Federal Courts – Short Outline

Fall 2016

I. SOVEREIGN IMMUNITY AND THE 11TH AMENDMENT

A. Art III § 1: The judicial power of the U.S. shall be vested in one supreme Court, and in
such inferior Courts as Congress may from time to time ordain and establish
B. Art III § 2: Judicial power shall extend to
i. All cases, in law and equity, arising under this Constitution, U.S. law, and
Treaties
ii. Controversies to which the U.S. shall be a party
iii. Controversies between two or more states
iv. Controversies between a State and Citizens of another State
v. Controversies between Citizens of different States (diversity)
vi. Controversies between Citizens of same state claiming lands under grants of
different States
vii. Controversies between a State, or citizens thereof, and foreign states, Citizens, or
Subjects
C. Article III of the Constitution: Allows jurisdiction over “suits between states and citizens
of other states”
i. Originally interpreted to remove sovereign immunity and allow suits against state
by citizens of another state (Chisholm v. Georgia)
ii. Then overruled by 11th Amendment (states upset because of possible drain on
treasury) (on some theories, 11th constitutionalized state SI, implying Art III did
not abrogate it)
iii. History: Chisholm to Hans: (More “History of the 11th” in Mexico)
1. Judiciary Act of 1789 (First Judiciary Act): Set up Fed Cts and allowed
Congress to decide fed ct jdx, including between states and citizens of
another state. Same people wrote it who wrote constitution—so if in first
judiciary act, likely constitutional.
2. 1793: Chisholm
3. 1795: 11th
4. 1875: Fed Q jdx created, 1883: Jumel, 1890: Cases protecting southern
states from paying repudiated debts expanded SI (Hans and Luning)

D. 11th Amendment: judicial power of US shall not be construed to extend to “any suit, in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.”
i. 11th prohibits suits in federal court against state governments by:
1. A state’s own citizens (Hans, Edelman)
2. Citizens of another state (Jumel, fed q)
3. Citizens of foreign countries (and the countries themselves) (Monaco)
ii. 11th does not prohibit:
1. Suits by the US against a state
2. Suits against states by other states. But, state must be suing to protect its
own interest, not the interests of one of its citizens
3. Suits in state courts (Nevada)
4. Suits against municipalities or political subdivisions of a state (Lincoln
County v. Luning)

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 a. States are only protected as such. Cities seen as corps.
b. Unless so much state involvement it runs against state in essence
(Pennhurst)
c. Local gov’t may be shielded if damages would operate directly
against state treasury (Luning, e.g. Edelman locality was
disbursing fed funds)
iii. More on Hans v. Louisiana: The 11th Amendment is interpreted to bar suit of
states by individuals including citizens of the state itself (held it would be absurd
to allow such suits on its face); both federal question and diversity (Jumel)
1. Hans seems like weird reading of 11th, but they didn’t have fed q jdx so it
was an unanticipated situation.
2. Contours of SI, not determined by constitutional language, but by
examining underlying postulates.
3. FORK: Unclear if SI requirement is Constitutional or common law. If
constitutional, Congress can’t abrogate. Could focus on word “construed”
such that 11th is not doing anything new, just telling you how to interpret
Art III. But paying too much attention to words would mean now SMJ
even if state waived SI (judicial “power” would not extend).
iv. The inquiry: Deciding if 11th applies on ad hoc basis based on grand
constitutional plan—did States consent when they agreed to be bound by const –
“Was there surrender of immunity in the plan of the convention”?
a. In Monaco, avoids war (peace of the union justification), foreign
policy is the realm of the federal gov’t
b. ???Other factors for “plan of convention”?
E. Ways Around 11th SI:
i. Use as shield rather than sword (e.g. pay taxes with state-repudiated bonds)
ii. Ex party Young suit for permissible relief
iii. Where a state waives immunity or consents to suit (College Savings Bank)
1. Also if state initiates the suit.
iv. When Congress abrogates SI under § 5 of the 14th A

F. Ex parte Young Suits and Suing the State Government – Exception to 11th Amendment
i. Citizens may file suit in federal court to enjoin a state official from enforcing
unconstitutional acts (Ex parte Young)
1. Will apply to those following the official (e.g. if the official resigns)
2. These are in federal court
a. SI in state claims are governed by state laws
3. An allegation that the officer’s action is unconstitutional strips official
character and gives fed cts jdx. (EPY)
a. MF: Reasoning is odd because fed official acts are not state action
for 11th but are for 14th.
ii. Whether Ex parte Young suits are allowed turns on type of RELIEF:
“Prospective” relief is OK; “Retroactive” relief is NOT OK
1. Prospective:
a. Injunctions and Declaratory Judgments against unconstitutional
acts are OK (Ex parte Young)
b. Recovery of property (formerly held that gov’t took) is OK
(Lee) (Land)

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 i. Unclear, but MF says recovery likely get money if gov’t
had sold property
ii. Perhaps this line of cases overturned in Malone, holding
you should go to ct of claims and get money if gov’t takes
your property, may be aberration)
c. Informing parties of available alternate relief (i.e. giving notice to
aid applicants to apply for past benefits) is not retroactive and is
OK (Quern v. Jordan)
d. Attorneys’ Fees/litigation costs are not retroactive liability so OK
(Hutto)
e. It’s OK if plan has a direct and substantial impact on treasury
if program is part of a plan that operates prospectively (e.g. to
bring about delayed benefits) (Milliken)
2. Retroactive:
a. Actions impacting the public treasury are NOT OK (Edelman
v. Jordan) (but see Milliken above)
i. Can’t be “in essence for the recovery of money from the
state” because then state is the real party in interest
(Edelman, Ford Motor Company)
ii. Equitable Restitution (benefits not yet received, Edelman)
iii. Trying to collect a debt from gov’t
b. Tort or contract claims (as opposed to const/fed stat.) (Larson v.
Domestic)
i. Specific Performance of a Contract
ii. MF: Incorrect b/c relief distinctions.
c. Disposition of unquestionably sovereign property
d. Damages actions are NOT OK
iii. Ex parte Young suits will be blocked if Congress has created a “well worked
out remedial scheme” in a statute, reflecting intent to be the exclusive
remedy (Seminole Tribe v. Florida)
1. I.e. Ex parte Young cannot bypass remedies Congress intends to be
exclusive
2. See also Armstrong v. Exceptional Child Center (federal spending
program gives exclusive remedy to fed agency if state violates program;
thus implies no Ex parte Young action)
iv. Pendant Jurisdiction Against States (can this apply to non-EPY suits)
1. Federal courts lack jurisdiction to enjoin state officials on the basis of
state law; doing so interferes with 11th Amend and federalism. EPY and
Edelman don’t apply. (Pennhurst)
a. Maybe only applies to injunctions and not DJs.
b. Stripped-of-state-authority rationale from EPY doesn’t extend?
Maybe not, because some of the EPY reasoning was based on the
Supremacy clause
c. Thus, if a an EPY suit is brought with state and federal claims,
a federal court should only look at the federal claims (applies to
when suing state organization on both federal and state grounds,
seeking injunction)
2. MF: (Is this a good characterization of MF’s view?????disagrees with
Pennhurst? This was in an outline.)

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 a. 11th applies when an EPY suit is based on claim that state law
violates fed const.
b. If cause of action is state law, court should look to state law to
determine if P can get relief (Erie).
i. 11th has nothing to do with it because states have total
autonomy when it comes to making causes of action- they
can choose to provide a tort remedy or not, and they can
choose to consent to suit for things or not.

G. Congressional Abrogation
i. Question of abrogation is two part –
1. 1) Did Congress have POWER to abrogate state immunity?
a. Must be very clear (Atascadero, Edelman)
2. 2) Did Congress have INTENT to abrogate state immunity?
a. Can be done under § 5 of the 14th Am (Fitzpatrick)
b. Can only be done under 5 of the 14th Am (Seminole Tribe)
c. Must be done validly under 5 of the 14th Am (City of Boerne)
ii. Power
1. Congress no longer has power under Art I, Commerce Clause for FELA
(railroad regulation) (i.e. interstate commerce generally) (Parden v.
Terminal) (Union Gas) (overruled by Seminole Tribe v. Florida, College
Savings)
2. Congress essentially has power to abrogate state’s SI under only two
constitutional provisions, because states have constitutional right to SI
(Seminole Tribe)
a. § 5 of the 14th Amendment
i. Congress has power to allow money damages against
state with Civil Rights Act (Fitzpatrick v. Bitzer,
foundation for Seminole)
1. It was passed after the 11th to abrogate SI
b. Bankruptcy Clause (but otherwise, cannot override 11th SI
through Commerce Clause legislation, contrary to Union Gas)
i. State cannot assert SI against a trustee recovering funds
from state in bankruptcy matter (Central Va. Comm’y
College v. Katz)
1. Interest in uniformity in bankruptcy clause shows
immunity simply doesn’t apply (states kind of
consented???)
3. Must be done validly under § 5 of the 14th:
a. 1) Congress may only act to prevent/remedy rights already
recognized by SCOTUS. (City of Boerne v. Flores)
b. 2) There must be congruence and proportionality (including
narrow tailoring) in Congress’s prophylactic/remedial action
(City of Boerne v. Flores).
c. Analysis focuses on nature of constitutional right at stake:
i. Has Congress ruled this category of conduct/discrimination
is prohibited under § 5 of the 14th? Connected to
independent constitutional right (strict scrutiny applied)?

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 1. If not, a pervasive showing of pattern of
discrimination/deprivation will be hard to
demonstrate (necessary for proportionality); and
a. the pattern must be shown across all
states, because all states getting abrogated.
b. And State remedies have to be
inadequate.
ii. Kimel: Age, not explicitly covered by 14th, Congress did
not make a sufficient showing of discrimination/deprivation
iii. Florida Prepaid: To show deprival of property for
trademarks under 14th, need to show pattern of violations
by state to meet congruence and proportionality test.
1. [Required homework of Congress is disrespectful?]
iv. City of Boerne v. Flores: (SI not an issue since suit was
against city) RFRA was not responsive to preventing
unconstitutional behavior, but instead attempted a
substantive change in constitutional protections
v. Garrett: ADA suit barred by SI because disability gets
rational basis review and no identification of state practice
of discrimination.
vi. Coleman: Self-care provision of FMLA, no showing of
pattern of discrimination (const violations) accompanied by
remedy drawn in narrow terms to address or prevent those
violations.
vii. Hibbs: Sex discrimination under Family Medical Leave
Act; gender discrim receives heightened scrutiny, and
pervasive violation was shown.
viii. Tennessee v. Lane: Congruent because greater showing of
discrimination than Garrett and statute narrowly tailored.
Also fundamental constitutional right to courthouse.
d. MF thinks it’s dumb to base it on level of scrutiny. That’s a tool
to ensure judicial consistency and restraint rather than a thing to
bind Congress (Breyer dissenting in Garrett)
e. 1983 did not abrogate (Quern, no intent, Will, not persons, below)
f. Policy: Congress cannot determine substance of 14th Am
restrictions on states; 14th gives power to “enforce” not change
meaning. (City of Boerne v. Flores)
g. Court has last say on Congress’s authority (Marbury)
iii. Intent
1. There must be an express, clear statement of intent by Congress for
abrogation (Atascadero)
a. Even when acting under § 5 of 14th A, Congress must express
intent (Sossamon, “appropriate relief against a government” was
too ambiguous about whether damages appropriate)
b. “Every employer” was not clear enough statement to implicate
state as employer (Employees of Missouri)
c. 1983 not clear enough (Quern)
iv. Congressional Abrogation is the product of “Consent” in the Constitution:

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 1. 14th Amendment by states – the Amendment was enacted to replace state
power; states consented in enacting it
a. Narrowed to just § 5 (College Savings v. Florida Prepaid)
2. Same with Bankruptcy Clause which is mostly in rem (not based on
creditors, but on debtor, and to the extent it’s not pure in rem, consented in
constitutional plan (Central Va. Comm’y College)
v. MF thinks Congress should always be able to abrogate because SI is common law
(Union Gas)

H. State Consent/Waiver
i. Stringent test:
1. General waiver of SI is insufficient; must specifically state intention to
subject itself to suit in federal court (Atascadero, Smith v. Reeves)
a. Because a state’s constitutional interest in immunity encompasses
not just whether it can be sued, but where.
ii. Constructive waiver are essentially impossible to find. Consent to individual
suits must be explicit and actual by the state (College Savings)
1. In Parden, States creation of a railroad system after FELA (fed act
regulating system) was consent – state knew FELA existed (overturned by
College Savings – thus no Commerce Clause consent (or power))
2. Mere participation in federal program does not waive for violation of the
program (Edelman); nor by engaging in federally regulated conduct or
conduct that private actors engage in (College Savings)
iii. Constructive Waivers are only found in two instances: Congress can
condition (1) approval of compacts, or (2) giving of gifts/funds (of
permission), on consent
1. 1) Compact Clause – states must have congressional approval to make
interstate compacts. Congress may condition its approval on consent
(Petty)
2. 2) Consent via Conditions for Federal Funding (allowed under Dole)
a. Congress may entice a state to waive SI/consent to suit with a gift
or gratuity as long as it is not coercive (Dole)
b. Statute must be express/unambiguous wrt allowing damages
against state in cases where states accept federal funding
(“appropriate relief” was not, Sossamon)
c. If the only express remedy in statute is feds withholding funds,
implies there is no private cause of action for state not
following fed conditions (Armstrong v. Exceptional Child Center)
i. No Ex parte Young when there is a single remedy either
ii. Supremacy clause doesn’t provide right of action (would
destroy SI).

I. Interrelationship Between 10th and 11th Amendment

i. 10th Amendment: All powers not delegated to the US nor prohibited to the States
are reserved to the States or to the People.
ii. Evolution of SC 10th Jurisprudence:
1. Darby: 10th Amendment is a “truism” – state only controls what fed law
does not/cannot

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 2. NLC v. Usery: holding 10th had affirmative thrust; Fed gov can’t directly
displace State’s freedom to structure integral operations in areas of
traditional gov’t functions
3. FERC v. Mississippi:Ct says it’s OK if state commissions have to consider
certain federal rules in administering agency procedures (but ultimately
have choice as to whether to follow)
4. Garcia: Overruled Usery as too vague; upholds Labor Standards Act
application to municipal transit system; “integral” state functions,
construed narrowly
iii. Regulation by states (Courts only step in in extreme cases):
1. Federal laws can regulate hour/wages in states under Commerce Clause
(i.e. can regulate functions within state) (Garcia v. San Antonio Metro)
(overruling NLC)
2. Federal laws cannot regulate or reach “integral” state functions; this will
be narrowly construed (Garcia)
a. Previously couldn’t touch “traditional state functions” (NLC) but
overruled
3. Federal agency may issue rules and require states to just consider—but not
necessarily adopt—them (FERC v. Miss.) (???what is this case)
iv. Anti-Commandeering Doctrine
1. No commandeering of state legislative branch – Federal Gov’t cannot
tell state legislature to create certain laws (NY v. US)
a. Maybe fed can require a state to create their own rules or follow
fed program?
2. No commandeering of state legislative or executive branch – Fed can’t
make state officials do federal tasks, no matter how menial (Printz v.
US)
a. States shouldn’t have to spend money enforcing fed law
b. Fed gov can draft a statute that allows state-opt in (i.e. you’re
allowed to do it; otherwise we’ll do it in a less attractive way)
c. Fed gov can also create spending programs and get state to consent
to them, following fed guidelines
3. In Printz, the legislation is directed toward state individuals while in New
York, the legislation was directed to the state itself – Court says this is not
a constitutionally significant difference.
v. MF: Can “commandeer” courts though: Supremacy Clause requires state judiciary
to enforce federal laws (Testa v. Katt)
vi. Federal law can forbid states from doing things (negative obligations are not
commandeering) – e.g. Drivers’ Privacy Protection Act (states not allowed to
sell drivers’ information) (Reno)
vii. See “Does the 10th Amendment really curb the power of the federal government”
in Mexico.
viii. 10th vs 11th
1. Any affirmative thrust of the 10th Amendment/federalism prevents
Congress from regulating
2. The 11th Amendment prevents Congress from imposing the remedy of
allowing suits by individuals, but leaves the substance of the regulation in
tact

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 a. So, the 11th Amendment has nothing to do with the regulation of
states. It just has to do with the circumstances under which a
citizen can sue a state
3. The 10th Amendment is therefore a stronger protection for states and a
more stringent restriction on Congress. 11A is only about enforcing the
regulations.
4. The 11th Amendment, however, covers a larger territory; Congress cannot
abrogate SI in many areas where there is no issue of 10th Amendment
immunity from regulation

J. 11th Amendment in State Courts and wrt Agencies

i. 11th Amendment applies in State Court: blocks suits people file against state
in state cts that are enabled by federal statute (e.g. FLSA) (Alden v. Maine)
1. R: All abrogration stuff applies in state court, could even be more
offensive to allow abrogration in state court when not allowed in fed court
(e.g. FLSA is under Art. I, thus Congress does not have power to abrogate;
extends to state ct suits)
2. All 11th SI applies in state court – federalism logic of Seminole shouldn’t
turn on forum.
3. MF: This was a crazy leap to say SI applies in state cts. Huge stretching.
ii. 11th SI extends to administrative proceedings (brought by private party):
1. Private party cannot bring an administrative proceedings against state, and
have administrative decision enforced by federal courts (Federal Maritime
Comm’n v. S. Carolina Ports)
a. Runs afoul of 11th Amendment; rejects argument that this is
agency action.
b. AG decision to enforce agency’s adjudication did not retroactively
turn the administrative proceeding into one brought by the fed
gov’t.
K. Other Sovereign Immunity Issues
i. Section 1983 – Allows suit against a “person” who deprives citizen of
constitutional or other laws’ rights
1. § 1983 Actions cannot be brought in state court to bypass the 11th
Amendment; 1983 did not displace 11th SI (Rosado v. Wyman)
2. State and state officials acting in official capacity are not “persons”
under § 1983 and cannot be sued for monetary damages under § 1983
(Will v. Michigan)
a. Before Will, Quern held 1983 didn’t abrogate 11th, so same result.
3. Official vs. Individual Capacity:
a. In Hafer v. Melo, suit was individual capacity despite being for
official action because damages would be paid from personal funds
(but indemnification doesn’t change that)
i. So it’s about capacity in which the defendant has been
sued, rather than the capacity in which they acted
b. Practical lesson:
i. Sue in official capacity to use EPY
ii. Sue in individual capacity to get retroactive dmgs (e.g.
1983)

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 1. But then have to deal with immunity defenses and
may still have problem if ct decides states is real
party in interest
iii. Sue under both to be safe.
4. Local governments are “persons” under § 1983 and thus subject to suit; no
municipality SI (Lincoln County v. Luning)
a. But if recovery would come from state treasury, there is SI
ii. Rejection of SI allows for immediate/interlocutory appeal (Puerto Rico
Aqueduct)
1. Note: rationale implies a purpose of SI is shielding states from
inconvenience of trial rather than just liability.
iii. Can be raised after trial stage due to jurisdictional nature (Edelman)
iv. States not bound by fed law to respect SI of other states. 11th only applies in
fed ct. (Nevada v. Hall)
1. Limited in Franchise Tax Board of California v. Hyatt; split on whether to
overrule Hall, but allowed CA to argue that its liability was limited by a
$50K cap that NV imposed on similar suits against its own agencies.
a. Rationale: couldn’t be hostile to foreign state and apply a special
rule of law applicable only in lawsuits against sister states.
v. Federal SI:
1. For Federal officers, EPY line of cases has largely been superseded by
Administrative Procedure Act which allows suits against agency or officer
of US for relief other than money damages
2. 28 USC 1991 authorizes US Ct of Fed Claims to render judgment on any
claim based on Const, statute, or regs, so long as it sounds in contract
rather than tort
3. FTCA: waives federal SI for tort claims to the same extent as individuals,
allowing respondeat superior liability for gov’t. But intentional torts are
generally excluded, but still allowed if done by law enforcement.
a. Also discretionary function exception when act involves discretion
requiring judgment based on considerations of public policy.
4. Westfall Act: expanded FTCA to state tort actions against federal
employees in official capacity, making employees absolutely immune and
AG certifies that, US becomes defendant.
vi. “Is SI constitutionally required?” in Mexico
1. Official SC position is yes (Seminole), with 14A as consented exception.
2. MF thinks no. Just because Art III does not abrogate the common law
right does not mean that states have an affirmative constitutional right to
SI. (Similar to Union Gas).
a. Courts should allow abrogation if Congress expresses clear intent.
vii. “Purpose of the 11th” in Mexico
viii. EPY suits cut back by things like 1341 (abstain state tax cases if speedy remedy)

II. CONSTITUTIONAL LIMITS ON THE ALLOCATION OF JURISDICTION

A. Scope of Congressional Authority to Define Federal Jurisdiction

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 i. Article III § 1: The judicial power of the US shall be vested in one supreme Court,
and in such inferior Courts as Congress may from time to time ordain and
establish
1. There was a major debate during the Constitutional Convention re:
whether there should be lower federal courts. States’ rights advocates
thought that state courts would adequately protect rights, and that
SCOTUS could serve as the federal input.
2. Instead of deciding, Framers enacted the Madisonian Compromise, which
allowed Congress to decide the extent to which there’d be lower cts.
ii. Article III § 2: Federal Question Jurisdiction: the judicial power shall extend to all
Cases, in law and equity, arising under this Constitution, U.S. law, and Treaties
iii. Article III § 2: Diversity Jurisdiction: The judicial power shall extend to
Controversies:
1. To which the U.S. shall be a party
2. Between 2 or more states
3. Between a state or a citizen of another state
4. Between citizens of different states
iv. Grants appellate jdx over all of those, original is just for suits where a state is a
party (and ambassadors/public ministers/consuls)
v. Article III § 2 gives SC jdx over all matters w/in the judicial power and also says
that the SC shall have original jdx over certain cases and appellate jdx over the
others. Appellate jdx is conferred with any exceptions or regulations that
Congress shall make. Question is whether this power is plenary or limited?
vi. Judiciary Act of 1789 § 25: Gives SCOTUS appellate jdx over decisions by the
lower fed cts and by state courts holding invalid any fed law or holding valid any
state law challenged as inconsistent with fed const. or fed law. (Fed Q jdx came
later)
vii. Article III 2 is the ceiling of jurisdiction (Marbury v. Madison)
1. So Congress can remove matters but cannot add to that authority
2. Original jdx is also not a minimum. Original jdx does not have to vest in
the SC. So things that are part of SCOTUS’s original jdx are often tried in
lower fed cts. Cases exclusively within SC’s original jdx (e.g.
controversies between states) are often referred to a magistrate.
viii. Congress can make exceptions to the jurisdiction of the lower federal courts
(Sheldon) and SCOTUS (McCardle)
ix. But Congress might not be able to place a constitutional issues outside of
federal jurisdiction
1. In dicta, the current SCOTUS has suggested that serious constitutional
issues might exist if no fed remedy for violation of const. rights (see
Boumediene)
a. Boumediene though relied on a constitutional limitation external to
Art III (suspension clause) and did not address limitations that may
be internal to that Article.
2. Court has not addressed issue because it construes statutes to provide an
adequate remedy, even where no remedy was evident from the statute (see
Webster v. Doe; Hamdan below)
x. And jurisdiction-stripping legislation would almost always be
unconstitutional if its object were to remove a particular class of
constitutional litigants from the federal courts.

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 1. Congress can’t make exceptions to federal SMJ that violate other const.
provisions.
2. Congressional exclusion of a particular class from SC jdx, impacting only
the class of litigants that may assert a particular right, and motivated by
Congressional hostility to the right involved, should be subject to the same
strict scrutiny as any other substantive regulation of that subject matter.
xi. Theories re: restricting lower federal court jdx:
1. (1) Traditional View: Congress has full discretion to decide the jdx of the
lower fed courts. State courts are protectors of fed rights. Power to
prescribe jurisdiction comes with power to withhold jurisdiction of lower
courts (Sheldon v. Sill, Congress may create law limiting diversity
jurisdiction for parties that collude to get it; Wechsler)
a. Congress will put things in fed cts because it needs enforcement
b. Can still raise constitution defensively (obvious weak arg)
c. Note: Under 1789 Act, some things were not in lower or Sup.
Cts.—seems to align with traditional view.
d. Policies in favor (Neuborne):
i. Fed judges less sensitive to social milieu into which their
decisions must fit
ii. Fed cts overburdened with litigation
iii. Channeling all important (including const) cases to fed
court may perpetuate second-class status of state trial courts
2. (2) Congress can divvy up jdx among lower fed cts and SCOTUS as it
likes, but the whole judicial power of the US listed in Art. III must be
vested in some fed ct (J. Story dicta in Martin v. Hunter’s Lessee)
a. Undermined by Sheldon and fact that Congress has never
conferred entire judicial power on fed cts (e.g. diversity cases
under $ min now)
3. (3) For those cases in which the word “all” is used in Article III § 2,
Congress must vest jdx in SCOTUS or lower fed cts (Akhil Amar,
partially agrees with Story)
4. (4) Independent Unconstitutionality: Congress can’t restrict jdx in a way
that violates the const. (Webster)—jdx-stripping legislation would almost
always be unconst. if its object were removal of a class of constitutional
litigants from the fed cts. Due process mandates access to fed cts in some
cases. Congress can’t discriminate against const claims when it enacts
jurisdictional legislation.
5. (5) No longer reasonable to argue Congress may abolish lower fed cts if it
wishes. At time of Sheldon, SCOTUS review of all Art III cases was
possible, but now they are a necessary component of the judiciary and
their existence in some form is constitutional required (Theodore
Eisenberg)
xii. Theories re: restricting SCOTUS jurisdiction:
1. (1) Essential function thesis: Congress has plenary power over the
jurisdiction of the lower fed cts, but Congress can’t alter the “essential
role” of SCOTUS (Hart/Eisenberg)
a. Language of Art. III: “one Supreme Court” and “shall vest” – the
Court was designed to bring uniformity to enforcement of the

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 const. Any “exception” made by Congress that interferes with this
role is unconst.
i. So, although a SCOTUS decision is not necessary in every
case that presents a constitutional question, an avenue must
remain open to permit ultimate resolution by SCOTUS of
persistent conflicts between the Constitution and state law
or in the interpretation of federal law by lower courts.
2. (2) Congress has plenary power over all fed cts, so Sheldon and McCardle
were right
a. Language of Art III Exceptions Clause is unambiguous
authorization to make exceptions to SCOTUS jurisdiction,
including preclusion of review of a particular area
i. And Framers wanted Congressional control to be a check
on judiciary’s power.
ii. Rationale: Fine because Congress can’t make courts act
unconstitutionally (Marbury)
1. Const is always available as shield
2. If Congress strips SMJ, stuck with existing
precedent.
xiii. Limitations/Jurisdiction Stripping:
1. Federal Courts have jdx to decide whether they have jdx (Marbury)
2. Lower federal courts:
a. Congress has full discretion to create and thus to limit lower
court jdx (Sheldon)
3. Supreme Court
a. Congress has broad power to limit SCOTUS jdx under § 2 (Ex
Parte McCardle (1868))
i. And if Congress did not grant appellate jdx over a
particular matter, SCOTUS will read it as an exception
(McCardle) (Context matters: Court really did not want to
adjudicate this case in the midst of Reconstruction)
ii. Congress may repeal jurisdictional statute to prevent the
Court’s ruling
1. Court does not look to reasoning of repeal, just
power (Ex parte McCardle)
2. But see Klein – essentially opposite of McCardle
(Court looks at Congress’ motives, finds Congress’
enactment of a statute removing jurisdiction was
passed to interfere with case; trespasses on judicial
function)
b. Idea that Congress has unlimited control over SCOTUS
jurisdiction been cut back by cases like Boumediene
i. Boumediene: Must leave a remedy/adequate substitute for
suspension clause – can’t suspend habeas unless fits
suspension clause
ii. In dicta, the current SCOTUS has suggested that serious
constitutional issues might exist if no fed remedy for
violation of const. rights (see Boumediene)

12
 iii. Boumediene though relied on a constitutional limitation
external to Art III (suspension clause) and did not address
limitations that may be internal to that Article.
iv. Court has not addressed issue because it construes statutes
to provide an adequate remedy, even where no remedy was
evident from the statute (see Webster v. Doe; Hamdan
below)
v. 459 for Fallon on Boumediene
vi. General proposition: “Can’t switch constitution on and
off” (Boumediene)
c. And rarely comes up because Court will go crazy to read a
statute to allow jdx. For Constitutional Claims, Congress must
clearly preclude judicial review (Webster v. Doe) (Court reviews
discretionary firing by Executive, challenged by constitutional
claim)
i. Supreme Court will try to avoid constitutional question
whether judicial review is precluded (i.e. will interpret to
say Congress didn’t preclude review)
1. E.g. Felker v. Turpin (limitation on appellate habeas
doesn’t matter b/c original habeas); INS v. St. Cyr
(does not find “clear statement” of congressional
intent to repeal habeas); Hamdan v. Rumsfeld
(constructs statute to still allow review of instant
pending matter)
d. Congress cannot vest Art. III review on the Executive Branch
i. (i.e. no Executive final decision/review on a Court’s
determination) (Hayburn’s Case)
ii. R: Court advisory opinions not allowed (Hayburn’s
Case)—SCOTUS opinions are final.
iii. Art III has specific protections for fed judges like life
tenure and no salary reductions

xiv. Power to Regulate Federal Rules of Decision and Judgment:

1. Generally the legislature dictating how judicial decision goes is
separation of powers issue (Klein) (removing jurisdiction for people who
would prevail)
a. Klein prohibits Congress from using its jurisdictional powers to
manipulate fed cts so as to reach decision which if addressed in
terms of substantive law, would be forbidden by the Const.
b. But see McCardle
2. Congress may amend law and make it applicable to pending cases,
even if it is outcome determinative (Plaut, Bank Markazi v. Paterson)
3. It is fine if the amendment only applies to small # of cases (Bank Markazi)
4. Congress cannot reopen suits (in law not equity):
a. Plaut v. Spendthrift Farm: Held Congress exceeded its authority,
violating separation of powers. Section 27A(b) required suits
dismissed with prejudice to be reopened.
i. Can’t prescribe rules of decision under Klein.

13
 ii. Hayburn’s Case stands for principle that Congress can’t
vest review of decisions of Art III courts in officials of the
executive branch.
1. Hayburn’s Case also held Art III cts can’t issue
advisory opinions.
iii. Plaut says the Art III judicial power is power to render
dispositive judgments, violated by 27A(b).
5. Congress can change legal circumstances such that staying/dissolving
injunctions will be OK:
a. Miller v. French: Statute did not violate separation of powers.
Prison Litigation Reform Act has automatic stay provision which
allows filing of motion to terminate prospective relief to create stay
on relief granted.
i. Notes that Plaut distinguished between legislation that
reopened dismissal of damages suit, and one that altered the
prospective effect of injunctions
ii. Here, the stay merely reflects changed legal
circumstances that prospective relief under the existing
decree is no longer enforceable, and remains unenforceable
unless and until the court makes the findings required by
the new law.
iii. Separation of powers is not about protecting litigants,
but instead about protecting role of independent Judiciary
within the constitutional design.
b. Miller distinction between law and equity comes up in
Wheeling Bridge. SCOTUS dissolved injunction in Wheeling
Bridge where injunction was based on violation of public right of
free navigation, and then Congress enacted a statute declaring the
bridge a lawful structure (came to SCOTUS when other party tried
to bring contempt for violating injunctions).
6. Congress can waive res judicata (United States v. Sioux Nation)
a. Different from Klein because it does not attempt to decide issue in
gov’t’s favor nor does it prescribe the rule of decision.
7. Congress can compel changes in law, but not findings or results
a. Robertson v. Seattle Audubon Society: Loggers vs
environmentalists, Congress makes Compromise act with a
subsection providing that regs in the Compromise were adequate
consideration to meet statutory reqs that were the basis for the
cases where environmentalists were plaintiffs (specifically named
set of cases in statute).
i. Court held that named cases were references made in order
to identify the statutory provisions being modified, and thus
affected adjudication of the cases only by modifying
statutory provisions.
ii. Klein held inapplicable because the underlying law was
amended.
8. Many constitutional provisions limit statutory retroactivity
(Landgraf):

14
 a. Ex Post Facto Clause prohibits retroactive application of penal
legislation.
b. Art I § 10 cl. 1 prohibits States from passing legislation impairing
the Obligation of Contracts
c. 5th Amendment’s Takings Clause prevents depriving private
persons of vested property rights except for a public use and with
just compensation
d. Bills of Attainder in Art I §§ 9-10 prohibit legislatures from
singling out disfavored persons and meting out summary
punishment for past conduct
e. Due Process clause protects interests in fair notice and repose that
may be compromised by retroactive legislation
9. And those constitutional limits are strongest wrt criminal legislation
(Landgraf)
a. With civil legislation, courts will balance public and private
interests and check if retroactive application would interfere with
settled expectations or reasonable reliance interests
10. For retroactivity, even when constitutional limits are not implicated,
courts will presume no retroactivity unless Congress makes intention
clear.
11. Terri Schiavo:
a. Husband wanted feeding tube removed
b. FL court ordered tube removed, Congress enacted Act for Parents
of Terri, which purported to give FL Dist ct jdx and standing for
parents.
c. One judge expressed view that Act was dictation of how fed ct
should exercise judicial functions and was a separation of powers
issue.

B. Non-Art. III Courts – Three Types (Power to transfer Jdx to Legislative Cts)
i. Art III has safeguard to insulate judges and can’t rationally have system where
Congress could put something in non-art. III to circumvent.
ii. 3 areas where non-article III courts can be used:
1. Territorial Courts
a. Can create Art. I courts by virtue of clause which enables Congress
to make all needful rules and regulations respecting territory
belonging to the US (American Ins. Co. v. Canter, FL when it was
territory, Palmore v. US, can do so in DC)
2. Court Martial/Military Tribunals
a. Allowed pursuant to Art. I authority to make rules for the gov’t
and regulation of the land and naval forces (Dynes v. Hoover)
b. Only recently were they reviewable by Art III courts.
c. Can’t try civilians (even if employed by military) (Reid v. Covert)
i. Must be part of “land and naval Forces” (Art I, Kinsella)
ii. MF: Military courts are a contradiction of Art III
3. Public Rights Legislature
a. Ok to create court where issues it addressed include nothing which
inherently or necessarily requires judicial determination, but only

15
 matters the determination of which may be, and at times, has
been, committed exclusively to executive officers
b. (E.g. Court of claims, suits against the federal government; courts
can’t hear them due to SI, but are susceptible to determination by
legislature or executive)
4. (Agency Courts)
5. Not Bankruptcy probably…

C. Power and Duty of State Courts to Hear Federal Questions

i. Power
1. There is a rebuttable presumption that state courts have jurisdiction
over federal question (concurrent jurisdiction) (Gulf Offshore Co.)
2. Must be taken away by Congress to lack it (Tafflin v. Levitt):
a. 1) Explicit statutory directive
b. 2) Unmistakable implication from legislative history
c. 3) Clear incompatibility between state-court jurisdiction and
federal interests
i. A) Statute expressly references federal court and
ii. B) State jurisdiction plainly disrupts statutory scheme
d. Strong presumption of concurrent jdx (Tafflin)
ii. Duty (Source: Supremacy Clause)
1. States must usually hear federal claims (Testa); may only refuse
jurisdiction of fed law if it has a “valid excuse,” 2 circumstances:
a. 1) Congress has expressly ousted states of jurisdiction (Haywood
v. Drown)
b. 2) There is a “neutral state rule regarding administration of the
courts” that does not undermine federal law (Howlett,
Haywood) (e.g. Douglas, law allowed declination of jdx over both
state and fed claims when neither party was NY resident)
i. Look if similar state law cause of action would be treated
similarly.
ii. Cannot employ a jurisdictional rule to dissociate itself from
federal law because of disagreement with its content or a
refusal to recognize the superior authority of its source.
iii. Jurisdictional rule cannot be used as a device to
undermine federal law, no matter how evenhanded it
may appear (Haywood, NY law barring 1983 and similar
state law suits violated Supremacy Clause)
2. States may NOT refuse to enforce (or discriminate against) federal
law, even if it conflicts with state policy (if it has jurisdiction); federal
policy prevails in every state due to Supremacy Clause. Must hear federal
claims if have jdx. (Testa v. Katt)
a. State cannot refuse to hear cases solely because suit is brought
under federal law (even though restricted to cases that arose in
another state, because discrimination) (McKnett)
b. State cannot allow a state law defense against a federal claim
(Howlett)
c. Inconvenience/confusion wrt applying federal standards is not a
valid excuse to not enforce (Mondou)

16
 3. EXCEPTIONS:
a. State cts can’t invade sovereignty of another an independent
government such as the federal gov’t:
i. No issuing habeas for fed prisoners (Tarble)
1. MF: Might be incorrect decision. Constitution did
not divest states of power to hear these kinds of
cases and no statute bars jurisdiction over these
matters.
ii. No mandamus for fed officers by state cts (McClung)
b. State may refuse to hear cases under federal statutes if
parties/disputes have no relation to state (and local law allows
refusal) (Douglas, two CT parties sued in NY under FELA;
denied)
4. Cf. Thomas approach:
a. Allow states to discriminate against fed claims as long as approach
is genuinely jurisdictional; fine as long as Congress hasn’t
commanded otherwise, because jurisdictional decision does not
prevent vindication in federal court. (radical new view)
5. Concerns about state cts not following fed law can be addressed via
SCOTUS review, Removal, Federal Habeas, Congress granting exclusive
jdx to fed cts over an issue.

III. APPELLATE REVIEW OF STATE COURT DECISIONS

A. Summary:
i. SCOTUS can review state court decisions (Martin), but it can only review
questions of federal law; state court decisions are final on state law (Murdock)
ii. But, SCOTUS can review questions of state law to protect federal rights (Brand);
i.e. where a federal right is denied based on a state law ground lacking fair or
substantial support (Ward)
iii. And, SCOTUS can review state law grounds where states try to manipulate state
law or procedures to defeat a federal right (NAACP)
iv. And, state courts must provide constitutionally adequate remedies (McKesson)
B. History: Constitutiona does not expressly grant SCOTUS power to review state court
decisions. Judiciary Act § 25 Allowed SCOTUS to review state court decisions ruling
against federal laws, and in 1914 expanded to allow review when federal law was upheld.
C. Supreme Court Review of Federal Questions
i. The Supreme Court has appellate review of State Supreme Courts for
Constitutional and Federal Questions, based on Art. III (Martin v. Hunter’s
Lessee)
1. R: Art III says all “cases.” And clearly expected in Const. plan. Need
uniformity. Make sure states respect/don’t prejudice fed law.
2. MF: Hunter’s Lessee actually decided a state law issue and was thus
decided wrong based on Murdock.
ii. Sup. Ct. does NOT have appellate review of final questions of state law – i.e.
State SC has final word on state law (Murdock v. Memphis) (may be federal
common law decision)

17
 1. MF: Murdock was wrong because SCOTUS ignored the statute allowing
review of state issues and nothing in the Const. limits SCOTUS review to
fed Qs.
iii. Congress can distribute SMJ as it likes between SCOTUS, state cts, dist cts.

D. Review of State Law: Defining “Federal Question” more broadly

i. State claims that are protected by or integrally tied to the Constitution or a
federal question may be reviewed by Sup. Ct., even if it deals with state law
(Indiana ex rel Anderson v. Brand, state law decision (existence of K) reviewed
because tied to Contracts Clause question)
ii. Gist: SCOTUS can review questions of state law to protect fed rights
(Brand), e.g. where a federal right is denied based on a state law ground that
is lacking in fair or substantial support (Ward)
1. Brand: New state statute violated K clause, state law denied existence of
K, SCOTUS could review.
2. In Ward v. Love County, State was not permitted to evade review by
putting forward a non-fed holding that subverts review without substantial
support in the record.
3. See also Bush v. Gore (Held that recount process had vagaries that were
unconstitutional and since the legislature was in charge of the electoral
process by federal constitutional compulsion, interference by the state
supreme court with the legislature’s specifications presented a federal
question, (note: criticized by dissent for being a rejection of State SC’s
interpretation of state law – says should only happen in extreme case when
state holding has no fair or substantial support))
4. See also Standard Oil v. Johnson (interpreting CA state law exempting US
Gov’t to include Army “Post exchanges,” finding them to be part of the
U.S. Gov’t [but against state’s interpretation that PXes aren’t part of U.S.
Gov’t], but it was a federal question)
iii. Note: Will also not allow states to thwart federal review through procedural
grounds (NAACP, infra, Alabama court had never held mandamus was only
remedy before, clearly cheating to avoid federal review)

E. Review of Factual Issues

i. SCOTUS can review state factual findings where there is insufficient
evidence to support them (Ward v. Love County)
1. Ward: Not one iota of evidence to support idea Indians paid taxes
voluntarily; state just evading review of DP violation.
ii. It is not a Murdock violation to not accept state’s facts as they relate to state
law when:
1. Statute is vague (void for vagueness) (Thompson, disturbing peace
statute does not reasonably/give notice to include dancing with a broom)
2. Statute is unconstitutionally overbroad (reaching in and punishing
protected behavior)
iii. SCOTUS has duty to review state factual findings when plaintiffs claim a
violation of constitutional rights (Cox v. Louisiana)
1. Cox: Duty to make an independent examination of the whole record. SC
reviewed the record and found no conduct the state could constitutionally

18
 prohibit.

F. Constitutionally-Required Remedies in State Court

i. States must provide remedies for constitutional wrongs – if there is a right,
there is a “clear and certain” remedy (McKesson Corp.) (state ct did not return
taxes after finding discriminatory taxation was unconstitutional: DP violation)
1. This is not equitable restitution, but instead return of property as in US v.
Lee. Taxes were held before given to gov’t and clear state interest in
having people pay taxes first then challenge.
ii. States must allow Ex parte Young-style suits (injunctions against officials) in
state court because a party has the right to be protected against a law which
violates a constitutional right, regardless of jdx limitations by the state on its own
cts. (General Oil v. Crain, TN S Ct held trial ct didn’t have jdx to issue
injunction, SCOTUS doesn’t allow that.)
1. Mandating jdx allows SCOTUS to review decision denying protection of
const rights (which is necessary).
iii. States have flexibility in designing “clear and certain remedy,” but can’t pull a
bait and switch as in Reich v. Collins (where refund was denied because of ample
pre-deprivation remedies).
1. SCOTUS gets to review despite novel procedural reqs (NAACP)
2. Basically the bait and switch is a clear DP violation of available remedies
subject to SCOTUS intervention.
iv. Court may order state to provide remedies/procedures to a state court
criminal defendant (Jackson v. Denno, Court imposed an obligation on the state
to provide a remedy in all future cases to test the violation of federal rights before
admitting a confession into evidence. State court was required to provide the
unconstitutionally deprived evidentiary hearing.)

G. Adequate and Independent State Ground Doctrine

i. Adequate State Grounds Generally: Sup. Ct. will hold that it lacks jurisdiction if
the State SC’s decision is supported by a state law rationale that is independent
of federal law and is itself adequate to sustain the State SC’s result.
1. SCOTUS must ascertain existence of AISG for itself. (Michigan v.
Long)
2. Policy: if Sup. Ct. did review and reverse on fed Q when there is ASG,
because no change in result, it would essentially be advisory opinion—not
OK (Hayburn’s Case).
3. “Justifications for the ASG” in Mexico + criticisms, constitutional
compulsion (probably none).
ii. There is an presumption of federal review unless there is a plain statement of
adequate state grounds by State SC (statement that fed law discussed only
for guidance) (Michigan v. Long)
1. I.e. when cases make their decisions on substantially federal law, but do
not clearly state an AISG, no AISG.
2. Thus depends on actual grounds vs potential grounds.
3. [Dissent of Michigan v. Long – Stevens: purpose of review is vindication
of federal rights of individual. When individual is let free by state, no
concern about vindication of fed rights, so no fed interest in review]

19
 4. Rationale: Avoid examining state law. Avoid delay/inefficiency of
continuance. Avoids advisory opinions.
5. MF: This was just a “we want the power to review everything” decision.
iii. Adequate State Grounds:
1. Not if:
a. It conflicts with or undermines federal law
b. Reversal on federal grounds could change the outcome.
c. No fair and substantial basis supporting state court ruling (Ward).
d. Basis was state procedural grounds that can be reviewed (e.g.
NAACP) or don’t serve an important state purpose (Henry)
iv. Independent State Grounds:
1. Dependent when state law incorporates federal law.
2. When it is unclear if state law is meant to incorporate federal law (e.g.
when it closely mirrors) rather than independent basis for the decision, SC
may remand to State SC asking them to clarify (Minnesota v. Nat’l Tea)
a. Even if the state law and federal law are exactly the same, the state
may still interpret state law differently, and did not necessarily
mean to incorporate federal law.
b. But requesting clarification from state ct is now disfavored,
and SC will probably just review unless clear statement that
decision rests on AISG (Michigan v. Long)
3. Remote Federal Premise Decisions:
a. Sup. Ct. may have review if state court ruling in some ways
depends on a premise derived by federal law. If state law question
is integrally tied to federal question (e.g. Standard Oil)
b. Byers: CA SC holds a law unconstitutional without a certain
restriction. Then says it would be unfair to punish defendant
because he couldn’t have anticipated restriction. SCOTUS granted
cert to assess the validity of CA SC’s premise that without a use
restriction the statute would violate the constitution.
i. Note: this could be e.g. of SC reaching to find
“dependence” to reach unnecessary const. issues that it
wanted to decide.
c. Standard Oil (interpreting CA state law exempting US Gov’t to
include Army “Post exchanges,” finding them to be part of the
U.S. Gov’t [but against state’s interpretation that PXes aren’t part
of U.S. Gov’t])
d. Dependent state grounds do not count as fed. Q jdx (gotta find
that independently): Moore v. Chesapeake: State statute had
provisions precluding certain defenses if party violated certain
federal laws. Complaint was under state statute, no fed q, but
questions relating to scope of federal statute would be reviewable
by SCOTUS)
4. Note: State incorporating federal law does not provide fed q jdx (Moore)
5. Note: A lot of the remote federal premise cases look like advisory
opinions, because they basically change a premise the state court made but
state can easily still find a way to come out the way it wants.

H. Adequate and Independent State Procedural Grounds

20
 i. In general state procedural grounds are ASGs and preclude SCOTUS review, “We
take state courts as we find them” –Harlan and Frankfurter (unless they are
unconstitutional, e.g. violate DP), but:
ii. States cannot have procedures that undermine federal law or prevent review
in SCOTUS. Cannot contradict federal rights. (NAACP)
1. Dice v. Akron, procedure making FELA actions by bench trial deprives
fed right to jury trial, jury trial was important part of remedy (“part and
parcel”) afforded by fed statute.
a. Dissent: State is not under duty to treat actions arising under act
differently from local actions for negligence so far as the
mechanics of litigation [P has choice of fed or state forum].
iii. SCOTUS has less respect for state procedural grounds than state
substantive law and will review:
1. State grounds that are discretionary and made without any fair or
substantial support (Williams v. Georgia)
a. Must serve legitimate state procedural purposes
2. State grounds that are applied with pointless severity (Felder, notice
requirement burdened federal right and was just unnecessary)
3. Newly made rules or rules not consistently followed in past decisions
(NAACP – asks whether state law determination was a reasonable
application of previously established law)
4. State procedure that is straight up unconstitutional (Saunders, in NAACP)
a. Most likely because they violate DP.
iv. Doesn’t need to be an explicit contradiction, just a substantial burden on the
right (Felder v. Casey, notice requirement was inconsistent with compensatory
aim of fed civil rights laws).
v. Especially true in the criminal context where Ds have to litigate in state courts.
Court may mandate procedures to be followed by state cts.
1. Jackson v. Denno, NY procedures inadequate, state forced to provide
separate independent hearing.
2. Chapman v. California, DA commented on D’s failure to take the stand,
unconstitutional, but Cal S Ct said harmless error, reversed because
constitutional errors require reversal unless harmless beyond reasonable
doubt.
vi. Federal Procedures in State Court
1. If absence of a federal procedure does not impair the federal right,
then the state procedure is fine (Johnson v. Fankell, federal right to
interlocutory appeal of qualified immunity is not critical part of 1983;
appeal is not directly found in 1983, but another federal statute, reflecting
it’s not as important to 1983).
vii. Stringent Applications of State Procedural Rules
1. State courts cannot prevent a criminal defendant from raising a
constitutional claim unless (1) she deliberately bypassed (strategic
reasons) the opportunity to raise it or (2) there is a state interest in
enforcing the procedure in the particular case:
a. Henry v. Mississippi: State ct refused to hear 4th Am claim
because D failed to timely object.
b. NOTE: SCOTUS doesn’t tell state to abandon procedures; instead
it tells state courts that if they apply state procedure to refuse to

21
 hear substantive federal claims, SCOTUS can review the federal
claim.
2. But SCOTUS doesn’t have to review even when the procedural
grounds are stupid enough that they would be allowed to. Williams v.
Georgia: GA ct invoked procedural foreclosure in death penalty claim to
cut off jury discrimination case that was clearly valid. SCOTUS found
found it had jurisdiction under Henry-type analysis.….but said it doesn’t
have to exercise it. Remanded. Why? Acknowledgement by state that as a
matter of law Williams was deprived of a constitutional right. On remand,
court concluded would re-enter prior judgment to complete record.
SCOTUS then denied cert.

IV. FEDERAL *HABEAS CORPUS

A. Comparison of Rules – SEE “*Habeas Table” IN ARES

B. Generally:
i. Habeas is a civil suit by a detainee against a custodian arguing illegality of
detention. Allows lower fed cts to review legality of detention.
ii. Available to state prisoners under 28 USC 2254, fed prisoners 2255
1. Same precedents apply between 2255 and 2254 stuff
iii. Less deference to military commissions (Eisentrager/Boumediene/Bagram) vs.
state courts (Pinholster)
iv. State prisoners can file in district that convicted or that holds; dist can transfer
(Braden)
C. Unique Features:
i. Normal rules of res judicata and finality don’t apply (Brown v. Allen)
ii. Prisoners bear BoP that conviction/detention is unlawful
iii. Prisoner has no right to counsel
D. Executions will be stayed under 2262 for 2254 habeas petitions (what about 2255?),
but the stay will expire if (1) habeas application is not timely, (2) D waives right to
habeas under 2254, or (3) D files under 2254 but fails “in the district court or at any stage
of review” (so if dist. ct denies habeas, but CoA grants certification of appeal, can still
get executed mid-appeal?)
E. History of Habeas Corpus in the U.S.:
i. Early History: Suspension Clause in Const., initially aimed at executive detention;
eventually extended to courts in post-conviction.
1. Exhaustion rule came along in Ex Parte Royall (1886). Must exhaust
state remedies before resorting to fed ct relief. Subsequent cases showed
exhaustion of state remedies also requires resort to available state post-
conviction procedures for claims not raised on direct review.
2. All con law errors are reviewable, because no ct has jdx to act
unconstitutionally (Frank v. Mangum; cf. EPY).
ii. Warren Court expansion: Era of full-fledged habeas, for anyone to question
validity of their detention wrt the const.
1. MF: This scheme worked!
2. Petitioners could re-litigate all const claims in fed ct (Brown)
3. Individuals were barred from raising matters not litigated in state cts only
if demonstrated that they deliberately bypassed state procedures (Fay)

22
 4. Downside: Lots of paper, less thorough review, Habeas clerks specifically
hired.
iii. Burger/Rehnquist narrowing:
1. Prevent religitation of 4th Am exclusionary rule claims (where fair/full
opp to raise in state ct) (Stone v. Powell)
2. Can’t raise matters not previously litigated unless cause and prejudice
(Wainwright)
3. Allow petitioner to bring subsequent petitions only by showing cause and
prejudice for not raising in past habeas petition, or actual innocence
(McCleskey)
4. Can only assert rights that existed at time of conviction, or are retroactive
(Teague)
iv. AEDPA (1996): Strict and builds on Burger/Rehnquist cases
1. Purpose is to protect finality of state jments and speed executions
2. What did AEDPA change?
a. Introduced a SoL for habeas
b. Introduced limitations on appeals from district to circuit cts:
i. No right of appeal when dist ct finds against prisoner on
habeas. Instead must get certificate of appealability from
CoA (only if substantial showing of denial of const. right).
c. Changed harmless error standard
3. Note: All holes in the AEDPA system are filled by Rehnquist Ct
a. E.g. No foreclosure standard for first habeas, so Wainwright is still
the rule.
4. Note: AEDPA only applies to post-conviction relief. Doesn’t affect habeas
for exec detentions.

F. Obtaining Relief: Must not be harmless error

i. Harmless Error:
1. Direct Review: harmless error must be shown (by the state) beyond a
reasonable doubt (Chapman)
2. Collateral Review: must show actual prejudice by a preponderance
(Brecht, noting that some errors infect the entire trial process and defy
normal harmless error standards, requiring reversal)
3. AEDPA Standard – “Objectively unreasonable application” (more than
just wrong)
4. Habeas must satisfy both Brecht and AEDPA standards (Fry v. Pliler)
a. If Brecht claim adjudicated on merits in state courts, harmlessness
determination by state courts must itself be unreasonable (Fry)

G. The Exhaustion Requirement

i. State remedies must be exhausted before seeking fed habeas (Royall)
1. This includes state analogs to federal habeas for claims not raised at trial
and direct review
a. But claims once presented need not be raised in state courts again
(don’t need to do state habeas on stuff you lost on direct appeal)
2. Only applies to available state court proceedings (Fay v. Noia)
a. But will probably get screwed with procedural defaults

23
 3. Exhaustion requirement will be excused if there is state corrective
procedures are absent or ineffective (where state remedies would be
futile) (2254(b))
a. E.g. State SC just rendered an adverse ruling in an identical case
ii. Federal court must dismiss habeas petition if any claim is not exhausted. I.e.
all claims must be exhausted within petition (Rose v. Lundy)
1. If petitioner puts in all exhausted claims, but deliberately leaves out
unexhausted claims, he risks dismissal of subsequent petitions as abuse of
writ (Rose v. Lundy plurality)
a. (Also will have to meet tough AEDPA standards for successive
petitions)
2. Court has discretion to dismiss just the unexhausted claims
3. MF: This is terrible. Rose leaves a petitioner with a difficult choice:
a. (1) Return to state court and litigate the unexhausted claims before
presenting a federal habeas petition with all claims. But, this
means a long delay before having any claims ruled upon; or
i. And, if petitioner decides to exhaust claims in state court
and then go back to federal habeas, he may be barred by
SoL
b. (2) Amend habeas petition and present exhausted claims
immediately, but this might mean foreclosing the chance to present
other claims in a future petition
i. If petitioner tries to bring previously unexhausted claims
after exhausting them, will likely be barred by the repeat
petition section of AEDPA
iii. But, fed cts has discretion to stay proceedings to permit exhaustion of state
remedies, but probably only if (1) good cause for failure to exhaust, (2)
claims appears to have merit, and (3) petitioner has not intentionally delayed
(Rhines v. Weber)
1. Usually to permit exhaustion of state remedies while avoiding SOL
barring claims
2. MF: Agrees with Souter concurrence that petitioner shouldn’t have to
prove good cause, but instead state should have to prove petitioner is
intentionally wasting time.

H. Timeliness: Statute of Limitations

i. AEDPA Statute of Limitations is one year for non-capital cases (State,
2244(d); Federal, 2255(f)), running from:
1. (1)(A) Date judgment became final by end of direct review or expiration
of time to seek direct review
a. Time of state highest ct’s final decision or SCOTUS denial of cert
on direct review (Lawrence)
b. Tolls (paused) in state collateral review (d)(2), but does not toll in
federal habeas petitions (Duncan v. Walker)
i. So clock can run while pending, non-exhausted claims can
expire before court figures out it should be dismissed, and
if petition is dismissed under Rose v. Lundy, probably can’t
return due to SoL.

24
 c. Time during which a petition for cert. is pending that seeks review
of state habeas proceedings is not tolled
2. (B) Date on which impediment to filing created by State action in
violation of const./fed law is removed
3. (C) Date on which const. right asserted was initially recognized by
SCOTUS, if the right has been newly recognized by SCOTUS and made
retroactively applicable to cases on collateral review
a. But runs from when announced as new rule, even if not retroactive
at that time (Dodd, 2255(f)(3) case)
4. (D) Date factual predicate of claim could have been discovered through
exercise of due diligence.
ii. AEDPA Statute of Limitations is 6 months (180 days) for capital habeas
petitions if the state has implemented a qualifying post-conviction counsel
system
iii. Equitable Tolling provides an exception, even under AEDPA
1. Equitable tolling is permissible; context dependent (Holland v. Florida)
(egregious ineffective assistance of counsel triggered equitable tolling)
a. R: Equitable remedies presumed, unless Congress explicitly says
no
2. But probably have to show you were pursuing rights diligently, and
that some extraordinary circumstance stood in your way and prevented
timely filing; e.g. attorney abandonment.
3. Showing of actual innocence is sufficient to excuse a petition that is
untimely (but must show no reasonable juror would have found him
guilty beyond a reasonable doubt w/ new evidence) (McQuiggin)
4. Appeals court can raise equitable tolling, but shouldn’t ordinarily (Wood v.
Milyard)
iv. Another exception is District Court has discretion to issue stay and abeyance
if necessary (Rhines v. Weber) but it should be done rarely and only if claims are
not plainly meritless. Usually to permit exhaustion of state remedies (generally to
avoid SOL barring claims). Probably only permissible if there is good cause for
failure to exhaust.
v. Note: This shit is probably unconstitutional, substantial cut back on the writ, can’t
do that (Boumediene)

I. Relitigating Questions of Law on Federal Habeas

i. No res judicata on habeas, even if fully litigated in state proceedings (Brown v.
Allen, Warren era)
ii. While non-constitutional claims usually cannot be raised on habeas, there is
a small window for errors amounting to fundamental defect which results in
complete miscarriage of justice or is inconsistent with rudimentary demands of
fair procedure. (Hill, federal; Reed v. Farley, states).
1. After all, 2254 is for people “in custody in violation of the Constitution or
laws or treaties of the US.”
2. But it is very hard to show this if had a chance to raise an objection and
did not (Reed).
iii. Cannot raise a 4th Am claim on habeas if petitioner had full and fair
opportunity to litigate the claim in state court (Stone v. Powell)
1. R: The exclusionary rule is about deterring police conduct, which is served

25
 2. FORK: Question after Stone; which rights are more like the exclusionary
rule, and which are meant to protect fundamental personal liberties?
a. Not extended to 5th Amendment and Miranda claims (Withrow v.
Williams, finding it goes to reliability of evidence)
iv. And, the standard is no longer de novo, as in Warren era:
1. Under AEDPA § 2254(d), a federal court cannot rant habeas relief for any
claim that was adjudicated on the merits in state court proceedings unless:
a. The state court’s decision was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by SCOTUS
i. Contrary to (legal analysis):
1. Substantially different from governing SCOTUS
precedent (e.g. wrong standard used).
2. Must have been “contrary to” clearly established
federal law at the time of the decision (Greene v.
Fisher) (applies to every decision that is part of
direct review).
ii. Unreasonable application of (factual inquiry):
1. Not merely “wrong” (Terry Williams)
2. Lower ct sees facts materially indistinguishable
from situation Court has addressed but reaches
different decision. (Terry Williams)
3. Much higher threshold than de novo (Renico)
a. Doubly deferential when trial judge has
discretion in initial decision.
i. E.g. Ineffective assistance of counsel
cases, D bears burden of establishing
that counsel was not pursuing sound
trial strategy, and trial judges
determination of that must be
unreasonable (Bell v. Cone).
4. Pol: Pretty dumb. LJ 128. MF thinks Stevens had
better opinion in Terry Williams, closer to
“erroneous” than this absurd level of deference.
iii. Clearly established (narrowly construed, White: logical
combination of two cases is not)
1. Must recognize stuff held retroactive on direct
appeal.
iv. Actually ruled by SCOTUS (Marshall v. Rogers, no
matter how many circuit courts)
1. Ruling can’t be general, but must be directly on
point (Lopez v. Smith)
v. Can’t consider new facts (Cullen v. Pinholster)
b. The state court’s decision was based on an unreasonable
determination of the facts.
i. New facts can’t be considered (Cullen v. Pinholster)
v. And, petitioners usually may not rely on new holdings to challenge their
convictions (Teague v. Lane)

26
 1. First petition: Teague, Can’t ask for new rule unless meets one of the
Teague exceptions (more on Teague below).
2. Repeat petitions: § 2244(b)(2)(A): To bring a repeat petition based on a
previously unavailable const. rule, petitioner must show that it was made
retroactive by SCOTUS, expressly (Tyler)
a. And the SoL runs from the time the right was recognized, not from
the time made retroactive (Dodd v. Cain)
3. Note: 2255 allows lower cts to hold the rule retroactive, while 2244 more
clearly requires the holding of retroactivity to be made by SCOTUS (don’t
want lower cts ordering states around).
vi. New Rule?
1. Must do the “clearly established” of 2254 AND must meet Teague. (So
run both analyses).

J. Relitigation of Facts on Federal Habeas

i. Litigated issues of fact: Factual findings made by state courts are presumed
correct
1. (e)(1): For facts adjudicated, not necessarily related a claim: Petitioner has
BoP to rebut state finding of facts (presumed correct) by clear and
convincing evidence.
2. (d)(2): For claims: Petitioner must show that the decision was based on an
unreasonable determination of the facts in light of evidence presented in
state court.
a. Only if decision so lacking in justification, no possibility of fair-
minded disagreement (Harrington v. Richter)
i. Applies even when no rationale presented (Harrington)
ii. If federal claim presented and relief denied, presume claim
was denied on merits
1. Regardless of if some vs all claims ignored
(Johnson v. Williams)
2. Though presumption can be rebutted with great
difficulty (Johnson) (note state might want to rebut
to argue procedural default. Obviously D might
want to rebut to say decision ignored claim and so
determination was unreasonable).
b. Review is limited to record that was before state court that
adjudicated merits. (Cullen v. Pinholster)
ii. Unlitigated issues of fact: (2254(e)(2)): (DO 2254 + Keeney)
1. If petitioner fails to develop a factual basis for a claim in state court, a
federal habeas court shall not hold a hearing unless:
a. The claim relies on:
i. A new rule of const. law, made retroactive, OR
ii. A factual predicate that could not reasonably have been
discovered; AND
b. The facts underlying the claim would be sufficient to establish that,
but for constitutional error, no reasonable fact-finder would have
found the petitioner guilty.
2. Old standard had deference, but habeas ct had discretion to hold new
hearings (Townsend v. Sain)

27
 3. New Standard:
a. A federal habeas ct may allow a new evidentiary hearing on
facts not raised in state court only if petitioner was diligent OR
can show cause + (heightened?) prejudice (Keeney)
4. But court gets around these harsh standards:
a. All of this only applies if you failed to develop the record.
i. No failure unless lack of diligence or some greater fault,
attributable to prisoner or his counsel (Michael
Williams).
ii. MF: Court focused on word “failed” to add fault
requirement where they wanted it.

K. Successive Petitions
i. First petition: 2253(c): No right of appeal from dist ct to CoA in fed habeas.
Need certificate of appealability which requires a substantial showing of the
denial of a const right and indicates which specific issue or issues satisfy the
showing.
1. To get certificate, petition has to show something between non-frivolous
and clear that appeal will succeed (reasonable jurists would find dist ct’s
assessment of con law claims “debatable”). Debatable does not require
showing anyone would actually take your position. (Miller-El v. Cockrell)
ii. A petition may file a second or successive habeas petition presenting a new issue
only if she can show cause for and (heightened) prejudice from the earlier
omission of the issue (McCleskey v. Zant)
iii. Then (McCleskey still adds prejudice req to first (b)(2) exception):
iv. Claim presented in a successive habeas petition that was presented in a prior
application shall be dismissed (§ 2244(b)(1))
v. Claim presented in a successive habeas petition not presented in a prior habeas
petition shall be dismissed unless (§ 2244(b)(2)):
1. Application shows claim relies on new rule of con law, made retroactive
by SCOTUS, previously unavailable OR
a. (only SCOTUS can, Tyler)
2. Factual predicate for claim could not have been discovered previously
via due diligence AND facts underlying if proven would establish by clear
and convincing evidence that but for const error, no reasonable fact
finder would have found the applicant guilty.
vi. Before successive/repeat petition, must get ruling from panel of CoA that
conditions for successive/repeat petition are satisfied (2244(b)(3))
1. And grant/denial of permission is not appealable
vii. § 2255 (fed prisoners) conditions are a little easier
1. Can claim newly discovered evidence and need not show prior due
diligence
2. No req that courts dismiss repeat provisions raising same claims

L. The Effect of Procedural Defaults

i. Old rule, only default via deliberate bypass (Fay v. Noia)
1. MF: This worked. Under Noia, states gave more attention to fed const
claims. Most convincing basis was that state law has no interest in an

28
 airtight system of forfeitures. Prisoners have incentive to follow state
procedure because habeas takes time.
ii. Must show cause and prejudice to present a matter on habeas that was
procedurally defaulted (Wainwright v. Sykes) (MF: sandbagging rationale was
probably weak, not a legitimate fear, empirically doesn’t happen)
1. Determined by state procedures, no discretion to avoid reqs
2. Might default by failing to raise certain claims on initial collateral review
3. Prejudice:
a. Reasonable probability of different outcome (AEDPA req is
higher) (ill-defined and manipulated test)
4. Cause:
a. Claim not brought due to “some objective factor external to the
defense which impeded counsel’s efforts to comply w/ state’s
procedural rule” (Murray v. Carrier):
b. 4 potential external factors:
i. 1) Attorney incompetence that rises to the level of
ineffective assistance
1. Thus must meet Strickland test; objectively
unreasonable strategy and error prejudicial (without
benefit of hindsight)
2. Exhaustion requires that IAC claim be
brought/exhausted in state court as independent
claim before it can be raised as cause on habeas.
(Edwards v. Carpenter)
a. BUT, in Massaro, SC held IAC claims are
not procedurally foreclosed in 2255
proceedings (just fed prisoners) if not raised
on direct appeal, even if they could have
been based on record evidence
i. Rationale: record not developed for
establishing an IAC claim when
brought on direct.
3. Coleman Rule: Can’t claim IAC to excuse
procedural default in state collateral proceedings
because no right to effective counsel there
a. Exception: Martinez: Can use IAC in
collateral proceeding as reason for default if
certain collateral proceeding is first chance
to claim trial counsel was ineffective
b. Martinez extended in Trevino to situation
where direct review of IAC was technically
possible but virtually impossible.
4. Davila:
a. Martinez and Trevino were ineffective
assistance at trial. But Davila was defaulted
claim of ineffective assistance on appeal.
b. Davila’s state habeas lawyer failed to raise
ineffectiveness of counsel on appeal point.
In federal habeas, failure of state habeas

29
 lawyer was not cause for failure to raise
ineffectiveness of counsel claim from
appeals stage. So that claim was defaulted
(even though state habeas would have been
first opportunity to raise it, analogous to
Martinez).
ii. 2) Attorney abandonment without telling client (Maples
v. Thomas)
iii. 3) State interference (e.g. Brady violation, biased jurors,
judge sleeping with prosecutor)
iv. 4) If factual or legal claim was not available to be raised the
first time (Murray)
iii. But, if petitioner’s procedural mistake is minor, might not be an AISG
barring federal review (Kemna, substantially complied, his motion was just
slightly defective, no strong state interest (unnecessarily stringent, similar to
Henry)
1. MF: Court ignored AEDPA. Suggests AEDPA comes into play only if
there is an AISG for enforcing a rule.
2. But see Walker v. Martin, CA deadline requiring claims filed as promptly
as circumstances allow was found to be an AISG.
3. Also won’t necessarily be inadequate just because discretionary (Beard v.
Kindler)
iv. And there is an exception to the cause and prejudice standard for petitions
who can show that they are probably actually innocent (Schlup v. Delo,
Murray, “fundamental miscarriage of justice”)
1. Actual innocence is not itself a const claim, but rather a gateway through
which habeas petition must pass (get around cause and prejudice) to have
an otherwise barred const claim heard on the merits (Herrera v. Collins)
2. Prisoner asserting innocence as “gateway” to presentation of const. claims
despite default must establish that in light of new evidence, more likely
than not that no reasonable juror would have found guilty beyond
reasonable doubt (House v. Bell)
a. Considers timing of petition. 11 years late is sketchy (McQuiggin
v. Perkins)
v. And AEDPA’s establishment of cause and prejudice does not displace Schlup:
1. That section of AEDPA only governs repeat petitions; nothing about first
habeas petitions; so Rehnquist rules still govern.
2. NOTE: This is just preponderance, vs on repeat petition “clear and
convincing”

M. What Issues can be Litigated on Habeas?

i. 4th Am exclusionary rule claims can’t be raised on habeas unless there was
no opportunity for a full and fair hearing at state level (Stone v. Powell)
ii. Habeas petitioners may not seek recognition (retroactivity) of new rules of
const. law (Teague v. Lane)
1. New Rule if:
a. Breaks new ground or imposes a new obligation on the states or
fed gov AND

30
 b. Not dictated by precedent (i.e. no other rule was possible) existing
at time conviction became final (almost everything is a new rule)
i. Even if it’s a well-settled principle; might be new rule if
alters law of most jdxs (Chaidez majority)
ii. If a court could reasonably have reached contrary
conclusion, new rule. (Butler v. McKellar)
iii. Even if necessary logical outcome of two rules, “new rule”
and not “clearly established” (White v. Woodall)
2. Two Exceptions:
a. Where new rule places certain kinds of conduct beyond the power
of criminal law
b. Where the new rule adopts a watershed rule (e.g. Gideon, right to
counsel)
iii. Retroactivity is a threshold question that determines whether a federal
habeas court can hear a claim based on a new rule (Linkletter, new con law
rules applicable to cases on direct review but not necessarily all instances of
collateral)
iv. To be considered retroactive, SCOTUS must hold (not dicta) that the rule is
to be applied retroactively (Tyler v. Cain)
1. MF***: This makes Dodd (SoL runs from new rule not retroactivity) and
Duncan (no tolling during fed habeas) unreasonable af
2. Basically now nothing can be retroactive.
3. Note: States can be more generous with their retroactivity rules.
v. Teague does not apply to substantive rulings; only to procedural rules
(Bousley)
1. So first Teague exception is moot (convictions for conduct no longer
criminal would not be barred anyway since doesn’t apply to substantive)

N. The Relevance or Irrelevance of Innocence

i. Innocence is a gateway, not an independent ground for habeas relief:
1. Can only be used to get around cause and prejudice for not showing some
other independent constitutional violation (Herrera), or to get around SoL
(McQuiggin)
a. BUT Court has assumed without deciding that a truly persuasive
demonstration of actual innocence made after trial would render
execution unconstitutional and warrant federal habeas if there was
no state process for the claim. (Herrera)
b. MF: Yea, strong showing of innocence, it would violate the 8th or
14th to execute someone the court knows is innocent.
i. This heightened hypothetical Herrera level of innocence is
higher than what must be shown to hit Schlup standard
(House v. Bell)
ii. Can a petitioner attack his sentence even if he is not attacking the underlying
conviction?
1. Under Sawyer v. Whitley, a petitioner can attack a non-capital sentence
even if he is not attacking his voncition of the underlying crime.
2. Dretke: Was guilty of crime, but Habitual Offender law shouldn’t have
applied to him and increased his sentence.

31
 a. Court avoided answering question for non-capital sentence; told
Dretke to return and consider alternative grounds for bringing
habeas claim (Strickland IAC claim) and exhaust those.
b. MF: Seems clear petitioners should be able to do this: this is an
illegal sentence. Everyone agreed Dretke had served the time.
3. Note: don’t really have to follow guidelines, so maybe no such thing as a
guidelines error.
iii. Petitioners claiming innocence have no right on habeas to gain access to DNA
evidence:
1. DA’s Office v. Osborne (CB 993): After losing appeals and state post-
conviction petition, he sued under 1983 claiming const right of access to
DNA that if tested, allegedly prove innocence.
a. Court held prisoner doesn’t have a substantive due process right to
DNA testing.
b. Alito concurrence says respondent seeks evidence with material
bearing on conviction, and this falls within core of habeas and
should be brought in habeas. BUT:
2. Skinner v. Switzer similar situation:
a. Habeas was not the appropriate remedy. Even though invalidating
detention was ultimate goal, giving evidence would not necessarily
lead to invalidation. He would have to bring another petition for
innocence.
O. See Mexico for “The Constitutional Scope of Habeas Corpus”
i. Guantanamo detainees have const. right to habeas and statutes were
unconstitutional suspension of writ because tribunal was inadequate substitute.
ii. Greater concerns with executive detentions (hasn’t had full/fair process)
P. Other Habeas Issues:
i. AEDPA and Teague can combine for nasty results
1. Greene v. Fisher: While appeal was pending SCOTUS ruling came down,
but did not get chance to appeal. Loses fed habeas because under AEDPA
can’t show state ct decision was unreasonable at time. Now has to meet
Teague, Tyler, etc. which is impossible
2. Would have been ok if appeal was heard, even if denied on merits,
because then state appeals court would have acted contrary to established
federal law, eh?????
ii. AEDPA and Stone:
1. Did you receive “opportunity for full and fair hearing” if state flouted
federal law?
a. If yes, Stone has been cut back by AEDPA, because the
determination violates clearly established fed law
b. If no, then nothing has changed.
iii. AISG and AEDPA:
1. Might be threshold question (go to Kemna)

V. CHOICE OF LAW IN THE FEDERAL SYSTEM

A. Federal Common Law: Legally binding federal law made by fed cts in absence of
directly controlling const or statutory provisions

32
 i. Can be made by lower fed cts and by state cts (must be affirmed the whole way
up)
ii. MF: In many instances where ct makes fed CL, it could call it interpretation. But,
this is a misnomer because even though the ct may be looking at a statute or the
const, there is nothing to tell them how to interpret an issue:
1. E.g. 4th Am: development of Exclusionary Rule (Mapp)
2. E.g. Sherman Act: prohibits “unreasonable restraints of trade” then leaves
to cts
3. E.g. LMRA: Gives jdx to fed cts over K suits with labor unions; read as
authorization for fed cts to make all K laws that govern labor bargaining
(Lincoln Mills)
4. Some scholars define fed CL as including only areas where nothing to
interpret (e.g. Admiralty law)
5. MF: includes unguided interpretation because the same rules apply in
figuring out what the rules ought to be: look to what Congress would have
done? really? what about with first e.g. of 4th Am interpretation?
B. Longstanding presumption against the federal courts creating federal common law
i. JA of 1789: Laws of the several states shall be regarded as the rules of decision in
the courts of the US.
1. In the absence of federal law, fed cts must apply state law
ii. 10th Amendment
iii. Erie: No federal common law governs state legislative issues; federal courts
follow state courts on state law (Erie v. Tompkins)
1. Federal general common law (governing state issues) is unconstitutional
iv. So fed courts apply state substantive law and fed procedural law (Erie + FRCP)
1. But see Article III
2. No abstention in diversity cases if state law unclear (Meredith)
C. But there are 3 exceptions to this presumption
i. 1) Where fed rules are necessary to protect uniquely federal interests (Kohr)
1. Test (Clearfield Trust):
a. 1) Does the matter justify creating federal CL?
b. If so, should the ct create fed CL, or follow state law?
2. In suits between private parties, ask: is there an important federal interest,
and would state law conflict with that interest?
ii. 2) Where fed CL is needed to effectuate congressional intent (Textile Workers)
1. E.g. Dice: Interstitial lawmaking to effectuate Congressional intent in
FELA
2. “Congress acts against the total corpus juris of the states in much the same
way that a state legislature acts against the background of the common
law” (Hart & Wechsler)
iii. Bivens suits: Federal CL creating a cause of action for money damages against fed
officers directly under const. provisions.
D. Policy concerns about fed cts making common law:
i. Pro: Prevents state law from frustrating fed interests; effectuates Congressional
intent; inherent part of judicial role
ii. Con: Displaces state law and usurps state prerogatives (federalism concerns);
Congress has sole power to make federal law (SOP concerns)
iii. MF: FCL poses many more problems for federalism than it does for SoP so long
as the Court is trying to follow Congressional intent. If they get it wrong,

33
 Congress can go back and make clearer. BUT, every time courts make FCL, they
interfere w/ states’ rights. Even though it may be totally legitimate, they are
making federal law where it didn’t exist before  and fed law trumps state law.
Need a flexible test; per se rules on FCL don’t really work.

E. The Obligation of Federal Courts to Follow State Common Law

i. Old rule: Fed cts in diversity didn’t have to follow state CL (Swift v. Tyson)
1. Story trying to ensure greater uniformity and certainty in the law
ii. Erie overturned Swift:
1. Except in cases under the Constitution or federal law, federal courts must
apply substantive state CL in both diversity and fed q cases, but federal
procedural law.
2. Where the state’s highest ct has not spoken on an issue, the fed ct should
try to predict how that ct would resolve the issue.
3. Rationale:
a. Aligns with text of JA “laws”
b. Avoids difficulty of different law depending on whether sued in
fed or state ct (plaintiff advantage).
c. SOP and Federalism issues above.
4. MF: Erie is not constitutionally required (only very weak federalism
grounds). Swift’s practical problems could have been prevented by
Congress and really weren’t of a constitutional dimension anyway.
iii. But in lawsuits between states, SCOTUS has authority to make federal
common law (Hinderlider v. La Plata)

F. Which State’s Law?

i. Can’t dismiss diversity cases because of uncertainty (Meredith v. Winter
Haven)
ii. Can possibly abstain (see Abstention) or certify the question to the highest state
court; which gets the best/cooperative result, but that creates delays and expenses.
iii. Federal court should use the conflict of laws rules of the state in which it sits
(Klaxon)
1. Reflects prioritization of intra-state uniformity rather than uniformity
among federal courts (in line with Erie)
2. MF: better rule would be create fed CL of CoL rules. This is not const.
required and might even be wrong.
3. Note: Though Erie eliminated forum-shopping between state and fed cts in
same state, Klaxon facilitated forum-shopping between fed cts in different
states.
4. Note: Two sets of possible conflict rules; traditional (RST; look to where
K was made or where tort happened); modern (look at various states’
interest in the transaction at issue and apply the law of the state most
interested)
iv. Klaxon applies even if state wouldn’t hear the suit:
1. E.g. If a case is in a state’s federal court because of interpleader (but
couldn’t otherwise be in that state’s state court since no PJ), Klaxon still
requires that state’s laws to govern (Griffin v. McCoach) (e.g. only in TX
fed ct because interpleader, no PJ in TX, still TX rules may apply)

34
 v. If transferred, original jdx choice of law rule applies (Van Dusen) even if plaintiff
transfer (Ferens).

G. Power of Federal Courts to Make Federal Common Law

i. Presumption against (see above)
ii. Erie says fed cts can’t create fed CL on the sole authority of the Diversity Clause
1. But, can make fed CL in a diversity case if alternative authorization; e.g.
in Erie could have found fed interest in RR regulation
2. Even after Erie, there are very few places where state law must apply
(Lope). Most state law operates by federal choice (Congress’ choice not to
regulated under CC power).
iii. Federal common law may be found when significant federal interests are at
stake (e.g. air crash involving many states’ residents; involves federal agencies,
federal claims, etc.) (Kohr v. Allegheny, 7th Cir.)
iv. Two Part Inquiry on whether to create federal law to safeguard federal
interests (Clearfield Trust).
1. Authority: Can you make federal law?
a. Is there some kind of directive? Look at federal involvement,
power given by statutes, and indication of fed interests.
i. The bar is low: Don’t need specific grant of authority,
1. E.g. Lincoln Mills finding clear congressional intent
(for labor contracts to be governed by fed law
where statute said “suits for violation of contracts
b/t employer and labor org may be brought in any
dist ct with jdx)
2. But probably needs to go beyond mere
authorization of cts to hear cases. (Lincoln Mills
was sketch)
ii. Multitude of factors can be considered
1. E.g. Kohr: air crash; many states’ residents; federal
agencies, federal claims…
2. Look for areas committed to federal control by fed
law or const (Boyle)
iii. Important factors include considerations of uniformity of
federal law/regulatory program; whether thing at issue was
authorized by federal law, etc. (Clearfield Trust,
commercial paper)
iv. When U.S. is a party (Little Lake Misere)
v. McCulloch: (FCLgoverning ct’s ability to maintain nat’l
institutions that happen to be situated in the state and
subject to state law.
vi. Semtek: FCL governs claim-preclusive effect of a dismissal
by a fed ct sitting in diversity.
vii. Interstitial lawmaking: fed cts filling the gaps of a
comprehensive fed statutory scheme in manner consistent
with policies Congress seeks to promote (Dice v. Akron,
FELA)
2. Choice: Should you make federal law?

35
 a. Have choice of making fed CL as a rule that will apply uniformly,
or incorporating/borrowing state law as fed rule of decision.
b. Is there a need for a federal rule, and how does this balance
with state interests?
i. “Borrowing State Law” – sometimes it makes more sense
to just use state law, when state has law is ready-made and
established (Wallis v. Pan-Am), rather than create federal
common law from nothing (DeSylva v. Ballentine, adopting
state law definition of “child”)
1. E.g. no overwhelming concern with national
uniformity
2. Note: In DeSylva, Fed CL was considered to be
made, just incorporating state rules. But the
situation demonstrates a situation where it would be
appropriate to leave state law alone.
3. ?????Is this Fed CL? To choose the state rule? MF
says no.
ii. “Aberrant State Rule” – if state definition/rule is too
crazy, the federal court reserves the right to change it (Little
Lake Misere – finding state act directly against federal
interest)
v. Note that fed CL made because of uniquely fed interest will not displace state
law unless there is a significant conflict between fed policy and operation of
state law (Boyle, see next)
vi. Inquiry is highly results-driven:
1. Boyle: Court holds unique federal interests in contractors who supply
equipment to US. If contractors liable, prices would go up. Allows
creation of fed common law.
vii. Considers how often the problem will come up (to determine fed interest),
presumption against fed CL:
1. O’Melveny v. FDIC: No fed CL where fed agency like FDIC is in shoes of
private party (“remote possibility” that corp would go into federal
receivership)..
2. Empire Healthchoice v. McVeigh: No fed CL in this case despite fed gov
litigation involving federal contracts.
viii. Inquiry involves deference to Congress for what rule should be
1. Standard Oil: Fed law applies, no liability because Congress has not acted
to establish liability.
2. Gilman: Court refused to find right of indemnification for employer under
FTCA absent legislative directive
ix. Reluctance to create federal common law in suits between private parties
1. Will only do so if applying state law will frustrate federal interests (Bank
of America v. Parnell)
a. E.g. even though federal bonds involved, suit was between private
parties, did not “touch rights and duties of the U.S.” (BofA v.
Parnell)
2. There must be significant conflict with federal law or federal policy in
applying state law (Wallis v. PanAm)

36
 3. Gaps in federal statutory structure is not alone sufficient to warrant
creation of federal common law in suits between private parties (Wallis)
4. Miree: Only private parties involved, no rights of duties of the US hinged
on outcome, so no creation of federal common law.
x. However has created federal common law defense to state tort suits against
federal officers:
1. Validity of absolute privilege claims must be judged by fed standards in
absence of legislative action. (Lyons)
2. Privilege against liability for defamation should not be restricted to high-
ranking officials (Barr)
3. Absolute immunity does not shield official functions from state tort
liability unless challenged conduct is within the outer perimeter of
official’s duties and is discretionary in nature (Westfall)

xi. Implied Rights of Actions under Federal Statutes

1. When a statute does not have sufficient remedies, the court may imply
remedies to fulfill Congress’ intent (Borak)
a. Distinction between specific intent (what is in statute) vs. general
intent (what Congress wanted to accomplish)
b. Old framework: courts can imply private right of action to
effectuate Congressional purpose (general intent):
i. E.g.: Cannon: Majority held Title IX creates private right
of action under Cort factors, using general intent. Powell
dissent used specific intent.
ii. MF likes general intent, disagrees with Powell notion that
this was judicial lawmaking. Instead argues function of ct is
to see what problems arise under law and adapt law to
apply to those problems.
iii. For more Pol. and opinions, see “absent specific intent” in
Mexico, and “policy considerations” at the bottom of that
page.
c. After Cannon, Touche Ross v. Redington (1979): refused to infer
private remedy for damages in complex securities case.
d. New Framework: Court will create a private right of action
only if there is affirmative evidence of Congress’ intent to
create one (Alexander v. Sandoval)
i. Express inclusion of one method of enforcement suggests
intent to preclude others (Sandoval)
1. DOJ reg saying disparate impact is prohibited was
not enough.
2. May have been to stop an end-run around admin
enforcement.
ii. This approach grew out of Powell’s dissent in Cannon.
2. But, once a private right is implied, presumed all remedies are
available unless otherwise indicated by Congress (Franklin v.
Gwinnett)
a. But may require actual notice:
i. E.g. Gebser held no damages/respondeat superior remedy
for Title IX against school because no notice to school.

37
 3. Note: After Thiboutot, if you’re dealing with a statute that came after 1983
was enacted, the correct interpretation is that it wanted to replace the 1983
remedies with the remedies it gives. Precludes 1983 actions.

4. Note: Implied Public Rights of Action:

a. Seth Davis considers when a gov entity sues under a statue without
a specifically provided judicial remedy.
b. Argues that when a public litigant sues to protect typically private
interests, courts should treat it like a private litigant.
c. Conversely, when a public litigant sues to protect typically public
interests, a different, and more generous implication doctrine is
appropriate

H. Suits by Private Parties to Enforce the Constitution (1983 + Bivens)

i. There is a federal damages remedy for Constitutional violations made by
federal agents under the color of law (akin to § 1983) (Bivens v. Six Unknown
Names Agents)
1. Court creates this, not Congress.
a. MF: argues it is Court’s job to give remedies for Constitutional
violations. Dissent is wrong that Congress has to make damages
available.
2. Punitive damages are allowed (Carlson)
ii. A plaintiff can sue under the Constitution even when a statute exists for the
same claim (Davis v. Passman – plaintiff can sue under 5th Amendment for sex
discrimination when she had a Title VII remedy), unless the statute precludes a
Bivens action.
iii. So far, Bivens allows suits for damages for violations of the 4th, 5th, 8th, and
14th Amendments. (Cases at CB 177 and 167)
1. Bivens: Arrested without warrant with unreasonable force, 4th Am.
2. Davis v. Passman: Woman allowed to sue for gov’t employment
discrimination under 5th Am.
3. Carlson: Mother’s son died in prison and could sue under 8th and 14th.
?????Wait why under 14th—isn’t that about state action…
iv. Limitations on the scope of Bivens:
1. Fed officers can always raise immunity as a defense to liability
2. Bivens only applies to constitutional violations (NOT statutory violations)
(Cf. 1983 which applies to both)
3. Bivens suits are available only against individual fed officers, not against
the gov’t, agencies or private entities
a. See, e.g. Minneci v. Pollard: No Bivens damages allowed where
fed prisoner was in facility operated by private company;
distinguished between gov’t personnel and personnel employed by
private firm.
b. Malesko: No Bivens against private corp operating halfway house
under K with Federal Bureau of Prisons (extending decisions that
Bivens cannot lie against agencies)
v. Step One: New context (Ziglar)
vi. Two ways to defeat implied right to sue under Constitution instead of statute
under Carlson (applies to Bivens actions):

38
 1. 1) Special factors counseling hesitation in absence of affirmative action
by Congress
a. E.g. avoid interference with military affairs (Chappell, Stanley)
2. 2) Showing Congress has provided alternate remedy which is explicitly
declared to be substitute for recovery directly under Constitution, and
viewed as equally effective
a. Erosion of this Carlson factor:
i. No longer needs to be explicit intent from Congress to
replace Constitutional remedy (Bush v. Lucas – elaborate
system of remedies suggests intent for it to be exclusive
remedy; bars Constitutional remedy; has neither Carlson
factor)
ii. Statute no longer needs to offer as good a remedy as
Constitutional remedy – providing a remedial scheme
good enough (Schweiker v. Chilicky, held to be a special
factor actually)
vii. Continued erosion: Bivens remedies/claims have been getting narrower
1. Bivens actions must be against individuals (Correction Services v.
Malesko)
2. Bivens is limited when there are alternate remedies (Correctional
Services v. Malesko – finding alternate state tort remedies)
3. If it is undesirable to have a Bivens remedy, on the balance, there will
be no remedy despite no alternative remedy (Wilkie v. Robbins) – Two
steps to determine whether there is a Bivens Remedy:
a. 1) Whether any alternative, existing process for protecting the
interest amounts to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in damages;
i. Sufficient state remedies can block Bivens remedy
(Minneci v. Pollard); need not be as good as
Constitutional remedy as long as they are roughly
similar
b. 2) Even in absence of alternative remedy, the Court “must make
the kind of remedial determination that is appropriate … paying
particular heed to any special factors counseling hesitation”
i. Such factors include difficulty in determining the officers’
motives; and potential for opening litigation floodgates to
less important cases (Wilkie)
viii. War on Terror:
1. A lot of Bivens stuff was filed after abusive actions following 9/11. Court
generally unreceptive to claims, citing “special factors”—wake of disaster.
a. Some argue Bivens are especially appropriate in national security
litigation because other defenses will preclude legal relief in
appropriate cases (Vladeck)
b. Some think a broad role for Bivens in this context is undesirable
because war on terror is different from normal law enforcement
and that entity liability might make more sense (Brown).
2. Ziglar v. Abbasi:?????Basically about new context rule?

39
 a. Action against exec officers involved in brutal detention following
9/11. Racial discrimination (5th), pretrial punitive purpose (5th),
punitive strip searches (4th), allowed abuse (5th).
b. Court says expanding Bivens is disfavored and notes special
factors.
c. Don’t’ have to do special factors analysis if context is new:
i. “The proper test for determining whether a case
presents a new Bivens context is as follows: If the case is
different in a meaningful way from previous Bivens
cases decided by this Court, then the context is new.
ii. Here context was new because major terrorist attack.
iii. And different from Carlson because predicated on Fifth
rather than 8th.
iv. Court seems to have very low bar for new context.
d. Factors for New Context:
i. Rank of officers involves
ii. Const right at issue
iii. Generality or specificity of the individual action
iv. Extent of judicial guidance on how to respond to
emergency
v. Statutory/legal mandate under which officer operating
vi. Risk of disruptive intrusion by judiciary
vii. Presence of potential special factors
1. Sensitive function of Executive Branch, national
security.
2. [Dissent notes these should be part of next step—
Carlson analysis]
e. Held: Lower court should do Carlson special factors analysis.
f. Dissent:
i. Wtf, this was not a new context.
1. Injuries are similar, harms are similar
ix. See “Is Bivens constitutionally required” in Mexico

VI. FEDERAL QUESTION JURISDICTION

A. Fed cts can only adjudicate a case with both const and statutory authority for fed jdx.
B. Primacy of Federal Jurisdiction
i. FRCP 12(h)(3): Dismiss whenever anyone suggests or notices ct lacks SMJ
ii. Assuming jdx for purpose of deciding merits is unconstitutional; can’t do that
even where the merits are easier to figure out. Violates separation of powers.
(Steel Co. v. Citizens for a Better Environment)
iii. But PJ can be decided before SMJ if that makes sense (Ruhrgas AG v.
Marathon Oil Co.)
iv. Forum non conveniens may also precede SMJ where appropriate. But if court
can readily determine that it lacks jdx over cause or defendant, the proper course
is to dismiss on that ground. (Sinochem Int’l v. Malaysia Int’l Shipping)

C. Constitutional Dimension: Scope of Congressional Authority to Confer Jurisdiction

40
 i. Art III § 2 extends judicial power over all cases arising under the Constitution,
laws of the U.S., and treaties
ii. Art III may not be an exclusive list of federal jurisdiction (Tidewater Transfer,
holding D.C. is a “state” for diversity purposes)?????that right?
iii. “Federal Ingredient Test” – an incredibly expansive test for when a case
“arises” from federal law (Congress can give federal courts jurisdiction over
anything with a “federal ingredient,” -- federal issue exists in the case that could
possibly arise from the original cause of action) (Osborn v. Bank of US)
iv. Protective Jurisdiction: “Arising under” jdx in the absence of a substantive
federal claim
1. Theory that Congress may authorize federal court jurisdiction where it
believes that federal court availability is necessary to protect important
federal interests (protect non-diverse plaintiffs); i.e. Art. III “arising
under” jurisdiction allows this, even where state substantive law governs
(but is it giving jurisdiction beyond Constitution?)
a. E.g. Lincoln Mills: Majority did not reach question of whether
ok to allow fed q jdx in cases applying state law, because found
Congress intended fed cts to create fed CL of labor-management
Ks
2. Frankfurter dissent in Lincoln Mills: Did not accept, as the majority did,
that federal common law governs LMRA actions. This led to him
answering protective jdx question: Says if state law is supposed to
apply, Congress cannot confer federal jurisdiction (in absence of
diversity). Thinks there is major constitutional issue to give federal jdx
over issue governed by state law.
a. Frankfurter objects to Osborn in general, but protective jdx goes
even further because at least Osborn requires an original federal
ingredient. Constitutional problem with conferring fed q jdx when
state law will predominate.
v. Note that Protective jdx and Osborn federal ingredient are separate. If protective
jdx is constitutional, it provides a second test for determining when Congress can
confer fed q jdx. Again, these are max/limits of fed q jdx, not what Congress has
actually conferred.
vi. A purely jurisdictional statute is not enough to support fed q jdx, but a
jurisdictional statute that raises some substantive fed q is:
1. Art III allows SMJ when there is a potentially important fed law issue:
a. Verlinden: Act authorizes a foreign P to sue a state in US fed ct on
a non-federal cause of action. Held constitutionally permissible.
i. Not a purely jurisdictional statute because it governs
substantive issues relating to foreign states, such as when
immunity applies. The federal question is not merely
speculative; these suits raise fed qs of fed law at the outset.
Also deals with foreign relations, which is realm of fed
gov’t.
ii. Might have been examples of protective jdx, but not said
explicitly. But probs not:
iii. Or might have just been expansive “Arising under”
decision

41
 2. Mesa: § 1442(a) says a prosecution commenced in state ct against a fed
officer can be removed by them to fed dist ct. Held unconstitutional; fed
defendant must assert fed defense before removing.
a. Purely jurisdictional; does nothing more than grant fed SMJ over
cases in which a fed officer is a D.
3. Gutierrez: Westfall Act grants immunity from common law torts to fed
employees. If employee sued for negligence, AG ets Westfall
Certification, defendant is dismissed and US because defendant, then case
governed by FTCA. Removed to fed ct if not already there. Held that fed
cts can review Westfall Act certifications.
a. A case under the Westfall Act “raises a question of substantive fed
law at the very outset” so it clearly arises under fed law as term is
used in Art III
4. Tidewater Transfer: Upholds Congress’s power to establish diversity SMJ
over citizens of D.C. 3 Justice plurality says Congress can authorize fed
jdx over suits under its Art I powers because of Congress’s responsibility
for the welfare of DC citizens. MF thinks this is problematic.

D. Statutory Dimension
i. Federal Question Statute - § 1331
1. Narrower than the Constitution, despite the same wording; not everything
with a federal ingredient is within Federal Q jurisdiction
ii. Removal: § 1441 allows removal of any action by D where fed ct would have
originally had jurisdiction, EXCEPT where removable solely on diversity and D
is citizen of state that action is brought in.
1. MF supports a reform that broadens removal to allow D to remove if they
came up with something federal.
iii. “Arising under” is narrower in § 1331 than under Const.
1. Must be essential component of P’s complaint (Grable)
a. Two questions:
i. Where do you look? WPC (Mottley), but not for DJs
(Skelly) as exclusive fq
1. But in Edelman variation, Franchise Tax Bd. says
can be fed q jdx if dj P or D could have brought a
coercive action presenting a fed q.
ii. What to look for? Fed cause of action, explicit or implied
(Am. Well Works) or possibly just WPC turning on fed
issue (Smith/Grable), but unclear.
iv. Where to look?: Well-pleaded Complaint Rule – face of complaint must plead
minimum allegations of federal elements to be “well-pleaded” and thus allowed in
federal court (Mottley)
1. So complainant can’t assert federal law deprives D of defense that might
be raised (Franchise Tax Board)
2. Plaintiff can’t circumvent by seeking DJ (See Skelly below)
3. Counterclaims, even if they rely exclusively on federal substantive law,
cannot be the basis for federal court jurisdiction under the WPC (Vaden v.
Discover)
a. Could bring a separate claim in federal court however
v. What to look for?: “Arising Under” in § 1331

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1. “A suit arises under the law that creates the cause of action.”
(American Well Works) (Justice Holmes) Stands for general proposition
that federal cause of action = federal jurisdiction.
a. Merely turning on/having a relationship with federal law is not
sufficient (e.g. slander/libel based on a patent infringement case is
not arise under federal law)
b. Not a perfect rule; more a rule for inclusion than exclusion
c. Consider what the remedy sought is too – federal remedy
suggests federal question (TB Harms, 2d Cir.) (finding dispute
over copyright assignment of rights, despite copyrights usually
being exclusive federal jurisdiction, not arising out of federal cause
of action; federal relief about infringement, not assignment of
rights. No interpretation of federal statute needed; no fed. juris.)
d. Sometimes Am. Well Works fails and a federal cause of action
doesn’t “arise under” federal law (Shoshone, practical
considerations such as volume of litigation and lack of federal
interests led to exception. But MF says this is irrelevant)
2. A state cause of action involving a federal issue may give rise to
federal jurisdiction if it requires/turns on an interpretation of federal
law (Smith) (challenging constitutionality of a federal law via state claim)
a. Smith and Grable are rare exceptions:
i. Usually court can’t tell from face of complaint if case is
going to turn on federal law.
b. But see Moore (finding issue about state law which entirely
incorporates federal rules does not give rise to federal question
jurisdiction; needs interpretation of federal laws to make decision;
but still considered fundamentally “tort”—But this will be
reviewable by SC)
i. MF thinks Moore is right and Smith is wrong.
c. Further limitations:
i. If the federal law depended on does not create a cause
of action for P, the state claim involving it will not arise
out of federal law – i.e. without federal COA, such fed
law cannot be basis for fed question jurisdiction
(Merrell Dow) (finding FDCA does not have private CoA,
thus P’s state claim depending on interpretation of FDCA
does not give rise to fed Q jurisdiction)
ii. Gunn Test:
1. 1.Fed Q necessarily raised?
2. Actually disputed?
3. Substantial?
a. Importance to fed system as a whole.
4. Capable of resolution by fed ct without disrupting
fed-state balance as decided by Congress?
iii. Mere fed interest in outcome of case doesn’t create
Grable/Smith fed jdx (Empire Healthchoice v. McVeigh)
d. [Basically if federal issues in state causes of action, it is unclear,
but “turns on” test probably survives despite Empire Healthchoice]

43
 3. Or if important national interest is an essential component of claim on
face of complaint (Grable)
vi. Sometimes the Court circumvents the WPC rule to allow fed q jdx:
1. Duke Power Co.: Price-Anderson limits liability of power co in disasters.
P asks for DJ declaring Act unconstitutional.
a. Claim did not “arise under” Price-Anderson Act, and under Skelly,
plaintiff would have brought state tort action and defendant would
have used Act as a defense.
b. But Burger adds a (barely non-frivolous) 5th Amendment claim
saying that a due process claim is “implicit” in the complaint.
i. MF notes that this would have been perfect case for Court
to say that “turns on federal law” is a separate category to
give jdx, but instead Burger tries to fit it in with federal
cause of action stuff.
c. Burger doesn’t say plaintiffs could recover on 5th Amendment
claim, but says it passes the “straight face test” of Bell v. Hood
d. Rehnquist concurrence was right: said no jdx because like Mottley
because asking for DJ under state tort law allowing for full
compensation.

vii. The Declaratory Judgment Act: despite being a federal cause of action, does
not give rise to federal jurisdiction where it would usually have to be raised
as a defense (Skelly Oil)
1. Court does not look to issue pleaded in DJ suit, but rather to the coercive
action that plaintiff would have brought instead of the declaratory suit. “If,
but for the availability of the JD procedure, the federal claim would arise
only as a defense to a state created action, jdx is lacking” (Skelly Oil)
a. Hart/Wechsler say you should also look at whether D could bring a
coercive action against the plaintiff (lessens the impact of Skelly).
i. But under Skelly, all that matters if what the P’s suit would
contain right?????
2. Skelly applies to state DJs
3. MF: Overturning Skelly would fix everything. If P has real “turns on fed
law” issue, could bring DJ. If ct took DJ on its face, both tests could be
preserved.
viii. Statutes barring removal or federal jurisdiction must be explicit, clear
statement (Mims v. Arrow) (rejecting construction of fed statute authorizing
damages in state court as barring federal jurisdiction)

ix. Removal and Preemption:

1. Generally not removeable if complaint doesn’t affirmatively allege fed
claim.
2. BUT: Preemption can be basis for federal court jurisdiction/removal,
allowed in 2 situations
a. Federal law completely preempts a state law cause of action
(Beneficial National Bank – finding Federal Act wholly displaces
state law on usury, fed statute provides exclusive cause of action,
thus D may remove P’s usury to to fed ct., (after all, necessarily

44
 “arises under” also Avco, LMRA case required fed common law
governing interpretation of labor Ks)
i. State court suit is removable to federal court based on a
claim of preemption if Congress created a cause of
action in the allegedly preemptive statute (Met Life v.
Taylor – finding congress’ intent for removal is manifested
by providing the exclusive cause of action)
ii. D may be able to access fed ct by seeking to enjoin a state
law on the grounds that it is preempted by fed law (Shaw)
b. Congress expressly provides:
i. E.g. Price-Anderson Act which provides for removal of tort
suits arising out of nuclear actions brought in state court,
even when they assert only state law claims

x. Pendent and Supplemental Jurisdiction

1. For federal court to hear state claims, state and federal claims must have
common nucleus of operative fact (United Mineworkers v. Gibbs)
a. Const. limit is same case or controversy
b. If fed claims are dismissed, state claims should be too (but
discretionary decision by court)
c. Based on efficiency considerations
i. But want to avoid making unnecessary state decisions, jury
confusion, taking cases where state issues predominate…
d. Discretion allows to not hear state claims
2. Jdx is not defeated by possibility that allegations will fail to state a cause
of action. Failure to state a claim is decided after jurisdiction. (Bell v.
Hood).
a. Important for reasons of res judicata and pendent jdx
b. HOWEVER, can’t just make up an absurd fed issue (Bell v.
Hood)
3. 1367 overrules Finley (which held pendent doesn’t cover additional
parties)
a. Supplemental jdx over all claims in same case or controversy.
4. Fed ct can decide pendent state law claim regardless of whether ct reaches
fed claim or if P loses fed claim (Siler v. Louisville & Nashville RR)

VII. JUDICIABILITY: CASE OR CONTROVERSY

A. Judiciability: doctrines that determine which matters federal courts can hear and decide
and which must be dismissed. Justiciability includes the prohibition against advisory
opinions, standing, ripeness, mootness and the political question doctrine. The Supreme
Court created these doctrines; neither the text nor the Framers of the Constitution
expressly mentioned any of these limitations on the judicial power.
B. Standing
i. Needs injury, causation, Redressability

45
 1. Injury: “personally limited to those who allege that they personally have
suffered or imminently will suffer an injury” (Simon v. Eastern Welfare
Rights – denying standing to organization suing on behalf of indigents)
2. Causation: “fairly traceable to D’s allegedly unlawful conduct” (Duke
Power in conflict with Simon)
3. Redressability: “likely to be redressed by the requested relief”
ii. Standing is construed strictly (Simon v. Eastern Welfare Rights)
iii. Standing seems fairly discretionary (Roe v. Wade – allowing standing even
though plaintiff is no longer pregnant; standing was premised on her being
pregnant at time of filing)
C. Ripeness: Ripe when denying review will impose substantial hardships
i. E.g. Scylla of flouting state law and Charybdis of forgoing activity (Steffel)
D. Mootness: Must have actual case or constroversy – no advisory opinions:
i. Exception: Capable of repetition, but evading review (Roe); ct must determine
sufficient likelihood of recurrence
1. Elections: Speculative whether opposed candidate will run again, so moot
(Golden)
2. Unlikely to recur (DeFunis)
E. Holdings are still valid even if technically moot, if written without knowledge that
opinion would not change outcome (Robinson – D had died before opinion, but court
didn’t know)
F. MF: Practically, Simon, Roe, Golden, Duke Power, show court can find standing
whenever it wants. Total discretion.

VIII. ABSTENTION – FEDERAL COURTS’ DEFERENCE TO STATE COURTS

A. Generally
i. Federal Courts generally cannot decline to exercise their jurisdiction (Cohens)
1. Defs can’t decline diversity cases because state law is hard (Meredith)
ii. Abstention: Has jurisdiction/standing, but does not decide matter.
iii. “Is judicially-created abstention” justified? In Mexico
iv. Statute-Based Abstention: narrow set of cases Congress has required federal
court abstention from state issues:
1. 28 USC 1341: Courts can’t interfere with collection of any tax under state
law if a plain, speedy, and efficient remedy may be had in state cts
a. Extends to DJs
2. 28 USC 1342: No injunctions for state regulatory rate orders (some
conditions)
3. 28 USC 2283: “A court of the US may not grant an injunction to stay
proceedings in a State ct except as expressly authorized by Act of
Congress, or where necessary in aid of its jdx, or to protect or effectuate
its judgments.”
a. Might be intended to prevent state and federal conflict
v. Judge-Based Abstention: judge made exceptions (Fed CL) to exercising
jurisdiction when there are strong countervailing considerations
1. E.g., won’t hear diversity domestic relations and probate cases
2. Two situations of concurrent litigation involving the same parties/issues
where one court will defer to the other:

46
 a. (1) When one suit would interfere with control of property
already in formal custody of another court. 2nd must defer to 1st.
b. (2) When a suit in federal court involves the same parties and
issues pending in another federal court; discretion to defer to the
other federal court. Unique to federal courts: if the other court is
state, federal court will usually proceed to judgment
3. Otherwise, with concurrent in personam jurisdiction, fed and state case
can proceed and whichever finishes first will be binding (Kline).
4. Courts traditionally have discretion over jurisdiction when sitting in
equity (to stay or dismiss) pursuant to abstention docrines.
5. Federal Courts generally may not dismiss (as opposed to stay) damages
actions pursuant to judicially developed abstention doctrines
B. Summary of Doctrines:
i. Unclear state law:
1. Pullman: Avoid fed ct const. rulings when state law clarification can
provide resolution.
a. Stay and ask for clarification from state ct. If state ruling doesn’t
resolve, do const ruling. Delaying tactic?
2. Burford: Defer to complex state admin procedures where the state agency
or process is better to adjudicate the issue, don’t disrupt state uniformity.
a. Fed ct dismisses case entirely.
3. Thibodaux: Avoid unclear state law in diversity cases related to important
issues tied to sovereign prerogative (e.g. eminent domain).
a. Sent to state ct for clarification, but can return to fed ct for
remaining issues (probably won’t be any though since these cases
are based on state law).
ii. Younger: Avoid interference with pending state proceedings (usually criminal)
1. Abdication of fed jdx. Issues may be heard later on habeas.
iii. Colorado River: Exception to Kline for concurrent state lit; special factors such
as assuming jurisdiction over the same res, inconvenience of fed forum, need to
avoid piecemeal litigation, order that suits are filed.
1. Unclear if dismissal or postponement, but doesn’t matter b/c res judicata
iv. Rooker-Feldman Doctrine: No fed dist ct review of state ct decisions
C. Do 2283 + relevant judicial doctrines.

D. Statute-Based Abstention: Anti-Injunction Act (AIA) (§ 2283)

i. Prohibits federal court from issuing an injunction against proceedings in
state court (applies to injunctions that affect proceedings indirectly (Atlantic
Coast)
1. Proceedings actually pending
ii. Does this only apply to state proceedings that are actually pending as with
Younger?
1. Yes.
iii. Three exceptions (narrowly construed (Atlantic Coast):
1. Expressly authorized by Congress (e.g. Bankruptcy exception, 1983
(Mitchum));
a. Statute need not be explicit to create an exception to § 2283;
injunction allowed if statute creates a “unique and specific federal
right or remedy, enforceable in a federal court of equity, which

47
 could be frustrated if the federal court were not empowered to
enjoin a state proceeding” (Mitchum)
i. E.g. § 1983 actions allow injunctions of state proceedings
(big exception) (Mitchum)
1. BUT, still gotta get past Younger.
ii. Note limitation: unique federal right/remedy is not enough
on its own; the statute could “be given its intended scope
only by the stay of a state court proceeding” (Vendo,
plurality)
2. Necessary in aid of its jurisdiction (3 circumstances);
a. 1) Where a case is removed from state ct to federal ct, and state ct
does not relinquish jdx.
i. Unnecessary because 1441 is a statutory authorization.
b. 2) Where fed ct first acquires jdx over case involving disposition
of real property
i. Or other “in rem” situations.
ii. Note: If there is concurrent in personam jurisdiction with
state, injunction won’t help “aid” in fed ct’s jurisdiction
(Atlantic Coast Line v. B’hood)
1. (you cannot enjoin the state case on this basis)
(Kline)
c. 3) Capital Service: Where state proceedings could interfere with
ability to enforce orders required by federal law. Employer gets
state-ct injunction against picketing by union. District court
enjoined employer from taking steps to enforce its state court
injunction because the District court was required to enforce valid
orders by the NLRB and needed to be free of any restraints set by
the state ct injunction.
3. Protect or effectuate its judgment (re-litigation exception created to
correct Toucey problem—harassment by plaintiffs attempting to relitigate
claims in state ct already decided in fed ct)
a. Cannot enjoin state proceedings if fed ct ruling was based on
fed ct procedures and not the merits (Atlantic Coast Line) (finding
previous decision was jurisdictional and so procedural, not on
merits, and no injunction of state court hearing allowed)
b. This exception is limited to before the state court reaches a
decision on the merits of the issue the party tries to block via res
judicata (Parsons)
i. In Parsons, fed ct finished concurrent case first and party
raised res judicata in state. State ruled on res judicata,
(against party) and fed court was bound to respect that
decision.
ii. MF: Creates incentive not to raise res judicata in state ct.
Instead of doing that, now should seek injunction from fed
ct.
iv. Exceptions contained within AIA are exclusive; Court cannot create additional
exceptions allowing federal injunction of state proceedings (Amalgamated
Clothing Workers, tried to stop enforcement of state order since state court
adjudication was pre-empted by federal labor laws, state lacked jdx)

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 1. Exceptions should be strictly construed (Atlantic Coast Line)
2. Well…not totally exclusive, no “frustration of superior fed interests”:
a. U.S. bringing an action is an exception to the AIA (Leiter
Minerals)
b. Fed. Agency suits are also an exception to AIA (NLRB v. Nash
Finch)
v. Note: States can’t enjoin fed proceedings unless there is in rem jdx (Donovan).
Whether or not res judicata will succeed in fed ct is for fed ct to decide.

E. The Tax Injunction Act (TIA) (1341) (“partial codification of comity doctrine”)
(Jurisdictional, Thomas in Direct Marketing)
i. TIA: Fed courts can’t “enjoin, suspend, or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient remedy
may be had in the courts of such State”
ii. Injunction is not barred by TIA if it:
1. 1) Doesn’t interfere with state collecting taxes (Hibbs)
2. 2) Doesn’t interfere with state tax revenue (i.e. if there is no effect on
the revenue, or increases revenue, it does not interfere) (Hibbs, injunction
of tax credits would actually increase revenue)
iii. Does NOT mean broad bar on federal court interference in state tax sphere
(Hibbs) or anything that touches tax (Direct Marketing – requiring notice of tax
obligations does not fall under “assessment, levy, or collection”)
1. Part of point of TIA is so fed gov doesn’t interfere with state tax revenue
collection; also so individuals can’t avoid paying tax obligations by suing
in federal court (Hibbs)
iv. See Comity Doctrine for some areas not directly covered by TIA.

F. Comity Doctrine:
i. Comity considerations can bar injunctions (even if TIA does not) – factors to
consider include (Levin v. Commerce Energy):
1. 1) Commercial matter which state has regulatory latitude?
2. 2) Involve fundamental right or classification requiring further scrutiny?
3. 3) Seeking improving competitive advantage over competitors?
4. 4) State court better fit than fed ct to correct violation b/c familiarity with
state legislature?
5. [Also, whether adequate state forum exists?]
6. E.g. Levin (not violating TIA in enjoining differing and allegedly
discriminatory tax system, but seen as feds overhauling state tax code,
interfere with state tax administration in finding comity considerations
override)
ii. Essentially a fiscal abstention doctrine – the fed court abstaining from state
fiscal matters based on comity
iii. Question left open in Direct Marketing Ass’n v. Brohl: TIA was not a bar, but the
challenged notice and reporting obligations were closely tied to tax system.

G. Johnson Act (broader than TIA)

i. Dist cts can’t enjoin operation of or compliance with (different from TIA) choices
of rates charged by public utilities made by a State admin agency where:
1. Jdx is based solely on diversity

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 2. State order doesn’t interfere with interstate commerce
3. Made after reasonable notice and hearing
4. Plain, speedy remedy in state.

H. Pullman Abstention: Unclear State Law and Constitution

i. Federal Court abstention is required when state law is uncertain and a state
court’s clarification of state law might make a federal court’s constitutional
ruling unnecessary (RR Comm’n of Texas v. Pullman – where state agency
regulation potentially violated 14th Amendment, fed ct should abstain to state
court’s decision if agency’s regulation violated state law)
ii. Three prerequisites for Pullman Abstention:
1. 1) Case presents state grounds and federal constitutional grounds for relief
(availability of adequate state remedy)
2. 2) Substantial uncertainty as to the meaning of the state law, and
a. Unnecessary where state law is patently unconstitutional
(Constantineau)
b. Inappropriate just to give state cts chance to decide a question first
3. 3) Reasonable probability that disposition of state ground could obviate
adjudication of federal constitutional ground
4. [Confined to when there are “special circumstances”; should be unique
state constitutional provision so abstention does not swallow federal
constitutional review]
iii. Abstention postpones federal court rulings on constitutional issues; it does
not foreclose federal jurisdiction; federal court may hear federal constitutional
issue after state proceedings (England v. Louisiana St. Bd.)
1. Thus after abstention, parties may explicitly give notice of reservation of
federal issue, allowing them to return to litigate the federal issue after state
court determination
2. Must inform state ct of const claims while reserving so that the state
statute can be construed in light of those claims. (Windsor/England)
3. If parties do decide to litigate federal issue in state court, then their right to
bring it back to federal court is lost. (England)
4. If the state court refuses to hear the case while federal case is stayed (b/c
advisory opinion concerns, might be part of state policy), federal court is
to dismiss w/o prejudice (Harris County v. Moore)
a. MF: Mere circumvention of state policy. England procedures
remain.
iv. BUT, can’t abstain if claim is that state law violated Supremacy Clause
(Propper)
v. Court may choose not to abstain when law is clearly unconstitutional (Wisconsin
v. Constantineau); state law should be unique – not every time Pullman factors
are met necessitates abstention (e.g. copies fed const).
vi. Plaintiffs can choose not to raise state claims in order to avoid Pullman
abstention, though at the cost of sacrificing claims (Constantineau)
vii. Three doctrines cut back on Pullman Abstention:
1. Certification: Fed cts can certify questions to state cts (much quicker)
2. Pennhurst: Removes suits for injunctions based on both state and fed
claims; so in some cases, state law issues could not form basis for relief
anyway, and ct will go ahead to fed issue.

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 3. Younger: More effective than Pullman, so if overlap, ct goes with Younger
4. Burford: Burford stricter, so would dismiss under that
viii. “Justifications for Pullman Abstention” in Mexico (followed by Critique and
Open Questions)

I. Burford Abstention (Administrative Abstention Doctrine)

i. Federal Court should abstain (dismissed) where
1. (1) unclear state law and
2. (2) the state court likely has greater expertise in a complex/unique area of
state law
3. (3) which has special significance to the state
4. (4) where there is a comprehensive state administrative or regulatory
procedure, and
5. (5) where federal issue will delve into state law and disrupt uniformity
ii. Also possibly where adequate state review of an administrative order based on
predominantly local factors is available (Alabama Pub. Serv.)
iii. In other words – federal dismissal allowed if:
1. Case presents difficult question of state law bearing on policy problems of
substantial public import, whose importance transcends the result in the
case OR
2. Adjudication of the case in a federal forum would be disruptive of state
efforts to establish a coherent policy with respect to a matter of substantial
policy concern
iv. Probably necessary that state admin system have primary purpose of
achieving uniformity within state and danger that fed judicial review would
disrupt this desired uniformity (NOPSI)
v. E.g. Burford (there is diversity jurisdiction and federal question on state agency’s
decision; relates to oil drilling. TX has specific state court which specializes in
regulatory and complex oil disputes. Fed Ct. abstains to this state court)
1. But note that Burford would have been avoided if party did not go to state
agency for decision first; i.e. went to federal court first
vi. Both diversity (Burford) and Federal Question (Alabama Public Service)
vii. Not available in suits for damages (Quackenbush)
viii. See “origins of Burford Abstention” and critique in Mexico

J. Thibodaux Abstention
i. Federal Court sitting in diversity may abstain when
1. 1) the state law is unclear,
2. 2) is of great public/political interest of the state; “intimately involved
with sovereign prerogative”
a. E.g. Thibodaux – finding eminent domain + unclear state law =
abstention. City field condemnation proceeding in state ct and
company removed to fed ct invoking diversity. Stayed to avoid
“hazards of serious disruption by fed cts of state gov’t.
ii. But see Mashuda: Not necessarily all eminient domain cases. P’s land taken by
county, but leased to private corp (improper to have takings for private use under
state law), so Mashuda seeks ouster via diversity in fed ct. Eminent domain cases
are commonly heard by fed cts, and this was not part of original condemnation
proceeding (which was still being appealed at the time since unhappy with award)

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 1. State law was clear enough here
2. MF notes that locality of the issue (city involved) was a big factor in
Thibodaux.
iii. After clarification of state law, can return to fed ct; but the cases are diversity, so
the issues are based on state law nad there will be nothing left to decide.
1. So usually means termination of fed jdx
iv. Not available for suits for damages (Quackenbush)

K. Younger Abstention
i. Absent irreparable injury, a fed ct can’t enjoin a pending state
criminal/similar proceeding
1. Applies when state proceeding is (1) ongoing, (2) involves important state
interest (criminal-esque), and (3) provies parties with a forum to consider
federal issues.
2. This inquiry is separate from § 2283 and its exceptions (Mitchum)
3. This is an abdication of fed jdx. (though might be heard on habeas later)
ii. History:
1. Federal courts generally may not interfere with/enjoin state court criminal
proceedings; not unless exceptional circumstance where irreparable injury
is clear and imminent (Douglas v. City of Jeanette)
2. Federal courts may enjoin the state criminal enforcement of
unconstitutionally overbroad statutes that might chill exercise of First
Amendment Rights (Dombrowski) (severely limited in scope by Younger)
a. Relied on the Douglas dictum in finding irreparable harm as
required for an injunction
b. Exceptional Circumstances will allow going to the Federal Court
here:
i. Over-breadth: state statute so unconstitutionally overbroad
that it chills constitutional activity (OVERRULED,
YOUNGER)
ii. Bad faith: prosecuting just to harass (under statutory basis)
with no hope of conviction on the merits
3. Note: Dombrowski can still apply to non-pending cases (rare for this to
work under Hicks below)
iii. How to show irreparable injury under Younger:
1. Bad faith state prosecution
a. But Court has not found since Dombrowski, very hard.
2. Patently unconstitutional state laws
a. But, never applied, seems to only be for law that is necessarily
unconstitutional in every application (Younger dicta)
b. Not mere unconstitutional overbreadth, chilling effect (Younger)
3. Absence of adequate state forum in which to raise const. issues
a. Only if state ct has impermissible bias or no available remedy
4. Not chilling effect anymore.
5. Gotta be more than what’s expected from a criminal trial.
iv. Younger bar on injunctive relief applies to declaratory relief (Samuels v.
Mackell)
v. Younger does NOT bar DJ (and probably not injunction) if threatened
prosecution that is not pending (Steffel v. Thompson, Doran)

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 1. Here, federal court may issue a declaratory judgment; unclear if can bring
an injunction, but likely can after DJ is violated (Steffel, White
concurrence)
2. Note issues with standing (Steffel had multiple police threats)
vi. But, Younger applies even if the federal case is filed before the state
prosecution if nothing of substance has happened in federal court by the time
state prosecution begins (Hicks v. Miranda)
1. Essentially allows conversion of Dombrowski cases (non-pending) into
Younger cases, flagging for the state prosecutor to initiate prosecution
vii. Thus someone can avoid Younger problem by not violating law:
1. If you conform with law or have done nothing wrong, you can seek a
preliminary injunction while the federal court decides constitutionality
(Doran v. Salem – ordinance declares activity illegal; bars stop doing
activity in response. Bars may now bring 1983 action to challenge
constitutionality of ordinance in federal court; may receive a PI on the
ordinance in the mean time (with irreparable harm and likelihood of
success). A bar that is in violation of the ordinance and gets prosecuted
cannot take advantage of PI, federal review)
2. See also Wooley v. Maynard (P has already served his sentences when
challenging the constitutionality of state law, thus there are no pending
state actions, and Younger does not apply)
3. Hard to get standing though:
a. Rizzo: Couldn’t show likely that police would harass these
particular plaintiffs, despite pattern of racially motivated police
brutality.
b. Lyons: Probably would not be put in chokehold again; no standing
for injunction.
viii. Expansion of Younger into civil/non-criminal cases:
1. Younger does NOT apply to all civil cases (NOPSI v. Council)
a. Does not extend to state judicial proceeding reviewing legislative
or executive action (NOPSI – Younger not applying to an agency’s
rate-making decision, an essentially legislative task)
b. So doesn’t apply to proceedings not judicial in nature.
2. Younger applies to “exceptional circumstances” (often “vindicating
important state policy”) which include:
a. (1) State criminal prosecutions;
i. E.g. Younger
b. (2) Civil enforcement proceedings; and
i. E.g. nuisance claims brought by state government
(Huffman v. Pursue, adult theater public nuisance)
ii. E.g. attachment proceedings brought by state government
(Trainor v. Hernandez)
c. (3) Civil proceedings involving certain orders that are uniquely
in furtherance of state courts’ ability to perform their judicial
functions
i. E.g. contempt proceedings, even between private litigants
(Juidice v. Vail)
ii. E.g. state bar disciplinary proceedings (Middlesex
County)

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 d. (4) Any “important” state interest (absurd broadening in next
cases)
3. Several cases reflect the pervasiveness of Younger in entering civil cases
(e.g. mentioning applicability of Younger because important state interest,
but deciding on different grounds) (MF thinks these cases are garbage):
a. Rizzo v. Goode (reversing lower court issuance of injunction
because police disciplinary measures inadequate; found lack of
standing; but also finding Younger would justify abstention
because undue intrusion on discretionary state action)
b. Lyons v. City of LA (traffic violation, P put in chokehold; seeks
injunction of police chokeholds; found lack of standing, but that
federal cts should abstain because it involves state officers
engaging in administration of criminal laws)
c. Pennzoil v. Texaco (injunction would interfere with important state
interests and comity, despite in reality being in personam
concurrent jurisdiction; citing Younger anyway)
4. Younger does NOT apply to military tribunals (Hamdan v. Rumsfeld)
(reflects rationale of Younger is deference to state courts’ competence)
ix. Bottom Line: Anything that might disrupt state criminal/similar proceedings might
be barred by Younger. No consideration given to fed interests involved.
x. “Critique of Younger Abstention” in Mexico.

L. Colorado River Abstention; Res Judicata

i. This is the exception to Kline’s presumption of concurrent jdx
ii. There is a “virtually unflagging” federal obligation to exercise jurisdiction
when federal courts have it (Colorado River)
iii. If there are “exceptional circumstances,” the federal court may stay
proceedings and abstain to the state proceedings (Colorado River).
iv. Factors:
1. Problems when both courts have jurisdiction over the same thing
2. Relative inconvenience of the federal forum
3. Desire to avoid piecemeal litigation (Congressional intent for that?)
4. Order in which state and federal proceedings are filed
5. Participation of gov’t in state proceedings (Colorado River)
6. Fed Q/law
7. Adequacy of state forum (Moses H. Cone)
v. E.g. Colorado River (finding exceptional circumstances because legislative act
reflected congressional policy to avoid piecemeal litigation for water rights; that it
is better suited for state courts)
1. MF: Tbh this could have just been Burford…
vi. Standard is lower for DJs:
1. Federal courts have discretion whether to defer to duplicative state
proceedings in suits for declaratory judgments (Wilton v. Seven Falls)
2. No need for Colorado River exceptional circumstances; authority granted
under Declaratory Judgment Act
3. Abuse of discretion standard in reviewing court’s decision
4. Circuit courts are split on whether this applies to injunctions

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 5. Asking for declaratory judgments instead of injunctions is a potential way
to avoid Colorado River abstention

M. Res Judicata
i. Claim Preclusion: preclude issues you have or should have litigated (with
common nucleus of fact)
1. (requires mutuality of parties)
2. Different from Collateral Estoppel/Issue Preclusion: requires issue to
have been actually litigated and decided
a. No mutuality required, but easier to use against old P. Can only use
against old D if couldn’t have joined first case (+ other conditions)
ii. § 1738: Full Faith and Credit Statute: state ct determines scope of its judgment
in situations where fed ct is later deciding whether to apply res judicata.
iii. Art IV § 1: Full Faith and Credit Clause: Second state must look at what res
judicata effect the first state would give the jment
iv. Res judicata is federal common law (Whole Woman’s Health v. Hellerstadt)
1. “Federal common law governs the claim-preclusive effect of a dismissal
by a federal court sitting in diversity” (Semtek) (determining the federal
rule based on law of state in which the federal court sat though)
2. If a plaintiff brings a case in one state’s federal court on diversity
jurisdiction and it is barred by SOL, if he brings it to another state’s
federal court where it isn’t barred, whether res judicata bars the second
claim is a conflicts analysis question (Semtek)
3. Federal Question – federal res judicata applies
4. Diversity cases – state res judicata applies (but that’s just the choice of fed
CL)
v. § 1983 claims are governed by res judicata, if same claim was made previously in
state court. It is NOT like habeas, where res judicata does not apply (Allen v.
McCurry – P’s 4th amendment claim fails in state court; res judicata blocks it in
fed court)
vi. Summary
1. State decision, FF and Credit: preclusion rules of state that decided
(diversity or fed q)
2. Fed Q decision, what RJ rules applied in subsequent fed q court?
a. Just straight up federal common law.
3. Diversity decision, what RJ rules applied in subsequent diversity court?
a. Apply state res judicata rules (a choice made by fed common law,
Semtek)

N. Rooker-Feldman Doctrine
i. If you lose in state court, cannot go to a lower federal court and bring the same
claim (essentially res judicata)
ii. Lower fed cts aren’t appellate cts

IX. REMEDIES AGAINST GOVERNMENT: THE CIVIL RIGHTS ACTS

A. Generally:

55
 i. § 1983: any person who, under color of law, deprives someone of their rights
under the Constitution “and laws” is liable
ii. § 1343(a): Dist cts have jdx over any civil action to redress deprivation, under
color of any state law, of const rights AND for damages or equitable relief under
any Act of Congress providing for protection of civil rights.
iii. Color of State Law – Defined as “misuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority
of state law”; applies even if officer’s actions are not authorized by the state
(Monroe v. Pape)
iv. 1983 suits are available even when adequate state judicial remedies are
available; federal remedy is supplementary to state remedy (Monroe v. Pape)
1. Legislative Intent – providing a federal remedy where state remedy is
adequate in theory, but not available in practice because state officer is
unwilling or unable.
v. “Neither a state nor its officials acting in their official capacities are ‘persons’
under § 1983.” (Will) (sue under official and personal capacities, Hafer)
1. Need to use EPY to get around SI of state
vi. Constitution and laws, but not regulations????? (Thiboutot)
vii. Absolute Immunity:
1. Total immunity from suit; purpose is to protect form trial, not just liability.
2. But, P can always claim officer was outside scope of legislative/judicial
functions
viii. Qualified Immunity:
1. Performing discretionary functions immune from suits for damages unless
violates clearly established rights; purpose is to shield from liability

B. Liability and Immunities of Individual Officers: Focus on the function performed, not the
title of the officer (Lake County v. Tahoe)
i. Legislative Immunity
1. Federal - Immunized under the Speech and Debate Clause (Art. I § 6)
a. Aides and Congress people get absolute immunity for
“legislative acts” against damages and injunctions (Grovel)
i. Does not include communications with constituents
(Proxmire)
2. State – Absolute immunity with coverage for “legislative acts” (Tenney,
immunized from § 1983)
a. E.g. State SC creating bar rules is a legislative function, thus gets
absolute immunity (Sup. Ct. VA v. Consumers)
ii. Judicial Immunity
1. Federal – Absolute immunities for judges and aides for “judicial acts”
with broad scope (Stump, even when acting beyond scope of their jdx)
(applies to clerks acting at judge’s direction, cf. Grovel)
2. State – Absolute immunity for judicial acts (Pierson v. Ray, § 1983)
3. Judicial Function gets absolute immunity for damages
a. But not injunctions (Pulliam)
i. But now immunized from § 1983 injunctions (see statute;
response to Pulliam)
1. Unless they violate a declaratory judgment/decree
b. Will not extend to administrative or executive tasks.

56
 4. Probably immune for any legislative-character acts (cf. Sup. Ct. VA,
state decision)
5. Not immune if goes way outside judge’s judicial function (e.g. tells a
cop to arrest a coffee vendor for bad coffee, Zarcone)
a. MF: personal motive was probably key here.
iii. Executive Immunity
1. Lower Executive (e.g. police, school board, etc.) – qualified immunity
(good faith and probable cause = immunity) (Scheuer v. Rhodes)
2. Upper Executive (e.g. governor, mayor, etc.)
a. Governors – qualified immunity (Scheuer)
3. Presidential Immunity – Absolute against damage claims (Nixon v.
Fitzgerald)
a. Not limited to acts connected with presidency
b. Does not extend to conduct before presidency (Clinton v. Jones)
4. No immunity for injunctive relief (Ex parte Young)
5. Prosecutorial immunity:
a. Absolute immunity for prosecutorial function if connected to a
judicial proceeding (Imbler v. P)
b. Qualified immunity if connected to an investigation (Imbler)
6. Federal administrative agency actors are given absolute immunity for
actions in their official conduct (Butz)
7. Cops have absolute immunity as witnesses
iv. More on functional approach: (Grovel)
1. Legislative: absolute immunity from damages and injunctions
a. “Built in remedies” – attack legislation or vote for someone else
b. See Sup. Ct. VA v. Consumers, supra (judiciary getting legislative
immunity b/c conducted a legislative action)
2. Judicial: absolute immunity from damages, but not injunctions
a. Built in remedy – appealing judicial decision
3. Lower Level Officials may NOT switch “boxes” into other branches’
functions (e.g. police officer’s actions will not be construed as “legislative
order” to get legislative immunity) (Lake Tahoe)
4. Administrative functions do NOT get absolute immunity (e.g. firing
assistant)
v. Qualified Immunity
1. Old Standard
a. If P shows 1) D’s actions not objectively reasonable, OR 2) D had
malice in decision, P may recover;
b. D must show BOTH his actions were objectively reasonable, AND
he had not malice (Wood v. Strickland)
2. New Standard
a. QI destroyed if officer violates clearly established
constitutional or statutory rights of which reasonable persons
would have known (Harlow v. Fitzgerald) – determine:
i. 1) What the law is under the Constitution
ii. 2) If that law is clearly established (notice to officer of
illegality of his actions)
1. If officer reasonably believed her act was legal
under this law, QI (Brousseau v. Haugen)

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 2. Must be “clearly established” at time conduct
occured (Wilson)
3. Facts in a case giving rise to give fair notice to
officer that actions are unreasonable need not be
exactly the same as facts in instant situation
(Hope v. Pelzer) (unclear how close, but seems like
facts must be very close)
iii. And both must be found before discovery (at pleading
stage) to overcome QI (Siegert)
3. Subjective element removed – i.e. even if P can show malice or bad faith,
if officer’s actions were objectively reasonable, QI applied (Harlow)
a. Subjective intent totally irrelevant (Crawford-El)
i. [Unless it is part of the underlying substantive
constitutional claim (Crawford-El)]
4. Discovery is allowed for factual disputes tailored to the question of QI
(Anderson v. Creighton)
a. But claim must be plausible enough before discovery to get
discovery (Ashcroft v. Iqbal – P sues AG for discrimination;
unlikely AG actually knew P, thus claim not plausible)
b. Must show law was clearly established before discovery in
order to get discovery (Mitchell)
5. Denial allows for interlocutory appeals (Mitchell v. Forsythe)
a. Policy is to spare officers from trial in case they do have immunity
b. Limitation – no interlocutory appeals of denial of summary
judgment if there are genuine issues of material fact (Johnson)
i. Johnson says to separate a “reviewable determination that a
given set of facts violates clearly established law from the
unreviewable determination that an issue of fact is genuine.
c. See also Camreta below, for situation where gets QI but loses on
merits
6. In determining QI, court should FIRST consider whether
constitutional right has been violated; then consider whether that
right was clearly established such that a reasonable person should
know (Wilson v. Layne; Saucier v. Katz)
a. Point is to give Sup. Ct. a chance to clearly establish the law
b. This is order is NOT required however; courts may dismiss
based on QI without deciding constitutional violation (Pearson v.
Callahan)
i. Reasons that if it is apparent there is no clearly established
law, it may be better not to consider the constitutional
question
c. Wilson/Saucier creates situation where the winner (getting QI) may
still want to challenge the constitutional violation; winner may get
cert on adverse constitutional ruling still (Camreta v. Green)
i. [Open question on whether D.Ct. can appeal to COA]
7. Examples of receiving QI:
a. E.g. Anderson v. Creighton (FBI agent sued for unlawful search;
found immune – reasonable officer in D’s circumstances would

58
 believe his search was lawful (i.e. probable cause and exigent
circumstances); subjective intent is irrelevant)
b. E.g. Brousseau v. Haugen (Officer shoots P as he flees; excessive
force claim. Law is clearly established – no shooting unless he is
dangerous – but it should be clearly established that officer’s act
was illegal as it appears to her; she believed he was dangerous
based on his acts, thus she gets QI)
i. 4th Am excessive force cases are especially forgiving of
officers (Graham v. Connor)
vi. Damages in § 1983
1. Dignity harm cannot give damages; must be actual injures (Carey v.
Piphus)
2. Nonpunitive damages cannot vindicate non-actual injuries (Memphis)

C. Liability and Immunities of Cities and Counties

i. Municipal governments can be sued under § 1983; are “people” under the
statute (Monell v. DSS, overturning Monroe v. Pape)
1. Both used legislative intent.
2. And cities have no SI under Luning.
3. They can only be sued for their own unconstitutional or illegal official
policies or customs (Monell)
a. Cannot be sued for solely the act of their employees
ii. Municipal gov’t liable under 1983 when:
1. Action taken by the municipal legislative body
a. May be delegated to agencies or boards that exercise the legislative
body’s authority (Monell)
2. Action by municipal officials with final decision-making authority
(Pembauer)
a. This decision-making authority may be delegated, but there is
not delegation if authority to make final policy has not been
granted. (Pembaur – where sheriff makes policy under state law,
and sheriff asks prosecutor’s advice; prosecutor’s advice dictating
officer’s illegal actions is a final policy decision imputed onto city)
(about discretion; who has discretion; but usually Propotnik used)
b. Determining official’s ability to make final policy decisions is
determined by state law (Propotnik)
i. Legal question, not factual (Propotnik)
ii. [Brennan says question of fact too – i.e. who the de facto
final decision-maker is; not just who the decision-maker is
under law. Not followed]
iii. [Pembaur dissent (Powell) wants official policy to be more
formal; finds offhand comments on legal advice shouldn’t
be, notes that the Pembaur rule focuses on status of
decisionmaker instead of nature of the decision and process
used.]
c. State Actors cannot be final policy-makers of municipality,
who would incur municipal liability (McMillan v. Monroe –
finding that a county sheriff is a state, not municipal, actor under

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 the state’s constitution – i.e. looking to state law to see legal status
of actor – some statutory interpretation)
i. [Presumably would be a de facto final decision-maker
under Brennan]
ii. [State actor has SI]
3. Inadequate training or supervision (Tuttle)
a. To demonstrate policy of inadequate training, there must be a
showing of deliberate indifference by local government
(Harris)
b. One instance of egregious conduct generally cannot reflect policy
of city [of inadequate training and gross negligence] (Tuttle)
i. Single instance must be exceptionally egregious
(Connick v. Thompson – finding a Brady violation, though
in egregious context, was not egregious failure to train;
court seems to assume prosecutors should just know about
Brady, so not training wasn’t egregious)
1. E.g. failure to train in light of highly foreseeable
consequences
ii. Generally must show a pattern of similar constitutional
violations by untrained employees to meet deliberate
indifference standard (Connick)
4. Existence of custom policymakers knew of but did not stop. (Prapotnik)
a. Can’t be found with single incident.
iii. Cities do NOT have qualified immunity (Owen v. City of Independence)
1. So good faith is not a defense.
2. Only liable for official policies however
3. No strict/vicarious liability for unauthorized actions by agents
iv. Denial of city immunity is not immediately appealable (Swynt v. Chambers)

D. Exhaustion of Remedies – Interplay between § 1983 and Habeas

i. Habeas v. § 1983
1. State exhaustion
a. Habeas – necessary
b. 1983 – not necessary
2. Res judicata
a. Habeas – does not apply
b. 1983 – applies
c. [Notes – if there’s exhaustion, habeas may be better since res
judicata from exhausted state habeas relief may block 1983]
3. Attorneys’ Fees
a. Habeas – no
b. 1983 – yes
ii. Any relief working toward a prisoner’s release – i.e. shortening the sentence
– goes to the “core of habeas corpus” and thus must go through habeas
(Preiser v. Rodriguez)
1. Cannot go through § 1983 if action would necessarily demonstrate the
invalidity of confinement or its duration
2. E.g. Preiser (rejection of good time credits; seeking injunction to restore
good time credits works toward release, must be via habeas)

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iii. Cases that do not go to release allow both 1983 and habeas
1. E.g. Prison Conditions; may bring either. Note habeas’ relief under
successful petition would be “fix condition or prisoner is free”
2. Damages that do not go to the core of habeas
iv. Heck:
1. If suit brought before he is prosecuted, will get Hicks-ed; basically asking
to get prosecuted.
2. If suit is brought during the criminal prosecution, barred by Younger
3. If defendant is convicted, and criminal appeal is pending [i.e. criminal
action is proceeding], D cannot bring a § 1983 claim for damages against
that conviction/proceeding if winning the 1983 claim necessarily implies
defendant is not guilty in the parallel criminal proceeding (Heck)
a. Conviction must first be reversed on appeal or by pardon to
bring the damage claim (Heck) (so this applies to completed or
yet to start criminal proceedings)
i. Policy:
1. Strong judicial policy against contrary decisions
(criminal conviction in state, but potentially finding of
unconstitutional conviction in federal)
2. Damage suits shouldn’t undermine criminal
proceedings
4. If 1983 claim has no bearing on guilt, party may bring it despite
relation to a pending criminal proceeding (Deakins)
a. I.e. if claims are not defenses against prosecution (e.g. excessive
force during arrest – doesn’t go to guilt)
b. Claim could be stayed (Deakins)
5. E.g. Balisok: Proceedings that revoke good time credits preclude a suit for
money damages based on a claim that those proceedings denied due
process, because alleged deceit and bias by the prison hearing officer
would imply the invalidity of the disciplinary action taken against him
a. Thus challenging fairness of procedures, instead of challenging
validity of conviction, still falls under Heck (implied invalidity
of result)
v. Denial of parole; 1983 actions challenging this are not barred under Heck or
Edwards (Wilkinson – seeking injunction of allegedly unconstitutional parole
guideline application)
1. They do not imply the unlawfulness of confinement (Heck) and are not
within the “core of habeas” (does not reduce sentence, Preiser)
vi. Stay of Execution (Nelson), or request for differing execution procedures
(Hill) may be sought under § 1983 (injunction)
1. Goes to method of execution, not whether conviction was valid or whether
death penalty should be foreclosed
2. However, suggests that if something forecloses the death penalty in a
death penalty case, it would be akin to reducing sentence (i.e. heart of
habeas; and must be brought via habeas, not 1983)
3. Unnecessary delay in seeking stay/injunction likely blocks stay/injunction
(e.g. why is this claim coming the day before execution?)
vii. DNA Testing/Discovery:

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 1. In DA v. Osborne concurrence, wrote that seeking discovery of evidence
that has material bearing on conviction is within core of habeas and can’t
be done via 1983, but:
a. In Switzer, success in 1983 suit for DNA testing would not
necessarily imply invalidity of conviction, so totally fine. A Brady
claim would fall within the traditional core of habeas, and outside
1983.

E. For What Wrongs? What Rights Are Enforceable under § 1983?

i. § 1983 Requires a Showing of:
1. 1) Under color of law (Monroe makes this easy)
2. 2) Constitutional deprivation
a. Options:
i. No DP violation (Paul v. Davis)
ii. Pre-deprivation process required
iii. Post-deprivation procedural process required
ii. Must show deprivation of life, liberty or property for DP to come into play:
1. Look to state law to determine if there is a deprival of these (Paul v.
Davis)
2. Must be a “change in legal status” from the state
3. Must show a concrete harm
a. Defamation alone does not amount to deprivation of liberty under
14th Amendment (Paul v. Davis)
b. Stigma is insufficient too (Paul v. Davis)
c. E.g. getting fired because defamation may work
d. [Note comparison between Constantineau and Paul – similar;
suggests that preventing someone from buying alcohol = concrete
harm]
iii. If deprivation; was process provided?
1. State deprivation hearings are sufficient for procedural due process
violations; if state relief exists for violations, § 1983 is unavailable
(Parratt v. Taylor)
a. The Court does NOT want § 1983 to swallow state tort claims (or
other state claims) – (Parratt v. Taylor)
b. Post-deprivation hearings are sufficient if pre-deprivation
hearings are not practical in the situation (Parratt)
i. State cannot anticipate—and give pre-deprivation hearings
for—random acts of employees (Hudson v. Palmer)
ii. E.g. cannot anticipate package getting lost (Parratt); or that
guard would rip pillow intentionally (Hudson)
c. Pre-deprivation hearings are appropriate when it is feasible to
provide them (Zinermon v. Burch) (foreseeable for mental
institution that “voluntary” committal of patients may not be
entirely voluntary when signing consent form; should be more
proceedings before committing patient and potentially depriving
liberty; predictable when such hearings should be given too)
2. Official’s negligence cannot constitute a due process violation (Daniels
v. Williams, overruling Parratt’s negligence standard, officer left
pillowcase on stairs and prisoner tripped)

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 a. Recklessness probably enough
b. Intentional actions are enough (Hudson)
c. Negligence not be enough even when state has a protective role
– i.e. created situation causing plaintiff/prisoner’s injury (Davison
v. Cannon – prison assumes responsibility of protecting prisoners,
while depriving prisoners’ right to protect themselves; Blackmun,
concurring, argues negligence shouldn’t be a defense here)
d. But see Zinermon (though complaint pleaded more than
negligence, facts and ruling suggest negligence may be enough
when it is very predictable/clear when pre-deprivation hearing
should occur, and that it should have occurred)
i. Suggestion is: if state employee’s act is a common
mistake (enough to virtually ensure the mistake will
happen at some point) and will have huge impact on
people, negligence should be sufficient to trigger due
process violations
1. I.e. if it’s a systemic problem, and they should have
known to fix the mistake: look at frequency and
scale of deprivation
iv. Post-deprivation procedures irrelevant to Substantive Due Process Rights (e.g.
free speech)
v. Thiboutot: if you’re dealing with a statute that came after 1983 was enacted, the
correct interpretation is that it wanted to replace the 1983 remedies with the
remedies it gives. Precludes a bunch of 1983 actions.
1. Basically, usually rebuttable presumption that a right is enforceable under
1983, but rebutted if D shows Congress didn’t intend that.
2. Can show that by demonstrating a different statutory scheme (City of
Palos Verdes v. Abrams)

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