Federal Courts Review Notes
Federal Courts — Notes for Review
Introduction. Federal courts is an integration of constitutional law and civil procedure. It has technical aspects, and it has broad theoretical aspects. Some of the law it addresses could be altered by Congress; some of it could not.
Major themes of the course. The course has several major themes. These include: (1) the role of the federal courts in the federal government; (2) the role of the federal courts in the federalist system; and (3) the role of the state courts in the federalist system.
Broad questions relating to these themes. What issues, if any, must Congress allow federal courts to hear and decide? What are the limits on federal courts’ subject-matter jurisdiction? (In other words, what cases is Congress precluded from requiring, or authorizing, federal courts to hear?) To what extent may federal courts make law, instead of simply interpreting law made by someone else? To what extent, if any, should we distinguish federal courts from courts in the tradition of the common law?
What is the relationship between the federal courts and the state courts? What is the relationship between the federal courts and state officials? Specifically, what is the relationship between federal authority and state autonomy? What is the scope of 42 U.S.C. § 1983? (This breaks into two questions: (1) what is the actual scope of § 1983; and (2) what is the appropriate scope of § 1983?)
What is the relationship between state courts and federal courts? What is the relationship between state courts and federal officials? Must state courts be available to vindicate federal rights?
Congress’ power to limit the jurisdiction of the federal courts. We spent the first few classes of the semester talking about Congress’ power to limit the jurisdiction of the federal courts. Your analysis in this area of doctrine could rest on many different sources of authority, including text, precedent, history, policy, or some combination thereof.
Text. What does Article III say? Must Congress create inferior federal courts? What was the “Madisonian Compromise”? Is there an implicit understanding in Article III that federal and state courts are fungible, or are they in some material sense different? Are the “Extending” or the “Arising Under” Clauses mandatory? Is Congress’ power under the “Exceptions Clause” plenary or somehow limited? What does the Supremacy Clause suggest about the ability of state courts to interpret and apply federal law? What does it say about the framers’ perceptions of state courts?
Precedent, history, and policy. To what extent could Congress realistically limit the jurisdiction of the inferior federal courts? To what extent could Congress realistically limit the appellate jurisdiction of the Supreme Court? Would state courts be adequate to take up the slack were federal courts unavailable? Would state courts be adequate to protect federal rights? Is there some sense in which Congress must allow the Supreme Court to perform “essential functions” in the constitutional system? If so, what are those functions? What does footnote four of Carolene Products have to say about all this? The Due Process Clause? The Equal Protection Clause?
The bottom line appears to be that courts will bend over backwards to find that Congress has not precluded review of a constitutional claim. As long as Congress does not preclude such review, courts avoid answering a very difficult question.
In connection with this, we briefly discussed the importance of context. For example, we noted that, in at least two instances in the past, the Supreme Court upheld a statute that limited a litigant’s ability to raise a constitutional argument where that individual had foregone an earlier opportunity to present that argument to an Article III court, where the statute at issue was part of a wartime economic policy. See Lockerty v. Phillips; Yakus v. United States.
The constitutional limits of “arising under” jurisdiction. After talking about Congress’ power to define the jurisdiction of the federal courts, we spent a couple of classes talking about the constitutional limits of “arising under” jurisdiction. The “Arising Under” Clause is the first head of jurisdiction in Article III, § 2, cl. 1. We noted that the constitutional scope of this head of jurisdiction is quite broad.
In particular, we talked about the “federal ingredients” test of Osborn v. Bank of the United States. Under this rule, if a federal question might arise in a case, there is a constitutional basis for the exercise of federal question jurisdiction.
While reading Osborn, we noted the argument that Chief Justice Marshall made regarding “co-extensive powers.” In Osborn, Marshall said that the power of the federal courts to hear cases should extend as far as Congress’ power to enact laws and the executive’s power to enforce them. This is an interesting theory, and it has plenty of intuitive appeal. (It also has plenty of conceptual connection to the “diversity interpretation” of the Eleventh Amendment.)
Although the test of Osborn is very broad, it is nevertheless good law. See, for example, the recent American Red Cross case. By statute, Congress said that the Red Cross is a federal creature, and that any case involving the Red Cross presents a federal question. The Supreme Court said this was OK.
Please also note the Court’s willingness to construe so-called “capacity clauses” to confer statutory subject matter jurisdiction. These clauses were at issue in both Osborn and American Red Cross.
After talking about Osborn, we talked about “protective jurisdiction.” This form of jurisdiction is relatively controversial. The big question regarding such jurisdiction is whether Congress may confer jurisdiction on the federal courts to hear cases in which federal law does not provide the rule of decision, other than diversity cases, for which there is express authority in Article III.
The issue was potentially present in Lincoln Mills, but the majority, per Justice Douglas, avoided it by saying that the statute at issue, § 301(a) of the Labor-Management Relations Act of 1947, authorized the federal courts to create federal common law and apply it. Consequently, the rule of decision was federal, and § 301(a) did not attempt to confer protective jurisdiction.
Justice Frankfurter disagreed with this analysis, and therefore could not avoid the question whether protective jurisdiction is constitutional. He argued that it is not.
The Supreme Court seemed to avoid the issue again in Mesa v. California. In that case, the Court, per Justice O’Connor, held that a federal officer must assert a federal defense to remove a case to federal court from state court under the Federal Officer Removal Act, 28 U.S.C. § 1442(a)(1). The case would then “arise under” the federal defense, not the act. If the Court had not made this holding, it would have had to decide whether protective jurisdiction is constitutional.
Congress’ power to confer non-Article III business on federal courts. We spent a class or so on Congress’ power to compel the federal courts to perform non-Article III business. This was basically the converse of an issue we had recently discussed, namely, how much Article III business Congress may exclude from the federal courts.
In Tidewater, the issue was whether Congress could confer jurisdiction on the federal courts to hear cases based on state law between citizens of the District of Columbia and citizens of states. Two justices decided that the District of Columbia was a state for purposes of Article III diversity jurisdiction, and three justices decided that Congress could confer non-Article III business on federal courts, so long as it respected the basic principles of separation of powers.
Separate majorities of the Court disagreed with each of these propositions. Seven justices did not think the District was a state for purposes of Article III diversity jurisdiction, and six justices did not think Congress could confer non-Article III business on the federal courts, at least not in this context.
Tidewater is a screwy case. We read it for at least three reasons: (1) because it involves the constitutionality of a certain form of federal subject-matter jurisdiction; (2) because it includes an extensive discussion of why federal courts may not perform non-Article III business; and (3) because it provides an example of how to apply a fractured opinion in subsequent cases.
The “bottom lines” of Tidewater are that: (1) Congress may constitutionally vest some kind of jurisdiction (leaving aside what kind) on the federal courts to hear cases based on state law between a citizen of the District of Columbia and a citizen of a state; and (2) Congress probably may not require federal courts to adjudicate non-Article III cases. We may also infer from Tidewater that Congress may confer jurisdiction upon federal courts to hear cases involving citizens of territories, etc., and of states.
Northern Pipeline, etc. In Northern Pipeline (1982), Thomas (1985), and Schor (1986), we explored the extent to which Congress may vest Article-III business in non-Article III courts. Although a plurality of the Court, per Justice Brennan, adopted a fairly formalistic test for this issue in Northern Pipeline, the Court appears to have adopted the functional test of Justice White’s dissent in Northern Pipeline in the subsequent decisions in Thomas and Schor, both of which were written by Justice O’Connor.
Statutory “arising under” jurisdiction. We spent a few classes talking about the scope of statutory arising under jurisdiction, in contrast to the scope of constitutional arising under jurisdiction. In the main, we talked about the scope of jurisdiction conferred by 28 U.S.C. § 1331 and its removal analog, 28 U.S.C. § 1441. For starters, we noted that the scope of jurisdiction under § 1331 is not as big as the scope of jurisdiction under Article III, even though the text of the statute and the text of the Constitution are essentially identical.
We talked about the well-pleaded complaint rule. A federal court may only exercise arising under jurisdiction over a case if a federal issue appears on the face of the plaintiff’s well-pleaded complaint. We noted that this is a judicial interpretation of §§ 1331 and 1441, and that Congress could change this rule if it wanted to.
We then talked about the American Well Works test. Under this test, if federal law supplies the plaintiff’s cause of action, then the case “arises under” the laws of the United States. We noted that the Well Works test is a fairly reliable test of inclusion, but an imperfect test of exclusion. That is, just about anything that passes the Well Works test will fall within the scope of § 1331 (with Shoshone Mining being one possible exception), but cases that do not pass it are not necessarily outside the scope of § 1331. In the main, however, American Well Works is a reliable test.
After talking about Well Works, we talked about the test of Smith v. Kansas City Title & Trust, which helps demonstrate the limits of Well Works. Under the Smith test, statutory “arising under” jurisdiction exists if resolution of the case depends on resolution of a federal issue. In other words, if prevailing on the federal issue is an essential element of plaintiff’s case, then the Smith test would be satisfied. We noted that this test is considered overly broad by many.
In connection with Smith, we noted that, for a federal issue to be an “essential” part of plaintiff’s case, it need not be necessary in the mathematical sense for the plaintiff to prevail. That is, if the plaintiff has two theories upon which he or she might prevail, and one of them works if and only if he or she prevails on the federal issue, the test of Smith would most likely be satisfied.
The most reliable, but least mechanical, test is that of Merrell Dow Pharmaceuticals v. Thompson. Under this test, one asks mostly about the importance of the federal interest at stake. In fact, this test is often referred to as the “substantial federal question” test. In applying this test, one would also want to think about federalism, separation of powers, and congressional intent, as well as other pertinent factors.
A couple of rules of thumb seem to be that actions in tort, where federal law supplies some part of plaintiff’s complaint, and actions in contract, where the contract in question incorporates some aspect of federal law by reference, generally will not present a substantial federal question.
Interaction of the well-pleaded complaint rule and the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02.
In theory, before declaratory judgments there were only actions for coercive relief. In an action for coercive relief, a plaintiff seeks money, or specific performance, etc., from a defendant. The well-pleaded complaint rule fits fairly easily into this, creating few issues.
But the availability of declaratory relief rendered this state of affairs somewhat less certain. This is because, in an action for declaratory relief, the plaintiff, often the defendant in an action for coercive relief, must describe both sides’ arguments. Otherwise, there’s no case or controversy and no need for a declaration. The federal courts could have gone any of three ways with this:
First, they could have treated an action for declaratory relief like any other and held that arising under jurisdiction exists as long as there’s a federal question on the face of the well-pleaded complaint for declaratory relief. This would have jeopardized the well-pleaded complaint rule, however, because any potential defendant with a federal defense could anticipatorily sue the potential plaintiff, and, by describing the case fully for the court, include a federal issue on the face of the complaint. The Court rejected this possibility in Skelly Oil.
Second, the courts could have held that “arising under” jurisdiction exists if and only if the declaratory judgment plaintiff’s underlying well-pleaded complaint for coercive relief (assuming one exists) would include a federal question. But the courts did not do this either. In some patent cases, only the declaratory judgment defendants’ underlying well-pleaded complaints for coercive relief would have included a federal question, yet the federal courts presiding over these cases chose to exercise subject-matter jurisdiction.
Third, the courts could have held that “arising under” jurisdiction exists if either the declaratory judgment plaintiff’s or the declaratory judgment defendant’s underlying well-pleaded complaint for coercive relief (assuming one or both exist) would include a federal question. The Court seemed to adopt this in Franchise Tax Board, but went on to ignore it in that very case.
In Franchise Tax Board, the Franchise Tax Board sued the Construction Laborers’ Vacation Trust in state court for, among other things, declaratory relief under California’s Declaratory Judgment Act. The Trust sought to remove the case to federal court, but the Supreme Court said the federal court lacked jurisdiction.
Had the Trust sued the Franchise Tax Board under § 502(a)(3) of ERISA, a federal statute, a federal issue would have appeared on the face of the Trust’s well-pleaded complaint for coercive relief. But the Franchise Tax Board sued the Trust for declaratory relief. If it is true that federal arising under jurisdiction exists in an action for a declaratory judgment if either the declaratory judgment plaintiff’s or the declaratory judgment defendant’s underlying well-pleaded complaint for coercive relief would include a federal question, then there should have been federal jurisdiction in Franchise Tax Board. That’s because, had the defendant in Franchise Tax Board — the Trust — brought an action for coercive relief under § 502(a)(3) of ERISA, the federal question would have appeared on the face of its complaint. Yet the Court held that federal subject-matter jurisdiction was lacking in Franchise Tax Board.
So what does one take away from Franchise Tax Board? May federal courts exercise arising under jurisdiction in an action for a declaratory judgment, where only the declaratory judgment defendant’s underlying complaint for coercive relief would include a federal question? The answer seems to be “Sometimes, but not always, and Franchise Tax Board is an example of a situation in which federal subject-matter jurisdiction would not lie.” In that case, the Court articulated several factors that informed its decision: (1) whether there were “good reasons” for federal jurisdiction; (2) whether there would be significant prejudice without a federal forum; (3) whether there are alternate means of enforcement; and (4) what Congress intended. The rule of Franchise Tax Board ends up looking a lot like the rule of Merrell Dow. The result of all this is that the availability of declaratory relief does allow some parties, in essence, to evade the well-pleaded complaint rule, specifically parties who have no underlying action for coercive relief that would satisfy the well-pleaded complaint rule and Merrell-Dow, but whose counter-party does.
As we noted in connection with all this, whether a federal issue appears on the face of a “well-pleaded” complaint can turn on highly technical rules regarding the elements of particular causes of action, which can vary greatly. For example, as a historical matter, plaintiffs have not always had to plead the “falsity” of a statement for purposes of a business defamation-type suit. Had they been required to do so, plaintiffs in such cases as American Well Works might have satisfied the well-pleaded complaint rule, even though they may have been suing on a state cause of action.
Complete pre-emption. In the context of this course, “complete pre-emption” refers to a remedy that Congress intends to be so exclusive that any resort to a comparable remedy in state court under state law will be deemed to invoke the federal remedy and therefore provide grounds for removal. Until recently, the general thought was that Congress not only had to intend to displace state law, as a substantive matter, for this doctrine to apply, but also that it had to intend to make the case removable. See Avco (1968); Taylor (1987). But the Supreme Court modified this position in Beneficial National Bank v. Anderson (2003), in which it simply required that Congress intend to create an exclusive federal remedy.
Diversity jurisdiction. We talked very briefly about diversity jurisdiction. We noted that, notwithstanding the broad language of 28 U.S.C. § 1332, federal courts will not exercise jurisdiction over cases involving diverse parties: (1) where the action is in rem and the res is already in the custody of a state court; or (2) where the case is a matter of domestic relations or probate.
In this regard, we read a footnote describing Ankenbrandt v. Richards, where the Court carefully distinguished between a case involving domestic relations, over which a federal court would not exercise diversity jurisdiction, and a tort action indirectly related to such a matter, over which a federal court would exercise diversity jurisdiction.
The power and duty of state courts to hear federal cases. In these units, we noted that, unless Congress provides otherwise, state courts generally have concurrent jurisdiction with federal courts over federal causes of action. (Under the Supremacy Clause, state courts are bound to follow applicable federal law in the cases they hear.)
Moreover, state courts are generally obligated to hear federal causes of action. In this regard, we noted that state courts may invoke a “valid excuse” for not hearing a federal case. For example, a state court whose jurisdiction is limited under state law may cite those limitations to justify not hearing a federal case, if they apply. We read about a few cases in which the Supreme Court allowed a state court to refuse to hear a federal case on the ground of forum non conveniens, or some similar ground, where that ground would also apply to exclude non-federal cases.
But, we noted, state courts may not refuse to hear and decide federal cases simply because they dislike federal law. For example, a state court may not refuse to hear an action brought under 42 U.S.C. § 1983 against local officials simply because such officials would be entitled to immunity under analogous state laws, if that court is otherwise competent to hear such a case. This would amount to “hostility” to federal law and would not constitute a valid excuse. State courts are not permitted to discriminate against federal causes of action.
Exactly what procedural devices a state court must use in presiding over a federal case is not clear. Sometimes the Supreme Court will construe federal law to dictate not only the rule of decision but also procedure to some extent. In several cases involving the Federal Employers’ Liability Act, for example, we saw the Court impose federal procedures on state courts presiding over suits brought under that statute. The touchstone seems to be whether adherence to the state rule of procedure in question will frustrate Congress’ purposes in enacting the statute.
We talked briefly about state courts’ authority to entertain suits against federal officers. Among other things, we learned that state courts may not issue writs of habeas corpus to federal prisoners (or against federal officers). See Tarble’s Case. Nor may state courts issue writs of mandamus against federal officers. See McClung v. Silliman. On the other hand, state courts may entertain actions for damages against federal officers. They may also entertain actions at law for specific relief (actions for replevin) against federal officers. It is unclear whether state courts may entertain actions for injunctions against federal officers. Probably not.
In any case, just about any federal officer sued in state court for conduct within the scope of his or her official duties would remove the case to federal court under the Federal Officer Removal Act, 28 U.S.C. § 1442(a).
State courts may not enjoin federal courts from hearing cases, see Donovan v. Dallas, with the single exception that a state court, proceeding in rem, may enjoin a parallel in rem proceeding in federal court if the res is already in the “custody” of the state court. Federal courts, by contrast, may occasionally enjoin actions in state court. The Anti-Injunction Act, 28 U.S.C. § 2283, has three textual exceptions and at least two non-textual exceptions.
Federal common law. We talked about federal common law for several classes. We noted that, notwithstanding Erie, there is plenty of federal common law.
We discussed the “enclave theory,” which recognizes that there are several “enclaves” of federal common law. These include: (1) the rights and duties of the United States in its duly authorized proprietary relationships; (2) implied private rights of action under federal statutes; (3) enforcement of constitutional rights (direct actions under the Constitution); (4) interstate disputes; (5) international relations; (6) admiralty; and (7) interstate pollution. There are others. See, for example, Boyle v. United Technologies Corp. (involving the military contractor defense). We talked primarily about the first three of these enclaves.
The rights and duties of the United States in its duly authorized proprietary relationships. Where the rights and duties of the U.S. or its agencies are directly affected, federal common law — arguably — governs. That is the first holding of Clearfield Trust. Then, where there is a special need for a uniform federal rule, the courts will adopt such a rule. Where there is no such need, the courts will adopt the state rule as the federal rule. (Congress may change any of this by statute.)
A simpler way of looking at it is this. Where there’s a special need for a uniform rule, the courts will devise and apply a rule of federal common law. Where there isn’t, the courts will apply state law. Same result.
Aberrant or hostile state law will not become federal common law. See Little Lake Misere.
The Supreme Court took a broad view of the need for uniform federal common law in Clearfield Trust. It has a taken a narrower view in such recent cases as Kimball Foods. Look at the factors set forth in Kimball Foods for guidance. You can find the relevant excerpt from this case on page 137 of your text.
Implied private rights of action. Start by thinking about the four-part test of Cort v. Ash: (1) whether the plaintiff is a member of the class the legislation is designed to protect; (2) whether there’s any indication of congressional intent to create (or deny) a private right of action; (3) whether creating such a right would interfere with the operation of the statute; and (4) whether the cause of action is one traditionally relegated to state law. Today, in theory, only the question of intent matters. See, for example, Transamerica. But see Thompson v. Thompson, in which the Court appeared to treat the other three factors as having continuing relevance. In any case, the Court will interpret statutes enacted before Cort v. Ash in accordance with the practice of those days, which was to imply private rights of action almost automatically. Not so for new statutes. In fact, for very new statutes, the Court might refuse to imply any private rights of action at all, given the extent to which it has put Congress on notice.
Bivens actions will lie against federal officers absent “special factors counselling hesitation.” Remember that the courts had been hearing direct actions in equity against federal officers under the Constitution long before Bivens was decided.
A Bivens action is literally an action for damages against federal police on a Fourth Amendment theory. But, broadly speaking, a Bivens action is a direct action against a federal officer under the Constitution.
“Special factors counselling hesitation” might include the fact that a case implicates an area of unique congressional competence, such as the military or the federal civil service. Also important would be the existence of an alternate remedial scheme. The alternative doesn’t have to measure up to what would be available in a Bivens action. The Court has displayed an increasing tendency to find special factors, etc., and not to allow Bivens actions.
Colorado River abstention. We talked briefly about so-called “Colorado River abstention,” which is a catch-all form of abstention that federal courts may invoke in (supposedly) rare instances to avoid exercising jurisdiction over an in personam proceeding where a parallel in personam proceeding is taking place in state court. This exception is (supposedly) exceedingly narrow and is based on a multitude of factors, which in the Colorado River case itself included: (1) the amount of time the federal court had invested in the case; (2) the degree to which state law would dominate the proceeding in federal court; (3) the inconvenience to the parties of having to litigate the case in federal court; and (4) the prejudice, if any, to the party that sought to preserve federal subject-matter jurisdiction over the case (the United States) were the case to proceed solely in state court.
We spent a couple of classes talking about abstention under Pullman. This form of abstention — which really isn’t a form of “abstention” at all — arises when a federal court may not need to reach an issue of federal constitutional law, depending on resolution of an unclear issue of state law. In these circumstances, the court will stay proceedings in federal court while the state issue is resolved in state court. While in state court, the plaintiff needs to advise the state court of the existence of the federal issue, so the state court can apply the state law with the federal issue in mind. If either of the parties does not want the state court to resolve the federal issue, it can avoid this result by not “freely and without reservation” presenting the federal issue to the state court for review, or by explicitly reserving that issue for the federal court. These are the so-called “England procedures.”
We also noted that Pullman “abstention” may be appropriate even where the unclear issue of state law is a provision of the state’s constitution, but I opined that this application may be limited to cases involving idiosyncratic provisions of state constitutions, and not such broad normative provisions as state equal protection and due process clauses. I argued that, were Pullman abstention allowed in such instances, § 1983 would have an exhaustion requirement, which it is not supposed to have.
Note: Pullman paradigmatically applies to actions in equity. See also Quackenbush. But a federal court in a Pullman-like situation where the plaintiff seeks monetary damages might stay proceedings (or move through them slowly) pending resolution of the state issue in state court.
Younger abstention. Younger abstention classically applies to prevent a federal injunction of pending criminal proceedings in state court. There are exceptions to this general rule: (1) where great and immediate irreparable harm may occur; (2) where the prosecution is part of a pattern of harassment, see Dombrowski, (3) where the plaintiff in federal court will not have an adequate opportunity to raise federal constitutional issues in state court; and (4) where the state law at issue is patently and flagrantly wrong in every particular. These exceptions are not necessarily “discrete” in the mathematical sense. In other words, they might well overlap. In fact, exceptions (2), (3), and (4) may simply be examples of exception (1), which, according to this view, would merely describe the other exceptions at an abstract level.
The rule of Younger goes for actions for declaratory relief as well. See Samuels v. Mackell. But a federal court will not abstain from granting a declaratory judgment to a party where no action is pending in state court. See Steffel v. Thompson. (But the case must be ripe.) Under Hicks v. Miranda, abstention is appropriate even where the federal suit comes first, provided the federal court has not acted substantially on the merits of the case. (Denial of a temporary restraining order is not enough to constitute substantial action on the merits. Granting of a preliminary injunction is enough. Logic would seem to indicate that the granting of a temporary restraining order would be enough, at least while it’s in place, because a prosecutor who violated it by initiating a prosecution would be subject to contempt.
Younger has civil applications, if the state interest is important enough. (Whether the state is a party in the litigation in state court may be a factor in this analysis. Another possible factor is whether the state is bringing the action or responding to it. Arguably, the state interest is greater where the state is bringing the action, but this is debatable.) Younger does not apply to all civil litigation, but it applies to much. Younger even has administrative applications. An important question in this regard is whether the federal plaintiff must be able to raise his or her federal constitutional arguments before the administrative agency, or whether being able to raise them before a reviewing court will suffice. Arguably, if one cannot raise one’s federal arguments at the fact-finding stage, one may be left on review with a factual record that is inadequate to support one’s federal constitutional argument (assuming, of course, that facts exist that can support the argument). The administrative proceeding must be “judicial in nature.” In Middlesex County, the Court expressed enhanced willingness to abstain under Younger to an administrative proceeding that was integrated with conventional judicial proceedings.
Please also note, in connection with Younger, the Court’s broad understanding of what constitutes “ability” to present federal constitutional issues in state proceedings. In Moore v. Sims, which arose from a dispute over custody of two children, the Court reasoned that the federal plaintiffs could raise their federal constitutional arguments in state court, not because these arguments were directly implicated in the state proceedings, but because of the state’s liberal rules for permissive counterclaims.
The Anti-Injunction Act. Know this Act. There are three textual exceptions: (1) where expressly authorized; (2) where necessary in aid of the federal court’s jurisdiction; and (3) where necessary to protect or effectuate the federal court’s judgment. Remember that the “authorization” need not be explicit to qualify for the first exception. See Mitchum v. Foster (42 U.S.C. § 1983 is an “express” exception to the Anti-Injunction Act). Also, remember that “where necessary in aid of jurisdiction” is not general authority for federal courts to enjoin parallel in personam proceedings. The third express exception articulates the so-called “relitigation exception” to the Act.
Remember that there are additional, unwritten exceptions to the Act. These include cases in which: (1) the United States is a party to the litigation in federal court, see Leiter Minerals; or (2) an agency of the United States acting pursuant to federal statutory authority is a party to such litigation, see NLRB v. Nash-Finch.
Finally, note that 28 U.S.C. § 1738 and the Act work together in a funny way. If: (1) actions are proceeding simultaneously in federal and state court; (2) someone wins first in federal court; (3) that party pleads res judicata in state court; and (4) the state court rejects the plea; then the federal court must accept the state court’s decision on res judicata as res judicata and cannot enjoin proceedings in state court. Consequently, a litigant who wins first in federal court, and who does not want to risk an adverse ruling by the state court on res judicata, should immediately ask the federal court to enjoin the proceedings in state court as being “necessary to protect or effectuate [the federal court’s] judgment” and not give the state court an opportunity to decide that the “res” is “not judicata.”
State sovereign immunity under the federal Constitution. As a general matter, no one may sue a state or an arm of a state in federal court, or in state court on a federal cause of action, see Alden v. Maine, for damages. The list of plaintiffs who are barred from suing states in federal court, etc., includes: (1) citizens of another state, see the text of the Eleventh Amendment; (2) citizens of the state itself, see Hans v. Louisiana; (3) citizens of other countries, see the text of the amendment; (4) other countries themselves, see Principality of Monaco v. Mississippi; (5) Indian tribes, see Blatchford v. Native Village of Noatak; and (6) members of Indian tribes. (Where a suit is brought in state court on a federal theory, the Eleventh Amendment does not apply of its own accord, but its principles apply via the Tenth Amendment.) The United States may sue a state in federal court, as can another state, provided that other state is suing on its own behalf, and not on behalf of a small group of its citizens. Remember that a state may be sued in its own courts, or in the courts of another state, see Nevada v. Hall, depending on the law of the forum jurisdiction. Finally, a state may be “sued” in the Supreme Court when that Court is exercising its appellate jurisdiction.
The Eleventh Amendment does not protect local government or other subdivisions of a state. See Lincoln County v. Luning. This rule is probably attributable to the idea that municipal corporations were originally indistinguishable, at least as a legal matter, and at least in some ways, from private corporations, and therefore (presumably) did not enjoy sovereign immunity. The line between a “subdivision” and an “arm of a state” is not always clear. In trying to figure this out, one should apply the “Pagan factors”: (1) Would a judgment against the entity will be satisfied with funds from the state’s treasury? (2) Does the state government exert significant control over the entity’s decisions and actions? (3) Does the state executive branch or legislature appoint the entity’s policy-makers? (4) Does state law characterize the entity as an arm of the state? Affirmative answers to these questions will support a conclusion that the entity at issue is an instrumentality of a state.
The Eleventh Amendment will not permit a suit against a state officer where the judgment will run to the state treasury. See Edelman v. Jordan. The Eleventh Amendment will, however, permit an action in equity or for declaratory relief against a state officer in his or her [official?] capacity to cause that officer to conform his or her behavior in the future to federal law. See Ex parte Young. The appropriate capacity in which to sue the officer is no longer clear because of Coeur d’Alene. That case seems to suggest that the plaintiff should name the state officer in his or her individual capacity, but this would seem to necessitate needless substitution of parties when people leave office.
The rule that the Eleventh Amendment does not bar suit against state officers for prospective injunctive relief is true even though complying with such an order might be very expensive. See Milliken v. Bradley.
Aside: Even if one could sue a state in state court on a federal cause of action — in other words, even if Alden v. Maine had not been decided as it was — one still could not sue a state in state court (or any other court) under 42 U.S.C. § 1983 because the Supreme Court has held that a state is not a “person” for purposes of § 1983. This applies to arms of the state as well. See Will v. Michigan Dep’t of State Police. But a municipality is a person for purposes of § 1983. See Monell v. Dep’t of Social Servs.
The denial of a claim of immunity under the Eleventh Amendment is immediately appealable. See PRASA v. Metcalf & Eddy.
One cannot obtain an injunction against state officers based on state law in federal court. See Pennhurst State School and Hospital v. Halderman. The explanation is that the “stripping doctrine” of Ex parte Young is too obviously a fiction to be permitted except where it is necessary to protect federal rights.
Consent and abrogation. A state may expressly consent to suit in federal court. Constructive consent outside the context of a valid exercise of the conditional federal spending power may no longer be possible. At least to some extent, a state may be deemed to waive its sovereign immunity under the federal Constitution by removing a case to federal court. See Lapides v. Board of Regents, 535 U.S. 613 (2002).
In general, Congress may not unilaterally abrogate state sovereign immunity under the original, unamended Constitution. See Seminole Tribe of Florida v. Florida (1996) (overruling Pennsylvania v. Union Gas (1989)). In Central Virginia Community College v. Katz (2006), however, the Court held that states consented to abrogation of their immunity in the proposal and ratification of the original Constitution to the extent Congress exercises its power to “establish uniform Laws on the subject of Bankruptcies throughout the United States,” U.S. Const. art. I, § 8, cl. , and to the extent such abrogation is “necessary to effectuate the in rem jurisdiction of the bankruptcy courts.” Katz. Congress does have a unilateral power of abrogation under the Reconstruction Amendments, however, particularly pursuant to Section 5 of the Fourteenth Amendment. See Fitzpatrick v. Bitzer (regarding Title VII of the Civil Rights Act of 1964, as amended). But Congress must explicitly and by clear language on the face of the statute evince an intent to abrogate immunity under the Eleventh Amendment. See Quern v. Jordan (no such intent shown regarding 42 U.S.C. § 1983). The Supreme Court has recently displayed a tendency to limit Congress’ power under Section 5.
Please note that, to exercise the power recognized in Katz, no additional action on Congress’ part is required, because the states are deemed to have consented to abrogation of their immunity in this context in the proposal and ratification of the Constitution.
We also know from the “second holding” of Seminole that the fiction of Ex parte Young is not available if Congress establishes an elaborate alternative procedure to a direct action in equity against an officer of the state, under a rationale of expressio unius est exclusio alterius. Congress can avoid this result, of course, by stating in the statute that an action in accordance with Ex parte Young is still possible notwithstanding the procedure, etc.
Competing theories. There are two grand, competing theories for interpreting and applying the Eleventh Amendment. One is the so-called “immunity interpretation,” and the other is the so-called “diversity interpretation.”
Those devoted to the immunity interpretation argue that the Eleventh Amendment simply evinces, in one particular context, a broad understanding on the part of those who wrote and ratified the Constitution that states would retain immunity from suit at the hands of private individuals. These individuals explain the exception for actions predicated on the Enforcement Clauses of the Reconstruction Amendments as reflecting a distinct concept underlying these amendments, specifically an idea that the United States, in these contexts, was interposed between the states and their citizens. These individuals also explain Ex parte Young as a necessary evil (more or less), required to cause states to conform to federal law.
At last count, five of the nine justices of the Supreme Court adhered to the immunity interpretation. This explains such recent decisions as Seminole Tribe of Florida v. Florida (Congress may not unilaterally abrogate state sovereign immunity under the federal Constitution when exercising its powers under the Indian Commerce Clause — and by extension the rest of the original Constitution, other than certain aspects of the Bankruptcy Power, see Katz) and Alden v. Maine (Congress may not make states suable in state court on a federal cause of action when exercising its powers under the Commerce Clause — and by extension the rest of the original Constitution).
Those devoted to the diversity interpretation argue that the Eleventh Amendment was intended simply to preserve the decision of the relevant sovereign regarding immunity, whatever that decision might be. According to this view, the Eleventh Amendment repudiated Chisholm v. Georgia on the ground that the relevant sovereign in that case — the State of Georgia — had chosen to retain its immunity from suit in assumpsit. By similar reasoning, however, those who adhere to this interpretation would recognize in Congress a unilateral power to abrogate the immunity of the states when Congress enacts legislation in its sovereign capacity. According to this view, the Court’s decisions in Seminole Tribe and Alden v. Maine were incorrect.
42 U.S.C. § 1983. This is the “all-purpose federal civil rights statute.” Exhaustion of remedies available from the state is not generally necessary to sue under this statute. See Monroe v. Pape. Further, it is generally immaterial whether the actions complained of were contrary to or in furtherance of positive state law. Again, see Monroe.
Officials who are sued for damages in their individual capacities under this statute may qualify for immunity. Judges and prosecutors are absolutely immune from liability under this statute in actions for damages to the extent they perform judicial or quasi-judicial functions, as are other officials when they perform such functions. Keep in mind, however, that it isn’t always easy to classify the function prosecutors are performing. Legislators — at both the state and local level — are absolutely immune from liability for damages to the extent they discharge legitimate legislative functions. Any official not discharging a legislative or judicial function, etc., will be eligible for qualified immunity. This immunity protects officials performing discretionary functions from civil liability for damages to the extent their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Cf. Harlow v. Fitzgerald (involving a federal officer sued on a Bivens theory). A non-official legitimately sued under § 1983 enjoys no immunity whatsoever.
Please keep in mind that the standard under Harlow is purely objective, in the sense that it depends entirely on the clarity (or lack thereof) of the asserted federal right at the time the defendant acted. Please also keep in mind that prima facie cases to establish violations of certain federal rights — such as the right not to be discriminated against in violation of the Equal Protection Clause, or the right not to be fired in retaliation for the exercise of a right protected by the First Amendment — include a requirement that the plaintiff establish a particular state of mind on the part of the defendant. Where this is the case, a plaintiff will be permitted to take evidence in this regard. A plaintiff will not, however, be permitted to take evidence regarding the defendant’s subjective state of mind solely with regard to a defense of qualified immunity under Harlow and its progeny, because such evidence would be irrelevant to that defense. See Crawford-El v. Britton (dictum).
We also discussed the policy underlying official immunity, as well as the policy against it. Holding public officials immune from liability arguably preserves their ability to act boldly and decisively in the public interest. It also protects them from the anxiety, distraction, and expense of having to defend themselves against suit. Indeed, concern about the rigors of discovery at least in part drove the Court to adopt the objective test of Harlow, as clarified in dictum in Crawford-El. On the other hand, holding public officials immune from liability arguably removes a deterrent against unlawful conduct and could leave a deserving plaintiff without compensation.
A denial of a claim of official immunity (absolute or qualified) can be appealed immediately in the federal courts. Cf. Mitchell v. Forsyth. This is in part attributable to the thinking that protection from the demands of discovery is part of what official immunity is intended to provide. Whether it can be appealed immediately in the state courts is up to the states. See Johnson v. Fankell. Such an immediate appeal is not required under § 1983. Remember that this form of immediate appeal is available only where the dispute relates to the clarity of the law, and not where the dispute relates to unresolved facts. For example, an interlocutory appeal would be appropriate if a district judge ruled that a police officer should have known that a particular search violated the Fourth Amendment, but such an appeal would not be appropriate if what happened during the search remained in dispute.
No one may sue a state or local legislator for prospective injunctive (or presumably declaratory) relief. It is also difficult to sue a state judge for injunctive relief. See the Federal Courts Improvement Act of 1996, which amended § 1983. One may only do this if one cannot obtain declaratory relief, or if declaratory relief has proved ineffective.
Municipalities can be sued under § 1983 for their policies and customs, but not on a strict theory of respondeat superior. See Monell v. Department of Social Services. Municipalities enjoy no form of qualified immunity, however. See Owen v. City of Independence. To ascertain whether an action is based on policy or custom, one should ask who the “final policy-maker” for the municipality for the relevant issue of policy is under applicable state law. See Praprotnik. What state law provides is a matter for the bench, not the jury. A pattern of delegation to someone else can constitute “custom” for purposes of § 1983. Failure to train, etc., can constitute a policy or custom if it amounts to “deliberate indifference to the rights of persons with whom the police come into contact.” See City of Canton v. Harris. This is a fairly tough standard to meet.
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