Federal Jurisdiction OutlineFall, 2005Professor George Cochran

28 USC § 2201 ~ Creation of a Remedy Gives federal court right to grant declaratory relief (cause of action only; must have

separate jurisdictional statute)

42 USC § 1981 ~ Equal Rights Under the Law Cause of action statute for disparate racial treatment Must be used in line with a separate jurisdictional statute Equal rights to make and enforce K’s AND full and equal benefits of all laws

THE “JUSTICIABILITY” DOCTRINES The justiciability doctrines determine which matters federal courts can hear and decide

and which must be dismissed. Specifically, justiciability includes the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine.

Some of the justiciability doctrines are a result of the Supreme Court’s interpretation of Article III of the Constitution; however, the Supreme Court has said that other justiciability doctrines are derived not from the Constitution, but instead from prudent judicial administration. Therefore, constitutional v. prudential requirements. This distinction is important because Congress, by statute, may override prudential, but not constitutional, restrictions.

Note: Some justiciability doctrines, such as standing, have both constitutional and prudential components. As for others, the Supreme Court has not specified whether it views the limitation as constitutional or prudential.

Note: Declaratory judgments are not impermissible advisory opinions so long as they meet the requirements for judicial review.

MOOTNESS

I. Voluntary Cessation A) New Bedford case – When there’s voluntary cessation of conduct declared to be

illegal, it must be absolutely clear in the record that the conduct is not set to reoccur.

B) Dieter v. Milwaukee (i.e. illegal statute but “we’ve never enforced it” argument) – You can’t moot the case unless it’s absolutely clear that the statute won’t be enforced

C) Buchanan v. West Virginia – Amendment of a statute by the state legislature IS irrefutable proof that the allegedly illegal statute will not be enforced.

1. NOTE – No attorneys’ fees if voluntary cessation causes case to be mootD) Lyons v. City of Los Angeles – If you can insert a damages claim in addition to

seeking injunctive relief, you can stop a case from being mooted. II. Avoiding it by Certifying a Class

A) Rule 23(a) Pre-Requisites to a Class Action B) Rule 23(b)(3) Actions – Common questions of law and factC) Sosna v. Iowa – No mootness if you can get a class certified

D) US Parole Commission v. Garrity – The ability to avoid mootness through class actions is retroactive, so if a question of class certification is reversed and granted on appeal, the case can go on and is not moot.

III. Capable of Repetition but Evading ReviewA) Refers to something that could happen again to YOUR plaintiffB) Super Tire Engineering – just because the strike ended did not moot the case

because the same workers can always go on strike again (plaintiff here was the company/employer)

C) Election Cases – Caruso v. Yam Hill County – Normal standards for mootness are not applicable in election cases because the same issues won’t be voted on again, for the same candidates!

D) Limits (i.e. no capable of repetition but evading of review) – 1. Lyons & Weinstein – In criminal-based cases, you can’t assume your

plaintiff would commit the same crime and be treated in the same way!STANDING

I. “IN ESSENCE THE QUESTION STANDING IS WHETHER THE LITIGANT IS ENTITLE TO HAVE THE COURT DECIDE THE MERITS OF THE DISPUTE OR PARTICULAR ISSUES”

II. General Constitutional Requirements for StandingA) Lujan – To satisfy the “case or controversy” requirement of Article III, a plaintiff

must demonstrate that he has suffered:1. Injury in Fact – That he/ she has suffered or threatened imminently to

suffer an injury. An invasion of a legally-protected interest which is (1) concrete and particularized; and (2) actual or imminent, not hypothetical or conjectural (i.e. prohibition against advisory opinions). “Particularized” means the injury affects the plaintiff in a personal and individual way.

a. A mere interest in a problem is not sufficient for standing (Sierra Club v. Morton).

b. Aesthetic and environmental injuries are sufficient for standing so long as the Π claims to suffer the harm personally (US v. SCRAP)

c. Π seeking injunctive or declaratory relief must allege a substantial likelihood that he/she will be subject to the same harm in the future (City of LA v. Lyons, chokeholds).

d. Descriptions of trips to the endangered areas and hopes to return “someday” proves nothing without indication of concrete plans

e. Π’s allegation that he faced an increased risk of contracting a food-born illness (Baur v. Veneman)

2. Causation – The injury must be fairly traceable to the defendant’s actions/ conduct. That is, the Π must allege that the defendant’s conduct caused the harm. The injury cannot result from the independent actions of some third party not before the court (Allen v. Wright)

3. Redressability – It must be likely that the injury will be directly redressed by a favorable decision. That is, the Π must allege that a favorable court decision is likely to redress the injury (Allen v. Wright)

1. Key cases involving Causation and Redressabilitya. The cases suggest you need both--they are distinct

hurdles, both of which must be met for a federal court to hear a case.

b. Simon v. Eastern Kentucky Welfare Rights Org. - To show causation, the complaint needs to suggest a substantial likelihood that victory in the suit would result in the Π getting what they want.

c. Duke Power- Π’s challenged as unconstitutional the Price-Anderson Act, which limited the liability of utility companies in the event of a nuclear reactor accident. The SC said the Π’s had standing: Injury--The construction of a nuclear reactor in the Π area subjected them to many injuries (i.e. exposure to radiation, thermal pollution, fear of a nuclear accident); Causation--“But for” the Price-Anderson Act, the reactor would not have been built and the Π’s would not have suffered these harms.

d. Allen v. Wright - Claim 1: Π’s and their children were stigmatized by unlawful government direct financial aid to discriminatory schools; the Court said there was no standing b/c the injury was too abstract; it would extend nationwide to all members of a racial group, no just the ones being denied equal treatment. Claim 2: Children’s chances to receive an integrated education were diminished by the continued tax breaks for discriminatory schools; the Court said no standing. Although cognizable injury, not fairly traceable to the IRS conduct. From the perspective of the IRS, the injury to repondents was highly indirect and results from the independent action of some third party not before the court.

III. General Prudential Requirements for StandingA) Remember: Unlike constitutional requirements, Congress may override prudential

limits by statute.B) A party generally may assert only his or her own rights and cannot raise the

claims of third parties not before the court. C) A plaintiff may not sue as a taxpayer who shares a grievance in commone with all

other taxpayers. D) A party must raise a claim within the zone of interests protected by the statue in

question. IV. Jus Turtii Standing - aka Third Party Standing - Plaintiff has an injury, BUT he

or she is arguing the rights of people/parties who are not present in Court. A Π can assert only injuries that he or she has suffered; a Π cannot present the claims of third parties who are not a part of the lawsuit.A) 3 Major Exceptions: (or 3 part test??) : In the following situations the SC has

ruled that a person who has suffered an injury has standing to raise the interests of third parties not before the court:

1. Where the third part is likely to be unable to sue2. Close relationship between Π and third party 3. The overbreadth doctrine

4. Client must actually be injured5. Close relationship between plaintiff and absent parties6. Some hindrance or impediment prevents the outside or absent parties

from being in court B) Example – Griswold v. Connecticut – Griswold was the DOCTOR, arguing the

rights of married people to contraceptives. C) Kowalski – Attorney/Client relationship doesn’t qualify as “close” under the 3-

Part test because it’s just sort of “quasi-contractual”V. Organizational Standing

A) Hunt v. Washington Apple Commission – 3 Part Test:1. A member of the organization has an injury in his own right 2. Suit is germane to the purpose of the organization3. It’s the type of case that doesn’t require individual participation (i.e.

they’re not seeking money damages)B) CEIBA v. Ford Motor Co. – General allegation that “all members are damaged”

is insufficient and will get your case dismissed.C) Flick & Associates v. Phoenix – The organization must be a REAL

organization/association . . . NOT just a corporation trying to masquerade as an organization.

1. ALSO – Under the standards for 3rd Party Standing, embarrassment is NOT enough of an impediment to stay out of court

VI. Generalized Injury – No standingA) Ex Parte Levith – “injury to society as a whole” is not enough! NO

GENERALIZED GRIEVANCES!B) Schlesinger – POTENTIAL injury is not enough! Standing to sue requires

concrete injury.C) City of Jacksonville – “Injury in Fact” is the denial of equal treatment resulting

from the imposition of some barrier, not just the inability to obtain the benefit.D) BUT NOTE – Duke Power – No subject matter nexus is absolutely required

between rights asserted and injury alleged VII. Taxpayer Standing

A) Frothingham – No standing where the only injury alleged is your share of an increased tax burden resulting from an allegedly unlawful expenditure of federal funds

B) Flast v. Cohen – Limited to its facts; May have taxpayer standing if there’s a NEXUS between the claim presented and status as taxpayers. 2-Part Test:

1. Nexus between plaintiff and statute2. Statute must exceed specific constitutional limitations on the federal

taxing/spending power. (Here, the specific limitation alleged was the Establishment Clause).

C) Valley Forge – No taxpayer standing where the source of the Congressional Action is NOT the taxing and spending clause (i.e. here it was the property clause).

D) Planned Parenthood v. Rose – a “choose life” license plate case; taxpayer standing may be permitted where alleging viewpoint discrimination in a limited public forum

E) Municipal Taxpayers1. Duremis v. Board of Education – municipal taxpayers are different

because it’s easier to trace how tax money is actually being spent at the city level (rather than the state level). SO there is potential for the standing requirements to be met where you can trace an expenditure to the challenged activity.

F) State Taxpayers1. Asarco, Inc. – State taxpayers are more like federal taxpayers; No

standing except in a case like Flast.2. States Suing “Parens Patria”

a. Massachusetts v. Mellon – Absent actual injury to a quasi-governmental entity, states cannot sue the federal government on behalf of their taxpaying citizens.

b. Snap & Son v. Puerto Rico – BUT it IS ok for a state to sue, parens patria, a private corporation or business (rather than the fed. gov’t)

VIII. Legislative StandingA) Raines v. Byrd – Senators/Congressmen don’t have standing to sue just because

they lost in the political process; must show MORE than just some lost votes.B) Colon v. Miller – If there is proof that a lost vote actually counts or makes a

difference, it MAY be enough injury to get into state court.IX. Extraneous Issues/Wrapping Up Standing

A) Leflore v. Whitman – Likelihood that plaintiff himself will be exposed to illegal emissions is sufficient harm/injury for standing.

B) Standing to Sue Federal Bureaucracies / Government Agencies – Additional Requirement

1. Data Processing v. Camp – Must have (1) actual injury and (2) must show that you’re protected or regulated by the statute in question

C) Policy Concerns – Just understand that policy considerations often play a role in standing determinations. If the court just really wants to get to the merits of a particular type of case because of strong public policy implications attached to the issues, they’ll do it! ILLUSTRATIONS:

1. US v. Scrap; Duke Power; City of Jacksonville ; Laidlaw2. In such cases, it doesn’t matter that the injury alleged may be merely

speculative!D) Okplobi v. Foster – When seeking to have a statute declared unconstitutional, you

MUST name a governmental defendant. If only private citizens are in charge of enforcing a statute, there is no “government defendant” to name and thus no case or controversy under Article III.

E) Nike v. Kaske – If you start out in state court and have standing under state law, once you get up to the US Supreme Court, you’re under FEDERAL law and will have to show actual rather than generalized injury.

F) Procedural Injury – Mere bitching about federal agencies not following correct procedures is only enough for generalized injury, which is insufficient for standing. (Lujan).

G) Redefining Injury – Congress can redefine “injury” under Article III and “intellectual outrage” is sufficient injury for standing. (Trafficante).

X. RedressabilityA) Simon v. Kentucky Welfare Rights – the relief sought must more than

speculatively redress the harm alleged.B) Generally understand that you MUST PLEAD CASES WITH

PARTICULARITY; if you’re not careful, all your work is going to go down the rat-hole!

FEDERAL COMMON LAW – generally, after standing is determined, the big questions to decide are: (1) Who can I sue? (2) What law to apply? and (3) How do I win?

I. “Protective Jurisdiction” – the latent power of federal courts to assert jurisdiction when there is a high/unique federal interest (Osbourne)A) In re Nagle – As a matter of policy, states shouldn’t be able to bring criminal

trials against federal officials who were carrying out their duties in a reasonable manner.

1. SIDE NOTE – 28 U.S.C. § 1442 – If you sue a federal officer in state court, they can remove to federal court.

B) Masa v. California – The Nagle protective jurisdiction is N/A where the federal agent was UNREASONABLE in carrying out his duties.

C) U.S. v. Little Lake Misere Co. – high federal interest in exchange of federal property under federal statutes, so federal court has protective jurisdiction.

1. ASK – Is there a need for federal uniformity???D) Clearfield Trust – Federal law will apply where there is high federal interest and

need for federal uniformity in a particular area.E) Parnell – If the US is not a party, the high federal interest is not there and state

law will be applied.F) Boyle – Court referred to the high federal interest & need for uniformity when

dealing with government contractors (hence – “government contractors’ defense”); Cochran says this was most likely just a policy decision as to whether or not we should be able to sue government contractors using state law.

II. Civil Suits Against Federal OfficersA) Distinguish but compare Nagle, which dealt with a criminal suit against a federal

officer as providing a basis for protective federal jurisdiction.B) Lyons, Matteo, & Westfall – ALL hold that there is total immunity against state

civil actions arising from the actions of federal officials who are reasonably carrying out their duties.

C) Westfall 2 Part test:1. Is the challenged conduct within the outer perimeter of the officials’

duties? AND

2. Is it discretionary in nature? D) WESTFALL ACT (totally undercut Westfall itself)

1. Scope Certificate – for government employees sued for something done during the course of employment; certificate issued by US Attorney certifying that you were acting within the scope of your duties as an employee

2. Effect of Scope Certificate – if you were in state court, once the certificate is filed, you’re case is automatically removed and instead of a suit against one employee, it’s now an FTCA suit against the US.

III. Federal Torts Claims Act SuitsA) General Rules/Things to Know:

1. District Courts have exclusive jurisdiction; this is a waiver of sovereign immunity

2. 28 U.S.C. § 2680 – Exceptions:a. Discretionary Functions (§2680(a))

- Dalehite – negligence at a higher level will get you into the “discretionary” exception

- Berkowitz – failure to follow a mandatory agency regulation or provision is NOT a discretionary function, so no exception; suit permitted.

- US v. Gobert – if there are elements of CHOICE, grounded in social, economic, or political goals, the discretionary exception applies.

- Shark v. US – if there are two competing, mandatory regulations, there IS discretion in choosing which to follow and the exception applies.

b. Claims arising out of combatant activities of the military or naval forces during times of war (§2680(j))

- FARRIS DOCTRINE – expands 2680(j) entirely; US has immunity for injuries sustained by people in the military that occur, “incident to service.”

- Lachum v. US – 4 Part Test for “Incident to Service”1) Location 2) Duty Status3) Activities at Death4) Major Activities

- Gonzales – if you’re subject to orders at the time of injury, Farris will preclude suit

- Stencil – Farris also precludes you from IMPLEADING the US as a defendant

- Johnson – Farris doctrine applies regardless of who causes the injury (i.e. it’s irrelevant that they’re an employee of a different federal agency outside the military)

c. §2680(h) – Extends liability under the FTCA for assault/battery/etc. committed by any investigating or law enforcement officer

IMPLIED RIGHTS OF ACTION TO ENFORCE FEDERAL STATUTESI. Main Precedent

A) Cort v. Ash – 4 part test for implying a cause of action (note – this case has been ripped apart by subsequent opinions)

1. Is the plaintiff part of the class the statute’s intended to benefit?2. Any indication of legislative intent (explicit or implicit) to create or deny

a remedy?3. Is it consistent with the underlying purposes of the legislative scheme to

imply such a remedy?4. Is the cause of action one traditionally relegated to state law (i.e. in an

area traditionally of state concern?) B) J.I. Case – Court implied a cause of action to enforce anti-fraud provisions of the

Securities Act because it would EFFECTUATE THE PURPOSES OF THE ACT1. NOTE – Supreme Court here basically did what Congress wouldn’t do

by making a policy decision on who could sue.C) Touche Ross – THE MAIN “LAW” TODAY – Says the 4-part of Cort v. Ash is

stupid and the only important question is WHAT IS THE LEGISLATIVE INTENT???

D) Alexander v. Sandoval – BIG CASE!1. To imply a cause of action under a federal statute, there must be

RIGHTS-CREATING LANGUAGE2. Federal regulations cannot conjure up an implied cause of action not

intended by Congress.3. SO – You need (1) Legislative Intent; and (2) Rights-Creating-

Language to imply a cause of action from a regular federal statute.4. Boswell v. Sky West Airlines – where a statute provides a specific

enforcement scheme and cause of action, that evidences legislative intent for THAT type of relief and consequently an intent to BAR a private cause of action for damages.

II. Title IX Line of CasesA) Cannon ~ There is an implied cause of action in Title IX because that statute was

modeled after Title VI, under which there is a clear private right of action for injunction AND damages

B) Gebser – The test for implying a cause of action under Title IX where there is Teacher/Student Harassment

1. Only if the school administrators have some type of notice of the gender discrimination and fail to respond in good faith can the discrimination be interpreted as a policy of the school district.

C) Davis – Implying a cause of action under Title IX where there is Student/Student Harassment

1. Test is deliberate indifference to the action and knowledge of the conduct and context by someone in the school AND conduct must be so severe, pervasive, and objectively offensive as to deny someone access to education

III. § 1983 – You do not have to imply a cause of action because the statute explicitly provides one.

A) Maine v. Thiboudot – § 1983 provides a private cause of action against state officials who violate a federal statute, regardless of whether THAT statute contemplated private enforcement.

B) Pennhurst – Rehnquist opinion; said the underlying statute must have unambiguous rights-creating language that is more mandatory than horatory to use § 1983 / violation of underlying statute.

C) Middlexex County – The presence of a comprehensive remedial scheme in the underlying statute overrides any “rights-creating-language” and shows Congressional intent to deny a §1983 cause of action thereon.

D) Gonzaga University v. Doe – There’s becoming a MERGER B/T THE LINES OF CASES:

1. The tests for implying a cause of action for a straight § 1331 suit and whether or not you have a cause of action under § 1983 are IDENTICAL! You have to show Congressional Intent to create such a right in both cases.

IV. Presence of Comprehensive Remedial SchemesA) Middlesex County – (see above) B) Rancho Palos Verdes – Scalia said that where the statute provides one means of

private enforcement as “another option for seeking relief,” there is a REBUTTABLE PRESUMPTION that Congress intended there to be no private cause of action for violating that statute.

C) Burden of Proof – UNDERSTAND - § 1983 gives plaintiffs a cause of action. The defendant bears the burden of proof that the statute has no rights-creating-language or legislative intent for private enforcement.

1. BUT - Contrast Straight § 1331 suits – THEN the burden is on the plaintiff to prove there’s no legislative intent to preclude suit (and show rights-creating-language and all that)

D) What is “Comprehensive?” – Starts out with Sea Clammers . . . ends up at RPV. Now, a single provision can be equated with a “comprehensive scheme” and give rise to a presumption of no private right of action.

BIVENS ACTIONS TO ENFORCE CONSTITUTIONAL RIGHTS I. Scope of this Area – We’re dealing purely with FEDERAL OFFICIALS violating

CONSTITUTIONAL (not statutory) rights!II. Main Precedent

A) Bivens – allows federal suit for violation of rights secured by the Federal Constitution.

1. 2 times you cannot sue under this area: a. The statutory scheme involves “special factors counseling hesitation.”b. There’s an equally-effective remedy available.

2. The Key Here – “For people in Bivens’ shoes, it’s damages or nothing.”B) Chilicky – Congressionally-created remedial schemes/alternative remedies are a

special factor counseling hesitation that precludes a Bivens cause of action.1. RECALL – Bivens actions only lie where there is no:

a. explicit statutory remedy against the relief sought b. special factors counseling hesitation

2. Bush v. Lucas – more re: comprehensive remedial schemes; courts shouldn’t step in and interfere with how Congress has chosen to work out problems.

3. Davis v. Passman – Title VII’s congressional employer exemption is NOT a comprehensive scheme or special factor reflecting an explicit congressional declaration that congressional employees should not recover SO – Bivens action allowed for violation of 5th Amendment.

C) Carlson v. Green – When there is a remedy under the FTCA, you can still bring a Bivens action under the Constitution. FTCA permits recovery from the government and Bivens permits recovery from individuals.

1. NOTE – to defeat a Bivens action, the defendants must show that the alternative remedy provided by Congress was an explicit substitute for recovery under the Constitution AND is equally-effective!

D) FDIC v. Meyer – No Bivens actions against federal AGENCIES.E) Malesko – No Bivens actions against private corporations operating under color

of state law.1. SO – Bivens actions are only available against private/individual federal

officers, NOT government or private entities. F) Negligence cannot give rise to a Bivens action (or a § 1983 claim) because it

cannot create a deprivation of rights!III. Statute of Limitations – Use the laws of the state unless that would bar a remedy;

choose the law that BEST EFFECTUATES THE VALIDATION OF CONSTITUTIONAL RIGHTSA) Note – in FTCA cases the SOL is 2 years.

§ 1983 ACTIONSI. 42 USC § 1983 – creates a private cause of action against any PERSON who, acting

UNDER COLOR OF STATE LAW, abridges the rights secured by the Constitution and laws of the United States.

II. 3 Primary Purposes of § 1983A) Override State LawB) Provide a remedy where state law is inadequateC) Provide relief where state law is adequate but improperly enforced

III. Exhaustion Doctrine – There is no exhaustion of remedies requirement to bring an action under § 1983A) Effect of this – increased ability to foreign shop

IV. “Color of State Law,” defined – A) Monroe v. Pape – misuse of power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of State law.

1. I.E. – all actions taken in an officer’s official capacity, whether authorized by or in violation of state law

B) Marsh v. Alabama – “Under color of state law” includes private area actions that provide a PUBLIC FUNCTION.

C) Jackson v. Metropolitan-Edison – More – Re: Public Function Doctrine –

1. When a private company is involved, look for extensive government regulations and a NEXUS between the regulations and the injury or cause of action; look for a nexus between conduct and official duties

2. THE KEY – “Actions within the exclusive prerogative of the State”D) Flag v. Brooks – Mere authorization of private actions by State law is insufficient

for Public Function/actions under color of state law. It would be different if the conduct was mandated by the State.

E) Kone – mere receipt of public funds is not sufficient to meet the state action requirement of § 1983.

F) Addickus – When a private actor works in COOPERATION WITH THE STATE, § 1983 may be used on the basis of a JOINT CONSPIRACY (which qualifies as “state action”).

1. Luger – A court action, initiated by a private party, where the end result is attachment (of property) by the sheriff, is sufficient joint activity/cooperation for state action under § 1983.

2. BASICALLY – if your complaint alleges this type of “conspiracy,” it’s state action.

G) Public Defenders – even though they’re paid by the state, their allegiance is to the client, which is more like a private attorney, so no state action and no §1983 against them (Polk County)

H) Martinez – Where officials engage in isolated activity, unrelated to their official duties, there is NO state action for purposes of § 1983 AS LONG AS THE HARM RESULTS FROM NEGLIGENCE

I) Focus on the Family – Even in the case of a private company being sued, if the government has final authority over the decision at issue (OR a “Direct Nexus” to the decision), it’s properly under § 1983.

J) Bail Bondsmen – No state action & no § 1983 for their actions b/c they operate under the authority granted by K (Green v. Aborg Bail Bonds)

K) DeShaney – Purpose of § 1983 and the 14th Amendment is to protect people from the STATE, not from eachother. There is no general duty to save.

1. RULE – injury by third persons does not give rise to § 1983 liability, with 2 Exceptions:

a. Special relationship b/t the State and the person injured (i.e. someone in custody or under arrest; no special relationship between schools and students) – OR –

b. State-Created-Danger Exception - - Texas A&M case; Knight v. Teft - ASK – BUT FOR the action or non-action of the state entity, is

there heightened danger? - Negligence in creating the danger is not enough for § 1983

(McClindon)V. Suing Private Individuals under § 1983

A) Wyatt v. Cole – private persons who meet the § 1983 state action requirement (or the § 1331 Bivens requirement) do NOT have any qualified immunities.

2. NOTE – This type of situation will often arise in the context of individuals doing something that’s “historically the prerogative of the

State” OR where there’s joint action/cooperation with a government official or body (i.e. a conspiracy claim).

OFFICIAL IMMUNITIESI. Absolute Immunity ~ 2 Part Test

A) Total immunity for the person at common law? B) Good policy reasons to keep the immunity in place?

II. Categories of Certain Total ImmunityA) Legislative Immunity – can’t sue a legislator for actions arising from legislative

activity (Penny v. Brenhove)1. Bogan v. Scott-Harris – Legislative immunity goes all the way down to

city/local councils2. Consumers Union – Legislative immunity carries over to suits for

injunctive relief as well as damages! This is the only category of immunity that so extends.

B) Judicial Immunity – All actions taken by a judge within his or her judicial capacity are immune from damages suits (unless actions are taken without jurisdiction) (Stump v. Sparkman)

1. Butts v. Economo- Someone acting as the “functional equivalent” of a judge is protected.

2. Parole Boards – are a functional equivalent and thus totally immune (Dawson v. Newman)

3. Prison Disciplinary Boards – are NOT a functional equivalent of a judge (Slevinger)

C) Derivative Immunity – When a police officer obtains a warrant from a judge that turns out to have been improperly granted, the deputy has derivative immunity b/c he was just carrying out the actions authorized by the judge.

1. Briggs – The TEST is – Would a reasonably well-trained officer have known the facts didn’t establish probable cause?

D) Presidents – Presidents are immune from suits for damages from actions taken during term (Nixon v. Fitzgerald)

1. Clinton v. Jones – Presidents CAN be sued for acts occurring before they were in office

E) Prosecutorial Immunity – Prosecutors have absolute immunity from damages suits for any actions taken within the judicial phase of the criminal process (Imbler)

III. Qualified/Good Faith Immunity A) Harlow v. Fitzgerald – if you bring a damages suit against a public/government

official, the TEST for GOOD FAITH/QUALIFIED IMMUNITY is whether the act violated clearly established constitutional or statutory rights

1. NOTE – proof of intent is irrelevant in this determination! Harlow did away with that.

2. Crawford-El – applicable when you’re litigating a case where malicious intent is a pleading requirement for the cause of action and you’ve got a qualified immunity defense to deal with.

B) “Clearly Established Constitutional Rights” –

1. 4 th Amendment Context – good faith immunity is only overcome when a reasonable officer, under similar circumstances, wouldn’t have believed his behavior was lawful (Anderson v. Creighton)

a. Proof/Evidence – you don’t NEED a case with exactly the same facts, you just need clearly excessive force, etc., under the circumstances (Trammer v. City of Edna). Another example of this is U.S. v. Linear (blatantly obvious violation of bodily integrity didn’t need supporting case law)

b. BUT – where there ARE similar cases, that CAN show a violation of a clearly-established right, IF they’re right on point (Brisseau v. Hoggin)

2. 14 th Amendment Context – For substantive due process claims, the TEST to get past qualified immunity is the Rochin “shocks the conscience of the court” standard (Sacramento v. Lewis)

a. NOTE – if there’s no specific constitutional provision to hang your hat on but it seems like outrageous conduct by the Cops, this is the test.

b. Mere negligence is insufficient (Cochran v. Deer Park)3. 8 th Amendment Context – note that you must have a plaintiff in prison

a. Hudson v. McMillian – TEST – court looks to the severity of the injury and whether it was inflicted with DELIBERATE INDIFFERENCE, thus constituting a wanton infliction of unnecessary punisment

4. 1 st Amendment Context – a. Bunting v. Melon – qualified immunity will attach if it’s only

predicted that specific acts violate the constitutional right (note also that this case notes that another way to get around a mootness problem is to include a damages claim).

11 th AMENDMENT & SOVEREIGN IMMUNITY I. General Overall Principles

A) The 11th Amendment Defense is Jurisdictional in nature.B) It’s HOT! Part of a drive by the Supreme Court to build States’ Rights into the

case law.C) Drafted for one reason – overturn Chisolm v. Georgia.

II. The Immunity Interpretation – Says it is inherent in the nature of sovereignty that states cannot be sued without their consent (Hans v. Louisiana)

III. Main Precedent A) Ex Parte Young –

1. allows you to sue a government official in his official capacity for prospective injunctive relief from an allegedly unconstitutional State law

2. Holding/Rationale – you can’t be acting as a true state official if you’re doing something that’s arguably unconstitutional. SO your 11th Amendment immunity is stripped by the Supremacy Clause

B) Alabama v. Pugh – NEVER name a state entity as a Defendant! You can always name the officials charged with responsibility, but not the entity itself because that would violate the 11th Amendment

C) Edelman v. Jordan – The 11th Amendment precludes suits against government officials/State defendants seeking the retroactive payment of $ damages from the state treasury

D) Pennhurst – There is no federal jurisdiction to enforce claims for prospective injunctive relief based on STATE LAW!

1. Rationale – no high federal interest in state laws, thus no “stripping” of rights of immunity by the Supremacy clause

2. Effect – forces bifurcation of the case! a. If you’re suing a state entity in federal court with both state and federal

law claims, the Federal Court can’t hear the state law claims. SO, you must either bring 2 separate actions OR forget your state law claim (or bring both in state court)

E) Coeur d’Alene – Creates another exception to Ex Parte Young1. Ex Parte Young cannot be used where you have SPECIAL

SOVEREIGNTY INTERESTS / factors counseling hesitation2. BUT – you can really only use this case if you’re representing Indians in

Ohio because . . . F) Verizon Maryland – Reaffirmed Ex Parte Young and pretty much left Coeur

d’Alene D.O.A. NOW – we’re back under the straightforward test of Ex Parte Young, with Seminole Indian as the only exception(s)!

IV. The County Level – The County is not the State for purposes of the 11th Amendment! How do you determine State Entity v. Political Subdivision?A) Mt. Healthy Sch. Dist. – School districts are political subdivisions (under state

law! You have to look it up)B) Hess v. Port Authority – The KEY inquiry focuses on who will pay the

judgment? State or City/County? 1. But note that the Court has refused to read Hess too literally (Regents v.

Doe)C) Pendergrass (5th Circuit) – 6 Part Test:

1. Look at statutes and case law of the state 2. Does the entity have local autonomy?3. Source of funds (i.e. Hess is reduced to just one factor)4. Entity deals with local or statewide problems?5. Can it sue or be sued in its own name?6. Right to hold property?

V. Official v. Individual Capacity A) Will – § 1983 suits for damages against state governments or state officers in their

official capacities are not permitted in state or federal court! You can’t beat the 11th Amendment just by suing in State Court (???????)

B) Hafer v. Melo – you CAN use § 1983 to sue a state official in his INDIVIDUAL capacity in state court.

1. Rationale – where’s the money come from? Here, from the individual rather than the state/state entity

VI. Full Faith & Credit A) Nevada v. Hall – California doesn’t have to give FFC to Nevada’s sovereign

immunity law.

B) Franchise Tax Board – the state of California cannot plead sovereign immunity in Nevada courts.

VII. Consent & Congressional Abrogation A) Generally – All courts agree that Congress’ power under §5 of the 14th

Amendment allows it to override 11th Amendment sovereign immunity (Fitzpatrick v. Bitzer)

1. Note also that § 1988 was enacted pursuant to this Congressional power, SO attorneys’ fees aren’t precluded by the 11th Amendment

B) Requirement of a Clear & Definite Statement 1. Atascadero – if there’s to be an override of 11th Amendment immunity,

Congress must make its intention unmistakably clear in the language of the statute.

C) Waiver by Removal – 1. La Pettes v. Board of Regents – if you sue a state in state court and they

remove to federal court, they waive all 11th Amendment immunity!D) Seminole Tribe - The 11th Amendment is to “prevent the indignity of states being

sued in federal court.” 1. TEST for abrogation –

a. Congress expressed unequivocal intent to abrogate in the language of the statute

b. Congress has acted pursuant to a valid exercise of power.2. The ONLY “valid exercise of power” is §5 of the 14th Amendment3. Holding 2 – you can’t have an Ex Parte Young case against a state

official if the statute contains a COMPREHENSIVE REMEDIAL SCHEME (and thus a “special factor counseling hesitation”)

E) Alden v. Maine – The powers delegated to Congress under Article I do not include the power to subject non-consenting states to damages suits in STATE court.

1. SO – no abrogation to allow suit in STATE court either, other than under §5 of the 14th Amendment

2. Implications of This – 11th Amendment principles are being carried over to preclude state employees from getting relief in their own state courts even though they still/also have no recourse in federal court!

3. This only applies to State Entity defendants, NOT political subdivisions.F) College Savings Bank – States may not constructively waive their 11th

Amendment immunity just by participating in a program or in the free market.1. Implications – states can enter the private market and be protected by the

11th Amendment AND the market participant exception to the Commerce Clause creates a double-dose of state protection.

VIII. Agency Proceedings – A) South Carolina Port Authority – 11th Amendment applies to federal agency

proceedings when a state is involuntarily sued in a federal agency.IX. Congruence & Proportionality

A) City of Boerne – If Congress is going to use its powers under § 5 of the 14th Amendment to abrogate immunity, the remedy must be congruent and

proportional to the harm Congress seeks to address. (No authority for this; dreamt up)

B) Florida Prepaid – To have proper abrogation of the 11th Amendment under Boerne, take 2 STEPS:

1. First, identify the constitutional violation2. Then, make a record of the history and problems showing that Congress

actually had a “wrong to remedy” under §5/14th (i.e. – must have evidence of a history of deprivation of rights in a particular area)

3. BE AWARE – if the alleged constitutional violation is something ordinarily subject to rational basis or low scrutiny review, the Court will want a more thorough record.

C) Nevada v. Hibbs – If you’re in an area that gets higher review, the evidentiary burden under Boerne is easier to meet!

D) Tennessee v. Lane – Title II of the ADA / access to public facilities . . . discriminatory access to a Courthouse brings up notions of Due Process and thus, strict scrutiny review (in which case a record of merely 2-3 instances may be deemed “congruent and proportional”).

E) Michaels v. Tracy King – deals with 8th Amendment violations; lower scrutiny so more evidence in the record is required.

MUNICIPAL LIABILITY I. Monell – Municipalities may be sued directly under § 1983 for monetary, declaratory,

OR injunctive relief where the allegedly unconstitutional activity implements or executes a policy, ordinance, regulation, custom, or decisions officially adopted/promulgated by city officialsA) LIMIT – No vicarious liability just for acts of city employees! Must have

EDICTS OR ACTS that can be said to represent custom or policy!B) Partially overruled Monroe v. Pape (although the part defining state action is still

good law).C) Owen – There is NO GOOD FAITH/QUALIFIED IMMUNITY for

municipalities! (i.e. the city, when sued, can’t rely on the “good faith” of its officers!) There is absolute liability in Monell cases.

II. Ascertaining “Official Policy” A) Generally, 2 WAYS to get Monell liability based on policy or custom. LOOK AT

STATE LAW to see if: 1. Policy-making authority by lawmakers of the municipality2. Decision-making authority by someone whose edicts or acts represent

official policy.B) Isolated Decisions by Municipal Officials – may expose city to Monell liability

where?1. Pembaur – Look to state law to determine whether a person has final

decision-making authority.2. Prapotnik – Where decision or policy-making authority has been

DELEGATED to another official (i.e. not who has been identified by state law as having such authority), MUST ESTABLISH A PATTERN,

such as through CUSTOM or usage, so as to suggest that a given practice has been adopted as policy.

III. Failure to Train as “Official Policy” – A) Oklahoma City v. Tuttle – you cannot infer failure to train based on a single,

isolated incident UNLESS there’s proof of an existing unconstitutional policy that can be attributed to a policymaker.

B) City of Canton – failure to train is ONLY grounds for liability where it amounts to DELIBERATE INDIFFERENCE to the rights of the people with whom the police come into contact.

IV. Delegation of Authority by Ratification – i.e. if authorized policy-makers APPROVE a subordinate’s decision, and the basis for it, their ratification is chargeable to the municipality because their decision is finalA) City of San Antonio – Failure to act is NOT ratification.

V. Punitive Damages – you can’t get them in a Monell case. (City of Newport v. Fat Concerts)

VI. Prosecutorial Immunity – recall – Prosecutors have absolute immunity from damages suits for any actions taken within the judicial phase of the criminal process. SO – don’t try to go after the prosecutor and hope to secure Monell liability.

ABSTENTION - I.E. when a federal court, after its jurisdiction has been properly invoked, decides it’s not going to do anything and either stays or dismisses the case.

28 USC § 1738 ~ Res Judicata / Collateral Estoppel Statute ~ Once a state court has entered judgment, that judgment is binding on the federal court proceeding!

B.S. Quote Defining Abstention (from Colorado River) – “An extraordinary and narrow doctrine used only in exceptional circumstances” . . . because of the “unflagging obligation” to go to judgment regardless of parallel cases in state court.

I. Colorado River Abstention to Avoid Duplicative Litigation – where there’s concurrent state and federal jurisdiction and parallel suits! A) Four Factor Test

1. Inconvenience on the federal forum2. desirability of avoiding piecemeal litigation 3. Order in which jurisdiction was obtained by the concurrent forums4. the problems that occur from parallel litigation/concurrent jurisdiction

over the same res.B) Declaratory Judgment Actions – In suits for declaratory judgments, federal

courts have DISCRETION whether to defer to duplicative state proceedings; the normal Colorado River test is N/A. (Wilton v. Seven Falls)

C) Moses Cone – The existence of a federal question or high federal interest weighs heavily AGAINST abstention (i.e. when weighing the Colorado River factors).

D) Quackenbush – Under no circumstances does the federal court have the right to dismiss or remand a case that includes a damages claim. Must STAY the proceedings.

1. NOTE – You still need to watch out for § 1738

E) Conseco - Uncovers ANOTHER FACTOR to add to the C.R. test: VEXATIOUS or REACTIVE NATURE OF BEHAVIOR may influence the decision whether or not to stay the proceedings.

F) Different Parties – To even get into Colorado River, you have to be dealing with the SAME PARTIES in the parallel suits. (ANCO Installations)

II. Rooker/Feldman Doctrine – Lower federal courts have no jurisdiction to hear “FUNCTIONAL APPEALS” from state court final decisions – OR – to decide questions that are inextricably intertwined with prior state court judgments.A) The only route to federal court from a state court final judgment is by Writ of

Certiorari to the Supreme CourtB) BUT – Exxon-Mobile v. Saudi Enterprises – Rooker/Feldman only applies if you

file in federal court AFTER final judgment by the state court. If the state court proceeding is merely PENDING, you don’t have a Rooker/Feldman problem (although you might have Younger problems . . . )

III. Burford Abstention – abstention to defer to complex state administrative proceduresA) LOOK FOR a high, complicated regulatory scheme in an area where there is a

high state interest (Sun Oil)B) Federal court can dismiss (unless there’s a damages claim) . . .

IV. Pullman Abstention – Abstention to resolve questions of unclear state law; proceedings are stayed pending resolution of state law claims.A) Pullman – State courts should have the first opportunity to interpret state statutes

or decide issues of state law.B) Mississippi Supreme Court Rule 20 – Allows abstaining federal courts to

bypass lower state courts and go directly to the Mississippi Supreme Court for a determination of an unclear question of Mississippi law.

1. NOTE – Must be from Federal Court of Appeals to invoke this rule. SO, if you’re in district court, should take a § 1292(b) interlocutory appeal up to the Court of Appeals and THEN invoke Rule 20.

C) Constantineau – you can’t abstain under Pullman where state law is CLEAR.D) England – To prevent § 1738 res judicata, a party can expressly reserve the right

to return to federal court for a determination of federal claims by filing an “England Certificate.”

E) Gresham Park Community Org. v. Howell – you can’t get an England Certificate in situations other than where court abstains under Pullman.

F) General Things to Keep in Mind: 1. The biggest question in this area is usually whether the state law is

sufficiently unclear to justify abstention 2. The doctrine is usually limited to suits for injunctions3. Doctrine MAY be raised sua sponte for the first time on appeal.

V. Younger Abstention – abstention to avoid interference with pending state proceedings; based on notions of equity, comity and federalism!A) Younger – Federal courts cannot enjoin pending CRIMINAL prosecutions in state

courts UNLESS there’s a likelihood of irreparable harm arising from the proceedings.

1. “Irreparable Harm” means either (1) a flagrantly unconstitutional statute or (2) a series of prosecutions brought to harass, with no valid expectation of a guilty verdict/conviction.

2. Dombrowski – where “bad faith” has infiltrated the entire criminal process, there’s a judicial exception to Younger and the Anti-Injunction Act.

3. Huffman – Younger applies even if the state case is on appeal.B) Declaratory Judgments (where no pending state action)

1. Steffel – There is no Younger problem if you bring a suit for declaratory judgment when a state criminal prosecution is only THREATENED, but not yet pending.

a. But Note – ARREST commences state proceedings for purposes of Younger.

b. Hicks v. Miranda – 2-Part Holding (Deep Throat case)- Derivative Preclusion – Where different parties in parallel

litigation (i.e. employees & employer) have identical economic interests, a pending criminal against one party will be imputed to preclude a suit in federal court by the other party, even though they’re not the same parties.

- Substantial Completion Requirement – Federal courts may not provide declaratory relief if a state prosecution is commenced before the federal court proceedings are substantially complete (i.e. there have been proceedings on the merits)

2. Doran v. Salem Inn – PRELIMINARY INJUNCTIONS a. Federal Courts may issue preliminary injunctions in the absence of

pending state criminal proceedingsb. Practical Advice – If an ordinance comes down that seems

unconstitutional, advise your client NOT TO VIOLATE IT and just file a suit under Doran for a preliminary injunction (because violating it would lead to a pending criminal and thus a Younger problem).

3. Wooley v. Maynard – PERMANENT injunctions are available in the absence of pending state proceedings, AS LONG AS there’s no effect on past convictions/criminal record.

a. BUT – Ellis v. Dyson – If the injunctive relief has an effect on past criminal convictions (ex: seeking to expunge criminal arrest record), Younger applies.

C) Extending Younger to State CIVIL Proceedings – 1. Huffman – “Quasi-Criminal” proceedings – Younger applies whenever

pending state action is “quasi-criminal” in nature.2. Trainor v. Hernandez – Younger applies to all pending civil cases to

which the State is a party.3. Juidice v. Vail – Even if private litigants, Younger applies in a civil

proceeding with HIGH STATE INTERESTS (ex: states have a high state interest in their own contempt proceedings).

4. NOPSI – Younger has never been applied to prevent review of matters that are not part of JUDICIAL OR QUASI-JUDICIAL PROCEEDINGS (i.e. no extension to legislative decisions, executive action, etc.)

D) Extending Younger to State ADMINISTRATIVE Proceedings – 1. Middlesex County – Application of Younger just requires: 3-PART

TEST:a. a proceeding that’s judicial or quasi-judicial in natureb. involving an important state interestc. and ample opportunity to raise your constitutional questions at the

state court leveld. JUST NOTE that purely administrative proceedings CAN meet

these requirements. (Ex: State Bar disciplinary proceedings)2. Dayton Christian Schools – applied Middlesex County; Implicitly Holds

that while you may not be able to raise your federal question AT the administrative hearing, once you appeal the administrative decision to the state court level, that’s “ample opportunity.”

ANTI-INJUNCTION ACTI. 28 U.S.C. § 2283 – Forbids a federal court from enjoining pending state litigation

EXCEPT where:A) Expressly authorized by CongressB) Necessary in aid of its jurisdictionC) To protect or effectuate its judgment

II. “Expressly Authorized” exceptionA) Mitchum v. Foster – § 1983 IS an expressly-authorized exception to the AIAB) Vendo Corp. – re: the implications of Mitchum on OTHER Acts of Congress,

besides § 1983; if you’re going to have an express exception, it’d better be REALLY express. Statute must authorize injunctions against State Courts. LH.

III. “Necessary in Aid of Jurisdiction” – Only applies in 2 Circumstances:A) When a case is removed to federal court, the federal court may issue an injunction

if the state court does not properly relinquish its jurisdiction (Mitchum)B) Where the federal court acquires jurisdiction over a case involving the disposition

of real property FIRST (Atlantic Coastline)IV. Injunctions to Effectuate a Judgment

A) Generally, this “Relitigation Exception” is limited to situations where the state court, because of res judicata, should not hear the case but does so anyway . . . and THAT action is pending.

B) Choo – Relitigation exception only applies to those issues actually litigated in federal court.

C) Atlantic Coastline – For a federal court to enjoin state courts with this exception, the prior federal judgment must be on the MERITS of the issue (rather than just a procedural ruling).

D) Parsons Steel – Where simultaneous state and federal suits are going on: 1. A party may be entitled to an injunction where the state court proceeding

is pending, but once res judicata is raised AND DECIDED AGAINST

THAT PARTY in state court, §1738 kicks in to prevent them from returning to federal court

2. Practice Pointer – File for a § 2283 injunction before the second (state court) case reaches judgment

E) Trienes – Where you have an adverse judgment in State Court, you need to APPEAL IT and not sit on it because THE LAST JUDGMENT is the one that’s BINDING. Hypo:

1. X sues Y in Alabama and wins.2. Y sues X in Mississippi . . . under full faith and credit, X should win, but

Y wins3. X sues Y in Louisiana . . . who wins? 4. Y!!! Rationale – In the Mississippi litigation, X should have appealed

on full faith and credit grounds, but he didn’t, so the last judgment (for Y) is binding!

F) Imperial County v. Menas – IF the plaintiff in federal court is a “stranger” to the state court proceeding, §2283 doesn’t apply.

1. Hale v. BemCo Cement – only case citing Imperial County; where there’s no privity between federal plaintiff and the parties in the state court proceeding, § 2283 is N/A

V. Preclusive Effect on a State Court Filing - § 2283 applies regardless of WHEN state and federal cases are filed; no exception where federal suit is filed first.A) Practice Pointer – if you (as defendant) think plaintiff is going to file in state

court, you should seek an injunction under FRCP 65, against the state court suit even being FILED. This will get you past the Anti-Injunction Act AND Younger because tehn there’s no conflicting procedure . . . only THREATENED proceedings.

TAX INJUNCITON ACTI. 28 U.S.C. § 1341 – District Courts are prohibited from enjoining, suspending, or

restraining the collection of any state tax where a speedy and efficient remedy is available in state court.

II. Main PrecedentA) Rosewell – Any remedy at all is a “speedy and efficient” state remedy.B) Grace Brethren Church – The Act precludes declaratory judgment actions (in

federal court) that would effectively suspend the collection of state taxes!C) McNary – Can’t circumvent the Act by adding a claim for damages (i.e. under

§1983).D) Hall v. Winn – The Act does not apply to cases where plaintiffs are trying to

ADD TO the state treasury rather than detract from it! (i.e. – they’re seeking payment of taxes rather than trying to get out of paying taxes).

III. Defining “Tax”- 2 PART TEST (Home Builders v. Madison)A) Taxes generally go into the state treasuryB) Fees are usually related to regulatory schemes and generally go to the government

entity to administer somethingC) NOTE – if it’s a “fee,” your OUT of § 1341.

PREEMPTION, FEDERAL QUESTIONS & DECLARATORY JUDGMENTSI. Preemption Precedent - Re: question of when can a case be REMOVED to federal

court on the basis of preemption?A) Lincoln Mills – you can only remove on the basis of preemption when (1) the law

TOTALLY preempts the area AND (2) it’s shown that Congress intended the only cause of action to be in federal court (this is the redefined holding as said in Beneficial National Bank)

B) Really only allowed in 3 areas:1. Labor Area (LMRA)2. ERISA3. National Bank Act

II. Skelly Oil – There is no federal jurisdiction over declaratory judgment actions when you couldn’t have brought the original suit for damages in federal court

III. Franchise Tax Board - ???? IV. Wycoff – Applies when you’re filing suit in federal court for declaratory judgment

and there’s a THREATENED state court suit in the backgroundA) HELD – when the complaint in the federal dec-action seeks to assert a defense to

an impending state court action, it is the CHARACTER OF THE THREATENED ACTION and not the defense that determines whether the federal court has jurisdiction

B) Illustration – Branaugh Airways v. Florida Public Service Comm’n – where the threatened is a state proceeding in state court, there’s no federal jurisdiction for the dec-action!

C) BUT – Verizon Maryland – any time you have a threatened state court action that in effect will lead to a violation of federal law, there’s federal jurisdiction under Ex Parte Young. SO you can beat Wycoff by adding to your request for declaratory judgment a request for an injunction under Ex Parte Young (would basically be under § 1983, which is also an express exception to the AIA) (Local Union v. Massachusetts Commission on Discrimination).

ATTORNEYS’ FEESI. 28 U.S.C. § 1988 – grants attorneys’ fees to prevailing plaintiffs in actions brought

under §§ 1981, 1982, 1983, or 1985.A) NOTE - § 1985 provides a cause of action for conspiracy to deprive a person of

equal protection/rights/privileges (this translates into race-based conspiracies)1. Griffin v. Breckenridge – for a § 1985(3) violation, you need (1) a

conspiracy, (2) motivated by class-based discriminatory animus, (3) to deprive persons of E.P. and (4) actions in furtherance of (5) injury.

2. Brotherhood of Carpenters - § 1985(3) is limited to the types of classes that get high scrutiny review under the E.P. clause (e.g. race)

II. “Lodestar” – i.e. the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate (City of Riverside v. Rivera)A) An ordinary lodestar may be enhanced or reduced depending on an application of

the “Johnson Factors” (basically just the factors from the MRPC) (In re RiteAid)III. Standard of Review when appealing a fee award is abuse of discretion

IV. Nominal Success – A nominal damage award does NOT make the plaintiff a “prevailing party” eligible for a fee award under § 1988! (Farrar v. Hobby)

V. Prevailing Party – Fees may be awarded where the plaintiff succeeds on ANY SIGNIFICANT ISSUE (Garland Independent School District)

VI. Fees for Defense Counsel – A prevailing defendant may recover fees only where the litigation is UNREASONABLE, FRIVOLOUS, MERITLESS or VEXATIOUS (Christianburg Garment).A) Rule 11 Fee Shifting – attorneys have to pay the other side’s fee for frivolous

cases filed in bad faith (objective standard) B) 28 USC § 1927 – federal statute imposes fees on attorneys fro engaging in

professional activity that can be described as “unreasonable and vexatious”C) Chambers v. Nascow – Courts have inherent power to award fees based on

subjective bad faith.VII. Disputes Settled Prior to Litigation – You don’t get fees unless you’ve filed suit! A

civil rights plaintiff who settles before suing is not a “prevailing party” entitled to fees under §1988 (Crest Comm. Council)

VIII. Fees Upon Ordinary Settlement – A plaintiff who recovers damages because defendants settle (after suit was filed) is entitled to fees (Maher v. Gagne)

IX. Settlement Conditioned Upon Waiver of Fees – Evans v. Jeff D. - § 1988 does not prohibit this; just be aware . . . A) Narrow Exception (from Evans dicta) – Waiver of fees may be attacked where it

can be defined as a VINDICTIVE EFFORT by defendants TO DETER LAWYERS from taking CIVIL RIGHTS CASES!

1. HYPO – How do you PLEAD a case under this exception? a. Who’s your plaintiff?

i) Lawyer deterred from getting cases? STANDING PROBLEM b/c injury & redressability would be merely speculative

ii) Person/Potential Civil Rights Plaintiff who couldn’t get a lawyer for her case? This may barely make it under the standing requirements (Bernhardt)

b. What relief are you seeking? Prospective injunctive against enforcement of the waiver policy

c. Who’s your Defendant? Officials in charge of administering/enforcing the policy, in their OFFICIAL CAPACITY

d. What’s your jurisdictional base? 1331/1983 . . . but a violation of what right secured?

i) Rights secured by § 1988! ii) Address – Pennhurst problem? Are the rights secured

by § 1988 merely wishful or horatory? NO. Rights are expressly provided and mandated in the statute.

X. Buchanan – After this case you need 3 things to be in a posture to recover fees:A) Receive an enforceable judgment or consent decreeB) That materially alters the legal relationship between your client and the defendant

AND

C) That modifies the defendants’ behavior in a way that positively affects your clientXI. Administrative Proceedings

A) Webb v. Board of Education – A prevailing plaintiff cannot claim attorneys’ fees for time spent in administrative proceedings in cases where exhaustion of such remedies is not required!

B) University of TN v. Elliot – (general thing to watch out for) . . . Findings of fact from an administrative agency, if binding under state law, will be binding on a federal court suit under § 1738.

XII. Fee Awards & Contingency Fees – Effect on eachother?A) Venegas v. Mitchell – Where a contingency agreement awards a fee greater than

that provided/awarded under § 1988, the contingency fee will NOT be reduced. The statutory award is merely credited toward the contingency fee.

B) Blanchard v. Bergeron – Similarly, you can’t reduce an award under § 1988 just because the percentage earned under a contingency agreement is less than the statutory award.

XIII. Fee Awards & Rule 68 – Marek v. Chesney – A) Q – Does the word “costs” in Rule 68 include attorneys’ fees awarded under

§1988? B) Held – Absent Congressional intent to the contrary, where the underlying statute

defines “costs” as including attorneys’ fees, they are to be included as “costs” for purposes of Rule 68.

XIV. “Billing Judgment” – If you don’t clearly document your hours using good “billing judgment” in your § 1988 fee request, the Court is not going to award you fees based directly off your calculated lodestar! (Hensley; and Louisiana Power & Light)

RES JUDICATA

I. 28 U.S.C. § 1738 – Governing statute; requires federal courts to give deference to final judgments from state courts; based on notions of comity and equity

II. Allen v. McCurry - § 1738 applies to completed state criminal proceedings; thus, it’s fully applicable to § 1983 actions based on an issue raised and decided in the state criminal proceeding.A) To decide whether or not § 1738 specifically applies to an issue, you have to

LOOK TO STATE LAW to determine whether the state court order or decision is “final.”

III. CONTRAST – Heck v. Humphrey – A) If the state criminal proceeding is ON APPEAL, there is no res judicata/collateral

estoppel issue for § 1738B) You cannot EVER use a § 1983 suit to collaterally attack a criminal conviction

UNLESS the conviction has been pardoned or overturned.IV. Habeas Corpus Decisions

A) Generally – there’s no res judicata in habeas corpusB) Stone v. Powell – with regards to the 4th Amendment exclusionary rule, if there’s

full and fair opportunity to litigate, this issue cannot be re-litigated using habeasC) Preiser v. Rodriguez – (loss of “good time credits” case)

1. You can’t bring a § 1983 where it relates to and potentially affects time of sentence b/c that’s a matter for habeas corpus.

2. You CAN use § 1983 to contest CONDITIONS of confinement.

HYPO – Pending state administrative proceeding; Plaintiff files a 1983/1331 in federal court for violation of 1st Amendment rights. What should the federal court do with the lawsuit?

I. What’s plaintiff seeking for relief? Injunction or damages? II. Who is he suing? III. Is it an OFFICIAL or an INDIVIDUAL capacity suit? (Addresses 11th Amendment

issues)IV. If individual capacity – have to consider whether defendants have qualified

immunity!V. If seeking an injunction:

A) Problem with the AIA? (Remember, 1983 is an expressly authorized exception)B) Younger problem? (Remember, administrative proceedings – apply Middlesex)

VI. What other Abstention issues come up?A) Remember – if seeking damages, Quackenbush applies, so the court must stay

rather than dismiss the proceedings, if anything.B) § 1738 Problems now because of the stay?

1. Allen v. McCurry - § 1738 applies to 1983 suits2. To determine whether or not § 1738 applies, look to state law to

determine whether the state proceedings are “final.” 3. Be aware of Univ. of TN v. Elliot (because we’re dealing with pending

administrative proceedings here)!