SEC Act Prohibited proxy solicitations containing “false statements” No express PRA (SEC enforces this provision)

o Here, P was a shareholder of D, P sued D under § 14 for false proxy statement

Issue: Whether § 14 authorizes a PRA for damages to a corporate stockholder?

SCOTUSo Yes Implied PRAo Chief purpose of § 14 is to “protection of investors”o Test -- It’s the duty of the courts “to be alert to provide such remedies

as are necessary to make effective the congressional purpose.” Prof: “Easy cases make bad law”

o Easy case: SEC was overwhelmed and lacked capacity to investigate the

many, many proxy solicitation complaints. So it made sense to allow private parties to enforce § 14.

o Bad Law: Lower Courts read JI Case to say there is always a PRA for a

private individual to enforce a regulatory provision.

Differences b/w PRA (Judicial Enforcement) and Regulatory EnforcementAgency enforcement Judicial enforcement Centralized

◦ Centralized enforcement might be strategic — will pursue case x before case y

Specialist◦ Highly specialized, highly

informed, expert determinations

Pluralistic◦ No centralized plan for how to

incrementally reach an end-goal Generalist

◦ “Lawyer’s claim to fame is to wing it when we don’t know much”

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Negotiation◦ Strong bias toward negotiation

(settlements) — high incentive to negotiate through disputes

Politically engaged

Litigation◦ If there is a fee statute involved —

attracts people toward going to court

Politically insulated

Point: There is no generalizable reason to believe that an administrative scheme is improved by allowing for Private enforcement. In fact, in many situations a PRA will backfire and hurt the regulatory scheme.

Cort v. Ash (1975) Background

o 18 USC § 610 – Criminal statute prohibiting corporate donations to federal elections

o P, a shareholder, sues D under § 610 SCOTUS

o No Implied PRAo § 610 is a criminal statute o 4 factors indicating an implied PRA:

1) Statute creates a federal right in favor of the plaintiff Prof: this factor has the effect of banning PRAs in all

criminal statutes.o Criminal Statutes protect public, not private,

rights 2) Any Indication of legislative intent (explicit or implicit) to

create a private remedy Prof: (most interesting one) No burden here,

presumption in favor of an implied PRA: “Where the statute gives private rights to a class, P need not show congressional intent to create a PRA, but a congressional intent to deny would control.”

If Congress didn’t say anything – we’ll make our own decision.

o NOTE: See Powell dissent in Cannon 3) Consistent w/ underlying purpose of the

legislative/administrative scheme to imply such a remedy for P Prof: See chart above.

4) Is the cause of action one traditionally relegated to state law?

Profo Here, SCOTUS was attempting to discourage lower courts from

creating implied PRAs by saying “really mull this over before you do it.” Lower courts did not respond as hoped, did not restrain creation of implied PRAs.

Cannon v. University of Chicago (1979) Background

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o P alleged that she had been denied admission to med school in violation of § 901 of Title IX

o Prior Precedent: SCOTUS had found a PRA in Title VI (race discrimination) When Congress wrote Title IX (at issue here), the drafters

intentionally tracked the Title VI language creating a PRA. SCOTUS

o Yes PRA under the 4 Cort v. Ash factors Powell Dissent – the important part here

o SCOTUS cannot create PRA — antithetical to SoP regime Cort allows judicial branch to legislate 4 factors in Cort is an open invitation to federal courts to

legislate o Large-scale innovations (like implied PRAs) constitute

Legislation, not statutory interpretation. o Under Cort – we cannot have a neutral approach. There must be a

burden of proving Congressional intent to provide an implied PRA.

NOTE Powell in Cannon caused a real sea-change Rules:

o JI Case — Yes PRA (little generalizable reasoning) o Cort — Yes PRA when it’s a good ideao Powell Cannon dissent — No PRA, unless Congress clearly indicates

Post-Cannon Restrictions (Trend):Touche Ross v. Redington (1979 - one month after Cannon)

o “Ultimate task is limited solely to determining whether Congress intended to create the PRA asserted.”

o Texas Industries v. Radcliff (1981) No clear Congressional intent - no PRA (even in anti-trust

where courts create law all the time)o Thompson v. Thompson (1988)

LA and CA courts had issued conflicting custody orders One parent wanted to go to federal court and get an

injunction against LA court order under Parent Kidnapping and Prevention Act (PKPA) -no PRA

SCOTUS: no PRA Maybe a PRA would make the PKPA statute work better But, Congress didn’t say so, and we’re not going to

speculate

Post-Cannon PRAs (Historical Exceptions)Merrill Lynch v. Curran (1982)

o Yes implied PRA for Title VII – written to track Tit IX language and adopt the Cannon PRA

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o Curran’s rationale is exactly the same as Cannono In 1974, when the statute at issue was passed, Congress would have

believed that every rights-creating statute could be privately enforcedMusick (1993)

o Court was invited to overrule reign in 10b-5 PRA but expanded b/c too much reliance

o 10b-5 implied PRA allows for right of contribution from joint tortfeasors

Remedies to Enforce Implied PRAs Franklin v. Gwinnett County Public Schools (1992)

Backgroundo Dispute over the remedies available to a P under Title IX (implied PRA

from Cannon) SCOTUS (Liberals)

o “We presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise”

Dissent (Conservatives) o “When rights of action are judicially “implied” - categorical limitations

on there remedial scope may be judicially implied as well.”o Cannon gave injunctive relief, but Title IX PRA can get money

damages too. Prof

o The divide here is based in the rationale for implied PRAs Liberals believe the PRA is derived from Congressional Intent

Remedies are limited to what Congress says Conservatives believe the PRA is federal common law

Judicially malleable remedies Gebser v. Lago Vista Independent School District (1998)

Backgroundo Damages action under Title IX against a school district for a teacher’s

sexual molestation Major dispute: Whether School not having notice precludes

respondeat superior liability This is a remedies question—tied to the PRA.

SCOTUS (Conservatives win)o No damages via respondeat superior if School was not on notice o Title IX PRA is “judicially implied”

Therefore, “we have a measure of latitude to shape a sensible remedial scheme that best comports w/ the statute”

Dissent (Liberals) o Yes, P can sue D even thought D was not on notice of the molestation o Cannon and Gwinnett - no judicial restraints on the remedies available

under a Title IX PRA \ “Congress intends to authorize ‘all appropriate remedies’

unless it expressly indicates otherwise” - quoting Gwinnett Prof

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Dissent’s position is insane – The Court created the PRA, and should therefore be able to shape the remedies.

Decline of Implied PRAs = Sop + Federalism Stoneridge Investment Partners v. Scientific-Atlanta, Inc (2008) Background

◦ Ps (investors) alleged losses after purchasing common stock P alleged Charter (corporation) filed a false financial statement to its

auditor and that Ds played a central role in the fraud

P sues Ds for “Fraud on the Market” o §10(b) - can’t break the SEC rules - against the lawo SEC 10b-5 - can’t make false statements - against the lawo Court precedent

Implied PRA exists in § 10(b) Applies to securities markets, the realm of financing business

o Central Bank (1994) No PRA for aiding and abetting in § 10(b)

o Then, Popular request for Congress to add such a PRA Congress did not,

but gave SEC ability to enforce aiding and abetting under § 10(b) SCOTUS

o No PRA for aiding and abetting, no causation o § 10(b) PRA does not reach customer/supplier companies b/c the investors

did not rely on the alleged false statements. Judicial expansion of PRAs is a bad idea - Congress needs to do that.

And Congress explicitly chose not to – after Central Bank, Congress gave SEC enforcement authority but did not give a PRA.

Combination of: SoP – Congress is the only branch who can create a PRA here Federalism – Expansion of federal Securities law displaces state law

Prof This is a lot like Erie in combining federalism and SoP

Stevens Dissento Different theory of causation, allows Ps to sue directly

No aiding and abetting PRA necessary.

PRAs to Enforce Constitutional Rights Bivens –

o Brennan: Suggests this remedy is not constitutionally mandated: (a) alternative remedies might suffice; and (b) special factors counseling hesitation

o Harlan: We should adopt this rule as exercise of Common Law, and create a Constitutional PRA only when it’s “necessary” (policy/legislative position)

Rationales for Limiting Bivens: 1) Beyond Judicial Authority

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Scalia (believes no PRAs for statutes or Constitution) Harlan (believes no PRAs for Constitution, yes statutes)

2) Inference from statutory alternatives Carlson v. Green -

2 situations where no Bivens PRA: (1) Special Factors; (2) Explicit Alternative Remedy

FTCA is not an adequate alternative. Special Factors:

Bush v. Lucas – Complex remedial scheme for Civil Service employment disputes

Schweiger – Remedial scheme for wrongfully denied SSD benefits (not a sufficient alternative, but Court did not want to disrupt the administrative scheme)

3) Military contexts Chappell – No Bivens PRA for servicemen claiming Racial

discrimination Stanley – No Bivens PRA even for secretly-tested LSD soldiers

4) Not a Good Idea Wilkie – retaliation claims suck

Bivens Mechanics:

o Federal Official (D): Is Personally liable Has Qualified Immunity as a defense

SCOTUS has not created a Bivens PRA in over 30 years,o Nonetheless, the doctrine is still alive and Scalia/Thomas have no succeeded

in categorically shutting the door to new Bivens claims.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) Background

Police brutality (by US Marshalls) – unlawful search and seizure; P sues Cops

o D argues P’s claims are limited to state tort law

4th Amend. lacks a PRA, so P must pursue a remedy under trespass or battery

4th Amend merely serves as a defense to the tort suit if Ds can show they exercised valid federal power - they would win if Ds violated the 4th Amend. - they would defend the state tort suit

as regular private citizens In essence

D wants the relationship b/w a citizen and federal agent (acting unconstitutionally) to be treated the same as 2 private parties

D wants SCOTUS to uphold the dismissal so that

P can file a suit in state court (and after that, D will remove to federal court)

SCOTUS (Brennan)

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o Yes P has a PRA to redress his 4th Amendment Claims, and seek $ Damages o Brennan

Bivens does for federal officers what § 1983 does for state officers (alignment)

Policy Reasons: 1) Cops can do a lot harm; 2) State law can be inadequate; 3) Uniform protection of federal rights

Prof: Doesn’t find any of these policy reasons particularly compelling. o Brennan suggests a 4th Amend. PRA is not constitutionally mandated:

There are some “factors counseling against” creation of a PRA for constitutional violations

“No legislative standard” providing an alternative remedy, or precluding a remedy

Concurrence (Harlan)o We should only create a PRA for con. violations when:

The remedy is “essential or indispensable for vindicating Constitutional rights” Prof: this is a Legislative Position (federal common law), not one of

Constitutional Law (directly taken from McCullough v. Maryland) Harlan: “Range of policy statements we can take into account are

at least as broad as those a legislature would consider.” – This is a Common Law decision. Bivens is not constitutionally

mandatory. Sub-constitutional law.

Dissent (Black) o § 1983 shows Congress knows how to give a PRA for constitutional

violations, And Congress has not done this for federal officers

o We don’t have the power to do this.

Rationale for limiting BivensAfter Wilkie: Court has adopted a thumb on the scale against damages actions arising from constitutional violations.

1) Beyond Judicial Authority Rehnquist, Thomas, and Scalia:

o No occasion for Court to create a Bivens remedyo But Court has never taken this position

2) Inference from statutory alternatives Bivens

o Justice Brennan: If there is an equally effective remedy, no need to create a constitutional PRA.

Carlson v. Green (1980) Background:

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o Federal Prisoner (P) sues guards sues for 8th Amend. cruel and unusual punishment

Issueo Federal Tort Claims Act (FTCA) – is this an “equally effective alternative

remedy” to a Constitutional PRA? (No) SCOTUS

o Yes Bivens PRA. o FTCA is not adequate alternative remedy for 8th Amend. Violations

State tort law has many “vagaries” o 2 situations where a constitutional PRA does NOT exist:

1) Special Factors D demonstrate “special factors counseling hesitation in the absence of

affirmative action by Congress” 2) Explicit Alternative Remedy from Congress

D show that Congress has provided an alternative remedy which it explicitly declared a substitute for recovery under the Constitution and viewed it as equally effective

Prof: This is an incredibly strict standard. Congress must provide a clear statement, indicating that FTCA is the exclusive remedy for constitutional violations similar to torts.

o Here 1) No Special Factors 2) FTCA is not an Alternative Remedy

No Bivens claims: Bush and Schwieger Bush v. Lucas (1983) Background

o P publicly criticized the Agency he worked in D fired P, P sues for damages on First Amend. grounds

o P argues, Traditional civil service remedies (reinstatement with back pay) Were inadequate b/c they did not allow punitive damages, attorney’s fees, jury trial or emotional damages

SCOTUSo No PRA – special factors counseling against Bivens PRAo Special Factors:

Congress has created an elaborate remedial system, constructed step-by-step to provide a remedy for the type of misconduct that P alleges

Schwieger v. Chilicky (1988) Background

o Social Security reform Many folks were wrongfully denied benefits for months Congress fixed it, but meanwhile people suffered

o Ps sued in a Bivens action for the injuries that resulted from months of no benefits

SCOTUSo No Bivens Action – same rationale as Bush v. Lucas:

Complex remedial scheme already in place (Special Factor) Prof

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o This is a more difficult case than Bush v. Lucas b/c here, the alternative remedy is nowhere near as good as a Bivens remedy (here, it’s prospective only. Ps will not get back-benefits)

3) Military Context Chappell v. Wallace (1983) Background

o 5 enlisted navy men serving on a ship at sea Alleged that they had been discriminated against on the basis of race

SCOTUSo No Bivens remedy here, b/c

“Special factors:” Unique disciplinary structure of the Military Establishment and Congress' activity in the field

— would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers

US v. Stanley (1987) Background

o Military secretly used soldiers as lab rats – LSD studieso Soldiers later sued.

SCOTUSo No Bivens PRAo Special Factor: Military

No Bivens claims for injuries that arose out of activity “incident to service”

4) Not a Good Idea

Wilkie v. Robbins (2007) Background

o BLM conducted a campaign of harassment against land owner (P) for many years

SCOTUSo No Bivens action o Prof: the rationale here is weak: “Gee these retaliation claims really are

trouble” Alternative remedy: a hodge-podge of administrative complaints (but

nothing to address a campaign of harassment)

Decline of Bivens PRAs After Wilkie – no longer a thumb on the scales in favor of allowing new Bivens

claims. Malesko (2001) No Bivens claim against private corporation running federal prison. P brou

ht Bivens against private company operating a federal prison. Ct. says can use

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state law negligence claim for that. This isn’t the purpose nor proper application of Bivens: Bivens is about actions against officers only, not companies.

Minneci v. Pollard (2012) Background

o Prisoner in privately-operated federal penitentiary sues prison guards under 8th Amend (Carlson)

o Legal background: Wilkie :: No Bivens claims when “it’s not a good idea” (unstructured

inquiry) Malesko :: No Bivens claims against Private Corporation Meyers :: No Bivens claims against federal agency (court assumed no QI

defense to agency officials) SCOTUS

o No Bivens claims against privately employed federal prison guards ((all but overruling the rationale in Carlson))

o State Tort law provides an adequate alternative remedy for Constitutional violations Prof:

This is exceptional, and turns Bivens and Monroe v. Pape on their head.

Scalia/Thomas Concurrence o Categorically no more Bivens claims

Bivens is “a relic of the heady days in which this court assumed common-law powers to create causes of action by constitutional implication.”

Dissent – Ginsburg:o If P were a prisoner in a state prison, he could sue under § 1983o If P were a prisoner in a public federal prison, he could sue under Carlson;

Bivenso Should not have radically different outcome simply b/c P is a prisoner in a

privately-run federal prison. We should not remit P to the “vagaries” of state law.

Profo Alternative Remedies = No Bivens claim:

Bush v. Lucas :: Civil Service termination remedial scheme (federal alternative remedy)

Schwieger :: SSD benefits remedial scheme (federal alternative remedy)

Minneci :: State tort law (STATE alternative remedy)

o Point: Minneci is the first time a Bivens claim has been denied in favor of a

state remedy. Old theory: Federal Remedy for a Federal Right.

Rundown Yes Bivens Claims for:

o 4th Amend. Violations Bivens

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o 8th Amend. Violations Carlson (2 factors); but see Minneci (private prison guard) and Malesko

No Bivens claims for:o Military Chappell (racial discrimination); Stanely (LSD) o Gov’t Harassment Wilkie (not a good idea, alternative remedy in agencies)o Alternative Remedy Bush (civil servant); Schwieger (SSD benefits);

Minneci (Stat Tort Law)

Westfall Act Allows for Bivens actions against Federal Employees. Congressional implicit

approval of Bivens. Scalia’s argument that Bivens is a violation of SoP is a lot murkier after Congress approves of Bivens claims.

Customary International LawElements of an Alien v. Alien lawsuit: (a) PJX, (b) SMJ (via ATS), (c) PRA (CIS? – controversy is here)Main Question: Whether violations of CIS can be heard in federal courts?

Characters: Alien Tort Statute (1789)

o US district courts have original JX over any civil action by an alien for a tort only, committed in violation of CIS. Note: Extremely unclear what the First Congress meant by this. No leg.

history. Open question: does ATS provide a PRA, or just JX? Art. VI – 3 types of law constitute “Supreme Law of the Land”

o Constitutiono Federal statuteso Treaties

Historical BackgroundPaquete Habana (1900)

o CIS is “part of our law” Filartiga v. Pena-Irala (2d Cir. 1980)

o Alien v. Alien o 2nd Cir.

ATS provides JX uncontroversial Federal Law adopts CIS for the rule of decision controversial (see Sosa)

CIS is generally enforceable in alien v. alien suits. Note:

No diversity JX here (Art. III does not allow for alien v. alien), which suggests so CIS must be incorporated under 1331

Developments: 1. Erie – after Erie, Common Law is seen as judge made (not discovered). So

we ask, under what authority can federal judges set aside state law w/ CIS?2. Expansion of CIS

a. Historically, CIS established rules for state-to-state relations

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b. Recently, Academics have propelled CIS human rights law, and state-to-citizen relations

i. Note: Euro-Centric Professors have (a) restricted persistent objector opt-out and (b) expanded CIS to human rights == New to Power-Game.

Effects: Expansion of CIS, and incorporation into federal law (Filartiga) requires

MASSIVE transfer of power from:o 1) States to federal government (federalism)o 2) Legislature to judicial branch (SoP)

Debate: Bradley and Goldsmith (winners)

o CIS is not federal law, and need not apply in federal courts (only in narrow circumstances)

Koho CIS must apply federal court (see Filartiga), so it must be federal common

law.

Sosa v. Alvarez-Machain (2004) Background

o Alien v. Alien (kidnapping from Mexico to the United States, as orchestrated by the DEA)

SCOTUSo No cause of action under CISo Alien Tort Statute = Jurisdictional only, does not provide a cause of

action (Unanimous) CIS does not provide a cause of action here (also Unanimous, and

overrules 2nd half of Filartiga)o Souter:

CIS provides PRAs for: (a) 1791 CIS violations:

1) Piracy 2) Ambassadors 3) Safe Conduct (enemy gets free pass over our land); AND

(b) Contemporary CIS violations that are as widely accepted as those 1791s were then (i.e., “comparable to the features of the 18th-century paradigms”)

Here, kidnapping doesn’t fit (a) or (b) – not widely accepted enough. Concurrence

o Scalia; Thomas, Robertso We should not leave the door open for any new CIS PRAs, only those

available in 1791. Prof

o Fight here: Scalia = No PRAs –versus– Souter = Almost never a PRA

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Kiobel v. Royal Dutch Petroleum Co. (2013) Background

o Alien v. Alien (for war crimes in Nigeria) (F cubed) Issue: Who are todays Pirates?

o Maj. – Harm must occur w/in the US border. o Breyer – Harm must affect US national interests (US cannot be safe harbor

to terrorists) SCOTUS

o Yes jx under ATS, but No CIS PRAo Presumption Against Extraterritoriality (PAE)

Clear Statement required for a statute to apply to conduct abroad o ATS does not defeat PAE

First Congress had 3 offenses in mind (1) Safe Conduct, (2) Ambassadors, and (3) Piracy Only Pirates involve private parties,

But Pirates are in a league of their own b/c they weren’t part of any foreign sovereign, thus no concern of courts disrupting international affairs.

o F-cubed — no ATS cause of action under CIS Unless that conduct “touch and confront the territory of the US w/

sufficient force to displace the presumption against extraterritorial application”

Concurrences o Breyer

“Who are today’s Pirates?” If the conduct sufficiently harms US national interests = Yes PRA

under CIS Other words:

Whoever is (a) committing war crimes, and (b) sufficient ties to US (PJX+) = Yes CIS PRA

o Kennedy Depending on the facts, I’ll change my mind.

Profo Lineup: 4.5 v. 4.5 (Kennedy wavering) o Neither side entirely forecloses possibility of a CIS PRA in the future o Roberts:

No CIS PRAs unless conduct “touch and confront the territory of the US w/ sufficient force to displace the presumption against extraterritorial application”

o Breyer: Whoever is (a) committing war crimes, and (b) sufficient ties to US

(PJX+) = Yes CIS PRA

Arguments for the Yes CIS Cause of Action 3 Arguments for bringing a [CIS suit against Private actors] for involvement in [a Civil War abroad]:

1. Modern Pirates a. Convince Kennedy that D corporation is a war criminal

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i. Prof – this is the weakest argument2. Treat Private actors as State actors

a. Familiar concept under § 1983 – can’t sue the nation (b/c of sovereign immunity)

b. Private Actor under “color of state law” i. Prof – this is Prof’s argument no one has used yet (stroke ego,

use on the exam)3. Aiding and Abetting Liability

a. Private Actor in concert w/ State officials committing atrocities i. Prof – Where all the litigation lies (including Kiobel)

Results of these arguments so far is a series of “No” from the Court:1. Daimler – no PJX over a foreign subsidiary of a domestic corporation 2. Sosa – no PRA under ATS (purely jurisdictional) 3. Kiobel – Presumption against extraterritorial application of ATS

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JusticiabilityRundown of Doctrines: Standing Mootness Ripeness Political Question Appeal by Prevailing Parties

Marbury – Judicial Review “It is emphatically the province and duty of the judicial department to say what the law is.”

o Critical Assumption: The Constitution is Law and not merely an organizing document.

o Modern reading of Marbury (not what Marshall said then) = o Policy focus of Court’s supreme role in vindicating constitutional wrongs. o JS b/c Court is a counterweight to infringement of rights of Minorities

Judicial Review (Marbury) Judicial Supremacy (New Marbury)Judicial Review is incidental to the Court’s obligation to decide cases.

o JR is a necessary implication of a written constitution.

o There’s room here for another branch to trump the Court’s decision on a constitutional matter.

No policy rationale here. Constitution obligates courts to decide the cases before it.

JR is essential because the Court’s interpretation of the constitution is Supreme.

o Court plays a political role is vindicating constitutional wrongs.

o No room for another branch to trump or disobey the Supreme Court.

Policy rationale: Judicial Review is a counterweight to infringement of Minorities rights

Implications of the debateSources controlling Constitutional Questions: Text, History, Structure (SoP),

Precedent control Constitutional Law Judicial review is backward-looking,

and conservative

Sources: Moral Philosophy; Contemporary

Community understandings and goals

Judicial Review is present-looking, and progressive

Prof: Judicial Supremacy is something we have overlaid on Marbury that is absent from Marshall’s opinion.

Marbury v. Madison (1803) Rules:

o Where there’s a harm, there’s a remedyo Judicial review is incidental to the Court’s obligation to hear cases under

Art. III.

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o Purely political acts ≠ Judicial Review Prof:

Many take this as an articulation of the Political Question doctrine. But it’s not. Marshall merely says, if the President is acting lawfully, we won’t tell him to stop.

If plaintiff’s rights are infringed, we can give him a remedy. No room here for PQ doctrine (dismissing cases for lack of statutory

guidance).

Judicial Supremacy Cooper v. Aaron (1958) Rule:

o Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, And that principle [is] a permanent and indispensable feature of our

constitutional system.

Justiciability and Marbury Justice Review theorists argue the act of the Court invalidating a statute as unconstitutional can only arise when there is a “Case or Controversy” before the court. If there’s no plaintiff (no standing) == No occasion for the Court to say what

the law means.

Standing1. Injury in fact 2. Causation 3. Redressability

Themes:o Elements

Injury in fact Ideological objection doesn’t count Injury must be somewhat personalized (not generally felt by all)

Mere fact of being a citizen does not provide standing against the Gov’t (Schlesigner v. Reservists Committee to Stop the War (1974))

Causation Injuries must be “Fairly Traceable” from the alleged unlawful conduct Future Injuries:

Threatened Injury must be “certainly impending to constitute injury in fact” – not merely speculative.

Redressability Usually present when Causation is present

o Structural Reform Litigation P sues government entity, often on the basis of a generalizable injury,

and the requested remedy requires Court to regulate administrative schemes (school busing, NSA surveillance)

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Future-Focused In no way compensatory; Creates “managerial-judges”

Ad-hoc in nature Remedy is not logically derived from the injury E.g. Allen :: Harm: school segregation; Remedy sought: denying (c)

(3) tax status o Separation of Powers

Allen v. Wright – Judiciary cannot create policy. Statutory Standing – more difficult b/c Congress tells the Courts to create

policy (Scalia v. Blackmun in Lujan) Standing Quirks: Aesthetic Standing – environmental harm (Laidlaw; Sierra Club v. Morton) Global Warming Standing – Mass. v. EPA

Allen v. Wright (1984) Background

o IRS policy barred racial segregation in private schools, but it wasn’t entirely effective.

o Ps, parents of black students, sue for more stringent IRS standards Ps seek denial of racially segregated private schools’ 501(c)(3) status

Note: This is not a typical legal remedy SCOTUS

o Yes indirect injury (“children’s diminished ability to get an education”) – everyone agrees

o No causation – splits the Court. Removing tax-exempt status of these private schools will not

necessarily cure segregation IRS policies already bar what Ps are complaining of Ps ask us to replace that policy with a “better” one – but that’s for

Congress and the Executive (SoP concerns) “Federal court is not the proper forum to press general complaints

about the way in which government goes about its business” Dissent (Stevens)

o Yes causation via Economic effect of stripping tax-exempt status from racist private schools Note: This is similar to Scalia’s argument in Boyle. The impact is clear,

but the magnitude of the impact is entirely unclear. Prof

o Ps here would have lost on the merits, had they satisfied standing: No Right

There is no constitutional right to racially diverse education Ps would have to show IRS intentionally created the school

segregation (high bar) No Remedy

Ps cannot ask court to replace IRS guidelines (which get Chevron deference) w/ P’s preferred guidelines.

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P’s requested remedy is Entirely Contrary to SoP == Executive controls IRS guidelines

o Why standing? To limit lower court’s ability to entertain Structural Reform

Litigation.

Statutory StandingMain Question:

Whether Congress can create “legal interest” for all, & thus alter the [constitutional] Standing analysis

Pro-Statutory Standing arguments: o 1) Old-School standing: wherever a “legal interest” has been

infringed, P has standingo 2) Cass Sunstein: Citizen-Suit provisions give individual citizens

Property Rights o 3) Separation of Powers: Congress told the court this is a valid PRA.

Citizen Suit Provisions E.g., Endangered Species Act authorizes “any person to commence a civil suit”

for violations of the Act. Standing as a Separation of Powers Doctrine Standing limits judicial power to “actual case or controversies” – Allen v.

Wright. In the Statutory Standing context, this argument Cuts both ways:

o 1) Courts serving as “continuous monitors” of the Executive is an impermissible transfer of power by Congress from the Executive to the Courts – Scalia

o 2) Congress directed the courts to act – so we must hear these suits. – Blackmun

Where we are:o 4 Conservatives: Standing cannot be affected by Congresso Liberals + Kennedy: Mass v. Epa; Laidlaw (aesthetic standing); Atkins

(information standing) – Congress can define “cases or controversy” under Art. III

Lujan v. Defenders of Wildlife (1992) Background

o Secretary of the Interior refused to apply the ESA to foreign landso Ps were researches of wildlife in Egypt

US funds were allocated to build the Aswan dam in Egypto Ps argue, ESA extends to foreign lands

SCOTUS (Scalia)o No Injury – no standingo Injury in fact

Concrete and particularized Imminent; not speculative.

o Here

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Ps do not have any concrete plans to return to Egypt; Ps’ plans to “Some Day” visit the Aswan Damn ≠ Injury in Fact.

o Citizen-suit provisions still require injury-in-fact--Constitutional requirement that Congress can’t skirt

Dissent – Blackmun o Congress says P’s cause of action is valid – we must follow those orders.

Profo Lujan doesn’t mean much:

Majority says: “Some Day” intentions don’t count” -- but that’s fairly meaningless on the facts. All Ps have to do is buy a plane ticket, and their injury is both concrete and imminent.

o Citizen-Suit dispute Nuanced argument: ESA gives every citizen a property right, and if that

right is infringed, and citizen can sue Court: Congress cannot end-run Standing doctrine by vesting all citizens

w/ a “property right”o Separation of Powers

Standing = Court invokes the Constitution to deny itself decision-making authority

Scalia: Citizen-Suit Provisions turns the Courts into Executive Agencies = Violates SoP

Congress cannot give every citizen an “individual right” by transferring power from the Executive to the judiciary – this would enable the courts to become “continuing monitors of the wisdom and soundness of executive action.”

Blackmun: Ignoring the Citizen-Suit Provision transfers power to the Executive, where Congress clearly delegated that authority to the Courts.

Yes Statutory Standing: Friends of the Earth v. Laidlaw (2000) – Aesthetic Injury Background

o Ps here cure the pleading defect of Lujano Ps sue under the Clean Water Act (citizen-suit provision), as homeowners a

lake. SCOTUS

o Yes aesthetic standing (see Sierra Club v. Morton)

FEC v. Akins (1998) – Informational Injury Background

o FEC gave a reporting exception to American Israel Public Affairs Committee (AIPAC)

o Ps wanted AIPAC’s records public, Ps sued FEC to enforce the statute under the FECA’s citizen-suit

provision SCOTUS

o Yes Standing – Informational injury Prof

o Ps are ideological opponents to AIPAC ≠ Standing

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o FECA changes the standing analysis here. Informational Injury is the result of Congress making access to FEC reports an individual right.

o Not a particularized injury: information either exists in the universe or it doesn’t == FECA changes the standing analysis that is supposedly “constitutional”

Massachusetts v. EPA (2007) Background

o Massachusetts sues EPA for not regulating Greenhouse gases Clean Air Act has a citizen-suit provision.

o Mass. claims injury by rising oceans levels SCOTUS (Stevens)

o Yes standing: “Congress has the power to define injuries and articulate chains of

causation that will give rise to a case or controversy where none existed before.”

o Unclear what role Mass. being a state had in Stevens’ holding. Scalia Dissent

o We’re being asked to litigate the future of the world. We use to decide concrete cases.

Profo “Rising ocean levels” as an injury – couldn’t be more generalized.o This triggers Schlesigner v. Reservists Committee to Stop the War (1974)

“The assumption that if Ps have no standing to sue, no one would have standing, is not a reason to find standing.”

General Notes on Standing: Prof can’t see any consistency among these cases. Unclear whether the

injury must be “particularized” (Lujan says no; Laidlaw and Atkins say yes). Reason for Conservatives on the court to deploy a restrictive standing

doctrine:o Limit lower courts from entertaining Structural Reform Litigation (on

SoP grounds).

Taxpayer standingFotheringham (1923) General Rule: No taxpayer standing. Ideological injury doesn’t count, taxpayer

doesn’t add anythingDoremus v. Board (1952) No Taxpayer Standing – Ps objected to School Teacher reading bible, Ps

argued taxpayer standing. Court: No Taxpayer standing – the $ would have gone to the school anyway.

Schlesigner v. Reservists Committee to Stop the War (1974)

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o “The assumption that if Ps do not have standing to sue, then no one would have standing, is not a reason to find standing.”

Flast v. Cohen (1968) Establishment Clause claims are an exception to the bar against taxpayer

standing. o 2 part test:

1) P challenges Spending under the Taxing and Spending Clause (Art. I, §8)

2) P challenges as specific violation of Establishment Clause Rationale: If there were no exception to taxpayer standing here, there would be

no Plaintiffs to challenge Establishment Clause violations. (Contrary to Schlesigner).

Scalia’s viewo 1) Taxing and spending clause requirement — sets Doremus asideo 2) Bill of Rights requirement — sets aside Fotheringham

Flast isn’t analytically sensible, designed to escape precedent.

Valley Forge Christian College v. Americans United (1980)o P challenged gov’t giving property to a church. o No standing – P does not challenge spending clause.

Scalia dissent: Flast is analytically bankrupt and arbitrary: giving property = spending

Bowen v. Kendrick (1988) o P challenged federal grants to religious groups combatting premarital sex. o Yes Flast standing.

Hein v. Freedom from Religion Foundation, Inc. (2007)o President Bush created faith-based programs (discretionary executive

spending o Ps object as violations of Establishment Clause

SCOTUS (Alito; Roberts, Kennedy) o No Standing - P fails on Flast 1

Here, the alleged violation is a purely executive spending (as opposed to Congressional appropriation under Art. I § 8)

o SoP – extending Flast to executive action would encroach on executive power

Concurrence

o Scalia: We should overrule Flast. No taxpayer standing. Ideological Injury is never sufficient to establish standing.

Dissento Souter; Stevens, Ginsburg, Breyer

Ideological injury doesn’t count — unless its an Establishment Clause claim, b/c there would be no Plaintiffs to enforce the Establishment Clause

otherwise

Arizona Christian School Tuition Org. v. Winn (2011)

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o Arizona gave tax credits to “school tuition organizations” Roundabout way of providing government financial support for people

who send their kids to private religious schools o Ps sue for Est. Clause violations, under Flast exception to taxpayer standing

rule SCOTUS (Kennedy)

o No Standing Flast only applies to direct expenditures Tax credits do not count as direct expenditures

Dissent (Kagan) o Tax credits can be used for unconstitutional purposes – Flast applies

Profo Kagan is right -- the distinction b/w expenditures and tax credits is insane. o Conservatives would have an easy time defeating Ps’ claims on the merits,

but for some strange reason they chose to deny standing instead.

Standing to Appeal Executive branch — duty to defend challenged statutes — acquiesces in a lower

court’s ruling that a statute is unconstitutional.o Both parties agree in the outcome of the lower court. Is there a “case

or controversy” for appeal? Problem: If AG refuses to defend a statute – effectively a post-enactment

executive veto of the statute. o Prof believes this is a real problem. Much worse than discretionary non-

enforcement (next administration can always choose to enforce the statute, but not if the prior administration essentially won its defeat in the courts).

Hollingsworth v. Perry (2013) Background

o Prop 8 - CA Referendum banning gay marriage o Ps sue in federal court for violations of Due Process and Equal Protection

(14th Amend) Ps are same-sex couples that wish to marry

o D1s were Governor and state AG — refused to defend the lawsuit, but continued to

enforce the lawo District Court

allowed D2 (here) to intervene D2 was the official proponent of Prop 8

held for P — permanently enjoining D1s from enforcing the Prop 8 Amendment

o D1s chose not to appeal the decision o 9th Cir.

Certified the issue of whether D2s had standing defend the state law to CA-SC CA-SC said yes, D2s represent the State, have standing to appeal

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9th Cir. said “states have the prerogative to decide for themselves who may assert their interests”

SCOTUS (Roberts)o No Standing –

D2’s only interests is ideological, and D2 is not an agent of the state (see Restatement)

o Despite CA-SC’s proclamation, the official proponents of Prop 8 (D2) do not have standing to appeal the district court’s decision.

Dissento CA-SC decided D2s could assert CA’s interests in this litigation – end of

story. Yes standing. Prof:

o Super strange for Roberts to justify denial of standing on the Restatement of Agency (state law). As if the CA-SC had used the magic words “D2 is CA’s agent,” D2s would then have standing.

US v. Windsor (2013) Background

o Ps (same-sex couple) lawfully married under NY law W2 died, she left her estate to W1 (P)

o IRS refused to recognize the marriage and refused to refund the estate tax to W1

o DOJ refused to actively defend DOMA (but continued to enforce it) o BLAG — a group from the House intervened as an interested party to defend

DOMA 2nd Cir: Ps win;

o BLAG and DOJ appealed Issue:

o Whether the defendants had standing to appeal? SCOTUS (Kennedy)

o Yes, US has standing to appeal – (despite prudential concerns over lack of adverseness) Refusal to pay the Tax Refund == Adverseness that satisfies standing

o No need to decide if BLAG, on its own, has standing. Their side was sufficiently argued to fulfill the role of adversaries.

Dissent – Scalia; Thomas; Robertso No adverseness = no standing

Dissent – Alitoo BLAG has standing to appeal o US does not have standing to appealo Alito’s rule:

When a court invalidates an Act of Congress - and the Executive acquiesces and fails to defend the statute – Congress has standing to defend.

Prof’s Rundown of Hollingsworth and Windsor: Problem:

o Executive’s political decision not to defend a statute is a de facto post-enactment veto.

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Solution: o Alito: If president acquiesces, then the legislatures can defend as the

interested party. Note: Alito is consistent in this view in both cases. Alito relies on Chadha:

Dispute over validity of Legislative Veto – President chose not to defend, Court allowed Congress to intervene.

Evaderso Ginsburg, Breyer, and Kagan

Yes standing in Windsor No standing in Hollingsworth

They provide no explanations for this inconsistency Rejecters

o Scalia and Roberts consistently say: No Standing to appeal. If executive chooses not to defend, no case or controversy Congress lacks standing and has alternative remedies (power of purse,

appointments, etc.) Marbury Comparison:

o Alito; Kennedy – Judicial Supremacy: SCOTUS is the supreme expositor of the law of the land Kennedy is malleable in his approach to justiciability to allow SCOTUS to

declare the law. o Scalia and Roberts – Judicial Review:

Invalidating laws is incidental to the Court’s obligation to decide cases

Third Party Standing General Rule against 3rd Party Standing

o Exception when: A) Close relationship b/w the litigant to the 3rd party B) Obstacle for 3rd party to assert their own rights

o Or: C) Dilution of 3rd Party Rights – Craig v. Boren (controversial)

Noteo Prudential rule only (not Art. III) and is subject to exceptionso 3rd Party Standing only involves what arguments a litigant can make –

Whether the litigant can contest a personal injury, on the grounds of someone else’s injury.

o Mechanics: Ps have standing, likely economic harm, but that harm would be

insufficient to prevail on the merits. So P invokes the rights of 3rd Party to justify receiving the remedy

Rundown Yes 3rd Party Standing:

Patient/Doctors – Singleton (abortion, Medicaid funding) Purchaser/Seller – Barrows (racial covenant); Eisenstadt (contraceptive

seller); Craig (female drinking age) Private Schools/Parents and Students

No 3rd Party Standing: Public Defenders/Prospective Criminal Ds on Appeal – Kowalski

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Prof’s summary:o One party to a transaction can always raise the rights of another

party.

Singleton v. Wulff (1976) Ps were Doctors who performed abortions

o Missouri statute bans Medicaid funding for abortions Ps sue, making the arguments of their patients

SCOTUSo Yes 3rd Party Standing

Ps can assert the rights of their patientso General rule against 3rd Party standing

Rationale: 1) Judicial Self-restraint

Brandeis in Ashwander: Courts should decide constitutional claims only when they must

2) Facts immediately before the court receive the best quality adjudication

Note: this is Prudential in nature. o Exception when:

A) Close relationship b/w the litigant to the 3rd party B) Obstacle for 3rd party to assert their own rights

o Here a) Doctor/Patient relationship = Patient’s are inextricably bound up w/

Doctor’s rights b) Obstacles: Mootness of pregnancies, privacy of abortion issues

(curable, but it’s not high bar) Prof

If Doctors were trying to sue on their rights, they would lose on the merits. Lack of Medicaid funding is insufficient injury (economic harm by denial of a public right ≠ injury in fact)

Barrows v. Jackson (1953)o Racially-restrictive covenant in a neighborhoodo White seller sold house to black purchaseso Neighbors sue white seller for damages for breach of the covenanto White Seller (D) seeks to invoke the equal protection arguments of the Black

Purchases SCOTUS

o Yes 3rd Party Standing – D can invoke the 14th Amend. arguments of the Black Purchasers

o Black purchases cannot sue (the covenant is unenforceable against them) = huge Obstacle to 3rd party to assert their own rights

Eisenstadt v. Baird (1972) Yes 3rd Party Standing for Seller of Contraceptives (D)

o D can raise the rights of the unmarried purchasers of contraceptives

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Craig v. Boren (1976) – Dilution of 3rd Party Rights Background

o Bar owner (P) sued to have same drinking age apply to men and women P had standing b/c injury was loss of $$

SCOTUS Yes 3rd Party Standing - P can raise Equal Protection argument to argue

on behalf of young women B/c not hearing the argument would dilute or adversely affect the

rights of young women

Restriction on 3rd Party StandingKowalski v. Tesmer (2004) Background

o Before this case — Trend: Progressive liberalization of 3rd-party standing

o Kowalski pulled back that trend (held no 3rd party standing for Lawyers and future clients)

Facts Michigan changed constitution — those who plead guilty do not have a

right to appeal (only by leave of court) Legislature eliminated appointed counsel for indigents 2 public defenders (Ps) filed suit in federal court to challenge the state

law Standing to sue was based on direct economic harm to the lawyers

(who lost business b/c they were no longer appointed to represent indigents)

Courto No 3rd-Party standing -- Ps cannot raise the rights of prospective indigent

defendants to have appointed counsel on appeal No relationship — future indigent clients were only hypothetical clients No obstacle — indigents could advance their own rights to appointed

counsel on appeal

Over-breadth Overbreadth:

Litigants who challenges a statute as overbroad (1st Amend.) can do so on the face of the statute P does not have to have suffered an injury, so long as he pleads that

statute could one day infringe on someone else’s First Amendment rights

If Overbreadth were a generally applicable principal to all caseso the 3rd Party Standing doctrines/exceptions would all be wrongo facial review would be available for everything

So Overbreadth must be confined to First Amendment.

Ripeness (prematurity)

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Ripeness is relevant when litigants are asking for prospective relief o Often described as an Art. III requirement, but sometimes treated as

prudential (see Duke Power) Contexts:

o Equity Irreparable injury – high standard that subsumed Ripeness requirement

of “case or controversy”o Administrative exhaustion

Requires P to get the final word from the Agency – make sure we have a controversy

o Declaratory Judgments Require case or controversies that seek a specific relief. Most challenging arena for ripeness doctrine

Noteso Ripeness and Standing overlap (speculative injury) o Used to pull wool over our eyes: Duke Power (settle the markets); O’Shea

(federalism)

Poe v. Ullman (1961) Background

o CT statute (1879) – Prohibit the use of contraception and barred doctors from giving any medical advice on how to use contraception

o 2 Ps are women who have had really bad pregnancies in the past—contraception makes a lot of sense

o 1 P is a doctor seeking to enforce his patients’ rights (see Singleton)o CT state has not brought any enforcement measures against these

Plaintiffs Although CT agrees that the state will enforce the statute

o Fact CT has only prosecuted One case under the statute. Contraception is commonly sold in drug stores in CT — absolutely no

enforcement of the statute SCOTUS

o Not Ripe – no imminent threat of harm. o Complete lack of prosecution under the statute indicates no “case or

controversy” at this time. Dissent (Harlan)

o Threat of prosecution is sufficient for a “case or controversy” Prof

o Harlan has the better of this debate. SCOTUS was punting here (eventually decided in Griswold)

Ripeness & Declaratory Judgments Aetna Life Ins. v. Haworth (1937) Background

o Duty to defend Dec Action brought by insurance company

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o Policy holder argued: not ripe for adjudication // Dec Judgment Act is unconstitutional (violation of Art. III “case or controversy”

SCOTUSo Dec Judgment Act is valid law – the dispute is Yes Ripe for adjudication.

Controversy must be Real, concrete Touch the legal relations of the parties having adverse legal

interests Resolved w/ specific relief

Ripeness and Standing Duke Power (1978)

o Ps owned land on a lake next to a Nuclear Power Plant Ps challenged the damages cap [in the statute that authorized the

Nuclear Plant to operate] as unconstitutional Injury Ps are seeking redressability: Some future potential nuclear

disaster SCOTUS

o Yes Standing – Yes Ripeness (collapsing ripeness into standing) Prof:

o Ps had standing (aesthetic standing)o But the injury of potential nuclear disaster was certainly not ripe for

adjudication. SCOTUS strained here b/c the certainty of the decision strongly

supported the energy markets.o Problem

If Ripeness is Art. III – Duke Power violated the constitution If Ripeness is prudential – Duke Power is just fine.

Ripeness and Structural Reform Litigation O’Shea v. Littleton (1974) Background

o Class action for injunctive relief against police, prosecutors, and judges in a town in Illinois

o Ps alleged a continuing pattern of racial discrimination in law enforcement SCOTUS (Conservatives)

o Not ripeo Ps’ injuries are far too speculative o Ripeness and Equity (irreparable harm w/o injunction) overlap a lot

Even if the dispute were ripe, Ps lack an irreparable injury nec. for an injunction

Dissento Yes ripe – Ps allege an ongoing campaign of racial discrimination in the local

gov’t Prof

o Dispute b/w Maj. and Dissent has far more to do w/ disagreements over Federalism (interference w/ local governments) as it has to do w/ “ripeness”

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Los Angeles v. Lyons (1983)o Police placed P in a chokeholdo P sues for (a) damages, and (b) injunction against Police using this

chokehold SCOTUS (White)

o No Standing to request injunction o Yes Standing to request damageso Standing depends on the type of relief sought (for what injury)

Marshall Dissento Standing is unitary – only debate is what kind of relief is P entitled for

Note: in all likelihood, under Marshall’s approach, P could not satisfy “irreparable injury” to get an injunction.

Prof This is all about semantics

Standing approach: P has standing for Damages; lacks standing for Injunction

Ripeness approach: P has standing for both claims; P’s injunction request is not Ripe

(or fails to show “irreparable injury”) Same outcome.

Mootness Mootness requires that a live controversy exist throughout the litigation

o If a live controversy ceases to exist at trial, the case will be dismissed as moot

o If the controversy disappears on appeal, the judgment below will be vacated and the case dismissed as moot

Exceptions: Facially resolved disputes are Not Moot When

o Voluntary Cessation of Illegal Activity Ending the illegal practice before final adjudication does not moot the

case. - WT Grant Co Although, a case might become moot if the defendants could

demonstrate that there is "no reasonable expectation that the wrong will be repeated.”

o Capable of repetition, yet evading review Invoked when the specific dispute has been mooted by the passage of

time, but the same issue is likely to arise again between the same parties

Voluntary Cessation of Illegal ActivityUS v. WT Grant Co. (1953)

o Gov’t brought antitrust suit against two corporations for having Overlapping Directors Overlapping Directors resigned in an attempt to make the dispute moot

SCOTUS

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o Not Mooto Voluntary Cessation of an Illegal Activity does not moot the dispute –

yes justiciable. Although, a case might become moot if the defendants could demonstrate

that there is "no reasonable expectation that the wrong will be repeated.” Prof

o If the issue is actually over, yes moot.

Northeastern Florida Chapter v. City of Jacksonville (1993)o Contractor (P) sues city (D) over zoning ordinance

D changes ordinance before litigation Court

o Not moot – see WT Grant Co.o Cities changing challenged zoning ordinances are Most common example of

the WT Grant Co. rule Prof

o On one hand, you don’t want to litigate a dispute that has been resolvedo On the other hand, you don’t want to allow the city to avoid litigation over

and over.

Capable of Repetition, but Evading Review Examples:

o Elections; Pregnancy (reproductive rights) Rule

Dispute is not moot if there is a (a) Reasonable expectation that the (b) Same controversy will recur b/w the (c) Same parties

Honig v. Doe (1988)o Dispute over the “Stay-put” provision of the Education of the Handicapped

Act: Disabled child must remain in her educational placement pending review

of her expulsiono Here – P’s daughter was expelled (not going back to school, unless P wins

here) SCOTUS -

o Not moot – the dispute is “capable of repetition, but evading review” Rehnquist Concurrence

Mootness is not an Art. III requirement. If it were, there could be no exceptions.

Rule should be: Once this court has undertaken a case, the case cannot go moot.

Scalia Dissento Yes moot – the “capable of repetition, but evading review” exception

requires future dispute be between the same parties

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Mootness is Art. III requirement. “Capable of repetition” – satisfies “case or controversy” the same way dec actions do. “Yet evading review” – prudential in nature.

Cruxo Rehnquist – treats mootness as a loose prudential creation (Judicial

Supremacy) o Scalia – treats mootness as a strict Art. III requirement (Judicial

Review)

Mootness & Class Actions (Not Moot)Sosna (1985)

o After class certification, named P’s claim becomes moot, the class action is not moot Easy b/c named P is not the only party to the suit.

Roper (1980)o Before class certification, P wins individual claim. o Court allowed P to appeal denial of class certification b/c P has a “personal

stake” in sharing attorney’s fees w/ other potential class members. Geraghty (1980)

o Before class certification, P loses individual claim o Court allowed P to appeal denial of class certification b/c P’s appeal is a

“procedural claim” o P has two claims: (1) Merits, (2) Right to represent a class – here (2) is not

moot. o Prof

“Procedural claim” is troubling. FRCP cannot create a right or a claim. Prof comments:

o Formally On a purely formalist approach, Sosna is easy, Roper is harder, Geraghty

is impossible.o Functionally

Make class actions work. Real party in interest is the lawyer. o Court is Deeply Conflicted

Analytically, mootness is an Art. III requirement. “Making class actions work” undermines “case or controversy”

requirement.

FLSA Collective Action (Yes Moot) Genesis Healthcare (2013)

o P did not accept a settlement offer for full damages – Assuming P’s personal claim is moot, P cannot represent the remainder of the “collective action” under the FLSA

o Note: This matters b/c formalistic approach to mootness in an FLSA collective

action logically applies to Rule 23 suits as well. Court is divided.

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Genesis Healthcare v. Symczyk (2013)o P employee, sues D employer, for overtime wage theft.

Fair Labor Standards Act allows for “collective action” suits. o D responded by offering her $7,500 in unpaid wages, plus attorneys’ fees,

costs and expenses. o D put a time limit for her to accept. o P did not respond,

So the D asked the district court to dismiss the lawsuit (under FRCP 68) D argues that, under federal court rules, P had a chance at everything

she sought, so P had no continuing interest in the litigation.o P countered that D was trying to pick her off,

To scuttle the collective claim she was asserting for her co-workers SCOTUS (Thomas)

o Yes moot o Assuming P’s individual claim is moot, P cannot represent a collective actiono Court endorses D’s “picking-off” tactic – as a necessary side effect of Art. III

mootness. Kagan Dissent

o A mere offer to pay off a litigant, when that offer simply went unaccepted, is not enough to end a lawsuit. So P’s individual claim is not moot. The rest of the court’s analysis on the

P’s ability to bring the collective action is irrelevant.

Appeal by Prevailing Parties Roper and Geraghty – named Ps in class actions who prevail on their individual

claims can continue representing the class by appealing denial of class certification.o Note: this rule has little practical importance – the real parties in interest

are the lawyers.

Constitutional Torts – Qualified Immunity

Notes Constitutional background of Appeal by Prevailing Parties is very similar to the

Mootness doctrine. The dispute has been resolved in the appellants favor – facially appears that there is no “case or controversy”.

While the Executive Officer is the named Defendant, and would be held personally liable, o Functionally, the real party in interest is the government. Gov’t will

pay D’s legal fees, etc.

QI Cyclingo Definition:

Operative legal rule becomes the least protective understanding of the law that an executive officer could reasonably entertain

Explanation

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o Qualified Immunity = Standard of negligence as to illegality. Gov’t officers are shielded from personally liability if their conduct did

not violate “clearly established law.” o If court does not reach the merits, and only decides QI:

P (prisoner) sues Cop for chokehold – Court holds chokehold did not violate “clearly established law”

Cop continues to chokehold – another P sues the next week. Cop wins again on QI.

The next week, Cop wins again on QI; etc. The problem:

Whether the chokehold violates the 8th Amend. never gets decided by a court.

Operationally, the chokehold is permissible, only b/c it falls w/in a reasonable understanding of clearly established law.

Cop’s decision becomes the de facto standard for permissible conduct under the 8th Amend.

Saucier v. Katz (2001) — Merits-First (Old Rule)o Rule

In § 1983 or Bivens actions, the district court must first decide the merits, then determine whether D is entitled to qualified immunity.

o Rationale Solidifies constitutional rights overtime – solves QI Cycling

Problems w/ Merits-First Adjudication o 1) Contrary to Ashwander – unnecessary constitutional adjudication. o 2) Overburden on the Courts – QI is usually easy to find, and dismisso 3) Poor lawyers or poor facts – not every case is best for constitutional

decisionso 4) Appeal by Ds who prevail on QI but lose on the merits

D wins on QI, but looses on the merits If D cannot appeal b/c he prevailed on QI, the merits ruling essentially

becomes unreviewable.

Pearson v. Callaghan (2009) — Merits-if-judge-wants (New Rule)o Rule: District courts can decide merits if they want to — but they can decide

QI first too. o Background

Consent-once removed 4th Amend. violation QI Cycling concern:

If Cop wins on QI and no court ever reaches the merits – “Consent-Once Removed” is operationally permissible

Camreta v. Greene (2011)o § 1983 suit for damages

P argues that state employees violated the 4th Amend. by interviewing a 9 y/o girl at her elementary school about allegations that her father had sexually abused her

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o 9th Cir. Held for P on the merits Held for D on QI

SCOTUSo Yes D can appeal the loss on the merits, even though D won on QI. o Standing requires (1) [Personal] Injury in Fact, (2) Causation, (3)

Redressability D has Injury in Fact

If the official regularly engages in the conduct as part of his job (as D here does) he suffers injury caused by the adverse constitutional ruling.

Prevailing immunized officials have a sufficient personal stake in the dispute to satisfy Art. III

o Prudential Generally declines to consider cases at the request of a prevailing party,

even when the Constitution allows the Court to hear the case Exceptions to this principle:

Policy reasons of sufficient importance to allow an appeal by a winner below (see Roper)

o Here This is case is moot b/c 9 y/o girl has grown up and moved across the

country. No threat of the dispute arising again. Under these facts, P’s 4th Amend. claim is non-justiceable.

Dissent (Kennedy; Thomas)o Formalistic Approach: "Parties who have obtained all requested relief may

not seek review here.”o 9th Cir.’s 4th Amend. discussion below is not a judgment – (it’s only dicta) –

we only review judgments Prof

Maj – Functional approach Functionally, the real party in interest in this QI case is the

government (not the named D) In Roper, the real party in interest was the class action Lawyer (not

the mooted named P) In those situations:

Court adjusted traditional justiciability doctrines in order to accommodate the role of the

Dissent – Formalist approach (Kennedy) Here, the named D has prevailed, nothing to appeal. The dispute is

moot. In Roper, the named P had prevailed, nothing to appeal. The dispute

was moot.

Political Question Doctrine Doctrine:

Court will not decide a case 1) Textually demonstrable commitment to political branches;

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2) Lack of judicially discoverable and manageable standards for resolving the dispute

~3) Prudential Factors: Comity to other branches Types of Political Questions

Guarantee Clause – Luther Malapportionment – Baker v. Carr

Political Gerrymandering – Davis v. Bandemer Foreign Affairs – but see Zivotofsky

Prof:o Effect of PQ Doctrine: Some Constitutional Violations may go without a

remedy. But see Zivotofsky

o In light of recent precedent (Zivotofsky), it’s Incredibly difficult to predict when the Court will deploy the PQ Doctrine.

Political Question asBaker Factors Justiciability

DoctrineMerits decision Crux

1)Textually demonstrable commitment to Political Branches

This factor is nothing more than good ole Judicial Review. No justiciability doctrine needed to determine whether the text authorizes the disputed conduct.

Merits Factor only

2)Lack of standards, Impossibility of enforceability

No standards = No way a court can provide P w/ a remedy

No standards = D’s conduct was permissible

Cuts both ways

3)Prudential Baker factors:a. Policy,

respect, etc.

If deciding this case would disrupt foreign affairs, or be a bad idea in light of SoP concerns.

Justiciability Factor only

Luther v. Borden (1849) o Dorr Rebellion raised question over the validity of the Connecticut state

government SCOTUS

o We’re not deciding this Case – it’s a Political Questiono Guarantee Clause (state republican gov’t)

Political branches decide what counts as a “republican form of government”

Take-away: Guarantee Clause violations are non-justiciable.

Baker v. Carr (1962) o Court’s reluctance to hear malapportionment cases ends here.

Malapportionment can be challenged under Due Process clause – ((a slight of hand to avoid Guarantee Clause Luther problem))

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o 6 factors of a Political Question1. Textually demonstrable commitment to political branches 2. Lack of judicially discoverable and manageable standards for resolving

the dispute3. Impossibility of deciding it w/o an initial policy determination 4. Impossibility of a court’s undertaking independent resolution w/o

expressing lack of respect to Political Branches5. Unusual need for deference to Political decision already made6. Potential of embarrassment from multifarious pronouncements by

various departments on one issue

Davis v. Bandemer (1986)o Court is reluctant to hear Political Gerrymandering cases

Till this case, Court dismisses the challenges as Political Questionso Here, Court heard the case on the merits.

SCOTUSo No PQ - Political Gerrymandering disputes are justiciable, Conduct violates

the Constitution Then the Court sets a test that can never be met:

Gerrymander can only be attacked Constitutionally if it permanently excluded one party from electoral success Prof: No matter how effective the gerrymander — sooner or later

there will be a landslide year where one party sweeps the Prof:

o Court’s reluctances to hear Political Gerrymandering cases: To dismiss as non-justiciable, after acknowledging a constitutional

violation = bad PR. To dismiss as a failure to allege a Constitutional violation = far

less controversial.o BOTH options are motivated by the impossibility of enforcing any judicial

remedy.

Congressional Procedures Powell v. McCormack (1969)

o P was elected to be a Congressman House refused to give him a seat b/c he had misused House funds

o P sued to be seatedo D argued, political question – non-justiciable.

SCOTUSo No PQ - yes justiciable.

Constitution’s list of qualifications required to be a Congressman is exhaustive.

o Focus was solely on Baker #1: “Textually demonstrable commitment to political Branches” P wins on the merits

Profo This is false analysis of a “Political Question”

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o If the court deploys only the first Baker factor – this is judicial review. They’re interpreting the constitution, on the merits.

Nixon v. United States (1993)

o Senate impeached a District Judge (P) in a Senate Committee Constitution authorizes Senate to “Try” impeachments

o P sues, saying the whole Senate, not just a committee, must “Try” P’s impeachment.

SCOTUSo Yes PQ – non-justiciableo First Factor = Interpreting text of Art. I § 3, cl. 6 = commitment of

impeachment power to Senate. o Second Factor = Lack of standards

Concurrence (White; Black)o No Political Questiono P loses on the merits -- Senate satisfied what’s required by “try” in the

Constitution Prof’s point:

o Same outcome whether the court decides this issue on (a) the merits or (b) as a non-justiciable PQ

Foreign AffairsZivotofsky v. Clinton (2012)

o “Israel” – Passport o Congress – statute requires State Dep’t to include “Israel” at immigrant’s

request.o Presidential line-item veto, claiming this requirement infringed on Executive

Power to run foreign affairs. SCOTUS

o No PQ – yes justiciable o Focus only on Baker factors 1 & 2

Suggests that Baker factors 3-6 don’t matter Sotomayor Concurrence

o Groups Baker 4, 5, and 6 as “prudential” considerations. Breyer Dissent

o P lacks standing. This is a purely ideological dispute. o Prudential considerations should bar us from hearing this case.

Congress and President have non-judicial methods of working out these types of disputes

Foreign Affairs Highly political; not the province of the courts.

PROF Pre-2011, any commentator would be correct in saying Foreign Affairs

disputes are non-justiciable Political Questions. No idea why the court dove into this one.

Prudential Factors If there ever was a case in which prudential factors justify not

deciding it, this is it.

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Marbury & the PQ Doctrineo Judicial Review – leaves no room fro PQ doctrine

If Courts’ obligation to hear cases is unwavering, then the Court must remedy constitutional violations (even if the violation is “political”).

o Judicial Supremacy If Court’s role is there mere expositor of constitutional law, there may

very well be prudential considerations that justify not expositing ultra-political disputes.

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Congressional Control of Federal CourtsMain Question: To what extent can Congress restrict and expand the jurisdiction of federal courts?

What we know:o Congress Cannot

Prevent state courts from hearing constitutional questions that come before them in the ordinary course of litigation authorized by state law.

Dictate an unconstitutional outcome (Marbury) There is at least one constitutionally mandated remedy:

Supreme Court review of Gitmo federal habeas petitions (Boumediene)

o Congress Can Legislate over state court jurisdiction:

Exclusive jurisdiction in federal courts for certain substantive areas of law (e.g. § 1338)

State courts must hear federal claims (Testa v. Katt) Limit jurisdiction of lower federal courts in some ways

From First Judiciary Act until present, the lower federal courts have never had full judicial power. Limits include: Amount in controversy for diversity jurisdiction Until 1875, there was no federal question jurisdiction in district

courts. What we don’t know:

Whether Congress can prevent lower federal district courts from hearing constitutional claims (left open in Webster)

Whether Congress can prevent state courts from hearing anticipatory challenges to abortion statutes? (most academics say no)

Practically,o Congress needs federal courts to enforce their laws. So very rarely does

Congress attempt to limit federal jurisdiction. This is a largely academic field (until Boumediene).

Congressional Control OverLower Federal Courts SCOTUS

Congress creates lower federal courts

Jurisdiction is authorized by statute

Alternative forum in state court is almost always available

Constitution creates Supreme Court Original Jurisdiction is mandated by

the Constitution

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Art. III § 1) The judicial power shall be vested in SCOTUS and the inferior courts that

Congress may establish. Prof

o Two extreme possible readings: A) The entire judicial power must go to the lower federal courts, no

exceptions. B) Congress can give or not give whatever judicial power it chooses to

the lower federal courts

Congressional Control of the Lower Federal Courts

Rundown:o Sheldon:

Congress is free to limit the jurisdiction of lower federal courts (limitless language)

o Ex parte McCardel: Affirms Congressional power to manipulate federal court jurisdiction, but

w/ the Great Writ escape hatch (P can still seek original writ from Supreme Court).

o Webster: Congress’s power to strip lower federal courts from hearing

constitutional claims raises serious constitutional questions.o INS v. St. Cyr:

Thumb on the scale in favor of providing access to federal court. If Congress wants to preclude jurisdiction of a lower federal court, it must be ultra-clear.

Summary:o Congress has lots of leeway to limit jurisdiction of lower federal

courts (see Sheldon) but precluding review of constitutional claims in federal court raises serious constitutional questions (see Webster).

Sheldon v. Sill (1850)o First Judiciary Act: Assignee Clause

Barred potential litigants from assigning their claim to an out of state litigant for the purposes of creating diversity jurisdiction.

P temporarily sold his claim to an out-of-state litigant so as to create djx in federal court

P argued, Assignees Clause is unconstitutional (Art. III is exhaustive, provides no exceptions)

SCOTUSo “Congress may withhold from any four of its creation jurisdiction of any of

the enumerated controversies” Prof: This language is limitless. Suggests that Congress can take any case out

of federal jurisdiction.

Ex Parte McCardel (1868)

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o Reconstruction Era – Military gov’t arrested Po P properly filed for federal habeas under a statue giving federal jurisdiction

over his claimo Congress then repealed that statute, to prevent P’s claim from going

forwardo P argues, Congress cannot restrict the jurisdiction of the lower federal

courts SCOTUS

o Congress can restrict jurisdiction of lower federal courts – no jx over P o As deferential to Congressional power as one could imagine.o Except (ah ha!)

P may still have a remedy, b/c SCOTUS can issue an “original” habeas writ.

Profo This affirms Congressional power to manipulate federal court jurisdiction,

but w/ an escape hatch.

Webster v. Doe (1988)o National Security Act § 403(c) precludes judicial review of all statutory

claims.o CIA fired P for being gay (“national security threat”)

P brings (a) statutory and (b) constitutional claimso CIA argues NSA precludes judicial review over CIA Director’s discretionary

decisions SCOTUS

o No judicial review over P’s statutory claims - NSA § 403(c)o Yes judicial review over P’s constitutional claims (plain statement req. to

preclude con law review) Rationale:

“A serious constitution question would arise if a federal statute were construed to deny any judicial forum for a constitutional claim”

Scalia Dissento Not every constitutional wrong needs a remedy (PQ doctrine, Sovereign

Immunity). Congress is free to prevent lower federal courts from hearing constitutional claims.

Profo Court imposes a burden on Congress:

With respect to preclusion of statutory review — Congress just needs to say what it means

With respect to preclusion of constitutional review — Congress must be exceptionally clear

o This case stands for: Congress’s power to strip lower federal courts from hearing

constitutional claims raises serious constitutional questions.

INS v. St. Cyr (2001)o Deportee filed habeas o Statute precluded judicial review over AG’s deportation decisions

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SCOTUSo Legislature wasn’t clear enough to preclude judicial review of P’s

constitutional claimso Yes habeas

This cases stands for:o Thumb on the scales of providing access to federal courtso If Congress wants to limit the jurisdiction of lower federal courts, they must

be explicit and clear.

Congressional Control over SCOTUS

Ex parte McCardel (1868) Remember: SCOTUS here relied on the Supreme Court’s power to issue an

“Original Writ” as an alternative to the habeas route that Congress foreclosed. o Supreme Court jurisdiction was the escape hatch.

Hamdan v. Rumsfeld (2006)o P, imprisoned in Gitmo, filed a federal habeas petition

Challenging gov’t trying him in a military tribunal o Proc History

SCOTUS granted cert on Nov. 7 2005 Congressed amended law --- stripping SCOTUS of JX — no habeas for

Gitmo prisoners Art. III review of military tribunal limited to DC Cir.

SCOTUSo The statute does not apply to cases pending at the time it was enacted

((Everyone knew Congress passed this law for the purpose of foreclosing this P’s claim))

Note This shows Supreme Court’s unwillingness to give effect to

jurisdiction-stripping statutes. Congressional reaction:

o Amended the jurisdiction-stripping statute to very clearly apply retroactivelyo P sues again:

Boumediene v. Bush (2008)o P wins, yes habeas (jx-stripping statute is unconstitutional)

SCOTUS places limits on Congressional authority to limit Supreme Court jurisdiction

o Take-away: There is at least one constitutionally MANDATORY remedy: Access

to a federal court to test executive detention by the federal government Note

This is not an Art. III holding, but a Suspension Clause holdingo Surprising here:

1) The Suspension Clause mandates Art. III review of habeas.

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2) The similar remedy (military tribunal + DC Cir. Review) is insufficient.

o Essential Functions Thesis: Congress can’t limit the essential functions of the Court Art. III’s grant of Congressional power to provide “Exceptions” (the

Exceptions Clause) presupposes that there is a rule. The Rule is that Federal Courts have essential functions, that Congress

cannot interfere with E.g. maintain the supremacy of federal law by hearing appeals from

state supreme courts

Congress Changing the Law Rundown

o Klein – Congress cannot dictate the outcome in cases (see Marbury)o Changing the law Prospectively

Wheeling Bridge II Congress can change the law prospectively (and can alter

injunctions) Miller v. French

No votes for the proposition that an Automatic Stay provision categorically violates SoP

o Changing the law Retroactively Plaut v. Spendthrift (1995)

Congress cannot reopen final judgments. Only cases where court limits Congress’ ability to change the law.

o Changing the law Specifically (could cause trouble) Sioux Nation (1980)

Congress can preclude gov’t from asserting res judicata as a defense (allowing for re-litigation here is different from Plaut b/c here, the Gov’t is conceding)

Seattle Autobahn Society (1992) (Sloppy repeal) Congress may describe what causes of action its

precluding by referring to the statutes involved in a particular case.

Schavo v. Schavo (11th Cir. 2005) Concurrence: Statute is unconstitutional b/c the statute is too

specific Summary

o Congress has broad authority to change the law prospectively (Wheeling Bridge II), retroactively (but see Plaut), and specifically (Sioux Indian Nation; Seattle Autobon; but see Shavo 11th Cir. Concurrence).

o Exceptions: Congress cannot reopen final judgments (Plaut); Might be a constitutional limit on Congress enacting laws that target

small groups or individuals (see Shavo 11th Cir. Concurrence; but see Sioux Indian Nation; Seattle Autobon (both cases approve of very specific statutes).

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Klein (1872)o After Civil War — persons who claimed ownership of land could get proper

title if they were loyal to the Union throughout the waro Union agents seized 600 bales of Klein’s cotton

Klein had supported the Confederacy but Lincoln had given him a Pardono Klein sued in Court of Claims, seeking recovery for the cotton

Under Padelford, Presidential Pardon is sufficient evidence of loyalty during the War

Klein won in Court of Claims (CoC) Gov’t appealed to SCOTUS, then

o Congress passed a new statute, mandating that 1) Pardon is not evidence of loyalty, in fact, a Presidential Pardon is

evidence of disloyalty 2) Two JX provisions

a) If P wins in CoC based on Pardon, SCOTUS should have no JX over the matter

b) CoC should dismiss any Pardon winners SCOTUS

o Statute is unconstitutional o Prof:

The rationale here is really unclear, the safest thing to say is that it was a Marbury problem: This is not a clean jurisdictional statute. In fact, Congress attempted

to mandate a specific outcome when a certain claim on the merits was advanced.

Under Marbury, the judiciary decided cases before it independently. Congress cannot require the Court to reach a particular outcome on the merits.

Changing the Law Prospectively

Wheeling Bridge II (1856)o Wheeling Bridge I (1852) – the Court enjoined VA Co. from building a bridge

over the OH rivero Congress responded, declaring the bridge a lawful structure (and a postal

road)o The bridge collapses in a stormo PA sues to enforce the prior injunction to prevent the VA Co. from rebuilding

the bridge. SCOTUS

o Dissolved the injunctiono Congress can change the law prospectively, and can alter an injunctionso Note

If the Court had ordered damages, Congress could not undo the damages award retrospectively

But the Court entered an injunction, which Congress can change prospectively

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Miller v. French (2000)o Prison Litigation and Reform Act of 1995

Allowed for Prisons to apply to halt Injunctions against 8th Amend. Violations

o PLRA Automatic Stay Provision 90 days after Prison official files motion to terminate an injunction

PLRA requires Courts to automatically stay the injunction o Prisoners filed this suit

Challenging the automatic stay as unconstitutional SCOTUS

o Yes automatic stay provision is constitutional Congress can interfere w/ an 8th Amend injunction (see Wheeling Bridge

II)o Congress has broad authority to change the law prospectively

Dissent:o As-applied-SoP analysis o If the 90 day period is insufficient for the Court to reach the merits, then the

automatic stay would usurp judicial power (citing Klein). Prof

o There are NO votes for the proposition that the Automatic Stay provision categorically violates SoP

Changing the Law RetroactivelyPlaut v. Spendthrift Farm (1995) Background:

o Congress and President enacted §27A of SECA Required federal courts to reopen final judgments in § 10(b) suits

dismissed w/ prejudice under Lampf (providing a restrictive SoL on § 10(b) suits)

SCOTUSo Congress cannot require us to re-open final judgments – only the Courts can

do that (60(b) motions)o Note

This is not a Due Process holding (doesn’t matter how fair or unfair this is to litigants)

This is a SoP holding: We can set aside final judgments, but Congress cannot.

Prof:o This case is not on the same planet we’re on; makes no sense – at the least,

it’s overly formalistic. o General rule: Congress can change the law retroactively (subject to Due

Process objections of settled expectations)

Changing the Law Specifically

Sioux Nation (1980) o After many years of litigation, in which Sioux lost repeatedly

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o And many years of changing views/guilt toward Native Americanso Congress passed law

Waiving res judicata defense from the Sioux Nation claim SCOTUS

o Congress can waive res judicata as a defense for the governmento Distinguishing:

Klein – there Congress was attempting to rig the system so the gov’t would win Here, the Congress is making the gov’t lose.

Robertson v. Seattle Audubon Societyo Long line of litigation b/w Environmental groups and Logging Coo Eventually, Congress passed the

Northwest Timber Compromise, which provided a solution to both sides of the disputes Precludes all other potential claims previously involved in this line of

litigation (and listed specific case names) o One Environmental Group challenged the validity of NTC as a

Klein violation SCOTUS

o NTC is valid o Congress merely repealed statutes (use of the case names was shorthand)

Schavo v. Schavo (Ca 11, 2005)o Parents lost in state court, wanted to sue again in federal courto Congress enacted a statute, allowing parents (by name) to sue again

Abrogating preclusion, abstention, exhaustion, etc. 11th Cir.

o Struck down the statuteo Concurrence:

Statute is unconstitutional b/c the statute is so specific Congress can pass general statute – but not something this specific

Profo Interesting issue: Must legislation be general and prospective? – turns on

the reach of legislative authority.

Protective Jurisdiction Protective Jurisdiction: Congress authorizes a certain category of cases in federal courts, without providing any substantive law. Motivation behind Protective Jurisdiction: Distrust of state courts. Congress wants to provide a federal forum to avoid litigating in home-team biased state courts.

Everyone agrees - Congress can confer federal JX where it has validly created a federal claim (substantive law)

The dispute about Protective JX asks:o Where Congress has the power to create a federal substantive right, but chooses not to, can

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Congress then allow a state claim to be brought to federal court (w/o diversity). SCOTUS answer:

o The Court has rejected Pure Protective JX (Mesa), but has strained to approve almost every other decided instance on the ground that some federal interest is at stake sufficient to create Art. III “Arising Under” jurisdiction,

Even if that federal question is ancillary and undisputed

Related questions:o Is Art. III the ceiling for federal jurisdiction? I.e., can Congress give federal

courts more jurisdiction than is provided in Art. III? ().

Rundowno Tidewater Transfer (1949)

Jackson’s erroneous view: Congress can open federal courts to anyone under Art. I powers (Art. III is not the ceiling) (rejected by Frankfurter in Textile Workers Union)

o US as the Party Osborn v. BoUS (1824)

Status of the national bank is sufficient to create “Arising Under” jurisdiction under Art. III

Pacific RR Removal Cases Expanded Osborn to from federal entities to federal charters

o Bankruptcy Schumacker v. Beeler (1934); Williams v. Austrian (1947)

In every bankruptcy case — there is an ancillary question of is this Trustee a valid proper Bankruptcy Trustee under the federal Law? (even if it’s undisputed)

o Sovereign Immunity Verlinden (1983)

§ 1330 is valid, b/c Sovereign Immunity raises a [threshold] federal question – regardless of whether the entire dispute is governed by state law.

Gutierrez (1995) Westfall Act – Judicial review of AG’s Westfall Certification (scope of

employment determination) creates a federal question. O’Connor Dissent: If AG’s certification were wrong, the US would not

be a party, and non-diverse litigations could end up in federal court on state claims.

o LMRA Textile Workers Union (1957)

Frankfurter Dissent: Art. III’s list of party-based jurisdiction is exhaustive. Protective jurisdiction, absent a question of substantive federal law, violates Art. III.

o Rejection of Protective JX Mesa v. California (1989)

If there is no federal interest at stake, Congress cannot provide a federal forum. Art. III’s list of party-based jurisdiction is exhaustive (under expressio unius).

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§ 1442, which authorizes Defendant Postal Officers to remove state prosecution to federal court, violates Art. III when Ds lack a federal defense (see Verlinden).

Note: In every case where SCOTUS approves of the protective jurisdiction,

there is some federal statute outside the jurisdictional statutes that expresses some federal interest in the case: Tidewater: DC is a state Osborn: BoUS charter Schumacker: Bankruptcy Trustee Verlinden: Foreign Sovereign Immunity Gutierrez: Westfall Act Textile Workers: LMRA (federal common law)

Then Mesa: Postal officers lacked QI defense, removed purely on § 1442 – Court says No.

Tidewater Transfer (1949)o § 1332 allows for citizens of Washington, DC to establish DJXo Lower courts held § 1332 as unconstitutional b/c Art. III applies to “States”

only SCOTUS

o Jackson: Congress can open federal courts to anyone under Art. I powers (Art. III

is not the ceiling) Concurrence:

o Congress can treat DC as a “State” for purposes of Art. III Dissenters:

o DC is not a “State” and Art. III is the ceiling Traditional View:

o Jackson was wrong. Art. III, not Art. I, provides SMJ limitations on suits in federal courts

Constitutional Limits on “Arising Under” Jurisdiction Osborn v. Bank of US (1824)

o Bank of the United States can “sue or be sued” in federal courto BoUS brings state claims against D in federal court o D argues

There is no federal cause of action, no § 1331 jurisdiction and no djx SCOTUS

o BoUS’s status as the national bank (although undisputed) creates a sufficient federal interest to establish SMJ

o Art. III allows Congress to create Arising Under JX over any suit that has some federal interest at stake Constitutional ruling on “Arising Under” in Art. III

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Pac. RR Removal Caseso Federally chartered RR can always sue in federal courts

Expanded Osborne (status of parties satisfy federal jx) from a federal entity to federal charter

BankruptcySchumacker v. Beeler (1934) and Williams v. Austrian (1947)

o State law governs what obligations the bankrupt must satisfy (contract law); although some federal law might govern the dispersal of asserts

o Federal Law controls in authorizing Bankruptcy Trustees – in every case. o Issue here:

Whether purely state-law bankruptcy proceedings can be heard in federal courts?

SCOTUSo Yes, State law bankruptcy proceedings can be heard in federal courts

B/c In every bankruptcy case — there is an ancillary question of is this Trustee a valid proper Bankruptcy Trustee under the federal Law? (even if it’s undisputed)

Sovereign ImmunityVerlinden v. Central Bank of Nigeria (1983)

o Foreign Sovereign Immunities Act of 1976 § 1330 Provides federal jurisdiction for any civil lawsuit (including state claims)

against foreign states Grants foreign states Sovereign Immunity

o P (Dutch corporation) sues Nigeria in US district court for breach of the K – purely state law

CoA held that § 1330 was unconstitutional b/c (a) no federal question an (b) no diversity

SCOTUS § 1330 is valid, b/c Sovereign Immunity raises a federal question

(defense) At the start of every case under § 1330, SI question satisfies Art. III

“Arising Under” jx o Note:

Although the federal question (SI) is raised as a defense, the well-pleaded complaint rule is not implicated b/c we’re not construing § 1331. Section 1330 need only satisfy Art. III.

Gutierrez de Martinez v. Lamagno (1995)o Westfall Act:

Grants absolute immunity (AI) from common law tort claims to federal employees for acts undertaking in the course of their official duties

AG certifies that federal employee was acting w/in scope of employment at the time of alleged negligent conduct

US is then substituted as D and the case is governed by the Federal Tort Claims Act, Then removed to federal court

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o Here DEA agent (D) crashed his car in Columbia (the country) Injured Columbians (Ps) sued under diversity in federal district court AG approved of D’s Westfall Certification, and the US was submitted as

new D FTCA exempts the US from Liability for injuries arising in any foreign

country Leaving Ps w/o a remedy -- ((diplomatic immunity barred suit in

Columbia)) P argued

AG was wrong — DEA agent was not acting w/in scope of his employment when car accident occurred

Issue: Whether the AG’s Westfall Certification is subject to judicial review? (Yes)

SCOTUS Review of AG’s Westfall Certification (although a threshold question to

the state law claims) satisfies Art. III “Arising Under” jx (see Verlinden) Even if AG’s Certification was improper, the litigation can remain in

federal court w/ the original federal officer as the proper defendant Dissent

Westfall Certification should not be reviewable in federal court. Authority to determine whether a Court has JX over the lawsuit cannot

supply the very JX that is subject to challenge – this would violate Art. III If AG’s Westfall Certification was improper, could result in non-

diverse parties in federal court under state law.

Labor Management Relations Act Textile Workers Union v. Lincoln Mills (1957)

o § 301 of the Labor Management Relations Act (1947) Any Contract dispute b/w Employer and a labor Union can be brought in

federal court o LMRA § 301 provides a federal forum for labor disputes, but does not

provide any substantive lawo Here: Collective bargaining Agreement: (a) No-strike clause; (b) Compulsory

arbitration Union sues Management in Federal Court (under § 301 JX) to force

arbitration over grievances o Management argues, no federal question:

§ 301 violates Art. III b/c it lacks any substantive federal law SCOTUS

o Federal Common law governs LMRA disputes (yes federal question) Frankfurter Dissent

o State law applies – no congressional intent for Court to create a huge body of federal common law

o § 301 merely provides federal jurisdiction = Protective Jurisdiction violates Art. III Art. III provides 2 kinds of jurisdiction

Arising Under – triggered by federal substantive law (absent here)

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Party-based JX – triggered by status of the parties (Ambassadors, States, Diversity, etc.)

o Party-based JX expands federal JX (beyond federal claims), but also acts at a ceiling Art. III’s Party-based jurisdiction is Protective Jurisdiction, and Congress

cannot create any other categories of protective jurisdiction.

Professor Wexler: Art. I authorizes Protective Jurisdiction Prof

o SCOTUS has kept Frankfurter’s rationale alive (see Mesa) Professor Wexler’s argument:

Purely [protective] Jurisdictional Statutes provide Arising Under JXo Frankfurter responds:

Federalism: Congress can’t Congress to take all of these cases out of federal court. Frankfurter’s analysis has nothing to do w/ Art. I. Frankfurter believes

Art. III operates irrespective of Art. I powers that are not exercised. o Wexler’s surrebuttal:

Areas where Congress could legislate w/ substantive rules under Art. I § 8 power, Congress can provide a federal forum, in which state law applies

The federal interest (as required by Osborne) sits on the fact that Congress could legislate substantively, but chose not to.

o Mesa response to Wexler: Art. III list of Party-based JX is exhaustive (expresio-unius)

Big note:o Frankfurter is in an odd position

Congress could exercise the greater power of the creating the substantive law governing the dispute

But Congress cannot exercise the lesser power of saying “we’re going to put it in federal court”

o Prof’s point Where Art. I § 8 gives Congress power to create the substantive law, the

federalism concerns are not directly relevant when Congress merely chooses to place the dispute in federal court, but allow state law to govern. For Example:

Congress could create substantive law governing the BoUS; all Railroads; Postal Officers

Rejection of Protective JXMesa v. California (1989) Only case limiting protective jurisdiction

o Background CA criminally charged 2 mail-truck drivers involved in serious accidents Both Ds removed their cases to federal court under § 1442(a)(1):

“Any civil or criminal prosecution can be removed to federal court if a D is any officer of the US, for any act under color of such office”

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Issueo Whether removal JX could be based on mere fact that Ds were federal

officers? (No) SCOTUS

o Rejects § 1442(a)(1) removal here as a violation of Art. III (Rejects Protective Jurisdiction) No federal question is presented

No qualified immunity defense for postal officers Brennan Concurrence

o State Court hostility exception: If D can show local hostility (by either prosecution or state court), a

federal forum would be available, despite D lacking a federal defense.

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Non-Art. III Courts Brennan: Art. III’s “inexorable command” is clear and definite:

All Judicial Power must be exercised in Art. III courts. o But at no point in history has this been the case – Congress and the Courts

have always allowed for Non-Art III adjudication, and Art. III does not say there can be no other courts.

Challenge:o What situations require Art. III courts?

Court has been entirely inconsistent on this rationale in this issue. For years, the Court was consistent in its outcome:

SCOTUS always allowed Congress to have non-Art. III adjudication when it has a good reason, until Northern Pipeline (1982).

Traditional Exceptions to Art. III Courts:1. Military Courts Martial

a. Chain of Command structure – Military exception (see also Boyle)i. Very limited, if at all, Art. III review and Habeas review

2. Territorial Courtsa. If Congress established a bunch of Art. III federal courts in a territory,

the day the territory became a state, 98% of those courts’ case loads would go to the state courts. Territorial Courts transitioned into the state courts.

3. Public Rights Adjudication a. Sovereign Immunity – suing the US requires gov’t waiver of SI (ALJ =

expert in waiving SI) o These categories do NOT COHERE.

Only commonality: Functionally, having non-Art. III courts here is just a good idea.

Rundowno Northern Pipeline (1982)

Brennan: Bankruptcy Courts violate Art. III’s “inexorable command” – they do not fit w/in any of the three traditional exceptions.

Formal White Dissent: Art. III is a value promoting Judicial Independence.

Functional o Thomas (1985)

Approval of statutorily imposed binding arbitration over private rights – unanimous court.

o Schor (1986) Approval of Agency adjudication of state law counterclaims w/ consent of

partieso Thomas and Schor:

Functional approach (see White’s Northern Pipeline Dissent)= Judicial Independence + Good idea

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Bankruptcy Background to Northern Pipeline 1978 — Overhaul of Bankruptcy system Before overhaul

o District courts operated as bankruptcy courts w/ the assistance of non-Art. III “referees”

o Referees did not have jx o Problems arose

Super-duper Expensive and slow to split claims in two different courts that arose out of the same set of facts

1978 reformo Bankruptcy Courts - non-Art. III courtso New:

Broader jurisdiction - to cover most all claims arising out of a bankruptcy Power to enter and enforce final judgments

o Bankruptcy judges (Non-Art. III, but lots of independence//insulation from politics) 14 year terms For-cause removal provision (heavy-handed) Decisions can be appealed to district courts

o Congress did Not want to make an independent Court of Equal rank to district courts over concern that it would diminish prestige of district courts

Northern Pipeline Construction Co. v. Marathon Pipeline Co. (1982)o P filed a petition for reorganization, and sued D for breaches of K, and fraud,

duress, etc.o D challenges the new Bankruptcy Courts as violating Art. III “judicial power

…” SCOTUS (Brennan, plurality)

o Bankruptcy Courts violate Art. III’s “inexorable command” o Past Non-Art. III Courts:

1) Military Courts 2) Territorial Courts 3) Public rights adjudication

o We’re not going to make another exception, and the new Bankruptcy Courts fit none of these historical exceptions. ((These categories do not cohere, other than being a good idea

functionally; see above)) Concurrence (O’Connor)

o Art. III adjudication (judicial independence) is required for state law claimso Prof

This makes no sense. State courts are often not independent (judicial elections) and they hear state claims.

Dissent (White; Burger, Powell) – Functional approacho Art. III requires a balance against competing constitutional values and

legislative responsibilities o Judicial Independence is the most important value expressed by Art. III.o Bankruptcy Courts are okay b/c they’re judicially independent.

1) 14 year terms; for-cause removal 2) Reviewable by Art. III judges

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3) Bankruptcy Act was not an attempt to aggrandize the political branches (it was a practical solution to a complex problem)

Profo Best explanation for Northern Pipeline: “This far and no farther.” But this

is blown away by Thomas v. Union Carbide (approval of statutorily imposed binding arbitration)

o Dissent: Functional approach to Non-Art. III adjudication.

We have never treated Art. III as setting forth Iron-clad requirements Art. III is a value, foremost promoting judicial independence.

Approval of Non-Art. III Courts:

Thomas v. Union Carbide Agricultural Products (1985)o Crux

The “this far and no farther” rationale behind Northern Pipeline was just a passing fancy.

Court here approves of statutorily imposed binding arbitration over private rights.

Backgroundo P challenged statutorily imposed binding arbitration o Statute – regulates private rights

Est. mandatory sharing of research data submitted to the EPA to support new pesticide registration

Researching Company (OG) is required to allow competitors to use previously submitted research for approval of their new products OG entitled to compensation for the use of the data

o EPA had extreme difficulty in determining the proper compensation for this type of data

o 1978 - Congress amended the statute to require binding arbitration of compensation disputes

o P argues statutorily imposed binding arbitration violates Art. III (see Northern Pipeline)

SCOTUSo Binding arbitration requirement does not violate Art. III

Profo According to Brennan’s rationale in Northern Pipeline, this dispute over a

contract term must be heard in an Art. III court. Just three years after that decision, Thomas was a unanimous decision.

Schor (1986) Full name: Commodity Futures Trading Commission v. Schor (1986)

o Commission authorized itself to hear state-law counterclaims arising out of the same transaction as the reparations claims

SCOTUSo Commission can decide state-law counterclaims w/ consent of both partieso Approval of Non-Art. III adjudication of state claims over private rights

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Profo P could have chosen to sue in district court, but Agency adjudication was

cheaper/faster

Notes on Thomas and Schor Provide a functional approach to the issue of non-Art. III courts

Similar to what J. White (dissent in Northern Pipeline) set forth: “Art. III requires a balance against competing constitutional values

and legislative responsibilities.” – Art. III is a value that promotes Judicial Independence

o Rather than focus on any categorical distinction [b/w Public and Private] rights or [b/w state law and federally-created rights] The Court here considered only whether Non-Art. III courts presented a

real threat to judicial independence.

New bankruptcy statute after Northern Pipeline:o 1) Appointment by Circuits – beef up judicial independenceo 2) State law claims

Bankruptcy Courts were allowed to render final judgments only to “core proceedings”

For claims not part of the “core proceeding,” Bankruptcy judge could only make R&R for approval by the district court.

o 3) Increased District Court supervisory role over Bankruptcy court District Judge can remove any matters on its own or after a party

shows cause

Stern v. Marshall (2011)o Complicated procedural history.

Under the new bankruptcy statute, state law counterclaims = “core proceedings” and can be decided by a bankruptcy judge. But District Judge did not treat the state law counterclaim holding as

final (not a core proceeding) , and reviewed it as a recommendation. Before District Judge approved of Bankruptcy recommendation,

Texas State court held for Pierce Issue:

Whether conferring authority for bankruptcy judges to enter final decisions on state law counterclaims is constitutional? (No)

SCOTUSo New Bankruptcy Act violates Art. III

Bankruptcy judges cannot enter final decisions on state law counterclaims

Pierce wins (b/c Texas State court judgment has preclusive effect) o Unclear rationale – provides 7 different reasons.

Concurrence - Scalia: o Only acceptable Non-Art. III courts are Brennan’s 3 exceptions – b/c of

history. Dissent – Breyer (liberals)

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o Bankruptcy Court’s authority to hear state law counterclaims is constitutional

o Most important to us: Judicial Independence. o 5 factor test:

1) Nature of the Claim to be adjudicated 2) Nature of the non-Art. III tribunal 3) Extent to which Art. III courts exercise control over the proceeding 4) Presence or absence of the parties’ consent 5) Nature and importance of the legislative purpose served by the grant of

JX to the non-Art. III court Functional balancing test (efficiency v. SoP principles): “the magnitude of any

intrusion on the Judicial Branch can only be termed de minims”

Administrative State and Art. III

NLRBo Often creates policy through formal adjudication rather than rulemaking –

with the hope of dodging judicial reviewo NLRB is highly politicized, in no way judicially independent:

“Better than Stalinist b/c they don’t have guns” Stern v. Marshall:

Roberts: “We deal here not with an Agency, but with a court” Scalia: “Leaving aside certain adjudications by Agencies … ”

Prof Agency adjudication is an exception to Art. III the size of Kansas – too

big to be treated as a mere detail. If Congress had called Bankruptcy Courts “agencies” – then maybe

they’d be validated. Conclusion:

o When Congress legislates outside of the Art. III model: And the difference b/w Non-Art. III court and Art. III court is minor

= Unconstitutional But if the difference b/w Non-Art. III court and Art. III court is HUGE =

Constitutional

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“Arising Under” Jurisdiction Rundown Doctrines

Mottley Well-Pleaded Complaint Rule (applies to removal too)

Gibbs Pendant jurisdiction (“common nucleus of operative fact”)

Finley Pendant party jurisdiction – Congress overruled Finley w/ § 1367

§ 1331 American Steel Works (1916)

Federal cause of action Yes § 1331 jurisdiction (but see Shoshone)

State cause of action No § 1331 jurisdiction (see Moore; Merrell Dow; but see Smith; Grable & Sons)

Shoshone Federal law cause of action points to local law – no § 1331 jurisdiction

Exception to American Steel Works’ rule of inclusion Smith v. Kansas City Title & Trust Co.

State Law cause of action, but federal constitutional dispute = yes § 1331 jurisdiction Exception to American Steel Works’ rule of exclusion

Moore v. C&O Ry. State law cause of action, ancillary federal issue (negligence per se)

= no § 1331 jx Follows American Steel Works’ rule of exclusion

o Debate roils Merrell Dow

Negligence per se based on FDA standard, no § 1331 jurisdiction b/c FDCA does not provide a PRA

Circuit courts read this to say: State cause of action Grable & Sons

Quiet title suit turned on the validity of IRS’s Notice of a tax sale – Yes § 1331 b/c IRS’s notice is a sufficient federal issue

Thomas Concurrence: Litigation over jurisdiction is dead weight loss for society, no body wins but lawyers. Better to have a bright line rule.

Middling Ground: Moore says Smith doesn’t mean as much as it said

Federal issue in state claim is not always sufficient Grable says Merrell Dow doesn’t mean as much as it said

Federal issue in state claim is sometimes sufficient Result:

Gunn v. Minton (2013) Legal malpractice claim arising out of failed patent litigation – No §

1331 jurisdiction.

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Great example of the crazy issues that creep in at the edges of § 1331 JX

Declaratory Judgment and “Arising Under” Skelly Oil

Look through to underlying coercive suit and decide if that complaint would satisfy Mottley

Franchise Tax Board No SMJ: “sufficiently removed from the spirit necessity and careful

limitation”o Arbitration Analogy

Vaden – FAA is similar DJA, look through to underlying coercive dispute

Mottley (1908) Louisville & Nashville RR Co. v. Mottley (1908)

o P received lifetime passes on the L&N RR in settlement of a personal injury claim

o Congress later outlawed these lifetime passeso RR refused to honor P’s settlement passeso P sued in district court for breach of K – asserting “Arising Under” jxo Ps argued Statute (D’s defense) was unconstitutional

SCOTUSo Federal question must be asserted on the face of P’s well-pleaded complainto Well-Pleaded Complaint Rule:

If the minimum allegations that would justify a judgment in favor of P do not raise a federal question, no § 1331 jurisdiction

o Federal defense does not satisfy § 1331 jurisdiction Well-pleaded Complaint rule is not a constitutional requirement, just a

statutory requirement Prof

o Removal also requires a well-pleaded complaint If P sues in state court D can only remove if P’s well-pleaded-complaint includes federal

questions

United Mine Workers v. Gibbs (1966)o “Common Nucleus of Operative Fact”

If the state claims arise out of the same transaction or occurrence as a federal claim, the federal court can hear the state claims as well.

o Discretionary Judge can choose not to hear the state claims, if they’re awkward or

confusing for the jury, etc.

Finley v. US (1989) o P sued US under FTCA, attempted to add 2 non-diverse Ds as pendant

partieso SCOTUS – no pendant party jurisdiction

Congress overruled Finley w/ § 1367

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o If court has arising under jurisdiction, then non-diverse parties can be added.

§ 1331 “Arising Under”

American Well Works (1916)o P sold pumps - on which P had patentso D claimed that P’s pump infringed D’s patent o D started suing P’s customerso Here

P sued D for libel and slander P sued in federal court, claiming Arising Under jx (on the issues of

patent) Adjudication of the validity of the patent is required to determine P’s

libel claims Court

o No Arising Under JXo Justice Holmes

A case arises under federal law, when federal law creates the PRA And a case does not arise under federal law when a state law creates the

PRA American Well Works:

o As a Rule of Inclusion Federal cause of action = Yes § 1331 JX (except Shoshone) Almost always accurate

o As a Rule of Exclusion State cause of action = No § 1331 JX (see Moore; but see Smith) Usually accurate (Moore; Merrell Dow), but not always (Smith; Grable &

Sons)

Exceptions to American Well WorksShoshone Mining Co. v. Rutter (1900)

o Rare exception to American Steel Works’ rule of inclusion Federal Cause of action points to state substantive law = no § 1331

jurisdiction.

Smith v. Kansas City Title & Trust Co. (1921) o Exception to American Well Works’ as a rule of exclusion

State law cause of action satisfies § 1331 if major federal issue is in dispute

P (shareholder) sues Corporation o Trying to enjoin that corporation from investing assets in federal bonds

(state cause of action)o P argues the issuance of the bonds was unconstitutional

SCOTUSo Yes SMJ – although the cause of action is state law, everything about this

claim is federal o Controversial Quote:

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“General rule is that if it appears from the complain that the right to relief depends upon the construction and Federal Law — yes federal JX”

o Prof – this statement is entirely overbroad. Outcome Determinative test is no longer the rule.

Moore v. C&O Ry. (1934)o RR employee (P) injured while working in intrastate commerce – P sues in

federal courto Cause of action was under a KY statute

But negligence per se (underlying statute) was a Federal safety law SCOTUS

o No § 1331 jurisdiction o Federal safety standard as basis for negligence per se is not a sufficient to

satisfy § 1331

Debate Roils

Merrell Dow (1986) o State chose to regard violation of FDA as per se negligence

SCOTUSo No § 1331 jurisdiction o FDCA does not provide a PRA – so no private enforcement in federal courts.

Profo Because of the way Merrell Dow explained its result,

Lower courts over-read Merrell Dow To conclude that if there is no federal PRA there is no Federal JX

In other words, They read Merrell Dow to effectively overrule Smith 4 circuits in a row declared Smith abrogated.

o SCOTUS tried to clear things up in Grable & Sons

Grable & Sons (2005) o P stopped paying taxeso 1994 - IRS seized P’s property to satisfied P’s delinquent taxeso IRS gave P notice by mail before IRS sold property to Do Although P received actual notice from IRS, there was a defect in the noticeo P sues D in state court to quiet title (state claim)o D removes to federal court;

P argues no removal for state causes of action (see Moore; Merrell Dow) D argues: everything turns on a federal issue: validity of IRS’s notice to P

(see Smith) SCOTUS

o Yes § 1331 SMJ Case implicates serious federal issue, even though it’s a state claim

o 3 Requirements for State claim ending up federal court: 1) Contested and substantial federal issue 2) Raise a serious federal interest in

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e.g. Constitutionality of the statute in Smith - that’s a serious federal interest Administration of tax sales in Grable - that’s a serious federal

interest 3) Federalism

“JX must be consistent w/ the Congressional judgment about the sound division of labor of state and federal courts”

Prof I have no idea what this means If you search for a Congressionally approved balance b/w state and

federal claims — you’ll hunt forever. Congress has not spoken on this issue.

What does this 3rd factor mean? 1) This case is not Merrell Dow - we’re doing something different 2) Prof thinks Souter thinks he said something valuable 3) What he actually said is

We’ve got 2 rules, something we follow one and sometimes we follow another

2 rules:1. If it’s a state-created cause of action, no federal SMJ

(Merrell Dow)2. If it’s a state PRA, and there is a really good reason for

federal SMJ - yes federal SMJ (Grable & Sons) Thomas Dissent

o Better to have a Bright-Line rule here: Federal Cause of Action = Yes § 1331 State Cause of Action = No § 1331

o Litigation over jurisdiction is a dead weight loss, nobody but lawyers (fees) win.

o Prof – this is a policy decision, but probably the right one.

Gunn v. Minton (2013) o Patent claim fails. P sues his lawyer for malpractice o P convinces TX-SC that federal court has exclusive jurisdiction over P’s

malpractice suit (which will turn entirely on the validity of P’s patent) SCOTUS

o No § 1331 jurisdiction. o TX State Court decision on the patent issue will have no precedential weight

outside of Texas. o Malpractice suits have no business in federal courts.

Prof: This is a great example of the crazy issues that creep in at the edges of § 1331 JX.

Declaratory Judgment Actions and Arising Under JX Rationale behind Declaratory Judgment Act (DJA):

P wants to challenge a regulatory statute as unconstitutional Mushroom or Cow Pie: P does not want to first violate the statute first.

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Injunctions v. DJAo To bring a dec. action, P need not show “irreparable injury” – just a “case or

controversy” o Very similar effects (anticipatory ruling on legality), but declaratory

judgments are easier to obtain. And the Dec Action P would usually be the defendant in the underlying

suit. DJA - §§ 2201 and 2202

o Federal courts can issue a declaratory judgment “in a case of actually controversy within in its jurisdiction”

Aetna Lifeo D claims DJA is unconstitutional violation of “Case or Controversy”

SCOTUS says no, DJA is valid b/c DJA requires a controversy with all the characteristics of an Art. III

case or controversy Dec Action P must show:

Real controversy, concrete, disputed, non-hypothetical, and that the facts are developed enough to allow for a judgment.

DJA and Mottleyo A mechanical application of the Well-Pleaded Complaint rule to Declaratory

Judgment Complaints would result in a huge expansion of federal subject matter jurisdiction. Any anticipated federal defense would allow a declaratory judgment

plaintiff to satisfy § 1331, even though the underlying dispute would be sparked by state claims only.

o But §§ 2201 and 2202 do not intend to expand federal SMJ. So we get Skelly Oil.

Skelly Oil (1950) o P and D contract: Option expires after an event governed by federal lawo P brought a dec action to determine if that event occurred

SCOTUSo No SMJ – the underlying dispute does not present a federal questiono “Look through” to the underlying dispute and determine:

But for the dec action procedure, if the federal question would not be presented on the face of the coercive complaint, then no federal jx.

Profo Skelly Oil makes a lot of sense (to avoid a huge expansion of federal smj) –

but there is difficulty in administration. Hypothesizing the underlying dispute is not always easy.

Federal Tax Board (1983)o CLVT – vacation fund, protected by ERISA, for construction workers in

California. o Franchise Tax Board

CA version of the IRS Under state statute, If X owes back taxes, Tax Board can pursue any

of X’s personal property that’s held by a 3rd Party

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CLVT refused to allow Tax Board to take funds for construction workers who owed taxes

o ERISA CLVT has a PRA to seek an injunction against Tax Board coming after

CLVT funds No PRA for Tax Board in ERISA

B/c Tax Board does not have any funds that are covered by ERISA (duh)

o Lawsuit Tax Board sued CLVT in state court, claiming:

1) Levy Enforcement (State Statute enforcement) 2) CA-dec judgment - seeking a declaration that the state

claim is not preempted That ERISA does not govern this area of conduct, and CLVT

was obligated to make the payments. CLVT’s defense:

Preemption, based on a Dept of Labor opinion letter — the State Statute was preempted by § 514 of ERISA

CLVT sought to Remove Tax Board didn’t want to remove (of course, a state agency wanted a state

court to decide the federal preemption question) SCOTUS

o No SMJ – the lawsuit must be heard in state court. o P’s Damages Claim

Tax Board wants $$ from the Trust Definitely no SMJ: exactly like Mottley

This is a state claim for damages – and while CLVT argues preemption, that’s merely a federal defense.

o P’s Declaratory request Tax board is attempted to clear up the ERISA issue Prof: the Court there makes no sense. Under Skelly Oil, yes SMJ.

Quotes Skelly Oil approvingly, then does the opposite of what it commands.

Under Skelly Oil: In a coercive suit, CLVT would be the P seeking an injunction

under ERISA. This is a federal question on the face of the underlying

complaint. Court: Skelly Oil doesn’t apply b/c

1) State doesn’t need federal jurisdiction Prof: Odd. Federal jurisdiction isn’t based off of “necessity” – it’s

based on whether a jurisdictional statute is satisfied. Here, § 1331 is satisfied.

2) ERISA PRA is a one-way street. Tax Board can’t sue under ERISA Prof: Odd. This is exactly what the DJA does across the board: “If I

can sue you under ERISA, you can sue me in a declaratory action.” DJA creates comprehensive duality. Any punitive D has a

right to a dec action. In all other cases, Yes SMJ if either party could bring a coercive

suit in federal court.

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3) “This situation is … sufficiently removed from the spirit necessity and careful limitation” that this suit does not fall w/in federal jurisdiction.

Rundowno Skelly Oil

Rule: Look through the declaratory complaint to the coercive lawsuit, and only if that underlying complaint would satisfy Mottley, yes SMJ to hear the dec action.

Hypothesizing the underlying dispute makes Skelly Oil difficult to administer, especially if the declaratory judgment action originates in state court (removal + Skelly Oil = complications).

o Federal Tax Board Exception to Skelly Oil: The case is “sufficiently removed from the spirit

necessity and careful limitation” of district court jurisdiction – whatever that means.

o Vaden Federal Arbitration Act also requires “looking through” the procedural

claim to the underlying coercive dispute, and subjecting that coercive dispute to Mottley.

Arbitration Analogy Vaden v. Discover Bank (2009)

o In state court: State claim by Bank (P) Federal* counterclaim by D

*SCOTUS assumes D’s state counterclaim is actually federal (completely preempted)

o P files in federal court to force arbitration (under FAA) w/ D’s counterclaimo FAA: P can force arbitration, Only if a federal court "would have" OJX over

the subject matter of a suit arising from the controversy that P seeks to arbitrate (Skelly Oil test)

SCOTUS (5-4)o No SMJ: P’s state claim – does not satisfy Mottely

D’s federal counterclaim is irrelevant. o The dispute that P seeks to force D to arbitrate is in state court. That

underlying complaint (Bank’s state claim) fails Mottley. Dissent

o Yes SMJ. Dissent considered D’s federal counterclaim in isolation from P’s state complaint

o Prof This is not how it works. Dissenters sought to promote pro-arbitration

policies of FAA (and counter state hostility to forced arbitration).

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Complete Preemption Complete Preemption is a rejection of the Well-Pleaded Complaint Rule. Some categories of federal law cannot be evaded by merely pleading a state claim. There, the case is removable to federal court.

Prof: o Complete Preemption is entirely motivated by a distrust of state courts,

and providing access to federal courts. o CP has nothing to do w/ “preemption,” CP is properly called a “special

removal doctrine.” o Court frames the issue in terms of CP b/c removal is quite technical and

rigid.o Court believes there are certain categories of federal law to which state

courts are hostile. If the Court believes state courts will purposefully err in the preemption

question to avoid application of federal law, Court will strip those types of claims from federal courts and call it “complete preemption.”

Rundown Yes Complete Preemption:

o Avco – LMRA (labor disputes)o Taylor – ERISA (retirement funds) o Anderson – National Bank Act (usury claims)

Preemption v. Complete Preemption P brings state claim in state court. D believes P’s state claim is preempted

by federal law D attempts to remove

o Preemption as a defense = No removal o Complete Preemption = Yes removal

Avco Corp. v. Machnists (1968) o Labor Background

Quid pro quo: Management agreed to Arbitrate disputes

[in exchange for] Unions agreeing to “No Strike” clauses

o Legal background Norris-LaGuardia Act (NLA): No injunctions against labor unions in

federal courts. Lincoln Mills: Collective bargaining Ks are governed exclusively by

federal common law (under § 301 of LMRA) Problem arose:

Sinclair: NLA precludes federal court from enjoining Union strikes

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Lincoln Mills: FAA requires enforcement of the binding arbitration clause

So: Management was forced to arbitrate, but could not enforce the “no strike” provisions.

o Here Management (P) sues in State Court in an attempt to enforce the “No

Strike” clause (K claim) Union (D) attempts to remove P argues, no federal smj b/c the state complaint does not present a

federal issue SCOTUS

o Yes removal o In cryptic language the Court said federal law controls

Management’s state complaint is completely preempted by § 301 (Lincoln Mills)

Disputes over collective bargaining agreements are exclusively heard in federal courts

o Effect: Management is screwed. In federal court P must arbitrate and cannot

enforce the “no strike” clause.” Whereas the state court wouldn’t have enforced the arbitration clause, and would have enforced the “no strike” clause.

Post-Script Note: o Boys Market (1970) Overruled Sinclair:

Federal courts can now enjoin labor strikes, so long as there is binding arbitration, and a no strike clause.

o Irreconcilable conflict b/w NLA (no injunctions against Unions) and FAA (forced arbitration) – Court chose to enforce the FAA

Taylor (1987) o P brings state claims in state court against his former employer (D) for

Disability Benefits (funds regulated by ERISA) o D attempts to remove, saying P’s cause of action actually rests in ERISA –

complete preemption SCOTUS

o Yes, complete preemption – D can remove. o State claims against ERISA protected funds are completely

preempted = yes removal o Note:

Unlike Franchise Tax Board (no federal SMJ over an ERISA-related claim), P’s state claim here fits w/in ERISA’s PRA.

Beneficial National Bank v. Anderson (2003) o P brought usury claims against Bank in state court

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o Bank argues, National Bank Act provides the max. interest rates (preemption) and the only PRA that P could use (Complete preemption)

SCOTUSo Yes complete preemption for usury claims brought in state court that fall

under National Bank Acto D can remove. o Yes complete preemption if:

Congressional intent indicates that federal law provides the exclusive cause of action over the alleged controversy.

Dissento Well-Pleaded Complaint Rule: P’s complaint only asserts state law claims.

No removal. Prof

o Best explanation here is Amicus Brief by the United States: State Court here has two legitimate options:

1) Re-characterize the claim as a violation of the National Bank Act, or 2) Dismiss the action w/ prejudice as preempted by federal law

P would hope the court would choose (1) and re-characterize as asserting a federal claim

The third option is not legitimate: 3) State court would err, and allow the claim to proceed under state

law, notwithstanding the federal preemption o Complete Preemption prevents state courts from violating the

Supremacy Clause. Here, AL state courts are hostile to federal preemption and hostile to big

corporation. Lots of motivation for AL court to err on the preemption defense.

o Prof Preemption is binary. There cannot be a “robust” preemption doctrine.

Complete Preemption is a removal doctrine, not a preemption doctrine.

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Diversity Jurisdiction Debate over the efficacy of DJX

o Pro-Diversity jurisdiction: Avoid local prejudice (protect non-resident litigants) Federal courts provide higher quality resolution (better judges, better

procedure) Educational value of having two systems (state courts v. fed courts)

o Con-Diversity jurisdiction: 1) Overly burdens federal courts (a luxury we cannot afford) 2) Prejudice against out-of-state Ds is no longer a significant concern 3) Litigation over DJX is a dead-weight-loss. State court gets straight

to the merits.

Doctrine – Requirements for Diversity Jurisdictiono Complete diversity from opposing side – Strawbridge v. Curtiss (1806)

Must be a citizen of a state to invoke Doesn't mean every P w/ every other P; but all Ps with all Ds Not a constitutional req; a 1332 req Corporations are citizens of the state(s) where incorporated plus

principal place of business (location of executive office) – Hertz Corp v. Friend (2010)

Partnerships: every citizenship of each individual partner counts Trusts: citizenship where trustee is Estate: citizenship where decedent was Child’s Representative: citizenship of the child

o AiC: $75,000+ Only when it appears to a “legal certainty” that recovery in excess of that

wouldn’t be had, claim will be dismissed Aggregation: can add up claims by and against same party (but not of

different Ds)o Local conclusions from the major rules

No Rule 20 permissive joinder where it would destroy complete diversity No Rule 19 compulsive joinder where it would destroy complete diversity

BEFORE § 1367 Supplemental Jxo Pendent jur: concerns Ps – generally arises in § 1331 cases

P brings fed claim in fed court can also bring a state claim that arises from the same facts A v. B (federal claim) + A v. B (state claim)

Pendent-party jur: involves a new person as well A v. B (federal claim) + A v. B (state claim) + A v. C (state claim)

Benefit: cheaper to try in one courto Ancillary jur: concerns Ds – generally arises in diversity cases

Rule 13 compulsory counterclaim Rule 13 cross claims (by D against another D) Rule 14 impleader of third-party Ds Benefit: economy of litigation

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But also includes Rule 24 intervention as of right (when absent P has an interest that will be impaired by the existing action) Ancillary Jx makes less sense than Pendent Jx; it’s subject to

manipulation by Pso Rationale

Avoid injustice to diversity Ds, who are involuntary parties to the suit Seems harsh to haul into federal court and then not let them have a

say re: separate claims arising from the jurisdiction §1367 Supplemental Jur

o Says except as listed in subsection (b), in any civil action of which district cts have original jurisdiction, they shall have supplemental jurisdiction over all other claims that are so related, under the same case/controversy under Art. III.

o Listed in (b): Ds joined under Rule 20 permissive joinder Ds or Ps joined under Rule 19 compulsory joinder Ds joined under Rule 14 impleader Ds or Ps joined under Rule 24 intervention

Exxon Mobil Corp. v. Allapattah Services (2005)o Federal court in diversity jur can exercise supplemental jur over

additional Ps whose claims don’t satisfy the AiC, so long as the claims are part of the same case/controversy as claims of P, which do satisfy AiC. §1367(b) only refers to Ds added under Rule 20; mother added to this suit

was added as a P under Rule 20. § 1367 is a POORLY written statute. SCOTUS knows it, but still

allowed it here. Kennedy/Scalia saying, “you’ll learn from this lesson” to the

professors who wrote the statute. AiC doesn't play a part in the underlying justification for diversity

jurisdiction Dissent: we should say no supp. jur. unless there is individual jur.

Owen Equipment v. Kroger (1978) o Timeline:

Kroger sued OPPD for negligence (fed. ct. because of diversity). OPPD impleaded Owen under Rule 14; Owen was not diverse from

Kroger or OPPD Kroger asserted claim against Owen under Rule 14 OPPD granted SJ, so case was then between Kroger and Owen, who were

not diverse. SCOTUS: complete diversity is destroyed. Kroger couldn’t have sued

OPPD & Owen together ORIGINALLY, so no Supp Jur. Dissent: diversity is only required between the initial parties; court

can hear all claims among parties arising form the same nucleus of operative facts as P’s original complaint against original D

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Abstention Abstention Rundown:

Context Rule

Younger

Pending State Prosecution

No injunctions against pending state criminal prosecutions

Pullman § 1331 Novel issue of state law + Difficult con law question =

Abstain

BurfordDJX – natural resources

Novel issue of state law + Complex State Admin. Scheme = Abstain

Colorado River

Concurrent Litigation -

1) Federal courts have a virtually unflagging obligation to exercise their jurisdiction2) Rare exceptions (exclusive jx over in rem disputes)

Anti-Injunction Act

State Court Proceedings

Federal court cannot issue an injunction to enjoin state court proceedings 3 exceptions, yes injunction if:

Expressly authorized by act of Congress Necessary in aid of its jurisdiction Protect or effectuate its judgments

Notes Mechanics of enjoining a state prosecution:

1) Anti-Injunction Acto Fit an exception. E.g. Suits under § 1983 are allowed (“expressly

authorized”) – Mitchum v. Foster 2) But still apply Younger

o If the state proceeding is a pending criminal prosecution, No injunction.o Point: Both § 2283 exception and Younger have to be satisfied to

enjoin enforcement of a criminal statute. Equity:

o Abstention is far more likely in an equity or declaratory judgment action than in actions for damages, because of the similarities in “adequate remedy at law” and policies motivating the Abstention.

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Younger AbstentionBackground to Younger

Douglas v. City of Jeanette (1943) o Ps sought injunction in federal court against threatened future prosecution

under an Anti-Pamphleteering statute SCOTUS

o No injunction b/c Ps have not shown “irreparable harm” – equity merits holding Imminent criminal prosecution, even though it’s allegedly

unconstitutional, is not a ground for equity relief

Dombrowski v. Pfister (1965) Rule:

o No Injunction of pending state criminal proceedings unless A) Criminal statute is overbroad, or B) Prosecution is being made in bad faith (harassment, w/ no intent to

convict) Here: Yes, the statute is overbroad. Yes injunction of pending state proceedings

Ex parte Royall (1886) Rule: Exhaustion of state remedies is required for Federal Habeas review. Background

o D was in jail awaiting trial on state criminal chargeso D sought federal habeas on the ground that the statutes under which he was

being prosecuted violated the Contract Clause SCOTUS

o Federal courts cannot intervene until D exhausts all state court remedies on the federal claim

YoungerYounger v. Harris (1971)

o Harris distributed anti-police pamphlets in LAo Harris charged w/ violating CA Criminal Syndicalism Acto Harris asks federal court for an injunction against his prosecution, alleging

1st and 14th Amend. violations SCOTUS (Black)

o No injunctions of pending state criminal proceedings, unless 1) Prosecution is advanced in bad faith 2) Statute is so obviously unconstitutional it wreaks

o Lots of language about equity, and “Our Federalism” (i.e. respect of state courts)

o “Even if a state statute is over broad on its face — that’s not enough to justify federal injunction to halt state prosecutions”

Note:o The Younger exceptions are so rare, that in practical terms there are no

exceptions.

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o Dombrowski is energized by a distrust of state courts. Younger sought to make amends, by establishing a rule showing great respect for pending state criminal proceedings.

Samuels v. Mackell (1971) Companion case to Younger – same facts but P sought a declaratory judgment,

not an injunction SCOTUS

o Younger applies to declaratory judgments. No dec actions over pending state criminal proceedings.

Profo This shows that all the equity language in Younger (that P had an adequate

remedy at law, P did not have an irreparable injury) was bogus. o The policy of Younger is not based in equity; it’s based in

administration of justice in the dual federal/state system. o The issue is not about the remedy; it’s about Access to Federal

Courts.

Mitchum v. Foster (1972) o § 1983 is an “expressly authorized exception” to § 2283 (Anti-Injunction Act)o So P can request for an injunction under § 1983 against enforcement of a

state criminal statuteo BUT note:

If criminal proceedings are pending – Younger bars review in federal court.

Prof’s terms:o Mitchum unlocks the door to federal injunctions of state prosecutions, but

only on the understanding that Younger keeps that door shut the vast majority of the time.

No Pending State ProceedingsSteffel v. Thompson (1974)

o P and P’s friend (Becker) at mall handing out Anti-Vietnam flyers Cops threaten arrest under state law

o P files a declaratory judgment action in federal court, challenging the law barring their pamphleteering as unconstitutional under 1st and 14th amendments.

o D argues: Even if P has standing, Younger abstention SCOTUS

o No Younger Abstention when there is no pending state proceeding Federal court can grant a declaratory judgment on the constitutionality of

a state criminal statute, if no state proceedings are pending against the claimant (dec action P) under the statute.

o Cop’s Threat of prosecution is enough to satisfy standing. Prof

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o Steffel aligns Younger with Monroe v. Pape -- no exhaustion required for § 1983 Monroe – If P’s federal rights are violated, P need not try state law first

and can sue right away in federal court under § 1983. If Younger applied when no prosecution was pending, Monroe would be

largely gutted. o Steffel aligns Younger with Ex parte Royall -- yes exhaustion required for §

2254 Habeas has no prospective application, and Steffel clarifies that Younger

has no prospective application (only applies to pending state proceedings)

Ex parte Royall and Younger both require state criminal D to exhaust state remedies before asking for relief in federal court.

Stay if NecessaryHicks v. Miranda (1975)

o P filed federal dec. action against state criminal statuteo Before District Court did anything of substance, State charged P w/ the

crime. SCOTUS

o No Younger abstention – there is a pending state proceeding.

Doran v. Salem Inn (1975)o Town passed an ordinance banning strip clubso 3 Strip Clubs (Ps) clad their dancers in bikinis

And brought a § 1983 suit for a declaration of the invalidity of the ordinance and an injunction against its enforcement

o After filing the complaint 1 of the Strip Clubs resumed stripping (P-Strip4Lyfe)

o State prosecuted P-Strip4Lyfe under the ordinance District Court

o Ruled the ordinance unconstitutional on its face Issued a preliminary injunction barring enforcement against all 3 Ps

(including P-Strip4Lyfe)o CoA affirmed

SCOTUSo Preliminary injunction is available to the two Ps who are not being

prosecutedo P-Strip4Lyfe cannot get a preliminary injunction b/c the state proceedings

are pending – Younger.

Summary of Hicks and Doran:o Pending state proceeding — Yes abstention (Hicks)o No pending state proceeding — No abstention (Steffel), and an injunction if

you really need it (Doran)

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Application of Younger to Civil Suits Younger does not apply to civil suits, unless the pending proceeding is a

regulatory enforcement action.Huffman v. Pursue (1975)

o City brought Public Nuisance against Porn Theatero Porn theater seeks injunction in federal court

SCOTUSo Yes Younger abstention = Public Nuisance claims is Quasi-Criminal

Juidice v. Vail (1977) Yes Younger abstention over pending civil contempt proceedingsTrainor v. Hernandez (1977)

o Much more difficult caseo 2 Things going on:

(a) State sues to obtain fraudulently obtained welfare benefits (b) State Attaches D’s property to ensure recovery

o P sues to challenge (b) SCOTUS

o Yes Younger – federal court will not hear challenge to the State attachment procedure; it’s too intertwined w/ the welfare enforcement proceeding.

New Orleans Public Service (1989) No Younger Abstention over General Legislative Proceedings (e.g State Agency

Ratemaking proceedings) Federal court can hear challenge to the ratemaking while its pending.

Sprint Communications v. Jacobs (2013)o 3 categories where Younger applies

1) Pending state criminal proceedings (see Younger) 2) Civil enforcement proceedings (see Huffman - public nuisance)

must be akin to a criminal prosecution (see Middlesex - state bar ethics rules)

state is a party to the state court civil proceedings (see Trainer - welfare recovery)

3) Civil proceedings involving certain orders uniquely in furtherance of the state court’s ability to perform their judicial functions (see Juidice - contempt; Trainer - attachment)

Younger in Hamdan & Kowalski

Hamdan and Younger Hamdan Majority:

o 1) Federal courts can hear P’s habeas petition (the jx-stripping statute does not apply to pending cases)

o 2) The Pending proceedings in the military commission do not require Younger abstention. Younger is founded in federalism (respect for state courts). Military commissions do not deserve such respect.

Scalia Dissent:

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o 2) Younger applies w/ full force to pending proceedings in military commissions. Younger federalism rationale applies equally to SoP concerns.

Kowalski and Younger Kowalski – Restriction of 3rd Party standing (against the recent trend),

motivated in part by Younger. Lawyers could not stand on the rights of the Ds currently in the system b/c, under Younger, those Ds could not seek to invalidate the statute while proceedings are pending.

Pullman Abstention Pullman Doctrine:

o Federal court abstains when P’s claim raises BOTH (a) Novel issue of state law (b) The resolution of which might avoid a difficult question of

Constitutional Law Administration: (Gov’t Employees v. Windsor)

o 1) Go to federal court — get an abstention decision Federal Court retains jx by staying proceedings pending state litigation

(Harris County Commissioners v. Moore (1975))o 2) Go to state court on the uncertain state claim — reserve federal claimso 3) Go back to federal court on the federal claims — worry about issue

preclusion o Additional) Pullman abstention (and judge’s denial of Pullman) is reviewed

de novo on appeal.

Notes Pullman is similar to the PQ Doctrine in that the abstaining court lacks

guidance on the issue of state law. Pullman is all about delay.

o Play in the joints in deciding whether either the state or federal issue is certain under settled law. If District Judge wants to hear the case – he just needs to say one of the

issues is certain.

Background:Meredith v. City of Winter Haven (1943) Diversity Jurisdiction is mandatory; federal courts must decide difficult issues of

state law. CO River – “virtually unflagging obligation” to hear the cases before

Siler v. Louisville & Nashville R. Co. (1909)o RR claimed that a KY-state ratemaking regulation

(a) Fell outside statutory power of KY RR Comm., and (b) Violated federal constitution

SCOTUS

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o No abstention o Constitutional Avoidance

Order in which the questions should be decided: 1) State claims

If KY RR Comm. lacks authority to make the regulation under state law, no need to decide the federal constitutional claims

2) Federal Constitutional claims Prof

o Can’t see the difference b/w this case and Pullman. Here, both the state law and con law issues were uncertain. Nevertheless, the court heard the case. Perhaps the issue of state law was more certain here. Or perhaps the state issue in Pullman was more political. The problem with introducing politics as a factor in Pullman

abstention is that Pullman as a doctrine is non-discretionary.

RR Comm. of Texas v. Pullman Co. (1941)o Pullman (sleeper cars) challenge RR Comm.’s regulation that was aimed at

harming black porters (train employees)o 2 challenges:

1) TX RR Comm. Lacks authority under state law to issue the regulation 2) If the regulation is valid under state law, it violates federal Con Law

(14th Amend) Note: in 1941, this Con Law question was unsettled.

o Ps seek injunction against enforcement of the statute state-wide = 3-Judge Court Note, if Ps had challenged the statute as-applied, the case would be in

district court. SCOTUS

o Yes abstention Uncertain State Law, if settled in favor of P, will avoid a Constitutional

Question. So we kick the state law question back to TX state courts. Prof

o SCOTUS’s desire to avoid this case might have been motivated by hostility toward the 3-Judge Courts that were established after Ex parte Young (federal courts can enjoin state statutes that violate the Constitution). After 3-Judge Court, litigants appealed to SCOTUS as of right. No

discretionary cert. SCOTUS was angry about not having discretion to hear these cases, so it

abstained.

Administration of Pullman Prof believes:

o Pullman fails at the administration level. Delay is the only motivation for pursuing Pullman abstention in federal court.

o While doctrinally Pullman is non-discretionary, Judges are cautious abstain under Pullman because of the massive litigation costs and delay. Abolishing the 3-Judge Court has also played a role in limiting the use of

Pullman.

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Gov’t Employees v. Windsor (1957)o P brought uncertain State Claim, and a difficult Con Law claimo District Court abstained (affirmed by SCOTUS)o P advanced the state claims only in State Supreme Court, which held for Do P then came back to district court to litigate the federal claims

District Court held for D on the federal claims SCOTUS

o District Court should have abstainedo P must advance the federal claims in state court as well, so that the State

Court can determine the state claims “in light of” the federal claims”

England v. Louisiana State Board of Medical Examiners (1964) After District Court abstains under Pullman –

o District Court stays retains jx by staying proceedings pending state litigation (Harris County Commissioners v. Moore (1975))

P goes to state court and then:o If P fully litigates his federal claim in state court — P loses access to federal

district courto If P wants to retain access to federal court on his federal claims after state

court adjudication: To comply w/ Windsor

P must indicate in state court that he is not exposing his federal claims to final disposition. Note:

P must be very careful to not expose the federal claims to state judgment.

State Court may choose to decide the federal claim anyway - but that doesn’t affect P’s right to get back into a federal district court.

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Burford Abstention Doctrine:

o When sitting in diversity, Federal Court abstains if: (a) Novel issue of state law (b) Deciding the case would disrupt a Complex State Administrative

Scheme Notes

o Burford is a very rarely used doctrineo Meredith is the background rule:

Diversity Jurisdiction is mandatory; federal courts must decide difficult issues of state law.

Burford v. Sun Oil Co. (1943)o P challenged TX RR Comm.’s issuance of certain permits in the East Texas

Oil Field. o Regulatory Scheme to solve the “drink your milkshake” problem

TX RR Comm. had exclusive permitting authority over the field Judicial review of those Agency decision to ONE state court in Travis

Countyo Prof: This scheme provided highly consistent outcomes (regardless of

correctness) SCOTUS

o Yes Abstention Difficult area of state law Deciding this case would disrupt a Complex State Administrative Scheme

o The dispute is entirely local – Adjudication over natural resources in this context is best left to state

court Prof

o Shoshone Comparison: Burford required federal court to examine a bunch of unfamiliar state-rules that were incredibly local in nature, and federal intervention will disrupt the local scheme.

Eminent Domain and Burford

Mashuda (1959)o Pending state action over adequacy of compensation for County’s

condemnation of P’s lando P then learned that the County had leased the land to a private Corporation

Under PA law, no eminent domain takings for private useo P filed diversity suit in Federal Court against the County and the

Corporation - seeking ouster SCOTUS

o No abstention State law is difficult, but – No complex state administrative scheme.

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Thibodaux (1959)o Very similar facts as Mashuda, (eminent domain, unsettled state law)o But SCOTUS says Yes Burford abstention

Profo Cannot easily reconcile Mashuda and Thibodaux. o Academic explanation: Mashuda district court dismissed the case; whereas

Thibodaux district court stayed adjudication pending outcome of the state condemnation proceeding. But this explanation is unsatisfactory. B/c in abstaining in diversity cases

– there is no federal claim to answer later (unlike in Pullman).

Other cases not worth going into: Kaiser Steel Corp v. W.S. Ranch Co. (1968) (per curiam)

o Similar to Thibodaux, but no opinion explaining why. Quackenbush v. Allstate Ins. Co. (1996)

o Suggests there is some difference in staying v. dismissing the djx case when deplying Burford.

o notes that when Burford applies, the appropriate disposition is granting a stay, rather than dismissing

Concurrent Litigation – Colorado River Abstention Colorado River is a Non-abstention doctrine (see also Meredith)

o Regardless of pendency of state claim, Federal court will proceed to judgment Subject to the application of appropriate res judicata principles if the

state proceeding becomes final before the federal suit concludedo But Note

CO River is cited for two contrary propositions: 1) Federal court’s “virtually unflagging” obligation to decided cases

properly before it. 2) There can be exceptions (unclear the standards, but it’s rare).

In rem exception – well established. o A court exercising in rem jurisdiction has to do so exclusively.

Colorado River Water Conservation District v. United States (1976)o Competing forces:

a) McCarran Amendment US can be joined as a defendants in State Courts in adjudication of

water rights b) § 1345

SMJ over any suit brought by the United States c) Complex State Administrative Scheme for licensing of water rights

o Concurrent litigation: US sues in federal district court, on behalf of some Native American

tribes, seeking claims to water (state claim) State filed a state court suit against US over the same claims

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o State asks the federal court to abstain SCOTUS

o General Rule: Federal courts have a virtually unflagging obligation to exercise their

jurisdiction.o But there’s an exception here

Rationale is somewhat unclear (probably an intentional lack of clarity to keep the exception specific to these facts)

Factors suggesting abstention is okay here: a) McCarran Amendment suggests Congress wanted water rights

litigated in state court b) Burford doesn’t apply b/c the state law questions here are clear –

but it’s close. c) Analogy to In rem jurisdiction. While this is not formally an in rem

action, there can’t be two users of the same water.o Uniform adjudication of water rights is critical to administration of the state

licensing system. Prof – this rational abuts both Burford abstention and exclusivity of In

rem jx.

Prof’s thoughts on CO River: Virtually unflagging obligation

o Motivated by formal application of mandatory jurisdiction statutes. o Trust of state courts:

If jurisdiction were discretionary in context of concurrent litigation, this would show a distrust of state courts. (see 4 justices in Will v. Calvert Fire Ins. Co. (1978))

But it’s not discretionary – so unlikely tied to a distrust of state courts. o Scheduling

District Courts may well be able to do informally what CO River says they cannot do formally.

Parties can ask for continuances, etc. CO River lives-on b/c district courts are not that constrained by it.

Declaratory Judgment ActionsBrillhart v. Excess Ins. Co. of America (1942)

o Declaratory jurisdiction is discretionary under §§ 2201 and 2202 Concurrent litigation in state court weighs in favor of Abstention in the

dec action Will v. Calvert Fire Ins. Co. (1978)

o 4 Justices Advocated to extend Brillhart to all cases: If concurrent litigation in state

court, judge should have discretion whether to abstain. Wilton v. Seven Falls Co. (1995)

o Made clear Brillhart covers on declaratory judgment actions. o Affirms CO River “virtually unflagging obligation”

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Rooker-Feldman Doctrine Rooker-Feldman

o After State-SC loss, Federal Court lacks jurisdiction to hear the claim (P’s only option is appeal to SCOTUS).

Prof and SCOTUS (see Lance) hate thiso R-F unnecessarily transmutes preclusion doctrine into a messy

jurisdictional requirement. o Quotes:

Best thing to say about R-F is good riddance; Best thing for lawyers is to never mention it again

Whenever someone argues dismissal under R-F, just cite Lance v. Dennis Possible motivation for R-F doctrine:

o Preclusion is not categorical, in fact, preclusion is very contextual E.g. was the issue actually litigated, disputed, etc.

o Jurisdiction is categorical – no discretion there. But this overly hardened the preclusion doctrine.

Rooker (1923)o P lost in Indiana-SC; SCOTUS denied certo P brought a petition in federal district court, challenging the

constitutionality of the State Supreme court’s decision Note: Usually preclusion (of the IN-SC judgment) would be the main

defense here SCOTUS

o Only SCOTUS has authority to review the decision of a highest state courto US District court has NO JURISDICTION to hear P’s claim

Feldman (1983)o Ps were denied admission to DC Baro Reviewable only by DC Cir.

Ps lost, tried to sue in district court SCOTUS:

o P’s only path for review after DC Cir. was SCOTUS o District Court did not have jurisdiction to hear P’s claim

SCOTUS Severely Limits Rooker-Feldman

Exxon Mobil v. SABIC (2005) o Concurrent litigation –

D in the federal suit argues R-F, district court lacks jx SCOTUS (Ginsburg)

o R-F does not apply to concurrent litigationo R-F is very narrow:

No federal jx over “Cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those state judgments.”

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o Prof: Only thing better to say: R-F doesn’t exist at all.

Lance v. Dennis (2006)o D argued no federal jx under R-F, b/c P was in privity w/ a party who lost in

state court SCOTUS

o R-F doesn’t apply – yes jurisdiction R-F has caused “23 years of mischief.”

o Preclusion may govern hereo Simply b/c Ps might be precluded (parties in privity can be precluded) — no

application to the Rooker-Feldman doctrine

Statute-Based Abstention 3 Abstention Statutes:

o 1) Anti-Injunction Act § 2283 Federal court cannot issue an injunction to enjoin state court

proceedings, unless 1) Express authorization by an Act of Congress (e.g. § 1983 –

Mitchum) 2) Necessary in aid of Court’s Jurisdiction (e.g. in rem jx) 3) Protect or Effectuate its judgments (Re-litigation exception)

o 2) Tax Anti-Injunction Act § 1341 No federal court injunction against collection of a State Tax, so long

as state court provides a remedy Policy: Pay first, sue later. ACA Case

Roberts: Individual mandate was not a “tax” for purposes § 1341 (we can hear this case); but it was a “tax” for purposes of Congressional authority to enact the law.

o 3) Johnson Act § 1342 Forbids injunctions against utility rate-making proceedings

Anti-Injunction Act § 2283o Federal court cannot issue an injunction to enjoin state court proceedings,

unless 1) Express authorization by an Act of Congress (e.g. § 1983 – Mitchum) 2) Necessary in aid of Court’s Jurisdiction (e.g. in rem jx) 3) Protect or Effectuate its judgments (Re-litigation exception)

BIG Note: § 2283 does not foreclose injunctions against future state court litigation

(see Steffel) § 2283 bars injunction of pending state “proceedings” (w/ exceptions), or final

state judgments (no exceptions)

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Historically, the Anti-Injunction Act was treated as a value. o Despite the highly restrictive text, Federal courts enjoined state proceedings

from to time. o But then Toucey applied a formal reading of the statute, so Congress added

the 3 exceptions.

Toucey v. NY Life Ins. (1941) o P sues to enjoin state court litigation over a matter that had already been

litigated in federal court SCOTUS

o Anti-Injunction Act prohibits federal courts from enjoining state proceedings.

After Toucey, Congress amended the Anti-Injunction Act to include 3 exceptions:

1) Express authorization by an Act of Congress (e.g. § 1983 – Mitchum) 2) Necessary in aid of Court’s Jurisdiction (e.g. in rem jx) 3) Protect or Effectuate its judgments (Re-litigation exception)

Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers (1970)o Norris-LaGuardia Act: No injunctions over labor disputes

Timeline: o ACL asked federal court to enjoin BLE’s picketing

1967 District Court Refused ACL’s request to enjoin BLE’s picketing

Unclear whether district court meant: (a) Picketing is a federal right, and no one can enjoin it; or (b) NLA precludes federal courts only from issuing injunction in

labor disputes o So ACL went to state court

State Court granted the injunction – BLE cannot picketo SCOTUS in 1969

Held (a) BLE has a federal right to picket (unless picketing is in violation of a no-strike clause – Boys Market (1970)), and that right cannot be enjoined by a state court

o In light of 1969 precedent, BLE went back to state court Asked state judge to dissolve the injunction State judge refused, holding that the SCOTUS 1969 decision was not

controlling o BLE did not appeal in state court, but went directly to federal court

BLE asked for an injunction against the enforcement of the state court judgment.

SCOTUSo No injunction – BLE’s request does not fit any of the 3 exceptions in § 2283o BLE argues 2 things:

1) 1969 SCOTUS decision preempts state law, and state judge was wrong.

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Court: This may be true. But only way to raise this claim is on appeal to SCOTUS.

2) 1967 District Court declared BLE’s picketing as a federal right, so an injunction of the state court proceeding would “protect the district court’s judgment” Court: Effect of 1967 federal ruling did not limit a state court from

issuing an injunction. So an injunction of the state judgment enjoining BLE’s picketing

after 1969 would not be to “protect or effectuate it’s judgment” Dissent

o Effect of 1967 District Court decision was to make picketing a federal right; State court injunction against the picketing was erroneous

Profo Formalistic reading of § 2283.o There are a good number of reasons to enjoin the state court here (it’s

wrong under 1969 SCOTUS; it’s probably wrong on the preclusive effect of 1967 district court judgment) But the statute says no. So no injunction.

Express Authorization of an Act of Congress

Mitchum v. Foster (1972) § 1983 is an express exception to § 2283

o ((despite § 1983’s lack of “express” reference to § 2283)) Problem here:

o § 1983 (insert federal courts b/w states and citizens to protect federal rights) and § 2283 (baring federal injunctions of state proceedings) are in direct odds.

o So Court said § 2283 does not bar § 1983 injunctions, But only on the assumption that Younger would foreclose the vast

majority of these suits.

Vendo Co. v. Lektro-Vend Corp. (1977)o After Mitchum, some courts assumed any federal statute that provided for

injunctive relief would constitute as an “Express exception” to § 2283 – here, SCOTUS said no.

SCOTUSo To count as an “Express exception,” the statute providing equitable

remedies must clearly reference § 2283 ((Mitchum’s treatment of § 1983 is a unique exception))

Necessary in Aid of Jurisdiction In rem jurisdiction

o If federal court has established in rem jurisdiction over a property, that court can enjoin a state proceeding over the same property.

Protect or Effectuate its Judgments Rundown:

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o Re-Litigation Exception is satisfied if: Federal Court enters a judgment

A state court proceeding over the same issues begins (no judgment yet) – Re-litigation

Federal court can enjoin the state court proceedingo But, Parsons Steel, Inc. v. First Alabama Bank (1986) makes clear:

If the state court has reached a judgment, and failed to give preclusive effect to the federal court’s ruling, then the federal court cannot enjoin the state judgment.

Appeal through state court and to SCOTUS is the only path to undo the erroneous state court judgment.

In other words: A federal court cannot enjoin a state court judgment (similar to the R-

F doctrine). A federal court can only enjoin state proceedings that have not yet

reached judgment. Unless the US seeks to enjoin a state judgment – that’s okay

(NRLB v. Nash-Finch) Re-litigation Cases:

o Toucey (1941) – Court refused to enjoin a pending state proceeding, the issues in which were precluded by a prior federal judgment. Congress amended § 2283 to abrogate Toucey, and allow for such an injunction of pending state proceedings

o Atlantic Coast Line (1970) – Court refused to enjoin a state trial court judgment, even though that state decision was likely erroneous on the merits and on preclusion. After a state judgment is entered, the only way to undo the state decision is to appeal to SCOTUS. Note: this distinction b/w a state judgment (no injunction) and state

proceeding (yes injunction) is motivated by the same policies of Rooker-Feldman.

Litigation by the United States§ 2283 does not bar the US (or a federal agency) from requesting an injunction of state proceedings.

o While the post-Toucey readings of § 2283 have largely refused to grant non-textual exceptions to the Anti-Injunction Act, The Court has allowed a non-textual exception for suits commenced by

the United States, on the rationale that Congress couldn’t have intended to prevent itself from enjoin state proceedings.

NLRB v. Nash-Finch Co (1971)o Employer obtained a state court injunction against a Union’s picketing o NLRB sued in federal court to restrain enforcement of the state court

injunction, SCOTUS

o Yes, NLRB can enjoin a state court judgment.

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HabeasHistory “Great Writ” challenges executive detention, and has nothing to do with

what we’re studying here, although Hamdam and Boumedien have revived this type of habeas debate.

Pre-Brown:o Prisoner files federal habeas, and the warden need only show the Prisoner’s

conviction, which made the prisoner’s detention lawful. Exceptions began to grow:

o Sentencing court lacked jurisdiction = yes habeaso Sentencing court instituted an illegal sentence (e.g. term of months beyond

maximum penalty) These were rare exceptions, and federal habeas review was extremely narrow.

o Then Brown happened. Modern Trend

o 1) Narrow the substantive criteria for habeas reliefo 2) Elaborate procedural barriers to habeas relief

Background Exhaustion: Ex parte Royall Relitigation: Brown Procedural default: Fay v. Noia Non-Retroactivity: Linkletter Successive Petitions: Sanders v. US

ExhaustionEx parte Royall (1886)

State prisoners must exhaust state remedies before pursuing federal habeas

o Younger Exhaustion for habeas is similar to Younger — no federal intervention of

pending state proceedings

Relitigation Rundown

o Brown – Legal claims get de novo review in federal habeas (no deference to state court determinations)

o Townsend – Fact-findings sometimes require de novo review, otherwise discretionary.

o Together: By vastly enlarging the scope of federal habeas, Brown and Fay show a

huge distrust of state courts, which was motivated by State Court hostility to federal rights during the Civil Rights era.

Brown v. Allen (1953)o State court rejects D’s federal claims on the merits.

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o D then files federal habeas, reasserting those same federal claims. SCOTUS

o Federal Courts reconsider de novo the merits of the federal constitutional claims already heard and decided in state court Even if the state court proceedings were entirely adequate, the federal

claim and be relitigated in federal habeaso Rationale:

Supreme Court incapacity — essentially made all US District Courts a little Supreme Court SCOTUS lacked capacity to correct all constitutional errors made in

state courts Prof

o Brown expanded the federal judiciary’s capacity to correct state errors on federal claims by orders of magnitude.

o Distrust of state courts: By the time D reaches federal habeas, 11 state judges have rejected D’s

federal claims. No body can justify a system where 1 federal judge can overrule 11 state

judges — if you didn’t believe the 1 was better A system born of deep distrust of state courts (CIVIL RIGHTS era),

especially but not only in the south, especially but only for black defendants.

Townsend v. Sain (1963)o New fact-finding in federal habeas is sometimes required (six categories),

otherwise discretionary. o Federal courts can review the factual basis of the state court conviction

basis.

Procedural DefaultFay rundown Procedural default in state court does not foreclose federal habeas

o 1) Exhaustion only requires D to exhaust all state remedies that are currently available to him

o 2) AISG does not apply to federal habeaso 3) D waives federal habeas only if he deliberately bypasses the state

procedure.

Daniels v. Allen (1953)o D failed to make a timely appeal of his state conviction

State SC rejected D’s appeal w/o reaching the merits (procedural default) o D filed for federal habeas

SCOTUSo No federal habeaso AISG – D’s state court conviction was finalized on adequate and independent

state ground (procedural default is the classic AISG, so long as the procedures haven’t been manipulated to defeat D’s federal claim). If AISG did not apply in federal habeas,

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District courts would have more power to review a state court decisions than the Supreme Court had on direct appellate review.

Profo Brown + Daniels left a strange situation:

Federal claim that has been fully litigated in state court = yes federal habeas (Brown)

Federal claim that has not been decided in state court = no federal habeas (Daniels)

Fay v. Noia (1963) o Overrules Daniels

Procedural default in state court does not foreclose federal habeas review, so long as D did not deliberately bypass his state remedies.

o 3 Doctrinal Grounds on which Fay overrules Daniels: 1) Failing to Exhaust does not preclude federal review

Exhaustion is a rule of comity, not forfeiture. Ex parte Royall – SCOTUS rejects Criminal D’s attempt to interrupt

state trial by going directly to federal habeas. Fay’s response:

Exhaustion requires that D present his claims to state court once, but only if the opportunity to raise that claim in state court is currently available

2) AISG AISG only applies to SCOTUS review of state Supreme Court

decisions. Prof: the theoretical justification for this is very thing. Brennan tries

to distinguish habeas as concerning custody, and not review of the conviction. This is “paper thin.”

Dissent: AISG is constitutionally required under Erie (cross section of SoP and federalism).

3) Waiver D waives federal habeas only if he “intentionally relinquishes a known

right.” Lawyer error does not constitute “deliberate bypass” of state

remedies Prof

o Better justification here: Lawyers are at fault for Procedural Defaults, and under Daniels, penalties

fall on the criminal Ds Fay substituted federal habeas for ineffective assistance of counsel.

After Fay, there are a lot few ineffective assistance of counsel claims, b/c D need not attack his procedural default as the result of constitutionally ineffective counsel. D can go straight to federal habeas w/o explaining the default.

Non-retroactivityo Before Brown and Fay, if SCOTUS announced new rule, that new rule only

applied to pending and future litigation.

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o After Brown ad Fay, criminal Ds could relitigate their federal claims in federal habeas, and new rules potentially had HUGE retroactive effect. A new rule could effect 10s of thousands old convictions.

Linkletter v. Walker (1965)o Doctrine of Non-Retroactivity:

Habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.

o Here, Mapp v. Ohio (exclusionary remedy for 4th Amend. violations) only applies prospectively.

Profo Non-Retroactivity promotes judicial innovation of federal rights, by

reducing the costs of retroactive application of new rules. Without Linkletter, there would be no Miranda b/c every prisoner across

the country would have filed federal habeas challenging their confessions.

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Scope of Habeas Review Stone v. Powell

o Rule: No federal habeas for Non-Guilt Related rights (e.g. 4th Amend.

violations) that were fully and fairly litigated in state court. o Effect

Stone limits the scope of federal habeas, marking the beginning of the end of Brown-Fay scheme

o Purpose of Federal Habeas: Stone marks the move toward prevention of injustice, and not error

correction, as the purpose of federal habeas.

Stone: Non-Guilt Related federal claimsStone v. Powell (1976)

o State courts rejected D’s Search and Seizure argumentso District Court granted habeas relief

Yes unlawful search and seizure under 4th Amend. – set aside D’s conviction.

SCOTUSo No federal habeas review of 4th Amend. violations that were fully and fairly

litigated in state court.o Pillar 1 – Exclusionary rule

Judicially Created (not constitutionally mandated) designed to deter 4th Amend. violations Exclusionary Rule does not protect D from a wrongful conviction

(in fact, the rule often results in wrongful acquittal) Deployed pragmatically, using a cost v. benefits reasoning:

No exclusionary rule in (a) Grand Jury proceedings, or (b) Impeaching a witness, or (c) for those who lack 4th Amend. Standing (owner of the house only)

o Pillar 2 – Federal Habeas Not every disagreement b/w State and Federal courts needs

reconciliation in federal habeas Federal habeas courts are only “right” definitionally, not necessarily.

4th Amend. Violations are not related to D’s guilt. In fact, the exclusionary rule places a huge cost on truth-finding.

No federal habeas for Non-Guilt Related rights (e.g. 4th Amend. violations) that were fully and fairly litigated in state court.

Full and Fair: If state court didn’t do anything blatantly wrong, yes full and fair.

Profo Brown – premised on a deep distrust of state courts. The lineup in Stone –

all but one of the justices in the majority were not on the Court in the Civil Rights era.

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Stone n.35: “Despite distrust of state judges during civil rights era, we now believe 4th Amend. will be enforced correctly.” – FIRST time the Court recognized the true rationale behind Brown (

Maj. here trusts state courts to decide 4th Amend. disputes correctly the vast majority of the time.

Although, Stone and Brown can be reconciled, by believing that the Exclusionary Rule is a unique, judicially created remedy that does not correct injustices, and thus should not be relitigated in state court.

Post-Stone Decisions After Stone, state governments rushed to find other constitutional violations

that were “non-guilt related” Many argued Miranda was “non-guilt related”

o Failure to give Miranda warnings has no plausible connection to factual reliability of D’s confession in most circumstances

Withrow v. Williams (1993) o Yes federal habeas review of Miranda violations (de novo review)

Rationaleo Miranda is guilt-related at least some of the time:

An involuntary confession could be a false confession

Brecht v. Abrahamson (1993) o Appellate Harmless error doctrine (Chapman) is Non-Guilt-related

No federal habeas review state appellate court’s harmless error analysiso Harmless error for Federal Habeas:

Error requires reversal only if the “Error had substantial and injurious effect in determining the jury’s verdict”

Profo This gives federal habeas judges discretion in deciding if the error actually

prejudiced D’s case. Unlike Chapman, which requires reversal if there is any possibility of prejudice.

o Purpose of habeas: Federal habeas as an institution to correct injustice, not to monitor w/ a

magnifying glass state criminal systems.

AEDPA and StoneAEDPA generalizes Stone “full and fair” requirement to all federal claims.

Brown Stone AEDPA Review Everything No review for 4th

Amend. violations, unless it wasn’t “Fully and Fairly litigated”

No review of any federal claim, unless the State convictions that was “contrary to, or an unreasonable application of” clearly established law

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If state court did something blatantly wrong in deciding 4th Amend. claim, then yes federal habeas review

Guilt-Related claims get Brown review (de novo)

If state court did something blatantly wrong in deciding any federal claim, then yes federal habeas review.

If State Court decided reasonably, no federal habeas

Broadest Scope Intermediate Scope Narrowest Scope

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Procedural Defaults Flowchart for Procedurally Defaulted Ds seeking federal habeas: Did D lose in state court on a procedural default?

o If yes, were the state procedures enforced adequately? Inadequate procedures =

(a) invalid (unconstitutionally) (b) manipulated/applied discriminatorily (NAACP v. Patterson) (c) D substantially complied (Lee)

If State Rule was inadequate = yes federal habeas (Lee v. Kenma) without having to show cause-and-prejudice

o If yes the state rule was adequate: D must show “Cause and Prejudice” — Wainwright

Cause (see Murray) (a) New facts that were unavailable despite reasonable efforts, (b) Brady violations, or (c) Ineffective Assistance of Trial Counsel

L's performance was unreasonable L's unreasonable performance resulted in prejudice

Not Cause: Normal attorney error (Murray v. Carrier) Ineffective assistance of habeas counsel, b/c there is no such

thing. See Coleman v. Thompson (unless AZ or TX state courts where first time federal claim can be raised is on state habeas)

Prejudice: Probable impact. D had a good chance of winning on the merits,

and that the procedural default was the main reason he lost. Not Prejudice:

Chapman - the standard is much higher for D to meet than harmless beyond a reasonable doubt. (this is similar to Brecht harmless error standard for federal habeas on the merits)

If yes cause and prejudice = yes federal habeaso Safety Valve – Actual Innocent

If yes Adequate State Grounds and no Cause and Prejudice Can D show “Actual Innocence”? — see House v. Bell (incorporating

Schlup) In light of new evidence, "it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt."

If yes Actual Innocence = yes federal habeas Note

Actual innocence, there is no Cause, but lots and lots of prejudice (distinct from New Facts that were unavailable despite reasonable efforts qualifying as cause)

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Gateways to Federal Habeas after a procedural default:o Wainwright - Cause and Prejudice

Cause: Ineffective assistance of trial counsel (Murray v. Carrier) New facts (previously unavailable despite reasonable effort) Brady violations

Not Cause: Ineffective assistance of state habeas counsel (Coleman v.

Thompson) But see Martinez: Initial-review collateral hearing

1. If State habeas was the first time D could raise federal claims, but D defaulted state habeas = yes fed. habeas

Normal attorney error (Murray)o Lee – Inadequate state ground

If D can show he defaulted b/c of an Inadequate State Ground, then D need not show Wainwright cause and prejudice.

o House - Actual Innocence Prisoners asserting innocence as a gateway to federal review of defaulted

claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."

Wainwright – Cause and Prejudice Wainwright v. Sykes (1977)

o D defaulted on his Miranda claims in state courto D files for federal habeas relief

SCOTUSo Where D procedurally defaults his federal claim in state court, no federal

habeas review. Unless D can show

a) Cause for noncompliance, and b) Prejudice resulting from alleged constitutional violations

o “Cause and Prejudice” largely overrules Fay (free access to federal habeas after procedural default)

Brennan Dissento Emphasis here is LAWYER ERROR – Fay should remain the standard.

Brennan is uncomfortable with punishing a D for his lawyer’s error, when that lawyer was likely employed by the gov’t and the error cannot even by imputed to D under traditional agency law.

Noteo Fay survives in part:

AISG is not a bar to federal habeas, so long as D can show “cause and prejudice”

Note: AISG does apply in reverse: if the default was on an inadequate state ground, yes federal habeas (Lee v. Kenma)

o Prof wonders if Fay would’ve survived if the “lawyer error” rationale were upfront.

Profo Cause-and-Prejudice changed the point of federal habeas from regular

supervision of state courts (Fay) to merely correcting injustice

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Murray v. Carrier (1986) o Normal Attorney error does not satisfy “Cause” under Wainwright. If it did,

we’d be back in Fay-land. Cause = Ineffective assistance of trial counsel Cause ≠ Ineffective assistance of state habeas counsel, or Normal

Attorney Error

Causeo 1) New Facts

That were unavailable at trial despite reasonable effort o 2) Brady Violations

Misconduct or interference by public officialso 3) Ineffective Assistance of Counsel

Lawyer’s performance was unreasonable, and it resulted in prejudice (reasonable probability that shitty lawyering affected the outcome)

Prejudice Probable Impact

o D must show that the alleged constitutional violation probably affected the outcome.

IAC and Murray Effect of Murray (normal attorney error doesn’t satisfy Cause)

o Remember, Fay relieved IAC claims and substituted federal habeas. Wainwright and Murray undo this, shift burden of overcoming procedural

default back on IAC o After Murray, Procedurally Defaulted Ds most often claim IAC as “Cause”

Consequence of litigation IAC rather than the underlying claim: a) Not all attorney error is ineffective assistance of counsel b) IAC has to be exhausted in state courts

Most states require IAC to be litigated on state collateral review. IAC is a safety valve, but it operates first in state courts.

Inadequate State Ground If D defaults as the result of a manipulate state procedure (or if D substantially

complied with the procedure), then D need not show Cause and Prejudice, yes federal habeas review.

Lee v. Kemna (2002) o Alibi Witnesses set to testify on behalf of D could not be found the morning

of trialo D mostly complied w/ all requirements to ask for a continuance

Trial judge denied the continuance; D was later convicted by jury SCOTUS

o Inadequate State Ground = Yes federal habeas review of D’s federal claims Inadequate State Ground:

1) Invalid (unconstitutional) 2) Manipulated (NAACP v. Patterson)

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3) Substantial Compliance Here, D substantially complied w/ the procedural requirements to

ask for a continuance. The state’s courts have never strictly applied those standards until this case.

Profo Fay said AISG does not apply in federal habeas corpus. o Lee rediscovered AISG’s application to federal habeas:

If D can show he defaulted b/c of an Inadequate State Ground, then D need not show Wainwright cause and prejudice.

Actual Innocence Wainwright – Purpose of federal habeas is to correct injustice.

o “Prejudice” probably impact standard makes federal habeas relief more difficult to obtain than Chapman review standard.

Most common causes of Injustice:o Brady Violations; Ineffective Assistance of Counsel

Actual Innocence == Lots of Prejudice, but no cause.

House v. Bell (2006) o DNA evidence exonerated Do D could not show cause for failing to bring the DNA evidence to trial

SCOTUSo If D is probably innocent – D need not show “Cause and Prejudice” for

defaulting on D’s claims Prisoners asserting innocence as a gateway to federal review of defaulted

claims must establish that, in light of new evidence, "It is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt." – Schlup standard.

Fact Hearing on Procedurally Defaulted Claims: § 2254(e)(2)o Under Fay and Townsend federal habeas courts had generous discretion to

hold hearings on the facts that underlie the procedurally defaulted claim. o AEDPA adopted a much more restrictive standard:

AEDPA, on its face, precludes fact hearings in federal habeas courts in 99% of habeas petitions

Michael Wayne Williams v. Taylor (2000)o Federal habeas court still has discretion to hold factual hearings over claims

that could not have been reasonably discovered until after trial. Yes Fact hearings so long as D was not at fault for the procedural

default. No fault for:

Jury bias claims (D could not reasonably discover this during the trial)

Yes fault for: Defense counsel’s errors (here, no fact findings over D’s Brady

claims b/c reasonable effort would have revealed the prosecutorial misconduct at trial)

o SCOTUS rejects plain reading of AEDPA

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Unanimous holding. All justices were reluctant to categorically foreclose power of district courts to find facts when they felt like they needed to

Outlier: all other recent cases the court has worked to limit the scope of federal habeas. Here, Court strains to read AEDPA as less limiting than it appears.

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Retroactivity of “New” Rights – TeagueTeague limits scope of federal habeas relief to unreasonable state court decisions of federal law.

Teague v. Lane (1989) D was convicted in LA-state court by an all-white jury

SCOTUS subsequently held racial discrimination in selection of jury pool violates 6th Amend. (Taylor v. Louisiana (1975)).

D files federal habeas, on the grounds that Taylor should be applied to petit jury.

o SCOTUS: D loses, no federal habeas review of D’s Taylor claim. (Taylor is a new rule, not reviewable in federal habeas)

Holdingso 1) New Rules do not apply retroactively in federal habeas

Exceptions. Yes retroactive application in federal habeas for: (a) Primary, private conduct beyond the power of criminal law to

proscribe (b) Watershed Procedure: New procedures without which the

likelihood of an accurate conviction is seriously diminishedo 2) If the new rule D asserts does not apply retroactively, don’t reach the

merits. Order of decision:

First, decide if the new rule applies retroactively (by fitting one of the rare exceptions)

Second, if the rule applies retroactively, only then reach the merits.

Rationaleo Harlan’s theories:

Remedy perspective Harlan did not like non-retroactivity doctrine. Prospective rulings (a)

are an enabler of judicial innovation, and (b) allows the Court to act like a legislature.

Harlan believed New Rights apply fully retroactively New Remedies can apply prospectively only

Harlan wants to limit habeas review as a remedy. o “New”

Inverse relationship The larger the universe of “new” claims = the narrower the

scope of federal habeas The smaller the universe of “new” claims = the broader the scope

of federal habeas Court defines “New” in very broad terms:

Plain English: Any subsequent case that announces an even slightly “new” rule =

barred by Teague.

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Teague: A case announces a “new rule if the result was not dictated by precedent existing at the time of the defendant’s conviction became final”

Scalia: If habeas petitioner relies on a rule, announced after his conviction, that rule is barred under Teague as “new” unless “no other interpretation was reasonable” given the precedent that existed at the time of D’s conviction. New = Case X set forth a rule that was not the only (one of a few)

“reasonable” interpretations of precedent Not new = Case X set forth the only reasonable interpretation of

precedent (thereby making the state court’s contrary decision unreasonable).

o Plain Error Teague is really about limiting the scope of federal habeas. Prof: Teague is framed in terms of “non-retroactivity,” but it’s thrust is to

limit scope of habeas If the state court was arguably reasonable under then existing

law, no federal habeas. Only if the state court made a plain error under then existing

law, yes federal habeas.o Exceptions:

(a) Primary conduct e.g., Woman in prison for having an abortion. After Roe, she could

file federal habeas. (b) Watershed Procedure

Accuracy of conviction must be center stage (new procedure must be guilt-related). If the new procedure is non-guilt related, no federal habeas (see

Stone) Whorton v. Bockting (2007): Exception applies if the rule prevents

an impermissibly large risk of an inaccurate conviction Prof: Court believes this exception is functionally hypothetical,

maj. thinks they’re done w/ creating watershed procedure. Concurrence (Stevens; Blackmun)

o New procedure exception (b) should be broader New procedures that effect “fundamental fairness” should be open for

habeas review, even if they’re non-guilt related. Example is this case: Even if you can’t show an impact on guilt, racial

discrimination anywhere in the system is a big deal. Dissent (Brennan; Marshall)

o New rules should apply in federal habeas.

Teague does NOT bar Habeas Review When:o D argues that the state court erred under clearly established law that

existed at the time of D’s conviction (except for 4th Amend. claims – see Stone).

Teague is a threshold question: Can the court reach the merits of the claim?

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o Although the merits and Teague question are essentially the same (did the State Court err under then-existing clearly established law?), Prejudice still applies as part of the merits determination.

o Hypo District Court finds:

D is not relying on a “new” rule State court erred under clearly established law (made a plain error)

But that error did not significantly impact D’s conviction = no Prejudice.

Teague after AEDPA § 2254o 98% of the petitioners barred by Teague are also barred out by § 2254o § 2254:

Federal habeas only if the state court decision on D’s federal claims was “contrary to, or an unreasonable application of clearly established law.”

o Teague “New” rules = anything that is not dictated by precedent. Limits review

of state court decisions on D’s federal claims to plain errors. SCOTUS

o Teague and § 2254 are distinct. Must do both analyses. o There is some room b/w

“Contrary to, or an unreasonable application of, clearly-established law” as set forth by SCOTUS

“Not dictated by precedent” or “no other reasonable interpretation” flowed from then existing precedent.

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Actual InnocenceRundown

o 2 step process for procedurally defaulted petitioners claiming Actual Innocence: 1) House applies if Petitioner procedurally defaulted.

D satisfies Schlup D shows that it's more likely than not, that given the new evidence,

no reasonable jury could find D guilty beyond a reasonable doubt. D need not satisfy Wainwright (cause-and-prejudice) – proceed to the

merits 2) Merits — Herrera applies, an extremely high, yet undefined bar for

showing actual innocence Actual Innocence as a freestanding constitutional violation is difficult

to rationalize. Administration of Blackmun’s view is difficult – Unlike the process

in Jackson v. Virginia, district judge has no jury to stand behind when considering new evidence.

Administration is even more difficult in Guilty Pleas given the absence of a record.

Herrera v. Collins (1993) o D was convicted, but later obtained two affidavits from witnesses (now dead)

indicating D’s brother was actually guilty. Lot of other evidence suggesting D was guilty

o D files federal habeas, claiming actual innocence SCOTUS: No federal habeas

D does not allege an independent constitutional violation, and D’s new evidence is not persuasive enough for Actual Innocence.

Rule Actual innocence is a basis for federal habeas if the showing is “truly

persuasive” – w/o defining the standard for how persuasive. Debate over the standard:

Plurality (Rehnquist) – whatever the standard is, it’s not met here. Scalia – Actual Innocence is not cognizable as a free-standing

constitutional violation White - Standard should be high: “No rational trier of fact could find

proof of guilt beyond a reasonable doubt” — Jackson v. Virginia (1979) Dissent (Blackmun)- Standard should be preponderance: Petitioner

must show that a jury would probably have reasonable doubt in light of the new evidence.

Issue:o Federal Habeas only reviews federal claims.

What Constitutional error covers actual innocence? o Jackson v. Virginia does not fit well here b/c federal habeas cannot stand

behind a jury or a trial record when considering Actual Innocence claims. Jackson: Conviction on Insufficient evidence is violation of Due Process

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1) Assume all facts in light most favorable to the jury. 2) In this light, Could a reasonable jury have found the D guilty

beyond a reasonable doubt? If yes, the Judge can set aside the conviction. Huge concern here:

Invading the province of the jury (7th Amend. Right). Jackson allows for Constitutional violation on the mere basis that the

state court got it wrong. Deals w/ insufficiency of evidence after the trial, on the basis of a

full record. But in Actual Innocence habeas, federal court cannot stand behind a

jury. First step if Jackson is impossible. o Is Actual Innocence a freestanding constitutional violation?

3 Votes (Dissent) — Yes 2 votes (Scalia; Thomas) — No 4 votes — Not necessary to decide here.

o Blackmun argues: Isn’t it obvious that executing an actually innocent person violates

something in the Constitutiono Problem w/ Actual Innocence constituting an independent constitutional

violation: Blurs the distinction b/w federal Con Law and everything else. Actual Innocence would allow for the relitigation of all state claims,

where federal habeas has always been limited to relitigation of federal claims.

Treating Actual Innocence as a Constitutional Violation sweeps in EVERYTHING under review of the federal habeas court.

Court punts hereo Avoids headlines of saying “Actual Innocence” claims aren’t cognizable as

constitutional violations in federal habeas. o Avoids setting standard for “Actual Innocence” – just say’s its not net met

here.

House v. Bell (2006)o Application of “Actual innocence” as justification for ignoring procedural

defaulted under Wainwright v. Sykes. SCOTUS

o D satisfies Schlup: D shows that it's more likely than not, that no reasonable jury could find

D guilty beyond a reasonable doubt — so we need not consider Wainwright (cause-and-prejudice)

o D fails on the merits under Herrera: While his evidence satisfied Schlup standard for actual innocence, he

fails to satisfy the high standard (still undefined) set by Herrera.

Guilty Pleas and Actual Innocence Bousley v. United States (1998)

o D possessed (but did not use) a gun during a drug crime o D pled guilty to “knowingly and intentionally using a firearm during” drug

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trafficking crime. — violation of § 924(c)(1)o D appealed but did not challenge the validity of his plea

((Procedural default on validity of plea))o Pending appeal, SCOTUS set forth a New standard for § 924(c)

Bailey v. US: Gov’t must show “active employment of the firearm” rather than mere possession.

SCOTUSo Teague – D fails here b/c Bailey announced a “new” ruleo Wainwright – D fails to show “Cause and Prejudice”o House and Herrera – D may be able to show Actual Innocence

D did not plead to the correct elements of § 924(c) Prof is interested w/ the Administrative Difficulties of Blackmun’s Actual

Innocence positiono How does Judge weigh Jury fact-findings w/ New Evidence?o Guilty plea situation: even more difficult. There is no record at all. o Bousley was likely motivated by the court’s long-held hostility toward §

924(c) as overly harsh

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Habeas: Standard of Review of State Convictions § 2254(d)(1)

o Limits scope of federal habeas only to state rulings on federal claims that “Resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”

AEDPA and Capital Cases Death Penalty

o Sentencing hearings w/ potential of a death penalty, SCOTUS has said there is a wide range of relevant evidence that would show Mitigating or Aggravating factors.

o Result: There is a wide range of routes to show IAC or New Evidence on habeas review.

AEDPA sought to reduce delay of executionso One Year SoL for federal habeas review after conviction becomes final

Terry Williams v. Taylor (2000) o D sentenced to deatho At the sentencing hearing, D’s defense counsel was ineffective

Failed to bring mitigating evidence of D’s lack of mental capacity, etc. o VA-SC denied D’s IAC claim under Stricklando Strickland IAC requires (1) L was unreasonable, (d) L’s bad performance

caused prejudice. SCOTUS

o D satisfies § 2254 b/c VA-SC’s decision was an unreasonable application of Strickland.

Stevenso Under § 2254(d)(1), the state court decision is “unreasonable” if it was

erroneous. Prof: This reading largely leaves Brown intact, de novo review of the

state decision. Odd outcome from a statute that intends to severely limit the Brown

regime. O’Connor (for the Court):

o (1) Contrary to … clearly est. federal law, as determined by SCOTUS; or Yes Contrary to:

Law: (a) Uses the wrong legal standard Facts: (b) State court faces materially the same facts as

SCOTUS, and reaches opposite outcome when applying the law to those facts.

Not Contrary to: Run-of-the-Mill State court decision applying the correct legal

standard to new facts. o (2) Unreasonable application of … clearly est. federal law, as determined

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by SCOTUS Incorrect decisions are not necessarily unreasonable Unreasonable Application =

(a) Really wrongly applies correct law to the facts (b) Unreasonably extends legal principle from SCOTUS decision to a

new context where it should not apply, or unreasonably fails to extend it to a context where it should apply.

Effect: Federal Judge, if reviewing de novo, could reach a different outcome,

but the state court’s decision could still be reasonable. Scalia and Thomas concur with the legal standard, but dissent on the grounds

that D here did not suffer prejudice from his ineffective assistance.

Unreasonable Application Bell v. Cone (2002)

o § 2254(d)(1): Unreasonable application It’s not enough for D to convince a federal habeas court that the state-

court decision applied Strickland incorrectly. D must show that the State Court applied Strickland to the facts of his

case in an objective unreasonably manner.

Renico v. Lett (2010)o What’s reasonable often depends on the underlying standardo Here,

D objects to the trial Judge’s discretionary choice to grant a new trial (after a mistrial)

Appellate review of trial judge granting for a new trial was “abuse of discretion”

SCOTUSo “Unreasonable Application” of clearly established law is widely broadened

when the underlying standard is already broad. The umbrella for what’s “Reasonable” under abuse of discretion review is

very wide.

Adjudicated On the MeritsHarrington v. Richter (2011)

o CA-SC denied D’s state habeas w/ a one line rejection, unclear whether the dismissal was on the merits

o D argued: To get deference under § 2254(d)(1), State Court should have to write an opinion.

Otherwise, State courts would be encouraged to not write opinions just to ensure deference.

SCOTUSo § 2254 applies regardless of whether the state court explains its ruling.

Greene v. Fisher (2011) o Final state decision omits mentioning D’s federal claims

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o SCOTUS assumes that State Court rules on all the claims - b/c it had to rule on all the claims in order to affirm D’s conviction.

o Me: this is similar to Michigan v. Long (presumption against independence) SCOTUS

o Reviews the state conviction as “contrary to, or an unreasonable application of, clearly established law” – but hypothesizes the State Court’s reasoning.

o Absence of an opinion doesn’t matter much, but may indicate the State Court decided unreasonably. Yes federal habeas if state court didn’t rule on P’s federal claim

inadvertently.

No Factual Hearing – Exhausted ClaimsCullen v. Pinholster (2011)

o D fails on IAC in state habeaso D cannot get an evidentiary hearing for his IAC claim in federal habeas

Federal habeas court is limited to the state habeas record, under § 2254(d)(1)

Prof:o D can’t go to federal habeas and say, this New Evidence shows that State

Court decided unreasonably on my IAC claim. D can’t attack the state decision on a record the state court didn’t use.

o All this means: If D has something new to say, pursue the “procedural default” route:

Wainwright: Cause = New evidence not reasonably obtained until now House = Actual Innocence

Habeas: Procedural Limitations Exhaustion: Rose v. Lundy Successive Petitions: Tyler v. Cain Statutory of Limitations: § 2244(d)

Initially recognized: Dodd Stay: Rhines v. Weber Equitable tolling: Holland Actual Innocence: McQuiggan

Exhaustion and “Mixed” PetitionsRose v. Lundy (1982)

o D filed a federal habeas petition with both (a) Exhausted Claims, and (b) new, Unexhausted Claims

SCOTUSo 1) Total Exhaustion requirement: District Court must Dismiss “mixed”

petitions containing both unexhausted and exhausted claims D can either

(a) Resubmit his federal petition petition w/ only the exhausted claims

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(b) Return to state court to exhaust his claims o 2) Abuse of the Writ (4 justices)

If D chooses (b) and returns to federal court w/ previously unexhausted claims, he risks denial of habeas as an Abuse of the Writ.

Concurrence o Abuse of the Writ (1 justice)

Requires bad faith (purposeful delay) --- Tyler is the current law on Abuse of the Writ

Profo Most Ds will choose (a) – Resubmit, assert only the exhausted claims. The

unexhausted claims are probably long shots. o Side note: If there is not currently available remedy in state court, D has

procedurally defaulted on those claims (see Fay; Wainwright).

Abuse of the Writ (Successive Petitions) Abuse of the writ: A successive petition raising a claim that had not been raised in an earlier petition

HistorySanders (1963)

o Abuse of the Writ — If the successive petition is the result of a deliberate bypass in the first petition Adopting the Fay procedural default standard for successive petitions.

McCleskey v. Zant (1991)o Abuse of the Writ –- Will only be allowed if Petition can show cause-and-

prejudice under Wainwright. Note: Wainwright overruled Fay; McCleskey overrules Sanders.

§ 2244 AEDPA o Successive Petition w/ new claims can only be heard if:

1) Rule on which the claim relies is a “new rule” of Con Law 2) Rule must have been made retroactive to cases on collateral review by

the Supreme Court 3) The claim was not unavailable in his first petition

Prof:o § 2244 is amped up cause-and-prejudice

§ 2244 and Roseo If D chooses (b), returns to state court to exhaust D’s unexhausted claims, §

2244 precludes review of D’s new petition (unless he fits one of the narrow exceptions)

Tyler v. Cain (2001)o D lost first habeaso Then Cage – declared the jury instructions under which D was convicted

unconstitutional o Sullivan – invalid jury instructions are a structural defect in trial (cannot be

a harmless error)

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o D files second habeas, argues § 2244 exceptions are satisfied: Cage is a “new” rule, Sullivan made it retroactive, and it wasn’t available

the first time SCOTUS

o D loses, although he’s pretty closeo We have not “made” Cage retroactive o Crux: § 2244 requires SCOTUS to have made a rule retroactive prior

to D’s petition Dissent

o Sullivan made D retroactive by declaring invalid jury instructions a structural defect

Noteo Teague questions in here on whether “new” rule can be asserted as a

“Watershed” rule of criminal procedure. o D probably satisfies Teague (Sullivan declared Cage a “watershed” rule)o But D is barred by § 2244 (additional hurdle of having the rule been made

retroactive prior to D’s successive petition)

Statute of Limitations: § 2244(d)§ 2244(d) – One Year SoL, begins to run:

The day that D loses his final state habeas o SoL is not tolled during pendency of federal habeas

Must file successive petition w/in 1 year of state habeas (note Rose) Exceptions:

o Brady Violations: SoL begins to run the day the Brady violation is discovered.

o New Law SoL begins running when the “new rule” is Initially Recognized,

regardless of whether the Court has made it retroactive within a year of announcing the new rule – Dodd.

Initially recognized Dodd (2004)

o § 2244(d): New Law SoL begins to run when SCOTUS “initially recognizes” a new rule. But

SCOTUS must also have “made” the new rule retroactive. Here:

o (a) SCOTUS announced a new ruleo (b) Dodd filed his habeas petition based on the new ruleo (c) Over a year after (a) SCOTUS made the new rule retroactive

SCOTUSo D’s petition is time barredo We did not make the new rule retroactive within a year of announcing the

new rule o SoL on the new rule has run, by the date on which the new rule became

qualified for habeas review Prof

o The statute makes no sense, but the Court followed the text

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Stay and Abeyance Rhines v. Weber

o D filed mixed petition o Under Rose v. Lundy — District Judge was suppose to dismiss the petition

D wanted to exhaust his unexhausted claims in state court But the one year SoL had passed (barring D from filing again)

o District Judge stayed D’s petition, pending exhaustion in state court SCOTUS

o Ordinarily, District Judge cannot stay the § 2244 SoLo Exception: If D’s unexhausted claims appear meritorious

Equitable tollingHolland v. Florida

o Court heightens hurdles for D to satisfy common-law Equitable Tolling

Actual Innocence McQuiggan

o A credible showing of Actual Innocence allows a prisoner to pursue his claims on the merits, Regardless of the SoL

o Rationale: Actual Innocence is an exception to everything else in habeas (procedural

default, successive petitions, etc.) Dissent (4 justices)

o § 2244 doesn’t allow for this exception Prof

o Not a hint of this exception in § 2244o This is an example of Integrating the poorly drafted nature of § 2244 and

the rest of Habeas precedent on Actual Innocence

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State Sovereign ImmunityChisholm v. Georgia (1793)

o No SI (Pre-11th Amend.)o SCOTUS allowed a damages suit (breach of K) against Georgia, by an out-of-

state P

11th Amend Backlash to Chisholm led to the 11th Amendment:

o The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State

Immunity Interpretation Hans v. Louisiana (1890)

o LA Citizen (P) sues LA for damageso Text of 11th Amend. doesn’t apply (only bars suits by out-of-state-Ps)

SCOTUSo Yes SI – Pre-Constitutional Immunity

Immunity Interpretation 11th Amend merely overrules Chisholm’s attempt to withdraw a pre-

existing Immunity Prof

o Practically, this makes perfect sense. LA owed lots of people bonds. If anyone can collect on the debt instruments, everyone can collect on the debt instrument.

o Immunity Interpretation Chisholm concluded that the Constitution abrogated SI Chisholm was WRONG 11th Amend. merely overruled Chisholm Pre-constitutional immunity of each state as a sovereign is Revived by

11th Amend. o A-Textual Originalism

Can we imagine that the 11th Amend would have been adopted by the states, if they thought it meant that citizens of your own state can sue you? (No!)

Diversity Interpretation Product of Mid-20th Century Jurisprudence (nationalization of federal law)

Professor Fletcher’s ArticleAtascadero State Hospital v. Scanlon (1985) Brennan’s Dissent:

o Diversity Interpretation

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Assumption: Chisholm asserted a state claim (diversity case) Chisholm was only wrong in that a Federal court abrogated State SI on a

State claim Chisholm only erred in ascribing too much consequence to Art. III

diversity jurisdiction Chisholm says nothing about State Liability under Federal Law.

o End result: 11th Amend allows for

In-state-Ps v. Sate – under state or federal law Out-state-Ps v. State – under federal law

Only prohibits: Out-state-Ps v. State – under state law (in federal court)

i.e. 11th Amend. means very little today Prof

o Diversity interpretation has textual support in that 11th Amend. tracks Art. III diversity, and does not allow for Hans (11th Amend. does not bar In-state-Ps v. State)

o Textual problem: 11th Amend., on its face, bars [Out-state-Ps v. State] under federal law

Ex parte Young (1908) o Minnesota set low rates for Railroads o Young is the AG, charged w/ enforcing the rateso Ry. sues, asks for an injunction against Young enforcing the regulations

SCOTUSo Yes injunction against state officers individually for enforcing

unconstitutional lawso 1) Constitution provides a federal cause of action for injunctive reliefo 2) Fiction:

Suits seeking prospective relief against a State Official from enforcing an unconstitutional law is not a suit against the State, and is not barred by the 11th Amend.

Prof:o "If AG tries to enforce the laws of his state, he is off on a frolic and detour on

his own, and he is personally liable” o Proof this is a fiction:

The statement is not accurate: AG is doing his job (not a detour) Substitution of Parties (if Young dies, gets replaced, etc.) the case

continues o Tension:

Immunity World: Pre-Constitutional Sovereignty Ex parte Young: You can enjoin State Officers for Constitutional

violations Harlan’s Dissent:

o Maj.’s rule would “inaugurate a new era … allow the federal courts to supervise the official action of the states as if they were mere “dependencies” of a province” Note: this was an accurate prediction

Ex parte Young == Federal > States

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Retroactive Relief Edelman v. Jordan (1974)

o SI bars Damages actions against state officials by private litigants Background

o P sues Illinois officials for their role in administering Aid to the Aged, Blind, or Disabled (AABD) Ps seeking back-benefits under AABD

o Ds argued — Sovereign Immunity Any damages award would come from the state treasury – in Actuality,

this is an action against the State SCOTUS

o No damages (Ford Motor Co.); Yes injunction (Ex parte Young) o Actions against state officials for Damages (back-benefits) == Action against

the State for damageso Precedent

Conflict 1 Ford Motor Co. v. Department of Treasury (1945)

Some actions against a State Officials are really against the State Ex parte Young (1908)

P can seek an injunction against State Officials for violations of federal law

Conflict here: Ford Motor Co. and Ex parte Young are contrary and both have no

limiting principle Solution

Edelman drew the line b/w the cases: Prospective Relief = Permissible (Ex parte Young) Retroactive Relief = NOT Permissible (Ford Motor Co.,

Edelman) Conflict 2

Rosado (1970) Yes challenge to administration of SSD benefits

Shapiro (1969) Allowed litigants to sue State for retroactive damages, but this

issue was not litigated Prof

Rosado and Shapiro are contemporaneous w/ JI Case (implied PRA for anything)

Edelman is contemporaneous w/ Cort v. Ash (turning point against implied PRAs)

Suggestion: Part of the motivation for barring P’s damages suit against State

Officials is that no express PRA authorizes P’s suit. o Dissent - Marshall

States voluntarily participate in federal Welfare programs like AABD States waive SI when they enter the program;

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i.e., By entering the program they accept federal regulations o Majority’s response:

Clear Statement is required for Congress to abrogate state SI

§ 1983 and 11th Amend Rundown

o No damages suits against States Not in federal court: Edelman (Yes Sovereign Immunity); Quern (§ 1983

doesn’t abrogate SI) Not in state court: Will v. Michigan (No § 1983 cause of action,

States ≠ “persons”) o Yes damages suits against Municipalities

Yes in federal court: Lincoln County (No Sovereign Immunity) Yes in state court: Monell (Yes § 1983 cause of action, Munis =

“persons”)

Monell v. Dep’t of Social Services (1978) o Municipalities = “person” under § 1983

Will v. Michigan Department of State Police (1989) o State ≠ Person under § 1983

Lincoln County (1890) o 11th Amend. does not protect Municipalities from suits in federal court.

Prof, the distinction in Monell and Will,o Aligns § 1983 w/ the 11th Amend.

11th Amend: Cannot sue States for damages (Edelman) Can sue Municipalities (Lincoln County)

§ 1983 Cannot sue States for Damages (Will) Can sue Municipalities (Monell)

o Note If § 1983 did authorize suits for damages against states, the 11th Amend.

would be almost irrelevant.

Official Capacity v. Personal Capacity

o So P sues State Official, in her official capacity for damages (barred by Edelman)

o But P can sue State Official in her personal capacity 99% of the time, P’s complaint controls

If P states: “I’m suing D in her personal capacity” Example: Hafer

1% of the time, District Court forcibly recharacterizes the Complaint to name

the State as the D

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Example: Edelman – P there sued State Officers individually, but Court said P was actually suing the state.

o Tests for Re-characterizing: Contract/Tort

Agent is liable for Torts committed in the service of the Master (both are liable)

Agent is not liable for on the Master’s Contracts Here:

Tort-like constitutional claims (e.g. wrongful termination – Hafer) Agent is individually liable

Contract-like constitutional claims: (e.g. welfare benefits – Edelman) Agent (official) has no individual liability

Individual Pocket v. State Treasury Individual Pocket

D is individually liable for P’s claim (practically this never happens, b/c states indemnify state officials)

State Treasury Where the fig-leaf of “individual” liability is impossible to maintain,

and P is truly seeking state treasury funds – Court will re-characterize. (see Edelman – back-welfare benefits were not coming from the

state AG)

Hafer v. Melo (1991) o P sues State Auditor, individually, for wrongful termination o State Auditor says, I’m being sued in my official capacity

B/c the only way I could fire P, was in MY OFFICIAL CAPACITY SCOTUS

o D is being sued in her personal capacity o P’s pleading controls, not how D acted.

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Congressional Abrogation of State Sovereign ImmunityRundown

o Yes: Congress can abrogate State SI: 1) Clear Statement: Atascadero State Hospital v. Scanlon (1985), and 2) 14th Amend: Fitzpatrick

FMLA family-leave provision: Hibbs 3) Bankruptcy: Central VA Comm. College

o No: Congress cannot abrogate State SI 1) Art. I: Seminole Tribe

State as Commercial Actor (College Savings Bank); 2) State Courts w/ Art. I: Alden 3) Agency Adjudication (Fed Maritime Comm) 4) Outside of 14th Amend (see City of Boerne)

ADA (Garrett); ADEA (Kimel); FMLA self-leave provision (Coleman)

Other remedies for State violation of federal law:o State consents to suito State v. State o Federal v. Stateo Suits to enforce 14th Amend. (Fitzpatrick)o Suits against municipalities (Monell)o Ex parte Young suitso § 1983 damages actions against state officers

Background CasesAtascadero State Hospital v. Scanlon (1985)

o Clear Statement Congress must express its intention to abrogate SI in unmistakable

language in the statute Not enough:

General Cause of Action against all parties (which may include states)

Fitzpatrick v. Bitzer (1976) o Congress can override SI when enforcing 14th Amend. Rights.o Here, Title VII racial discrimination by State employer

Art. I – No abrogation Seminole Tribe of FL v. Florida (1996)

o P seek injunction against FL violating the Indian Gaming Regulatory Act (IGRA), IRGA

(a) Abrogates state SI (authorizes suits against state governments) to enforce good faith negotiations with Tribes attempting to allow

gambling on reservations. (b) Provides a remedial scheme for enforcement of those rights

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against states. o D argues SI —

Congress cannot abrogate state SI when legislating only under Art. Io P argues

a) Congress abrogated SI in the IGRA – can sue the State b) Alternative, we’re also seeking to enjoin State Officials from violating

the IGRA, which is permissible under Ex Parte Young. SCOTUS

o (a) Congress cannot abrogate State SI when legislating under Art. I o (b) Ex parte Young doesn’t apply b/c it would interfere w/ a IGRA’s complex

remedial scheme Note

o Holding (b) doesn’t matter much; Congress could easily amend the statute and allow for suits against state officers.

Seminole Tribe in state courtAlden v. Maine (1999)

o Ps argue: 11th Amend. does not apply to states. States courts must enforce federal statutes (Testa)

SCOTUS o When legislating under Art. I, Congress cannot subject States to private

damages suits in state courtso Seminole Tribe applies w/ full force in state courts

Profo Notion of having federal rights enforceable exclusively in state courts ==

That’s INSANE

State as Commercial ActorCollege Savings Bank (1999)

o FL violates federal False Advertising statute Statute expressly abrogates State SI

o P argues When State is acting as a Commercial Actor, Seminole Tribe should not

apply SCOTUS

o Art. I – Congress cannot abrogate State SI Breyer Dissent

o Huge practical reason why Federal commerce law needs to apply to State and Private actors equally Enforcement Gap:

Allow the State to get into he Market but not play by the rules Undermines Congress’ effort to regulate the Private industry

Majority’s response:o That’s all very good practical reasoning – but does not apply to 11th Amend.

rule that Congress cannot abrogate State SI when legislating under Art. I

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Bankruptcy Powers Central VA Com. College (2006)

o When Congress is legislating under Bankruptcy powers (Art. I), Congress can abrogate State SI Bankruptcy Power requires uniformity of Federal law

Profo Doesn’t find this case analytically consistent w/ Seminole Tribe or College

Savings Bank

Administrative AdjudicationFed Maritime Comm’n (2002)

o Congress cannot abrogate State SI in enforcement actions brought by Federal Agencies, when federal agencies are acting at the behest of private parties

Dissento Enforcement is by the UNITED STATES = Yes abrogation of State SI

§ 5 of the 14th AmendmentTerms:

o Prophylactic Legislation: Statute intends to prevent (ex ante) violations of a 14th Amend Right

E.g. statute requires pregnancy leave = prevents Gender Discrimination before it happens

Congress’ Enforcement Powers of the Civil War Amendments

City of Boerne v. Flores (1997) o Congruence and Proportionality test

Congress legislates under § 5 of the § 14th Amend. if: Statute protects a substantive 14th Amendment right w/ a

Scheme that is congruent to that right, and the Protection is proportional to the threatened injury of the right

Two Opposing views to City of Borene:

Breyer dissent in Garretto Borene is too strict

Rational Basis = if Congress was legislating reasonably, Congress can abrogate state SI Same standard for Congress’ power under Art. I should apply to § 5

Congruence and Proportionality invalidates reasonable prophylactic legislation

Scalia dissent in TN v. Lane Borene is too broad

o Congress cannot pass any prophylactic legislation o Congruence and Proportionality test gives Congress powers under § 5 that

Congress does not have

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o Court Requires Court to “Grade Congress’ homework” = examine legislative

record for means/ends

Flipped: o Congruence and Proportionality tolerates some degree of prophylactic

legislation Scalia would not

o Congruence and Proportionality disables some flimsy prophylactic legislation Breyer would not

Means/Ends AnalysisHibbs (2003) FMLA - unpaid family leave (pregnancy leave)

o Upheld as an exercise of 14th Amend. Authority Mean/Ends analysis

o 1) Means provide unpaid family leaveo 2) Ends prevent gender discrimination o Prof: Evidence must connect Why Unpaid family leave prevents Gender

Discrimination SCOTUS

Yes, Congress was legislating w/ § 5 of the 14th Amend. Congress considered

Evidence of gender discrimination by the states And that state discrimination could be prevented by requiring

family leave everywhere Prof

o Means/Ends test all turns on the “ends” Two appropriate substantive “Ends” in 14th Amend: Race and Gender .

Hibbs — Majority is really sayingo FMLA family-leave to an adequate degree (not too much) protects Gender

Discrimination § 1 treats Gender Discrimination seriously (intermediate scrutiny)

Not true undero Kimel - ADEAo Garrett - ADA

Age and Disability discrimination are not Constitutional Protections Point

o Gender Discrimination taken seriously under § 1 Supports legislation under § 5

o Age discrimination is not taken seriously under § 1 Cannot be legislated via § 5

Coleman v. Court of Appeals of Maryland (2012)o P sues his employer, the State of Maryland, under FMLA for violations of

self-care leave

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o P argues Self-Care Leave = protects pregnancy = protects gender discrimination

SCOTUSo Self-Care Leave does not protect a 14th Amend Right

Congress cannot Abrogate State SI for state violations of FMLA’s self-care leave provision

o Protecting pregnancy ≠≠ protecting gender discriminationo Means/Ends

Means self-care leave Ends prevent gender discrimination

o Court: The means are neither congruent nor proportional to achieve protection

of a 14th Amend. right. Dissent

o Protecting Pregnancy == Protecting Gender Discrimination

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