Fed Courts Final

The meaning of "arising under" federal law for purposes of 28 U.S.C. 1331 - well-pleaded complaint rule

A case arises under federal law if it is apparent from the fact of the plaintiff's well pleaded complaint either that 1) the plaintiff's cause of action was created by federal law or 2) a federal law that creates a cause of action or reflects an important national interest is an essential component of the plaintiff's claim even though that claim is pleaded as a state law cause of action. See Louisville & Nashville R.R. v. Mottley (1908)

Collateral Consequences Exception - civil cases

A case is not moot, even if the plaintiff's primary injury is resolved, as long as the plaintiff continues to suffer some harm that a favorable court decision could remedy

Collateral Consequences Exception

A case may survive where plaintiff's main injury has been resolved as long as secondary or collateral consequences remain.

The government generally has no duty to protect individuals from privately inflicted harms

Such an affirmative duty exists only where the government itself creates the danger or the person is in government custody; state and local duties and remedies do not give rise to that duty

Two limitations for the Tucker Act

1) The claim must not arise from torts 2) The Claims Court has authority only to hear cases that primarily seek money damages from the court cannot impose damages unless they are tied and subordinate to a monetary award or expressly provided by statute

Aggregation of claims. Two approaches:

1) A single plaintiff may aggregate the value of all of the claims presented against a single defendant, even if the claims arise from separate transactions or occurrences. 2) When there are multiple plaintiffs, only one plaintiff must allege a claim that is in excess of $75,000. Section 1367 authorizes supplemental jurisdiction over claims of other plaintiffs in the same case, even if the dollar value of those claims is less than the jurisdictional amount. Exxon Mobil Corp. v. Allapattah Servs. Inc. (2005)

Injuries to constitutional rights are sufficient for standing purposes.

1) Persons seeking to halt violations of a constitutional provision dealing with the structure of government lack standing because they are "generalized grievances" 2) Allegations of a subjective chill of rights are insufficient for standing purposes absent specific present objective harm or a threat of a specific future harm. Laird v. Tatum (1972)

The functions of the Supreme Court

1) Serves as the authoritative voice as to the meaning of the U.S. Constitution. Marbury v. Madison (1803) 2) Ensures the supremacy of federal law. Cooper v. Aaron (1958) 3) Resolves conflicting interpretations of federal law among the various state and federal courts and thereby ensures the uniformity of federal law. 4) Serves as the definitive voice in interpreting federal statutes

Congress's intent must be very clear in order to override state sovereignty pursuant to the 14th Amendment. Quern v. Jordan (1979) (42 U.S.C. 1983 adopted pursuant to section 5 of the 14th Amendment deemed insufficient indication of express congressional intent to make state governments liable under that statute)

1) The expression of congressional intent need not be in the text of the statute itself 2) The Court held that 42 U.S.C. 1988 permitting recovery of attorney fees in civil rights case could be applied against states based on legislative history reflecting a clear congressional intent to include states. Hutto v. Finney (1978) Congress can abrogate 11th Amendment immunity only when acting under its section 5 enforcement powers and not under any other constitutional authority. Seminole Tribe of Fl. v. Florida (1996)

A district court has discretion under section 1988 to award reasonable attorney fees to a prevailing party in an action or proceeding to enforce section 1983

1) a prevailing plaintiff is entitled to fees unless the plaintiff failed to secure judgment at trial more favorable than a FRCP 68 offer previously made by the losing defendant 2) a prevailing defendant is entitled to fees only if the plaintiff's claims were frivolous, unreasonable, or without foundation

There are at least five possible ways to establish the existence of a policy or custom sufficient to impose section 1983 liability on a municipal government:

1) actions by a municipal legislature constitute official policies. Pembaur v. City of Cincinnati (1986) 2) actions by municipal agencies or boards that exercise authority delegated by a municipal legislative body constitute official policies. Monnell. 3) actions by those with final decision-making authority for making a decision in the municipality constitute official policy. Pembaur. i. The determination of final decision making authority is a question of state law. Jett v. Dallas Indep. Such. Dis. (1989) 4) Inadequate training and supervision amounting to inadequate by a municipality can constitute government policy sufficient to impose section 1983 liability. City of Canton, Ohio v. Harris i. Rigorous, though ill-defined, causation requirements apply to establish municipal liability based on inadequacies in the hiring process. Bd. of Cty. Comm'r of Bryan Cty. Okla. v. Brown (1997) ii. Deliberate indifference rarely will be found on the basis of a single incident. Connick v. Thompson (2011). 5) A municipal custom or widespread practice can form the basis of section 1983 liability, even though the custom or practice has not received formal approval from a municipal legislative body.

Where the underlying constitutional violation may also be a tort, the Supreme Court has imposed three limitations on claims brought under section 1983

1) allegations and proof of negligence are not sufficient to demonstrate a deprivation of due process. a deprivation of due process requires an intentional violation by government or government officers. a. It is unsettled whether other states of mind - recklessness, deliberate indifference, gross negligence - constitute a deprivation of due process b. Excessive force claims are to be analyzed under the Fourth Amendment whether the law enforcement officer's actions were objectively unreasonable, rather than under a substantive due process approach c. Substantive due process is available for excessive force claims only where there is an abuse of power that shock the conscience, requiring in emergency situations, that the plaintiff prove that police officer intended the harm to the victim - evidence of recklessness or deliberate indifference is insufficient in such circumstances

Following Pennhurst, litigants have at least three options

1) bring both federal and state claims in state court 2) bring federal claims in federal court and state claims in state court, risking dismissal on the federal claims in the event that the state court decide the case first. 3) bring federal claims in federal court first, then, if unsuccessful, bring state claims in state court second

Text uses term "cases" to describe matters by reference to the subject matter of the dispute:

1) cases arising under the Constitution, treaties, and the laws of the United States 2) cases affecting ambassadors, other public ministers, or consuls 3) cases of admiralty and maritime jurisdiction

The 11th Amendment prevents a federal court from awarding retroactive injunctive relief to compensate past injuries when those damages will be paid from the state treasury. Edelman v. Jordan (1974)

1) distinction between permissible prospective relief and impermissible retroactive relief is difficult to make 2) Supreme Court has emphasized that 11th Amendment does not bar "official capacity" linked to prospective relief, e.g. payment of attorneys' fees and class notices

Alternatively, the well-pleaded complaint rule can be satisfied if either:

1) federal law is an essential component of the plaintiff's state law claim. That is, "the plaintiff's right to relief (under state law cause of action) necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust (1983) Court will thus evaluate the nature of the federal interest if it reflects an important national interest that is at stake Even under this alternative, federal law must itself create a private cause of action, albeit one that the plaintiff does not rely on. Merrill Dow Pharm., Inc. v. Thompson (1986)

For state boards, corporations, and other entities, courts look at several factors:

1) will a judgment against the entity be satisfied with funds from state treasury? 2) does the state government exert significant control over the entity's actions and decisions? 3) does the state executive branch or legislature appoint the entity's policymakers? 4) does the state law characterize the entity as a state agency rather than as a subdivision?

Interlocutory Review: 28 U.S.C. 1292 provides three specific situations in which the courts of appeal have statutory jurisdiction to review interlocutory orders of the district court

1) interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions, except when a direct review may be had in the Supreme Court. 2) interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes of receivership, such as directing sales or other disposals of property 3) interlocutory orders determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed

For the exemption to apply, the government action must

1) involve an element of judgment or choice, Berkovitz v. United States (1988), which (2) must be based on considerations of public policy, regardless of the decision maker involved, United States v. Gaubert (1991)

Courts have been inconsistent on the question of the extent of 11th Amendment immunity of state agencies, boards, or other entities

1) some courts have declined, for instance, to grant state universities immunity from suit under the 11th Amendment while most others have allowed such universities to invoke the Amendment 2) department-level state agency is part of the state for purposes of 11th Amendment immunity 3) Court has said that question of whether a money judgment against a state instrumentality or official would be enforceable against the state is of considerable important in evaluating a relationship to the state

Three procedural grounds that will not preclude review

1) state procedural grounds that deny due process are inadequate 2) state procedural grounds are inadequate when they heavily burden the assertion of federal rights without significantly advancing a sufficiently important state interest. Henry v. Mississippi (1965) 3) State procedural grounds are inadequate if the state court tried to prevent review of a federal constitutional claim by creating a new procedural hurdle or if the procedural rule is irregularly or rarely applied in state court

Mandatory exception. CAFA requires courts to decline jurisdiction in the following circumstances:

1) subject matter exceptions, e.g. claims under the Securities Exchange Act of 1934 and claims concerning the internal affairs or governance of a corporation or other form of business enterprise 2) suits with fewer than 100 plaintiffs in total 3) suits in which the primary defendants are states, state officials, or other governmental entities (against whom the federal court may be foreclosed from ordering relief for reasons such as the Eleventh Amendment). 4) In cases where: A. i. Greater than 2/3 or more of the members of all proposed plaintiffs are citizens of the forum state and the primary defendants are members of the forum state. ii. At least one in-state defendant exists from whom members of the class seek significant relief and whose conduct forms a significant basis of the claims; iii. The principal injuries resulting from the alleged conduct (or related conduct) of each defendant were incurred in the state where the action was originally filed; and iv. No other class action asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons has been filed during the preceding three years. B. The claims of all individual class members must exceed the sum or value of _____________, exclusive of interests and costs

There are two statute of limitations for an FTCA claim

1) the claim must be presented to the federal agency within 2 years after it accrues and 2) within six months after the federal agency acts on the claim. Both statutory periods are subject to equitable tolling. United States v. Wong.

Federal law reflects an important national interest that would be served by allowing federal question jurisdiction. The inquiry thus entails:

1) whether the state law claim "necessarily" raises a federal issue that is "actually disputed" and "substantial"; 2) whether, in adjudicating the dispute, the federal court would disturb "any congressionally approved balance of federal and state judicial responsibilities" Garble & Sons Metal Prods., Inc. v. Dare Eng'g & Mfg. (2005).

Exceptions to Ex Parte Young

1. 11th Amendment bars federal court suits against state officers based on pendent state law claims. i. 11th Amendment prohibits federal courts form enjoining state officers from violating state law. Pennhurst State Sch. & Host. v. Halderman (1984). 2. Eleventh Amendment bars federal suit enforcing federal laws that contain comprehensive mechanisms. Seminole Tribe v. Florida (1996) 3. Eleventh Amendment bars federal court suits to quiet title to submerged lands. Idaho v. Couer d'Alene Tribe (1997)

Voluntary Cessation Exception

1. A case should not be dismissed as moot if the defendant voluntarily ceases the allegedly improper behavior but is free to return to it at any time 2. A defendant claiming that its voluntary cessation moots a case bears a heavy burden to show that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Friends of the Earth, Inc. v. Laidlaw (2000) 3. The repeal of a challenged law does not render a case moot if there is a reasonable possibility that the government would reenact the law if the proceedings were dismissed 4. Compliance with a court order renders a case moot only if there is no possibility that the allegedly offending behavior will resume once the order expires or is lifted

Bivens Suits Against Government and Private Entities and Individuals

1. A federal agency is not subject to liability for damages under Bivens. Federal Deposite Ins. Co. v. Meyer (1994) 2. Bivens suit against state governments are impermissible because of the 11th Amendment but conceivably such suits arising under the Fourteenth Amendment would be permitted. Fizpatrick v. Bitzer (1976) 3. The availability of relief against municipalities under section 1983 might bar Bivens suits for money damages against such entities 4. Private entities are not subject to liability under Bivens. Correctional Servs. Corp. v. Malesko (2001) 5. Private individuals are not subject to liability under Bivens, at least if adequate state tort liability is available. Minneci v. Pollard (2012)

Exhaustion of State Remedies not Required

1. A plaintiff did not exhaust state remedies before initiating a section 1983 suit in federal court. Monroe. 2. A plaintiff did not exhaust state administrative remedies before initiating a Section 1983 suit in a federal court. McNeese v. Board of Education. (1963) 3. A plaintiff does not allege a due process violation when the complaint seeks a post deprivation remedy for the random and unauthorized deprivation of property by a government officer and the state provides an adequate post deprivation remedy. Parratt v. Taylor (1981) 4. The Prison Litigation Reform Act created an exhaustion requirement before prisons can bring lawsuits under Section 1983 challenging prison conditions 5. Challenges to the conditions of confinement, including the manner of execution are actionable under Section 1983, whereas challenges seeking to end or shorten the period of confinement are actionable only via a petition for writ of habeas corpus. Preiser v. Rodriguez (1973) 6. In challenges seeking to recover damages for allegedly unconstitutional conviction or imprisonment, a plaintiff must first have the conviction or sentence reversed an appeal or expunged by executive pardon. Heck v. Humphrey (1994) 7. Supreme Court extended Heck's exhaustion requirement to a Section 1983 challenge to prison disciplinary procedures. Edwards v. Balisok (1997)

Class Action Exception

1. A properly certified class action suit may continue even if the named plaintiff's claims are rendered moot because the class of unnamed persons acquire a legal status post-certification that is separate from the interest asserted by the plaintiff. Sosna v. Iowa (1975) i. Even if the plaintiff never had a legitimate claim for relief, a class action, once properly certified, is not moot when some class members continue to have live claims. Franks v. Bowman Transp. Co. (1976) ii. Prior to class certification, however, the mooting of plaintiff's claims require the dismissal of the class action. Bd. of Sch. Commrs. of Indianapolis v. Jacobs (1975) 2. A putative class member may intervene to challenge and appeal the denial of class certification after the named plaintiff's claims are mooted. United Airlines Inc v. McDonald (1977) 3. A plaintiff may continue to appeal the denial of class certification even after his or her particular claim is mooted. U.S. Parole Commission v. Gearghty (1980) or settled. Deposit Guaranty Nat'l Bank v. Roper (1980)

The Independence of State Law Ground

1. A state ground is independent if the state's highest court solely based its decision entirely on state law that is not tied to federal law 2. A state ground is not independent if the state law incorporates federal law 3. When it is unclear whether the state law ground incorporates or is interwoven with federal law, the Supreme Court will presume the state court decision rests on federal law, unless there is a plain statement from the state's highest court that its decision was based on independent state law grounds. Michigan v. Long (1983)

Narrow Exception to Taxpayer Standing

1. A taxpayer standing is recognized only where the plaintiff establishes a sufficient nexus between her taxpayer status and a government expenditure as violating the Establishment Clause of the First Amendment. Flast v. Cohen (1968) i. Such taxpayer standing exists when the challenge focuses on an expenditure authorized by a congressional act, as opposed to actions by the executive department of the government. Hein v. Freedom from Religion ii. The challenged legislative act must have been passed under the taxing and spending power. Valley Forge Christian Coll. v. Americans United for Separation of Church & State Inc (1982) iii. Challenges based on tax credits do not confer taxpayer standing. Arizona Sch. Tuition Org. v. Winn (2011)

Other injuries recognized as sufficient for standing

1. Aesthetic and environmental injuries provided the plaintiff claims to suffer the harm personally. SCRAP (1930) 2. Injuries to the recreational values for users. Friends of the Earth v. Laidlaw Environ. Servs. Inc. 2000 3. Harms from global warming. Massachusetts v. EPA (2007) 4. Economic harms are sufficient 5. Possible criminal prosecutions, especially under alleged constitutionally invalid laws 6. Laws of the right to sue in the forum of one's choice 7. Change in market conditions

Standing for Organizations

1. An association or organization can sue based on injuries to itself or its members 2. An association has standing to sue on behalf of its members when: i. Its members would otherwise have standing to sue in their own right; ii. The interests it seeks to protect are germane to the organization's purpose; and iii. Neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members (a prudential, not constitutional standard)

Taxpayer Standing

1. Citizens generally do not have standing in their treasury as taxpayers. Frothingham v. Mellon 2. A taxpayer's interest in making sure that government funds are lawfully spend does not provide the type of injury required for standing under Article III 3. The resolution of such generalized grievances the Court has reasoned, are matters of public concern better suited to the political processes 4. The bar on generalized grievances is constitutional rather than prudential. Lujan v. Defenders of Wildfire

Fitness of the Issues and Record for Review

1. Courts are more likely to find a case ripe where the question is purely legal issue, the analysis of which does not depend on a particular factual context. Socialist Labor Party v. Gilligan (1972) 2. A case is not ripe where the litigant has not exhausted its administrative remedies

Declaratory Judgments

1. Declaratory Judgment Act of 1934 authorizes a federal court to issue a declaratory judgment in a "case or actual controversy within its jurisdiction." 2. Supreme Court upheld the constitutionality of the Act, reasoning that federal courts could issue declaratory judgments if there is an actual dispute between adverse litigants and if there is a substantial likelihood that the favorable federal court decisions will bring about some change or have some effect. Aetna Life Ins. Co. v. Haworth 3. Declaratory judgment jurisprudence emphasizes whether either party could have validly brought an action for coercive relief such as money damages or injunction. If so, then it is likely that an actual controversy is present and declaratory relief available.

Bivens Suits against Federal Officers

1. Despite absence of a statute creating a cause of action against federal officers for constitutional violations, the Supreme Court has held that federal officers may be sued for injunctive relief to prevent future infringements of federal laws. Larson v. Domestic & Foreign Commerce Corp. (1949) 2. The Supreme Court has recognized an implied cause of action for money damages against federal officers for alleged violation of a plaintiff's rights arising under the Fourth Amendment. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) 3. The Supreme Court has expanded Bivens to recognize claims for money damages against federal officers arising from infringements of the First, Fifth and Eighth Amendments. In addition, lower federal courts have recognized Bivens suits for violations of the Ninth and 14th Amendments.

Procedures in Bivens Suits

1. If federal officers are sued in state court, they may remove the case to federal court 2. Venue and service of process must comply with the Federal Rules of Civil Procedure and federal statutes; the Mandamus and Venue Act is inapplicable to Bivens suits. Stafford v. Briggs (1980) 3. Exhaustion of administrative remedies is not required before seeking only money damages under Bivens. McCarthy v. Madigan (1992) 4. It is unresolved whether a prevailing plaintiff in a Bivens suit is entitled to recover attorney's fees.

Qualified Immunity

1. Most executive and administrative officials can claim only qualified immunity, an affirmative defense, which exists only as to suits for money damages, not as to suits for injunctive relief 2. The Supreme Court has suggested that private individuals, working for the government, may assert a qualified immunity defense. Filarsky v. Delia (2012) 3. The qualified immunity defense is subjective; the subjective intent or motives of the official do not prove or disprove the defense. Harlow v. Fitzgerald (1982) 4. The defense of "just following the law" does not automatically exonerate the government official, nor will reliance on the advice of legal counsel

Zone of interest

1. Plaintiffs must show that their asserted injuries implicate interests that are "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Servs. Orgs. Inc. v. Camp (1970) 2. Plaintiffs seeking to enforce a statute must therefore show that the law "arguably" protects their interests. i. The rule is most frequently, and perhaps only, applicable in cases seeking review of agency decisions under the Administrative Procedures Act. 3. The zone of interest requirement is a prudential rule, which is not supposed to be especially demanding; doubts are supposed to be resolved in favor of the plaintiff. i. The rule should only bar suit when plaintiffs' interests are so marginally related to or inconsistent with the purposes implicit in the statute. Lexmark Int'l Inc. v. Static Control Components (2014) ii. But plaintiffs must show that statute's language or history indicates that their claim falls within the zone of interests protected by the law

42 U.S.C. 1983

1. Section 1983 creates a cause of action against any person who, acting under color of state law, abridges the rights created by the Constitution and laws of the United States 2. Section 1983 was meant to give a broad remedy for violations of federally protected civil rights out of a concern that state laws, courts, and agencies, particularly in the South following the Civil War, would deny such rights to newly-freed black citizens. 3. Federal court jurisdiction to hear Section 1983 claims exist under the federal questions statute, 28 U.S.C. 1331 and under 1343(3), conferring jurisdiction for suits redressing violations of federal laws providing for the equal rights of citizens

Justifications for Article III Based Prohibition on Advisory Opinions

1. Separation of powers is maintained by keeping the courts out of the legislative process and executive decisions 2. Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature 3. Helps to ensure that cases will be presented to the courts in terms of specific disputes, not as hypothetical legal questions.

Policies and Values Served by Standing Requirement

1. Standing promotes separation of powers by restricting the availability of judicial review. i. Separation of powers can be breached either by over expansion of the role of federal courts or by undue restriction 2. Standing serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome i. Relatedly, standing also conserves the Supreme Court's political capital 3. Standing improves judicial decision-making by ensuring that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter. i. The need for specificity in the controversy is likely to vary; some cases present pure questions of law in which the factual context is largely irrelevant 4. Standing serves the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermedlers trying to protect others who do not want the protection offered. i. But strict standing requirements might be unfair if they prevent people with serious injuries from securing judicial redress

Courts have not yet worked out entirely clear standards governing nonparty appeals, nor have they established clear procedural routines, except that:

1. Standing/injury requirements must be met by persons seeking appellate review just as it must be met by persons appearing in courts of first instance. Hollingsworth v. Perry (2013) 2. Standing to defend on appeal in the place of the original defendant, no less than standing to sue, demands that the litigant possess a direct stake in the outcome. Arizonians for Official English v. Arizona; Virginia House of Delegates v. Bethune Hill (2019) 3. Standing by a nonparty might be available in limited circumstances as when the would-be appellant can show that it is bound or adversely affected by the judgment, or is a member of a putative class who participated, for example, as an objector in the district court proceedings

Suits by Governmental Entities

1. State and local governments may sue on behalf of the interests of their citizens 2. Such quasi-sovereign standing is permitted i. Where the government is suing based on its interest "in the health and well-being - both physical and economic - of its residents in general." ii. The State and its residents are not excluded from the benefits that are to flow from participation in the federal system. Alfred L. Snapp & Son Inc. v. Puerto Rico 3. Pariens patria cannot be used to sue the federal government 4. It is uncertain whether the federal government has parens patriae standing

Sovereign Immunity

1. The 11th Amendment prohibits suits in federal courts against state governments in law, equity, or admiralty, by a state's own citizens, by citizens of different states, or by citizens of foreign countries. 2. Sovereign immunity bars suits against state governments in state court without their consent. Alden v. Maine (1999) 3. Normative questions raised by these cases concern the importance of protecting state sovereignty from federal power and the appropriate balance between holding states accountable and protecting their treasury 4. Debate on whether Article III meant to override state sovereign immunity did not occur at the Constitutional Convention but at the state ramification conventions; yet intentions of framers and ratifiers were ambiguous 5. 11th Amendment was adopted and ratified to overturn Chisholm v. Georgia which upheld a provision in Judiciary Act of 1789 that created original jurisdiction for suits against states by citizens of other states 6. Supreme Court determines that states are immune from suits by their own citizens unless the state consents to be sued. Hans v. LA (1890) 7. A denial of 11th Amendment immunity is immediately appealable as it creates a constitutional immunity from suit rather than an affirmative defense. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy (1993)

Limitations to Bivens suits

1. The Court will not infer a cause of action if there are "special factors counseling hesitation in the absence of affirmative action by Congress" 2. The Court will not infer a cause of action if Congress has specified an alternative mechanism that Congress believes provides an equally effective substitute. Carson v. Green (1980)

Federal Sovereign Immunity

1. The United States may not be sued unless federal legislation specifically authorizes the suit. Cohens v. Virginia (1821) 2. Only Congress can consent to suits against the United States through explicit language; the executive branch cannot waive the federal government's sovereign immunity

Officer Immunities Generally

1. The nature of an officer's immunity is determined, in large part, by an examination of the law as is existed in 1871, when section 1983 was enacted. City of Newport v. Fact Concerts (1981)

Benefits of the Final Judgment Rule

1. promotes judicial efficiency by not forcing appellate courts to decide issues unnecessarily 2. promotes expeditious resolution of proceedings, halting lower court proceedings for interlocutory appeals would delay the litigation 3. provides a fully developed record for appeal, including the factual and legal reasoning and conclusions of the lower court judges 4. promotes federalism by deferring to state court proceedings and requiring them to be completed before appellate review

available remedies

1. section 1983 explicitly authorizes both legal and equitable remedies 2. damages are available under section 1983 to compensate for actual injuries suffered, including emotional and mental distress 3. punitive damages are available under section 1983 against a government official when the official's conduct is shown to be motivated by evil motive or intent, or when it involves recklessness or callous indifference to the federally protected rights of others. Punitive damages are not permitted for section 1983 suits against municipal governments

Ex Parte Young

1. the 11th Amendment does not preclude federal court suits for injunctive relief against state officers, acting in either their official or individual capacities, even when the remedy sought would enjoin implementation of a state action. i. Individual capacity suits are an attempt to sue the state government entity by naming the state officer as a defendant ii. Individual or personal capacity suits seek to impose individual liability upon a state officer for actions taken under color of state law The 11th Amendment does not prohibit a federal court from granting injunctive relief against a state officer even though compliance with the injunction will be retroactive for the state

Five general points about litigating immunity

1. the determination of the immunity to be accorded as a defense in a section 1983 is a question of federal, not state, law. Howlett v. Rose (1990) 2. because the entitlement is an immunity from suit rather than a mere defense to a liability, a district court's conclusions of law denying immunity are immediately appealable, both at the pleading stage and on summary judgment. Behrens v. Pelletier (1996) 3. the law of immunity accorded to state and local government officials is identical to immunity law accorded to federal government officers. But v. Economou (1978) 4. immunities are a defense to liability, not an element of the plaintiff's prima facie case. Gomez v. Toledo 5. Section 1983 immunities are available for suits for money damages to be paid by the individual officer, not when the suit actually seeks money damages from the government's treasury

In deciding whether a case is ripe, courts look primarily to:

1. the hardship to the parties of withholding court consideration; and 2. the fitness of the issues for judicial decision. Abbott Labs v. Gardner

Suits between state governments

28 U.S.C. 1251 provides that the Supreme Court shall have original and exclusive jurisdiction over all controversies between two or more states. Supreme Court has taken position that it has discretion to refuse to hear such cases if necessary to ensure its "most effective functioning...within the overall federal system" Texas v. New Mexico

The Supreme Court's review of the lower federal court decisions

28 U.S.C. 1254 authorizes review "by writ of certiorari...upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." The Court's general practice is to wait until after a court of appeals decision has been rendered Review before a judgment of the court of appeals "will be granted only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate practices and to require immediate settlement in the Supreme Court." Review before court of appeals judgments is sometimes used to consolidate cases involving similar issues

Text defines "controversies" by reference to the parities to the dispute:

4) controversies to which the US shall be a party 5) controversies between two or more states 6) controversies between a state and citizens of another state (modified by the Eleventh Amendment) 7) controversies between citizens of different states 8) controversies between citizens of the same state claiming lands under grants of different states 9) controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects (modified by Eleventh Amendment)

Despite the absence of an explicit congressional declaration, a court may infer that Congress has provided an alternative remedy to a Bivens suit through statutory language, legislative history, or the statutory remedy itself. Bush v. Lucas (1983). The failure of the alternative remedy to provide a plaintiff complete relief is not alone sufficient to infer a Bivens cause of action

A court should not recognize a Bivens suit, even where no alternative remedy exists if, on balance, it is desirable to permit recovery. Wilkie v. Robbins (2007) A Bivens suit will not be precluded where a statute confers a federal officer with absolute immunity, suggesting that a Bivens suit is federal common law rather than required by the Constitution. Hui v. Castaneda (2010)

Final Judgment Defined

A decision or decree constitutes a final judgment if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States (1945) A decision can be considered a final judgment even if it is not made by the highest state court; decisions of lower courts are reviewable by the Supreme Court when there is no appellate review of such rulings within the state

Waiver removal

A defendant will be deemed to have waived removal if he or she engages in substantial defensive action in state court during those 30 days, e.g., filing a motion to dismiss or conducting discovery. A case cannot be removed on the basis of diversity more than one year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent the defendant from removing the action. Unless 1441(c) applies, all defendants, properly joined and served, must join in or consent to the removal

Courts are split as to whether

A defendant's counterclaim can be the basis for meeting the amount in controversy requirement

National banking association

A national banking association is a citizen of a state in which it is "located" - the state where its main office is located as specified in its articles of association. The Supreme Court has yet to determine whether a national bank is also a citizen of the state of its principal place of business.

Domicile

A person can only have one domicile Domicile is determined by 1) the subjective intent of the individual to make a place his or her true, fixed and permanent home and 2) by his or her constant presence in that place

The limitation on third party standing

A plaintiff may not "rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin (1975) A plaintiff can only assert only injuries that he or she has suffered, not those of third parties who are not part of the lawsuit

Causation and Redressability

A plaintiff must allege and prove both (1) causation - defendant's conduct caused the injury and (2) redressability - a favorable court decision is likely to remedy the injury

It is unsettled whether the removal of a case by a state defendant to federal court constitutes a waiver of 11th Amendment immunity

A state choice to remove a case from state to federal court is a waiver of 11th Amendment immunity when there are state law claims and the state has waived its immunity as to those claims in state court. Lapides v. Bd. of Regents of Univ. Sys. of Georgia (2002) It is unsettled whether a state's participation in pretrial proceedings in federal court constitutes a waiver of 11th Amendment immunity

Under color of state law

Actions taken by a state or local government officer, acting in his or her official capacity, are deemed to have occurred under color of law even if they are not in pursuance of any official state policy, even if they violate state law, and even if state law provides an adequate remedy. Monroe v. Pape. The test for under "color of law" is virtually identical to evaluating whether there is a remedy under the 14th Amendment. Actions taken by an officer in his or her official capacity constitute state action, whether or not the conduct is authorized. Home Telephone & Telegraph Co. v. Los Angeles (1913)

Other Non-Article III Courts

Administrative Agencies differ from legislative courts in three ways: 1) judgments rendered in administrative agencies are generally enforceable only upon an order of an Article I court 2) administrative agencies have formal and informal policymaking function in addition to adjudicative responsibilities 3) legislative courts are considered Article I exceptions to Article III while administrative agencies are considered part of the Article II executive function

28 U.S.C. 1254

Also authorizes review via certification "at any time by a court of appeals of any questions of law in any civil or criminal case as to which instructions are desired." Court has been generally reluctant to accept matters via certification before a fully developed record and decision. Court also jealously guards its prerogative to decide which cases are worthy of review rather than give that discretion to courts of appeal. Upon certification, the Court can give "binding instructions or require the entire record to be sent up for decision of the entire matter in controversy." Court will accept certification of issues only as to questions of law, only if the questions are not too abstract or general, and only if there is a substantial reason for certification rather than the usual appellate procedures.

Inferiority

Although Congress has broad power to establish lower federal courts, any court it establishes must remain inferior to the Supreme Court, preventing Congress and President from establishing a new set of tribunals free from oversight and control by Supreme Court

Substantive adequacy

An adequate state law ground exists where the state law basis for the decision is sufficient by itself to support the judgment, regardless of whether the federal law issue is affirmed or reversed. A state law is inadequate when there is a claim that the state law itself violates the U.S. Constitution A state law is inadequate when there is no fair and substantial basis in the record supporting the state court's state law ruling

Insurance companies

An insurance company is deemed a citizen of the state of its incorporation, the state where it has its principal place of business, and the state of which the insured is a citizen

Unincorporated association

An unincorporated association is deemed a citizen of every state where one of its members (general and limited partners) is a citizen. Courts generally agree that the citizenship of an LLC should be analyzed the same.

28 U.S.C. 1447

Any party, including a defendant who removed the case, can object to federal court jurisdiction, typically plaintiffs will move to remand. A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal. If at any time before final judgment, the district court decides that the case was removed improvidently, the court shall remand to state court. The judgment of a district court that improperly exercised removal jurisdiction will be upheld if that jurisdictional defect was cured by the time the final judgment is entered. Defendant waives nothing by removal and may move to dismiss the case, e.g. for improper service. The removal does not act as a general consent to jurisdiction. If a plaintiff dismisses the federal claim after removal, the federal court has discretion to retain or remand the pendant-state law claims. Carnegie-Mellon University v. Cahill (1988).

Legislative Courts

Article I, sec. 8 authorizes Congress to create "specialized courts" inferior to Supreme Court but does not require their judges to have life tenure and salary protections These "Article I courts" or "legislative courts" (all used synonymously) have been permitted for over 200 years, notwithstanding the text of Article III which provides that U.S. judicial power shall be vested in courts where judges have life tenure and salary protections.

Considerations

Article II empowers House of Representatives to impeach and Senate to convict and remove federal judges for high crimes and misdemeanors. Scholars disagree as to whether this is the exclusive mode of removing federal judges 1980 statute authorizes judicial councils to discipline federal judges, its constitutionality is uncertain depending on whether impeachment is the exclusive means of discipline. What constitutes good behavior, aside from criminal activity, remains debatable.

28 U.S.C. 1441(c)

Authorizes removal in cases asserting both federal and state law claims The federal court may adjudicate the federal claims properly removed and may adjudicate supplemental state claims under section 1367. The federal court must sever and remand to state court any state law claims that do not qualify for supplemental jurisdiction under section 1367. Only the defendants against whom a federal claim is asserted need to join in or consent to the removal.

U.S. district court

Below federal circuit courts are 94 federal district courts - at least one court in each state, DC and Puerto Rico Federal district courts are the primary courts of original jurisdiction in the federal system Three-judge courts, whose decisions are reviewable by appeal to the Supreme Court, are authorized for challenges to the appointment of congressional districts or statewide legislative body and under Civil Rights Act of 1964, Voting Rights Act of 1965, Regional Rail Reorganization Act, and Bipartisan Campaign Finance Reform Act of 2002

U.S. Courts of Appeal

Below the Supreme Court are 13 judicial circuits - 12 U.S. Courts of Appeal (11 regional federal circuits plus DC circuit) and the U.S. Court of Appeals for the Federal Circuit which hears appeals from specialized patent and trademark law cases, matters decided by U.S. Court of International Trade, U.S. Court of Federal Claims and the U.S. Court of Appeals for Veterans Claims. 12 regional circuits are obligated to hear appeals from all final decisions of the district court Each regional circuit also hears appeals from all final decisions of the district courts. Each regional circuit also hears appeals from: a) federal administrative agencies b) the territorial courts c) the U.S. Tax Court d) and certain circuits also hear appeals from the U.S. Bankruptcy Appellate Panels U.S. Court of Appeals for the District of Columbia hears appeals from DC district court and, by statute, from many administrative agencies

Collateral Consequences Exception - criminal cases

Challenges to a criminal conviction are not moot even after the defendant has completed his sentence and is released from custody, when the defendant continues to face adverse consequences, e.g., loss of voting, occupational licensing, severity of sentencing for future offenses. Sibron v. New York. A challenge to a criminal appeal, as opposed to a conviction, is generally rendered moot after the defendant has served that sentence

Reapportionment

Challenges to malapportioned election districts are political questions under the Guaranty Clause but otherwise justiciable under the Equal Protection Clause

Gerrymandering

Challenges to partisan gerrymandering are nonjusticiable political questions. Rucho v. Common Cause (2019)

Review of Political Parties

Challenges to political parties, especially suits concerning the number of delegates to national conventions present political questions

Article III, Section 2: Supreme Court's Appellate Jurisdiction

Confers appellate jurisdictions in all other cases "both as to law and fact, with such exceptions, and under such regulations as Congress shall make." Supreme Court precedent on this Exceptions Clause is sparse and inconclusive. See. e.g. Ex party McCardle (1869) (dismissing case for lack of appellate jurisdiction where Congress removed one of two possible routes for appellate review but did not remove appellate review altogether) Some matters arguably assigned to the Supreme Court's original jurisdiction may originate elsewhere and yet provide a proper case for the exercise of appellate jurisdiction. Cohens v. Virginia (!821)

Article III, Section 2: Supreme Court's Original Jurisdiction

Confers original jurisdiction on Supreme Court over cases affecting ambassadors, other public ministers, and consuls and cases in which a state shall be a party. Supreme Court's original jurisdiction is regarded as mandatory, meaning Congress cannot add to, see Marbury v. Madison (1803), or subtract from, see South Carolina v. Regan (1984), the Court's original jurisdiction Congress can confer lower federal courts with concurrent jurisdiction even over matters falling within the Supreme Court's original jurisdiction. Ames v. Kansas ex rel. Johnston (1884) Supreme Court often declines to exercise original jurisdiction if an alternative forum may hear dispute Original jurisdiction is self-executing, not dependent on enabling legislation

If the plaintiff has not alleged a constitutional violation and the case does not involve a type of discrimination or right receiving heightened scrutiny,

Congress cannot act under section 5 or authorize suits against suits unless there is proof before Congress of a pattern of pervasive unconstitutional state conduct.

Judiciary Act of 1789

Congress exercised its prerogative under the Madisonian Compromise to create a system of lower federal courts instead of relying only on federal courts to decide federal claims Congress did not initially vest federal courts with full jurisdiction possible under Article III For example, Supreme Court could review only decisions of a state's highest court rejecting (but not embracing) a federal constitutional claim Also the Act did not grant federal courts statutory authority to hear cases arising under federal law. (Lower federal courts did not receive a grant of federal question jurisdiction until 1875.) The Act thus carries a negative inference that federal courts may hear a case only if there is both Article III and statutory authority Created two levels of lower inferior courts - circuit courts of appeal (Supreme Court justices rode circuit and had no permanent judges for first 100 years) and district courts (a district in each state) with original jurisdiction only. Specified number of Supreme Court justices, initially at six Authorized removal jurisdiction from state to federal court based on diversity jurisdiction and dictated that laws of states govern in such cases

Section 1983 may be used for a federal statute adopted under spending clause power only if

Congress has clearly intended the statute to create a private right of action.

28 U.S.C. 1442

Contains an exception, permitting a federal officer sued or prosecuted in state court to remove to federal court if the officer relies on a federal defense

As the Supreme Court recently reiterated, the "crucial question...is not whether an interest is important in the abstract" but "whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders." Mohawk Industries v. Carpenter (2009)

Court also emphasized that judicial extensions of the collateral order doctrine are especially inappropriate today in light of "the enactment of legislation designating rule making, 'not expansion by court decision,' as the preferred means for determining whether and when prejudgment orders should be immediately appealable.'

Choice between possible unnecessary compliance and conviction

Courts will deem a case ripe when an individual is faced with a choice between forgoing allegedly lawful behavior and risking likely prosecution with substantial consequence. Adler v. Board of Education of City of NY (1952)

Certain enforcement

Courts will deem a case ripe when the application of the law is inevitable and consequences attach to it, even before the actual enforcement proceedings occur. Regional Rail Reorganization Act Cases (1974).

Collateral injuries

Courts will deem a case ripe where collateral injuries, that are not the primary focus of the lawsuit, are likely to occur. Duke Power Co. v. Carolina Envtl. Study Group (1978)

U.S. Court of Federal Claims

Decides monetary claims, other than torts, against United States

Article III, Section 1: Life Tenure and Salary Protection. Functions:

Declares that all federal judges shall serve "during good behavior" - a phrase understood to mean life tenure Prohibits any reduction in judicial salary during the time in office and requires payment of salaries at "stated times" Protections meant to assure accountability of federal judiciary

Article III, Section 3: Treason

Defines treason as consisting only in "levying-war" against the United States or giving aid or comfort to the enemy Prohibits a conviction of treason except on testimony of two witnesses or a court confession Congress is authorized to prescribe punishment which cannot be extended to traitor's heirs and descendants

Marbury's principles concerning the federal judiciary

Established the power of federal courts to review actions of the executive branch and that no person, not even the president, is exempt Determined that certain political questions were not subject to judicial review, were nonjusticiable. For those questions, the executive and legislative branches are only politically accountable. Political question doctrine articulated in Marbury is more aligned with current standing doctrine (legally recognized injury) than the more developed political question doctrine used by federal courts today. Once Marbury has been appointed to his office, the commission became his obligation; thus, withholding the commission, violating Marbury's legal rights by denying him his property. Court quoting Blackstone declares that "where there is a legal right, there is also a legal remedy" - a proposition that is not always (or frequently) true and was not for even himself. Established that Article III creates a ceiling on the Supreme Court's original jurisdiction, Court cannot enlarge that jurisdiction Declared that the "essential criterion" for the exercise of the Supreme Court's appellate jurisdiction is whether "it revises and corrects the proceedings in a case already instituted" For there to be a case, there has to be an exercise of "judicial power" consistent with separation of powers. Empowered federal courts to declare federal statutes unconstitutional Articulated the concept of judicial supremacy, that the Supreme Court is the authoritative interpreter of the Constitution: "It is emphatically the province and duty of the judicial department to say what the law is." The Court asserts that its functions of constitutional interpretation arises from its function of deciding cases: "Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." This "private rights" view suggests that the federal courts exist only to decide cases, and once presented with a case, the courts can answer all legal questions necessary to a decision of that case. The competing view of the federal courts is the "public rights" view which holds that the courts have a special responsibility to enforce the Constitution and to ensure that the government behaves lawfully, and thus, courts should not worry so much about whether they are presented with a form of action that classically constitutes a "case."

Remedial discretion doctrine

Even where legislators have standing to sue, some courts, particularly in the D.C. circuit, have refused to decide the case, citing separation of powers concerns

Complete diversity

Every plaintiff must have different citizenship from every defendant. Co-plaintiffs or co-defendants can be citizens of the same state; but all of the plaintiffs must be citizens from different states than all of the defendants

Standing to Appeal and Defend

Generally, only a party to the action or proceeding below can appeal an adverse judgment. Marino v. Ortiz. (1988)

The Federal Courts Improvement Act of 1996

Extends absolute immunity to judges against suits for injunctive relief under section 1983 based on action or inaction in a judicial capacity unless declaratory decree was violated or declaratory relief was unavailable Attorney fees may not be awarded against a judicial officer based on action taken in judicial capacity unless the judge's act was in clear excess of jurisdiction

legislative courts

Federal courts with judges that lack life tenure are used for federal territories. Congress also created DC Superior Court and DC Court of Appeals

Redressability

Focuses on whether the injury that a plaintiff alleges is likely to be redressed through the litigation - not on what the plaintiff ultimately intends to do with the money he recovers. Spring Comm. Co. v. APCC Servs. Inc. (2008)

Article III Adjunct Courts

For federal criminal prosecutions and civil cases between private parties that are related to a public regulatory scheme, the Supreme Court has permitted the use of legislative courts as adjuncts to Article III Courts, particularly where their benefits exceed their disadvantages. For such purposes, each federal district has a bankruptcy court and federal magistrates. Bankruptcy judges and magistrates lack life tenure but sit for 14 and 8 year terms, respectively.

28 U.S.C. 1367 (a)

Grants district courts original jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution" With the "case or controversy under Article III" language, Congress meant to codify test for supplemental jurisdiction articulated in United Mine Workers v. Gibbs (1966): A federal law claim and a state law claim fall within the same case or controversy when they "derive from a common nucleus of operative facts" such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding" The test is satisfied, at the very least, when both claims are part of the same "transaction or occurrence, or series of transactions or occurrences." Whether a district court should, in its discretion, exercise supplemental jurisdiction ultimately depends on factors such as "judicial economy, convenience, and fairness to litigants" In cases based on federal question jurisdiction, courts usually have supplemental jurisdiction over compulsory counterclaims, crossclaims, and third-party claims. Other claims, e.g. permissive counterclaims, must be assessed to determine whether they meet the Gibbs tests. Extends supplemental jurisdiction to "claims that involve the joinder or intervention of additional parties" With this provision, Congress intended to overrule Finley v. United States (1984), which prohibited such pendant party jurisdiction.

Pendant party jurisdiction

Grants federal courts power to hear, for example, a claim based on federal law against defendant #1 and another claim based on state law against defendant #2, provided both claims arise from a common nucleus of operative fact. Supreme Court has generally rejected pendant appellate jurisdiction - federal appellate courts do not have authority to hear appeals by additional parties that otherwise would not be properly before them even if they arise from common nucleus of operative facts.

Waiver

If a state waives its 11th Amendment immunity, it may be sued in federal court. Atascadero State Host. v. Scanlon (1985)

Collateral Order Doctrine

In a "small class" of cases, this doctrine permits review of a district court's ruling unrelated or collateral to the merits of the case that allegedly threatens an important right, justifying immediate appellate review before final judgment. Cohen v. Beneficial Industrial Loan Corp. (1949)

The Supreme Court's Appellate Jurisdiction

In limited circumstances, direct appeals to the Supreme Court, as a matter of right, are authorized from three-judge decisions over specific statutes, e.g. Civil Rights Act of 1964. The Court has not considered itself obligated to decide such appeals even though they are established as a matter of right If court does not dismiss, hear, or decide the appeal, the lower court decision is often considered upheld by summary affirmance, which has less precedential value than decisions after briefing and arguments and affirms only the judgment, not the lower court's reasoning

Complete preemption

In most cases, federal preemption would constitute only a defense and thus not satisfy federal jurisdiction under this rule. BUT if, through a federal statute, Congress intended to provide an "exclusive cause of action" in the relevant area and completely preempts the state law claim, then plaintiff's state law claim is considered to actually arise under federal law. To date, Supreme Court has identified only three federal statutory provisions that completely preempt state law for this purpose: Section 502 of ERISA, section 301 of Labor Management Relations Act, and sections 85 and 86 of the National Bank Act

Sufficiency of the Injury

Injuries to rights recognized at common law are sufficient for standing purposes. Tenn. Elec. Power Co. v. Tenn. Valley Auth. (1939) Injuries to statutory rights are sufficient for standing purposes provided the plaintiff satisfies Article III's injury in fact requirement

Separation of Powers

Is concerned with the horizontal relationship between the coordinate branches of government, structurally suggested by Article I, II, and III. Every congressional restriction of judicial power raises SOP concerns. SOP concerns can arise when the judiciary refuses to exercise its authority. The formulation of federal common law also raises SOP concerns.

Parity

Is concerned with the relative performance of federal and state courts, whether overall state courts are equal to federal courts in their ability and willingness to protect federal rights.

Federalism

Is concerned with the vertical relationship between federal and state governments. With respect to the judiciary, its concerns arise when a federal court acts in a manner that may encroach on state government or state interest. Federalism concerns have prompted federal abstention doctrines, to limit federal court intervention in state court proceedings. The general idea of federalism is federal courts should accord deference to state courts given their status as sovereign entities

Absolute Immunity

Judges have absolute immunity to suits for monetary damages for their judicial acts unless the judge acts in the "clear absence of all jurisdiction." Stump v. Sparkman (1978)

There are four categories of legislative courts that the Supreme Court has deemed permissible:

Legislative courts, military courts, U.S. courts of Federal Claims, and Article III Adjunct Courts

Supremacy

Lower courts must obey decisions of judicial superiors, ensuring application of Supreme Court's controlling determinations of federal law on lower tribunals

Bias/Conflicting interests

Madisonian Compromise presumes state courts are competent to adjudicate federal matters and enforce federal law but whether they are equal to federal courts in their willingness and ability to do so remains open question

Municipal Government Liability

Municipal governments may be sued directly under section 1983 for unconstitutional or illegal policies or customs; municipalities are not subject to liability for the acts of their employees on a responeat superior or vicarious liability theory. Monnell v. Dep't of Soc. Servs. (1978) Municipalities cannot invoke a good-faith immunity defense to section 1983 claims, Owen v. City of Independence (1980) but are immune from punitive damages, City of Newport v. Fact Concerts (1981)

Congressional self-governance

Often, though not always, the Court has held that the judiciary should not review congressional judgments pertaining to its internal governance. i. The Court declined to apply political questions doctrine to challenge to the seating of a duly elected member of the House of Representatives ii. The Court declined to apply political questions doctrine to a recount challenge in a senatorial election iii. The Court declined to apply political questions doctrine to bar a challenge to a federal assessment as violating the Origination Clause providing all bills for raising revenue shall originate in the House.

Standing v. Ripeness

One plausible distinction is that standing focuses on whether the type of injury personally suffered by the plaintiff is qualitatively sufficient to fulfill the requirements of Article III, whereas ripeness centers on whether that injury has occurred yet

28 U.S.C. 1441 (a)

Permits defendants to remove a case from state court to federal court if the plaintiff could have brought the case in federal court Only a defendant may remove from state to federal court Consistent with the well-pleaded complaint rule, a federal law defense does not provide a basis for removal Removal is also not authorized to enforce an earlier federal court ruling if the case then pending in state court to remove to federal court if the officer relies on a federal defense Plaintiff cannot use artful pleading to avoid removal jurisdiction

Tucker Act

Permits suits for money damages against the U.S. government founded on contract, express or implied in contract, not implied in law. Hercules Inc. v. United States (1996)

It must be clear from the face of the complaint that plaintiff's cause of action (not an anticipatory federal law defense) is based on federal law, that is, the federal law creates the cause of action - provides a legal entitlement or remedy

Plaintiffs may not circumvent the rule by seeking a declaratory judgment that the federal law is unconstitutional or inapplicable. The underlying claim itself must be one that arises under federal law. A federal law defense is itself insufficient to confer jurisdiction: thus, a federal law issue raised in the defendant's answer or counterclaim is not a basis for federal jurisdiction

Article III, Section 2: Trial by Jury

Prescribes that the trial of all crimes, except impeachment, shall be by jury Requires criminal trials to occur in the state where the crime was committed

28 U.S.C. 1367(b)

Preserves Owen Equipment & Erection Co. v. Kroger (1978) and the complete diversity rule by precluding supplemental jurisdiction when the foundation claim: a. rests solely on diversity jurisdiction; b. is asserted by a plaintiff (or a potential plaintiff under FRCP 19 or 24); and c. is against a person made a party under FRCP 14 (impleader), 19 (necessary parties), 20 (joinder of defendants) or 24 (intervention) if such joinder would thereby destroy complete diversity

Ripeness

Prevents a federal court from adjudicating matters deemed premature because the injury is speculative and may never occur. Ripeness is best understood as the determination of whether a federal court can grant preenforcement review of a statute or regulation.

A professional with independent duties to a client, e.g. doctor, who is employed by the state or local government acts under color of law unless that government employee professional is placed in a role inherently adverse to the government, e.g. public defender

Private individuals, who conspire with government officials or become a willful participant in joint action with the state or its agents, may be subject to liability under Section 1983. Dennis v. Sparks (1980) Although Section 1983 liability does not extend to federal officers, such officers may also be liable under Section 1983 when they are engaged in a conspiracy with state officials to deprive constitutional rights

28 U.S.C. 1441(b)

Prohibits removal if any of the defendants, properly joined and served, are residents of the forum state If plaintiff voluntarily dismissed the resident defendant from the suit, then the nonresident defendants may remove. But if the state court dismisses the resident defendant over the plaintiff's objection, the case cannot be removed.

Prosecutors have absolute immunity to suits for money damages based on prosecutorial tasks - e.g. decisions to present case to grand jury, who or whether to prosecute, what evidence to present.

Prosecutors are not immune to suits for injunctive or suits based on their administrative functions It is unsettled whether prosecutors are protected by absolute immunity when engaged in civil enforcement actions

28 U.S.C. 1367(c)

Provides that a district court "may" but need not, decline to exercise supplemental jurisdiction when: a. the claim raises a novel or complex issue of State law; b. the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; c. the district court has dismissed all claims over which it has original jurisdiction; or d. in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. 1367 (d)

Provides that if a federal court dismisses a claim, the statute of limitations will be deemed tolled during the time the action was pending to federal court and "for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." Tolling provision does not apply when a plaintiff's action against the state government has been dismissed by a federal court. Kimel v. Florida Bd. of Regents (2000). A district court's discretionary decision to decline to exercise supplemental jurisdiction over state claims otherwise within its power under section 1367 may be appealed for an abuse of discretion. Carlsbad Techn. Inc. v. HIF Bio, Inc. (2009).

Supplemental jurisdiction

Purpose of supplemental jurisdiction is to preserve judicial economy, reduce costs to litigants, avoid inconsistent verdicts from different courts, and maintain the attractiveness of the federal forum for litigants.

The political question doctrine

Refers to subject matter that the Supreme Court deems to be inappropriate for judicial review. It is unclear whether the doctrine is constitutional, prudential or both

28 U.S.C. 1446

Requires the filing of a notice of removal in federal court in the district and division in which the state court action is pending. The notice of removal must provide a short and plain statement supporting the existence of federal jurisdiction. The notice must include all pleadings and orders that have been filed in the state court proceedings. Once notice of removal is filed, the state court is divested of jurisdiction and federal court can take whatever action is needed to effectuate its jurisdiction, including, if necessary, enjoining further state court proceedings

Individuals

The person must be a citizen of the United States and domiciled in a particular state at the time the suit commences

The Structure and Authority of the U.S. Federal Court System: SCOTUS

Sits atop the federal judicial hierarchy with original and appellate jurisdiction Number of justices, fixed by Congress, has been set at nine since 1869 Congress has given Supreme Court control over its docket Congress expanded Court's appellate jurisdiction to instances where a state court either invalidates or upholds a federal claim against a challenged state law Nearly all exercises of the Court's original and appellate jurisdiction are now discretionary

Impeachment and removal

Some but perhaps not all challenges to the impeachment process are nonjusticiable. Nixon v. United States (19993)

Constitutional v. Prudential

Some justiciability doctrines derive from interpretations of Article III case and controversy limitations on federal judicial power; others derive from considerations about prudent judicial administration. The distinction matters since Congress, by statute, may override prudential but not constitutionally based justiciability restrictions

Personally suffered injury requirement

Standing is limited to those who allege that they personally have suffered or imminently will suffer an injury. The more concrete the facts supporting the plaintiff's personal injury, the more likely the plaintiff will be able to establish standing to sue for abstract harms The threatened injury must be "certainly impending": possible future injury is insufficient A "mere interest in a problem is insufficient." Sierra Club v. Morton (1972) Plaintiff seeking injunctive or declaratory relief must show a sufficient likelihood that he or she will be personally subjected in the future harm. City of Los Angeles v. Lyons (1983). This implies that plaintiffs can seek injunctions only for ongoing practices that were likely to directly harm them in the future. Lujan v. Defenders of Wildlife.

Procedural adequacy

State procedural grounds are adequate provided the state has a legitimate and sufficiently important state interest in enforcing its procedural rules. Michigan v. Tyler (1978) i. The Court determines the legitimacy of the interest on a case-by-case basis ii. The procedural rule must be mandatory to constitute an adequate state law ground for decision

Supreme Court has reasoned that states consented to such suits when they joined the union, thus, Eleventh Amendment does not bar the Court's jurisdiction. Virginia v. West Virginia.

States must be the real party in interest; a state may not sue just to present claims of its citizens who could not sue because of the Eleventh Amendment. Political subdivisions of states, such as local governments, cannot invoke Supreme Court's original jurisdiction

Members of Congress, and their aides, have absolute immunity to suits for damages and prospective relief based on the "speech and debate clause" of Article I, section 6

Supreme Court has accorded state and local legislators absolute immunity both to suits for money damages and equitable remedies for their legislative tasks Police officers have absolute immunity in civil suits for money damages for the testimony they give as witnesses, even if the police commit perjury, although such perjury would still be subject to criminal prosecution

The Supreme Court's Original Jurisdiction

Supreme Court has interpreted Article III as creating a ceiling on the Court's exercise of original jurisdiction; it is unconstitutional for Congress to expand that jurisdiction. Marbury v. Madison. The Supreme Court has also taken the position that Article III vests the Court with constitutional authority to hear cases; thus Congress's jurisdictional statutes are superfluous - they can neither add to or subtract from that vested jurisdiction.

Except for those limited circumstances, all cases from courts of appeal or a state highest court come to the Supreme Court by writ of certiorari, "not a matter of right, but of judicial discretion" which "will be granted only where there are important and specific reasons therefore."

Takes the votes of four justices to grant certiorari Denial of certiorari has no precedent value If Court grants certiorari, it can hear all issues presented or limit the issues for review

Article III, Section 2: Textual Scope of Judicial Power

The Constitution enumerates nine "cases" and "controversies" categories of disputes that federal court can resolve, giving rise to the conception of the federal courts as courts of limited jurisdiction.

The Supreme Court's review of state court judgments and proceedings

The Court early on decided it had constitutional authority to review state court judgments. See Martin v. Hunter's Lessee (1816) U.S. Constitution presumes that the Supreme Court will review state court decisions - if Congress never created lower federal courts it would be the only for the Supreme Court to hear cases, outside its original jurisdiction U.S. Constitution recognized the limitations on the independence and impartiality of state court judges. See Cohens v. Virginia (1821) Supreme Court review of state court decisions is essential to ensure uniformity in the interpretation of federal law Supreme Court's authority to hear appeals from state courts is based entirely on its role in upholding and interpreting federal law. Whereas a state's highest court is the final arbiter of state law. Murdock v. City of Memphis (1875) Supreme Court may only review state court decisions on state law where the state law is integrally tied to a federal law question. Indiana ex rel. Anderson v. Brand (1938)

Process for Ratifying Constitutional Amendments

The Court has not been consistent in deciding whether the process for ratifying amendments is a nonjusticiable political question

The Republican Form of Government

The Supreme Court consistently has held that cases alleging a violation of the Guarantee Clause present nonjusticiable political questions

Baker Criteria

The Supreme Court has identified six factors for a federal court to analyze in deciding whether a question is political: 1) a textually demonstrable constitutional commitment of the issue to a coordinate political department 2) a lack of judicially discoverable and manageable standards for resolving it 3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion 4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government 5) an unusual need for unquestioning adherence to a political decision already made 6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question Baker v. Carr (1962) The Supreme Court, however, has not consistently relied on all these factors in confronting political question issues. The Court must frequently emphasizes the first but it has never definitely stated that any particular combination of the six factors is decisive.

Original but concurrent jurisdiction - 28 U.S.C. 1251

The Supreme Court has original but concurrent jurisdiction over all controversies between the United States and a state. The Court generally has been reluctant to hear such cases given that lower federal courts have concurrent jurisdiction and are better suited to serve as trial courts. The Supreme Court has original but concurrent jurisdiction over all state actions against citizens of another state or against aliens - applies only when the state is the plaintiff in the action; Eleventh Amendment would bar suits where the state is the defendant The Supreme Court has original but concurrent jurisdiction over all actions involving ambassadors, public ministers or consuls of foreign states -rarely invoked, only three cases in over 200 year history.

Congress may authorize federal court suits against state governments when it is acting pursuant to section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer (1976).

The Supreme Court has reasoned that the Fourteenth Amendment was intended to limit state sovereignty and therefore congressional legislation under the 14th Amendment can authorize suits directly against the states in federal court

Separated federal issue cases

The Supreme Court may review state court decisions for which the federal issues will survive regardless of the outcome of the further state proceedings

Preordained cases

The Supreme Court may review state court decisions for which the federal law issues have been decided and those issues are conclusive of the litigation such that there is no doubt as to the outcome of the remaining state court proceedings - it is a forgone conclusion - because there is neither a factual dispute nor a defense based on state law

Now or never cases

The Supreme Court may review state court decisions where its only opportunity for reviewing the decision's federal law issue occurs prior to the state proceedings on remand

Punitive class actions

The citizenship of the named class representative is considered for diversity purposes

Federal Question Jurisdiction

The critical issue of interpretation is what does "arising under" federal law mean when there is a state law cause of action but federal law is an "ingredient" of the case? No issue when federal law creates the cause of action. For purposes of this analysis "federal law" includes all federal statutes, administrative regulations, common law, and extends to all constitutional provisions except the full faith and credit clause under Article IV, section 1

Minimal diversity - Discretionary exception

The district court may decline jurisdiction if between 1/3 and 2/3 of plaintiffs as well as the primary defendants are from the same state where the action was originally filed. Court is to consider six factors: 1) whether the claims concern matters of national or interstate interest; 2) whether the claims will be governed by the laws of states other than the forum; 3) whether the class action is pleaded so as to avoid federal jurisdiction; 4) whether the action was brought in a forum with a distinct connection with the class members, the alleged harm, or the defendants; 5) whether the number of class members who are citizens of the forum state (considering all proposed plaintiffs classes) is in the aggregate substantially larger than the number of citizens from any other state and the other members of the proposed class are spread among a substantial number of states; and 6) whether, during the three-year period before the class action was filed, one or more other class actions asserting the same or similar exceptions were filed

Military Courts

The first Congress authorized use of military courts. The Supreme Court has concluded such courts are permissible because the Constitution assigns the political branches exceptional powers over the military. The highest court with jurisdiction over members of the military is the U.S. Court of Appeals for the Armed Forces, with 15 members appointed by the President and confirmed by the Senate. Below that court are the intermediate Courts of Criminal Appeals and trial-level Courts Martial. These courts have jurisdiction only over military service personnel while the individuals remain in the service even for crimes that are unrelated to their job

Removal jurisdiction

The purpose of removal jurisdiction is to afford defendants access to federal court

Criteria to avoid advisory opinions

There must be an actual dispute between adverse litigants. Courts must dismiss disputes where the parties collude to bring the matter to federal court absent a real controversy between them. A Congressional statute authorizing federal courts to issue an advisory opinion does not make the dispute adverse. There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some affect. Hayburn's Case (1792)

The Overbreadth Doctrine

Third party standing is permitted to allow a person to challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court. Justified by fear that an over broad law would chill protected speech and safeguarding expression There must be "substantial over breadth" the law's excessive regulation must not only be real but substantial, judged in relation to the statutes plainly legitimate sweep A court should construe that the statute so as to avoid constitutional problems and failing that, should, if possible, attempt to sever the unconstitutional part of the law from the remainder of the statute. Overbreadth doctrine cannot be used in challenging regulations of commercial speech

Where the third party is unlikely to be able to sue

Third-party standing is permitted where there are substantial obstacles to the third-party asserting his or her own rights and if there is reason to believe the advocate will effectively represent the interests of the third party

Identity of interests between plaintiff and third party

Third-party standing is permitted where there is an identity of interests between the advocate and the third party. A close relationship is insufficient for third-party standing; the advocate must also be part of the third party's constitutionality of the protected right

Corporations

Two possibilities: 1) a corporation shall be a citizen of the state that has incorporated it (arguably, can be more than one state of incorporation) 2) a corporation is a citizen of the state where it has its principal place of business - the nerve center, typically the headquarters where the corporation's high level officers direct, control, and coordinate the corporation's activities. Hertz Corp. v. Friend (2010)

The meaning of "arising under" federal law for purposes of Article III

Under Article III, a case arises under federal law whenever federal law "forms an element of the original cause even though other questions of fact or of law may be involved in it" Osborn v. Bank of the United States (1824) Expansive and broad interpretation of "arising under" that extends federal jurisdiction to include all instances where a case might turn on a question of federal law even where it is unlikely that federal law will be the actual basis for the decision Court has never retreated from this broad interpretation which is arguably justified as necessary for Congress to create "protective jurisdiction" - authorizing federal court jurisdiction where Congress believes that federal court availability is necessary to protect important federal interests

Home Telephone & Telegraph v. Los Angeles (1913)

Under Ex Party Young, the state officer is stripped of state authority solely for purposes of 11th Amendment; that application does not affect the determination of state action for purposes of the 14th Amendment.

Supervisor Liability

Under Section 1983 can be based a supervisor's own actions but not on the misconduct of their agents on a theory of vicarious liability. Ashcroft v. Iqbal (2009) Difficult cases of supervisor liability will arise in situations where the supervisor's inaction is alleged to have violated the plaintiff's constitutional rights

Federal subject matter jurisdiction

Unlike state courts, which have general jurisdiction, federal courts have limited subject matter jurisdiction and may exercise jurisdiction only where they have both constitutional and statutory authority to do so. A person seeking federal court jurisdiction carries the burden of overcoming the general presumption against federal court jurisdiction Federal court jurisdiction cannot be acquired via consent of the parties Federal subject matter jurisdiction may be challenged at any point and by either party, even for the first time on appeal. Federal courts, trial and appellate, may raise objections on their own regarding their subject matter jurisdiction If both personal and subject matter jurisdiction are contested, a federal court may dismiss for lack of personal jurisdiction without reaching the issue of subject matter jurisdiction. A dismissal pursuant to a settlement deprives the federal court of subject matter jurisdiction to enforce the settlement, unless the settlement agreement provides for the continuing jurisdiction of the federal court. State courts exercise concurrent jurisdiction with federal courts over all matters within federal subject matter jurisdiction unless a federal statute creates exclusive federal jurisdiction In addition to federal questions and diversity jurisdiction, federal courts have subject matter jurisdiction over suits brought by or against the United States or its officers

Independent and Adequate State Grounds

Where a state court decision rests on two grounds, one of which is federal law and the other is state law, the Supreme Court will not review the case if the state law ground is completely independent of the federal law ground and adequate by itself to support the result. Fox Film Corp. v. Muller (1935).

All Writs Act, 28 U.S.C. 1651(a)

a petition for a writ of mandamus can be used in extraordinary circumstances where it is shown that the district court abused its discretion and that there is an immediate need for appellate review because an appeal after final judgment will be inadequate to protect the rights of the aggrieved party.

In evaluating whether a "legislative court" unconstitutionally invades the province of the Article III judiciary, a court should consider:

a. "The extent to which the 'essential attributes of judicial power' are reserved to Article III courts" b. "The extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts" c. "the origins and importance of the right to be adjudicated" and d. "the concerns that drove Congress to depart from the requirements of Article III" Commodity Futures Trading Commission v. School (1986)

Remand orders are not subject to appellate review, except in the following instances:

a. remand orders based on district court declining to exercise supplemental jurisdiction are subject to review b. decisions denying remand are appealable c. an appellate court remand order may be reviewed by the Supreme Court

Notwithstanding separation of powers concerns, the Supreme Court reaffirmed the viability of legislative standing

albeit limited to an "institutional injury" - i.e., a harm inflicted on a legislature itself, such that it necessarily impacts all members of the legislature in equal measure - brought by an "institutional plaintiff" as opposed to individual legislators or groups of legislators insufficient in number to defeat or enact a legislative act. Arizona State Legislature v. Arizona Independent Redistricting Commission (2015)

28 U.S.C. 1292

also permits district courts to refer questions to the court of appeals when the judge is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the oder may materially advance the ultimate termination of the litigation."

28 U.S.C. 1257

authorizes review from "the final judgments or decrees rendered by the highest court of a State in which review of a decision could be had."

Foreign policy

certain cases presenting issues related to the conduct of foreign affairs pose political challenges: i. the determination of when war begins or when a war ends is left to the political branches ii. issues of who represents a foreign state and in what capacity are nonjusticiable iii. many issues concerning the ratification and interpretation of treaties post political questions iv. federal courts frequently have declared challenges to the president's use of the war powers to constitute political questions

Justifications for Mootness

i. The doctrine is derived from Article III's prohibition against advisory opinions ii. The doctrine avoids unnecessary federal court decisions, limiting the role of the judiciary and saving the court's institutional capital for cases truly requiring decisions

Amount in controversy

diversity jurisdiction exists only where the matter in controversy, as of the commencement of the lawsuit, exceeds the sum or value of $75,000, exclusive of interest and costs. A case should be dismissed for failing to meet this jurisdictional amount only if there is a "legal certainty" that the plaintiff cannot recover in excess of $75,000 Fee-shifting statute or contracts permitting recovery of attorney fees to prevailing plaintiffs can be counted in calculating the jurisdictional amount For injunctive and declaratory relief, "the amount in controversy is measured by the value of the object of the litigation" Value is determined by the harm the plaintiff will incur without court relief or the cost of compliance for the defendant, particularly for a defendant who has removed the case to federal court.

Capable of repetition yet evading review exception

federal courts may consider claims where injuries are likely to recur yet evade review. Fed. Elec. Common. v. Wisconsin Right to Life (2007) Courts have consistently found court orders imposing prior restrains on First Amendment rights, free speech and press, to be capable of repetition yet evading review. The Court has also applied capable of repetition yet evading review exception to challenges to repealed laws. Courts have substantial discretion in deciding what is sufficient likelihood of future injury or a sufficiently short time span for the injury to justify this exception

Bivens suits are never permitted

for constitutional violations that arise out of or are incident to military service. United States v. Stanley

Suits barred by the 11th Amendment

i. 11th Amendment bars federal court suits against a state government by citizens of another state or citizens of a foreign country ii. The Supreme Court has interpreted 11th Amendment to bar federal court suits against a state government by its own citizens. Hans. iii. Supreme Court has interpreted 11th Amendment to federal court bar suits against a state by foreign nations or Native American tribes iv. Supreme Court has applied sovereign immunity to bar state court suits against state governments without consent. Alden. v. Supreme Court has held that sovereign immunity bars suits in federal administrative agencies against state governments named as defendants

States Allowed by the 11th Amendment

i. 11th Amendment does not bar federal courts brought by U.S. government against states ii. 11th Amendment does not bar suits against a state government by another state government, provided the state is suing to protect its own interests rather than on behalf of the interests of its citizens iii. 11th Amendment does not prohibit Supreme Court from hearing claims against the state as part of its appellate jurisdiction; Supreme Court has interpreted 11th Amendment to bar only those suits that are commenced or prosecuted in federal court iv. Supreme Court has held that 11th Amendment does not bar a federal court from issuing a warrant in an in rem action in admiralty suit or from exercising jurisdiction in such a suit when the state is not in possession of the property v. Supreme Court has held the 11th Amendment and sovereign immunity does not apply in bankruptcy proceedings vi. 11th Amendment does not bar federal court suits against municipalities or political subdivisions of a state unless state involvement in municipalities' actions are so extensive that any relief granted would run against the state, as when a money judgment would have to be paid directly from the treasury

Literal Interpretation

i. 11th Amendment is the sole source of sovereign immunity ii. Chisholm was correctly decided iii. 11th Amendment bars suits by citizens of other states and foreign nations no matter the jurisdictional basis, e.g. whether diversity or subject matter iv. Hans was incorrectly decided as it expressly rejected this interpretation v. No defenders of this interpretation on the modern Court

Limitation on Diversity suits

i. 11th Amendment is the sole source of sovereign immunity; there is no background principle of sovereign immunity ii. Chisholm was correctly decided iii. 11th Amendment restricts sovereign immunity only to those cases in which federal court jurisdiction is based solely on the identity of the parties; e.g. diversity jurisdiction. It would not prohibit suits against state governments otherwise authorized under Article III, including federal question jurisdiction. iv. Alden was wrongly decided v. This interpretation was not expressly rejected in Hans but is inconsistent with it

The test for qualified immunity is whether a government official performing discretionary functions violated clearly established law, the contours of which were sufficiently clear at the time of the challenged conduct such that every reasonable official would have understood the constitutional or statutory right in question. Ashcroft v. al-Kidd. (2011)

i. A direct case on point is not required but existing precedent must have placed the statutory or constitutional question beyond debate ii. The defense protects all but the plainly incompetent or those who knowingly violate the law

Mootness procedural issues

i. A federal court can raise mootness at any stage of the proceedings ii. When the Supreme Court deems a case moot, it vacates the lower court's decision and remands it for dismissal, except when the case becomes moot as a result of settlement in which case vacated of the lower court opinion would be inappropriate, encouraging losing parties to settle to avoid unfavorable opinions. U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership (1994)

A constructive waiver of 11th Amendment is disfavored and rarely will be found.

i. A state generally does not waive its 11th Amendment immunity by receiving federal funds or by agreeing to be bound by a federal statute ii. Constructive waiver may only be found where Congress indicates through explicit language in the statute itself a clear intent to make states liable in federal court if the states engage in a particular activity or accepting funding and then a state voluntarily chooses to engage in that conduct or accept funding even though it realistically could choose not to engage in that activity

To be effective, an explicit waiver requires the state expressly to agree to be sued in federal court. Atascadero.

i. A state's consent to be sued in state court is not sufficient to constitute a waiver of its 11th Amendment immunity ii. A state's general waiver of sovereign immunity is also not sufficient to constitute a waiver of its 11th Amendment immunity. For example, a state statute authorizing the state to be sued in "any court of competent jurisdiction" is not an adequate waiver to be construed narrowly

Before applying these two limitations, a court must first decide whether the Bivens suit presents a "new context" - "different in a meaningful way from previous Bivens cases decided to the Supreme Court." If so, the court conducts a special factors analysis to decide who should decide (a court or Congress) whether a Bivens remedy should be available and most often the answer will be Congress. Ziglar v. Abbasi (2017). In conducting the special factors analysis, the Supreme Court suggests that:

i. Cases that call government policies into question are not suitable for court-related Bivens remedies; ii. Cases touching on national security are not suitable for court-created Bivens remedies; iii. Congressional silence for major government actions should suggest that Congress does not wish money damage remedies to exist; and iv. Cases where the plaintiff could have sought injunctive relief are not suitable for court-created Bivens remedies

Statute abrogating 11th Amendment immunity must be a proper exercise of Congress's powers under section 5. City of Boerne v. Flores.

i. Congress is limited to laws that prevent or remedy violations of rights already recognized by the Supreme Court; Congress has only the power to enforce under section 5; not to create new rights ii. The congressional remedy must be proportionate and congruent to the constitutional violation iii. Congress has greater latitude to legislate under section 5 in dealing with types of decision-making and rights that receive heightened scrutiny because of the type of discrimination involved or because a fundamental right is implicated.

Section 1983 can be used to enforce all federal statutes subject to the following three exceptions:

i. Congressional intent to prevent section 1983 enforcement can be inferred from a federal statute's enforcement mechanism ii. Defendant must overcome a presumption in favor of the availability of section 1983 to enforce a federal statute with either an express statutory provision or other specific evidence that Congress intended to foreclose its use. iii. The existence of administrative remedies alone do not preclude section 1983 litigation absent more specific congressional intent to prohibit section 1983 suits. iv. Where a federal statute is more restrictive in the judicial and administrative remedies it provides, there is a presumption against section 1983 suits to enforce that statute.

A court may (but is not required to) decide whether qualified immunity applies without deciding first whether there has been a section 1983 violation. Pearson v. Callahan (2009)

i. Court explained that if it is apparent that there is not clearly established law, it would be better for a court to avoid deciding whether there is a constitutional violation ii. If a court decides there has been a constitutional violation but the defendant is entitled to qualified immunity, the defendant may still appeal the adverse ruling on the violation. Camera v. Greene (2011)

Clearly Established Law

i. For purposes of qualified immunity, the relevant inquiry is whether federal law rights are clearly established; it does not matter that the officer simultaneously violated clearly established constitutional right ii. The inquiry is whether a reasonable officer would know that the specific conduct in question violated clearly established law. Anderson v. Creighton iii. It is unclear which precedent an official must know and follow; the Court has suggest that a "consensus of persuasive authority" might do iv. Existing precedent regarding the challenged conduct is unnecessary; for the law to be clearly established in such circumstances, however, the official must have known that the conduct violated statutory or constitutional rights. v. Whether the law was clearly established at the time of the defendant's conduct is a question of law for the trial court to determine before permitting discovery. Siegert v. Gilley (1991)

I & A State Grounds Justifications

i. If a reversal of the state court's interpretation of federal law would not alter the result in the case, such a ruling would be an impressible advisory opinion ii. The Court can avoid unnecessary constitutional rulings if there is an independent and adequate state law ground for the decision iii. The doctrine promotes harmony between the federal and state systems by minimizing Supreme Court review of state court decisions iv. The doctrine conserves the Supreme Court's resources for cases more deserving of its attention

Procedures

i. Jury trials are unavailable for FTCA claims ii. Before a FTCA claim may be brought in court, the claimant must exhaust administrative remedies by presenting the claim to the responsible agency Attorney fees are limited to 25% of a judgment and 20% of a settlement The FTCA imposes an election of remedies; either suit against the U.S. government under FTCA or against the individual employee under Bivens, but not both Supreme Court has interpreted the FTCA broadly in terms of the types of damages that are recoverable. Molzof v. United States (1992) (permitting compensation for loss of enjoyment of life)

Class Action Fairness Act - Minimal diversity. Two approaches

minimal diversity and mandatory exception

Policies underlying justiciability requirements

i. Justiciability doctrines are closely tied to separation of powers because they define the judicial role; they determine when it is appropriate for the federal courts to review a matter and when it is necessary to defer to the other branches of government ii. Justiciability doctrines conserve judicial resources allow the federal courts to focus their attention on the matters most deserving of review iii. Justiciability doctrines are intended to improve judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution iv. Justiciability doctrines promote fairness, especially to individuals who are not litigants before the court; they generally prevent federal courts from adjudicating the rights of those who are not litigants to a lawsuit

Section 1983 provides a basis for most constitutional litigation against local governments and state and local officers.

i. Suits for violation of the dormant commerce clause may be brought under section 1983. ii. The supremacy clause does not create rights enforceable under section 1983; thus, claims that a state or local law is preempted are enforceable via section 1983 suit only where the particular federal law creates a federal right that is alleged to preempt the state or local action iii. Section 1983 cannot be used to recover money damages for the failure of police to provide a suspect Miranda warnings.

Limitation on Federal Court Subject Matter Jurisdiction

i. The 11th Amendment is not the sole source of state immunity. There exists some background principle of sovereign immunity. ii. State immunity is broad covering all jurisdictional basis in Article III, including arising under jurisdiction; 11th Amendment is an explicit limitation of the judicial power of the United States iii. Chisholm was incorrectly decided and the 11th Amendment corrected its error iv. Hans was correctly decided but leaves unanswered the nature of sovereign immunity: 1) common law immunity: is it an immunity that can be altered through congressional legislation? or 2) constitutional immunity: is it an immunity that is a feature of the original Constitution and therefore not subject to alteration by consent?

Statutes creating federal government liability

i. The Administrative Procedure Act allows the U.S. government to be sued for injunctive or monetary relief. 5 U.S.C. 702 ii. The Federal Torts Claim Act generally permits suit against the U.S. government for the negligent torts of its employees. 28 U.S.C. 2674 iii. The Tucker Act permits suits against the U.S. government for breach of contract and other monetary claims not arising in tort

The Federal Torts Claim Act - scope of liability

i. The FTCA creates liability for the U.S. government if the conduct is a tort in the state where it occurred ii. No parallel private liability need exist for a FTCA claim against the government itself. Indian Towing Co. v. United States (1955) iii. Recovery under the FTCA cannot be had on a theory of strict liability iv. The Westfall Act establishes the FTCA as the exclusive remedy for any tort claim arising from an act or omission of a government employee acting within the scope or his or her employment, with the exception of Bivens remedies for constitutional tort claims v. Tort suits against individual government employees are barred, provided that the attorney general certifies that the employee was acting within his or her scope of employment vi. The FTCA creates an exception for any claim arising in a foreign country (including Antarctica), even if the planning and direction of the tortuous activity occurred in the United States. Sosa v. Alvarez-Machain (2004) vii. FTCA explicitly prohibits liability for interest prior to judgment or punitive damages

Implementation of Statute or Regulation

i. The FTCA exempts liability for acts or omissions of government employees "exercising due care in the execution of a statute or regulation, whether or not such statute or regulation be valid." ii. This prevents liability for unconstitutional statutes or regulations unless the challenged conduct also constitutes a tort under existing state law

Exceptions - intentional torts

i. The FTCA exempts the United States from liability for most intentional torts - trespass and conversion are not exempted ii. The FTCA permits recovery against the United States for assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution committed by federal law enforcement officers that arise within the scope of the officers' employment, regardless of whether the officers are engaged in legislative or law enforcement activity, or are executing a search, seizure evidence or making an arrest. Millbrook v. United States (2013) iii. The intentional torts exemption cannot be circumvented by alleging negligent failure to adequately supervise the employee responsible for the wrongdoing. United States v. Shearer (1985) iv. The United States, however, may be liable for the acts of individual employees who are not in supervisory capacities and who were negligent in failing to prevent a foreseeable assault or battery. United States v. Sheridan (1988)

Exceptions - discretionary functions

i. The FTCA provides an exemption to liability for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency on an employee of the Government, whether or not the discretion involved be abused." ii. The exemption disallows a claim based on the failure of a government policy as opposed to the negligent performance of that policy

The President of the United States has absolute immunity to suits for money damages for acts done while carrying out the presidency. Nixon v. Fitzgerald (1982)

i. The President has immunity to suits for acts that allegedly occurred prior to taking office. Clinton v. Jones (1997) ii. State officers are entitled only to qualified immunity. Scheuer v. Rhodes (1973)

Contested justifications for political questions doctrine

i. The doctrine accords the judiciary the ability to avoid controversial constitutional questions that jeopardize the court's political legitimacy ii. The doctrine allocates decisions to the branches of government that have superior expertise in particular areas iii. The doctrine prevents federal courts' from ruling on certain matters on which their self-interest might disqualify them iv. The doctrine upholds separation of powers by minimizing judicial intrusions into the operations of the other branches

Justifications

i. The doctrine advances separation of powers by avoiding judicial review in situations where it is unnecessary for the federal courts to become involved because there is not substantial hardship to postponing review. ii. The doctrine enhances judicial economy by limiting the occasion for federal court jurisdiction and the expenditure of judicial time and resources. iii. The doctrine enhances the quality of judicial decision making by ensuring that there is an adequate record to permit review

Justifications for Sovereign Immunity

i. The operation of government would be hindered if the United States were liable every injury it inflicted. Immunity is thus necessary to protect the government from undue interference by the judiciary, preserving the unhampered exercise of discretion ii. Sovereign immunity furthers separation of powers by limiting judicial oversight of the executive branch iii. Liability cannot exist unless the law provides for it; the right to sue must be grounded in a statute for it to exist iv. Prevents a flood of litigation and the diversion of funds to pay for damage judgments against the federal government

The Supreme Court may review state court decisions that reflect that following four components:

i. The state court finally decided the federal issue ii. The party seeking review in the Supreme Court may win on the merits on state law grounds during remand proceedings and that victory would preclude the Supreme Court's review of the federal issue iii. The federal issue is capable of ending the lawsuit, if the Supreme Court had an opportunity to review it iv. An important federal policy or interest might suffer serious harm without immediate review of the federal issue

Justifications of prohibition against third-party standing

i. This prohibition ensures the self-determination of the third party, who may not want her rights or interests litigated ii. Parties are presumed to be positioned to press their own interests ii. Limited standing to those whose own interest is at stake enhances the quality of litigation, the concrete context of the suit, and the court's decision-making

Article III, Section 1: Vesting Clause Functions

i. Vests the U.S. judicial power in one Supreme Court and "such inferior courts as Congress may from time to time ordain and establish." ii. Establishes federal juridically as an independent department of the federal government with different powers than those vested in Article I (Congress) and Article II (President) iii. Requires Congress to provide for the operation of a single Supreme Court, implicitly prohibiting additional supreme courts with competing and concurrent jurisdiction iv. Authorizes Congress to create lower federal courts v. Endorses the Madisonian Compromise, empowers but does not require Congress to establish lower federal courts or instead rely on state courts who are presumed competent to adjudicate federal matters and enforce federal law

Regarding off-duty conduct, the Supreme Court has held that state employment is generally sufficient to render the defendant a state actor. For law enforcement officers, courts generally consider the following factors:

i. Whether there is a policy requiring officers to be on-duty at all times; ii. Whether the officer displayed a badge or an identification card, identified himself as a police officer, or carried or used a service revolver or other weapon or device issued by the police department; and iii. Whether the officer purported to place the individual under arrest

Circumstances that can moot a case

i. a case is moot if a criminal defendant dies during the appeals process ii. a case is moot if a civil plaintiff dies where the cause of action does not survive death iii. a case can be rendered moot if the parties settle the matter iv. a case is moot if a challenge law is repealed or expires

Categories of trial-court rulings that the Supreme Court has determined the collateral order doctrine is inapplicable include:

i. an order denying class certification ii. an order dismissing suit against U.S. government but not against federal officer iii. orders disqualifying counsel and refusing to do so in civil and criminal matters iv. an order denying an extradited person's motion to dismiss based on immunity from civil process v. an order refusing to stay proceedings based on simultaneous litigation in state court vi. orders denying motions to dismiss based on immunity from civil process or forum non conveniens.

Categories of trial-court rulings that the Supreme Court has treated as collateral orders include

i. an order that criminal defendants be involuntarily medicated for their trial; ii. an order that might subject defendants to a second trial in violation of the Double Jeopardy Clause; and iii. orders rejecting immunity defenses that, if valid, would bar the case from going forward

For the collateral order doctrine to apply, the district court's order must:

i. conclusively determine the disputed question; ii. resolve an important issue completely separate from the merits of the action; and iii. be effectively unreviewable on appeal from a final judgment. Coopers v. Lybrand v. Livesay (1978); Will v. Hallock (2006)

Misc. Exemptions. U.S. government cannot be sued

i. for negligence by the postal service in delivery of the mail ii. for claims arising from the collection of customs taxes or duties iii. for admiralty matters iv. for claims arising from the Trading with the Enemy Act v. for quarantines imposed by the United States vi. for claims against the Tennessee Valley Authority or the Panama Canal Company vii. for the fiscal operations of the Treasury Department in regulating the monetary system or against federal land or credit banks

State court proceedings are preclusive in subsequent section 1983 litigation under 28 U.S.C. 1738

i. state court litigation has collateral estoppel effect in subsequent section 1983 litigation, so long as the state court provided a full and fair opportunity for a hearing on the constitutional issue ii. state court litigation can have res judicator effects on a subsequent section 1983 suit iii. state court review of agency proceedings and some state administrative findings of fact made in a judicial-type hearing can have preclusive effects on subsequent section 1983 litigation depending on how the issue is treated under state law and whether allowing preclusion would undermine the goals of the federal statute

Pursuant to 42 U.S.C. 1988, state law of the forum is controlling when there is no basis for determining a legal standard under federal law.

i. state law controls on the survivorship of section 1983 actions ii. state statute of limitations for personal injury suits determines the statute of limitations for section 1983 claims, provided that the statutory period does not frustrate the enforcement of federal law.

For a state court judgment to be final, it must be

i. subject to no further review or correction in any other state tribunal; and ii. final as an effective determination of the litigation and not of merely interlocutory or intermediate steps within it. Jefferson v. City of Tarrant, Alabama (1997)

Legislators have standing in their representative capacity only if they allege either:

i. that they have been singled out for especially unfavorable treatment as opposed to other members of their legislative body or ii. that their votes have been denied or nullified. Raines v. Byrd (1997)

The 11th Amendment precludes an award of monetary relief from the state treasury even when the state officer is the named defendant

i. the 11th Amendment does not preclude suits against state officers for money damages to be paid out of the officers' own pockets, even when the damages are retrospective compensation for past harms. 1) state indemnification policies are irrelevant to the 11th Amendment analysis since the state has voluntarily undertaken to indemnify the officer and therefore cannot invoke immunity 2) to prevail against state officers for money damages, it is still necessary to overcome any common law immunities

Feres Doctrine

i. the U.S. government cannot be sued for injuries suffered by members of the armed services arising from activities occurring during military service. Feres v. United States. ii. the broad exemption includes injuries suffered as a result of negligence of civilian, nonmilitary members of the government, United States v. Johnson (1987), and even if the injuries inflicted were willful and wanton iii. former military members may sue U.S. government, post-discharge, even for injuries sustained by military doctors. United States v. Brown (1954) iv. Family members of military may sue the U.S. government for injuries they personally suffer, such as from malpractice by base doctors, because their injuries are not indecent to their service in the military. But family members cannot litigate as survivors for harms suffered by a member of their military who died during military service.

There is no denial of procedural due process when the

i. the plaintiff seeks a post deprivation remedy ii. for a random and unauthorized act of a government official iii. that resulted in the deprivation of liberty or property without adequate procedural due process iv. the officials responsible could not have provided a hearing to prevent foreseeable harms and v. adequate post deprivation remedies exist

Section 1983 is available only to enforce a federal statute that creates rights, that is, only if

i. the statute creates a binding obligation ii. the interest created by the statute is sufficiently specific as to be judicially enforceable and iii. the provision was intended to benefit the plaintiff

two criteria for a wrong capable of repetition yet evading review

i. there must be a reasonable chance that the injury will happen to the plaintiff again ii. it must be a type of injury of inherently limited duration, so that it is likely to always become moot before federal court litigation is completed

FRCP 54(b)

permits a district court to make an initial determination of appealability if the decision regarding some of the claims is sufficiently separable from the remainder of the case When more than one claim for relief is presented, or when multiple parties are involved, the court may direct the entry of judgment as to one or more but fewer than all of the claims or parties upon an express determination that there is no just reason for delay. A Rule 54(b) certification is not conclusive on the finality of the order below; if the court of appeals determines the order is interlocutory and does not make a final disposition, it will dismiss the appeal

Mootness

the mootness doctrine requires that an actual controversy exist at all stage of a federal court proceedings, both at the trial and appellate levels

Themes

uniformity, supremacy, inferiority, authority

Uniformity

vesting judicial power in a single Supreme Court which sits atop the judiciary hierarchy facilitates a uniform body of law

The notice of removal must be filed...

within 30 days after the defendant has been served with the plaintiff's complaint. If the case was not initially removable, a notice of removal must be filed within 30 days after reciept of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case has become removable. Prior to expiration of the 30 day period, the notice of removal can be freely amended.