Federal Jurisdiction

Federal Common Law- Which body of law controls the case? Swift v Tyson- Federal courts had independent authority to develop Fed. CL. In diversity of citizenship cases. Overruled by Erie. Erie- Except in matters covered by the Constitution or acts of Congress, apply state law. There is no federal general common law. Congress has power to declare a substantive rule of CL applicable in a state. o Purpose was to promote national uniformity. Uniformity for procedural matters was achieved through FRCP and uniformity in Substantive law is through congressional legislation. Techniques for Developing Federal Common Law 1. Spontaneous Generation (gov. Ks or interstate controversies) 2. Implying Fed. Cause of Action from Fed. Statutes 3. Following Congressional Commands to develop Fed. CL 4. Judicial Filing of Statutory Interstices. Spontaneous Generation o Two step Process 1. Decide if Fed. Cts. have power to develop CL when US is a party & is exercising a Const. Function. 2.Policy Analysis- Is there a need for uniformity? o Clearfield- Rights and duties of US on Commercial Paper are governed by Fed. Law Was both a fed. power & a need for uniformity. Cts. Not required to use FCL in cases where Fed. Gov is a party. US not entitled to have FCL applied when party, up to courts. Congress failure to implement laws shows the lack of federal interest in uniformity. Notes from Case Bank of America v. Parnell- Made distinction between Fed & St. law. Fed. Power & a need for uniformity concerning right & obligations for US Gov. Bonds, but not for the burden of proof of good faith b/t private parties Us v. Yazell- Texas law limited married womens rights to make contracts (take a federal law) Clearly a federal power, but no federal policy of uniformity, court didnt address if coverture violated Equal Protection. FCL may arise in Div. of Citizenship cases if strong enough federal interest, as in the need for a uniform federal law for foreign relations. American Elec. Power Co. Supp. 9.1- Preemption of Federal CL Clean air act preempted FCL even though EPA hadnt enacted regulations o US v. Kimbell Foods- Loans & Debts of creditors/debtors, can have Fed. CL. US was a party, dealt with priority of leans on collateral. Fed. CL should incorporate state law: Fed. Agency regulations incorporate state laws expressly Government is similar to a private lender when it makes loans Creditors rely on state Commercial Law. Notes from Case Source had to be Fed. Law b/c when the US disperses funds or pays debts, its exercising a constitutional function or power, given by Const. not dependent 1

on the law of the state. Duties imposed on US find roots in same federal sources. In absence of applicable act of Congress, rule of law according to their own standards. Boyle- Prod. Liability against gov. contractor for defective design of military helicopter o Action barred by new military contractor defense from Fed. CL o Involved 2 areas of uniquely federal interests: Liability of Fed. Officials for actions taken in course of duties. Rights & obligations of US under its Ks o Neither present but, Even though not against Gov., it involved Gov. Ks, which directly affect Fed. Interest bc imposition of Tort Liability on Gov. Contractor would force it to raise prices on Gov. Ks There must also be a conflict between federal interests & state law. Requirement was satisfied bc state prod. Liability law controlled the terms of the gov. K that prescribed Ks duties. State prod. Liability law conflict with exception in Fed. Tort Claims Act. Immunity = NO liability Indemnification can get $ back from Gov. o Semtek- State law governs claim preclusion effect of Fed. Ct. judgment in Div. of Citizen. Notes from Case No FCL in a claim reimbursement by Med. Ins. For proceeds of a tort settlement pursuant to a K with the Fed. Gov. for coverage of Fed. Employees. o No need for Fed. CL bc no showing of a conflict b/t state law & fed. Int. Following Congressional Demands to Create Federal Common Law o Textile Workers Union v. Lincoln Mills- Collective Bargaining Agreement Cases arising under cases and controversies if Congress passes Subs. Law. Labor agreements are only enforceable if you follow Fed. Sub. Law Court decided there was congressional intent for the creation of Fed. CL over labor Ks b/t Union & Employers. Implying Private Rights of Action o Bivens- NO requirement that $ damages must be nec. To enforce 4th amend. Unreasonable search & seizure by federal officers. 42 USC 1983 doesnt apply because its not a state activity. If it were a state activity, would be explicit remedy. Implied right of action, rely on historical background. Historically damages were ordinary remedy for invasion of liberties in interest. No special factors to counsel hesitations No effect on Fed. Fiscal Policy Court imposed liability for violating Const., not exceeding Fed. authority. Equitable Relief wouldnt typically be available. Remedy only needs to be appropriate. Interest in having uniformity of remedies for viol. Of Fed. Law. Dissent Congress needs to create administrative structure to handle 4th violations. o JI Case v. Borak- Provides for implied right of action for securities law actions. Pg 455 o Cort v. Ash Developed 4 factor test to DECLINE implying right of action 1. Does the statute create a federal right? 2. Is there legislative Intent to create a remedy? 2

 3. Is it consistent with Congressional Purpose to imply a remedy? 4. Is it a traditional area of state law? Does the Statute create a federal right? Was Title XI enacted for the benefit of a special class that P was a member of? o Yes, Female rejected from Med. School. Title XI- prohibits discrimination on basis of sex in edu programs. Legislative history? Does history prove an intent to create a remedy? Would a private remedy frustrate the congressional purpose? Does the subject matter involve an area of state concern? o Cannon- Justices expressed dislike of Cort analysis 4-factor analysis is an open invitation to Fed. Cts. to legislate causes of action not authorized by Congress. Its an analysis not faithful to Const. Principles & should be rejected. Absent the most compelling evidence of Affirmative Congressional Intent, fed. ct. should not infer a private cause of action. o Cali. v. Sierra Club- Beginning of retreat from Cort analysis SC sought injunctive relief against Cali. water project under 1899 Fed. Law Court concluded no intent to confer rights on a particular class of persons and no intent to create a private remedy. Found these two dispositive. Wanted to deemphasize Cort factors & refocus on Legis. Intent. Notes Karahalios- If Cong. Provides one remedy, Cts. should be reluctant to provide additional remedies. Cong. was aware of Cort analysis and should know it needs to put an intent to imply a right of action in legis or legis history. o Schweiker- No implied right of private action vs. Gov. officials who denied SS benefits. Special Factors Counseling Hesitation in Absence of Affirmative Action by Congress: Cong. provided remedies for service men to sue superior officers. Congress allowed remedies here, failure to provide for SS was not inadvertent. Notes Chappel- No implied private right of action for racial discrimination in military. Stanley- No implied right of action of military secretly given LSD. Bush- No implied right of action under 1st Amend. Based on presence of comprehensive scheme of meaningful remedies that was not complete. o Congress more competent to balance remedies with needs of Gov. efficiency. Carlson- Implied RoA under 8th for death of Ps son for failure to receive medical care while in federal prison Davis- Implied RoA under 5th for gender discrimination in employment by congressman of a deputy admin. Assistant. Standards from Cases- 483 o No special factors counseling hesitation in the absence of affirmative action by Congress. o No explicit statutory prohibition against the relief sought AND o No exclusive statutory alternative remedy. Alexander v. Sandoval- No implied right of private action under Title VI under original enactment or amendments. (Discrim. Vs. Race/color/natural origin) Hus- No implied Right of Action for med mal claims vs. public health service for immigration detainees because a stat. provided an exclusive remedy. 3

o Minneci- 103 Supplement- Bivens implied right of action vs employees of private prison for 8th violations? Use 2 step analysis Wilkie 1. Constitutional- are there alter. Ways to protect const. interest? 2. Any alternate process to protect Const. Recognized Interst? P argued Carlson permitted claim against fed. prion personal. Whims of state laws and state law remedies may not be adequate. Civil Rights Legislation o 42 USC 1983- There is a private right of action, either at law or equity. o Monroe v. Pope- Expanded Scope of Statute Allowed action against police officers for violating civil rights of P Refused to allow action against municipality- Could sue officers, not city. Recovery allowed even though state law provides a remedy. Ds violation do not have to be pursuant to state law to under color of law. Dissent 1983 includes custom or usage & so under color of st. law, no requirement of state statute to authorize violation. Concurring Based conclusion on Stare Decisis. Not clear that custom or usage requires recurrent behavior for violation. Not clear actions by munic. Employees are not more serious than ordinary torts. Not clear that St. authorized const. deprivations should be treated differently than unauthorized deprivations by Muni. Employees. Notes P doesnt have to show state remedies are unavailable & Ds raising availability of St. remedies as defense doesnt stop P from proceeding. Hometelegraph- Wasnt state action for 4th, so has to do with Los Angeles authorizing business. o Distinguishing from Monroe Was CR violation under 1983 in Monroe, but HT was 14th amendment violation directly. In HT state enabled City to act and the city was alleged to act beyond authority. 1983 seems to go beyond Const. Rights & extend to any violation of federal law. o Raises possibility of using 1982 as a remedy for violations of Fed. Law by St. government. o Monell- Overrules Monroe, Municipalities can be held liable for CR violations for policies or customs, NOT respondeat superior. Class Action by Female employees over official policu of Dept. of Social Services for pregnant women to take unpaid leave. Reasons for Decision Congressional intent hadnt changed but Courts interpretation of intent did. Involved reconsideration of inference for rejection Sherman Act o Sherman- would have added a new section to CR bill to provide liability of a municipality to any person injured by any person riotously & tumultuously + intent to deprive person of civil rights. Some legis rejected bc imposed liability on Munic. 4

o o

o By 1871, Municipal & Corp. Liability were well recognized. Some limits, pg 544. Under Heading II, Liability could be imposed on Munic. For unconstitutional acts that are officially adopted by their officers & also for custom and usage of municipalities even though not officially adopted. Municipalities could not be held liable solely for employing a tortfeasor under a respondeat superior theory. Why Rejected Respondeat Superior- Local Gov. cant be sued under 1983 for injury inflicted solely by its employees or agents. Instead, it is when execution of a govs policy or custom, whether made by lawmakers or those whose edicts acts may fairly be said represent official policy, inflicts the injury that the Gov. as an entity is responsible under 1983- pg 546 Notes Monell involved official policy, Monroe did not. 3 Possible Bases for Municipal Liability: o 1. Acts authorized by Munic. o 2. Acts by Munic. Agents o Acts by Private Parties (focus of Sherman Act) What established official Policy? o Pembar- ML may be imposed for single decision by Munic. Policy makers under appropriate circumstances o ML attaches only where decision maker possesses final authority to est. munic. Policy with respect to action ordered. City of Canton- Inadequacy of police training may serve as bases for 1983 liability ONLY where failure to train amounts to deliberate indifference to the rights of persons with whom police come into contact. States are NOT persons under 1983. Board v Brown- Liability of Municipality under 1983 requires culpability & causation by munic. To be force behind deprivation of federal rights. Must show culpability & direct causal link Culpability- Needs deliberate conduct or indifference Causation- Direct causal link b/w munic. Action & deprivation of Fed. Rights. Single act by a a decision maker can constitute a policy attributable to municipality. P must demonstrate that municipal decision reflected deliberate indifference to the risk that a violation of particular Const. of Statute right will follow decision. London v. Hill- Frizzell Case Establish Municipality based on Custom P must prove: 1. Existence of a continuing, persistent, & widespread practice of unconstitutional misconduct by Munic employees. 2. Deliberate indifference to or tacit approval of misconduct by Munics policy making officials after notice to official of particular misconduct. LA County v Humpries Policy of Custom requirement for 1983 applies to equitable relief & damages Connick v. Thompson- Supp. 113. Proving deliberate indifference requires notice DA not liable for Brady violations of ADAs. To prove deliberate indifference, must show D was on notice that absent additional specified training, it was highly predictable that prosecutors would misuse Brady. P had to show it was so predictable that failing to train prosecutors amounted to conscious disregard of Ps Brady Rights. 5

Official Immunity- 571 o Absolute- total defense, small category Judges, legislators, prosecutors Promotes independence, public policy Amended to 1983, 1988 for judges to limit remedies & atty fees. o Policies Based on legislative intent Necessary for Judicial Independence. Prosecutors have quasi-judicial role w/ respect to initiating prosecution & presenting sts case Only extend to conduct of litigation & not other activities by prosecutors. Witnesses have absolute immunity even if commits perjury- Briscoe Applies to trial & GJ witnesses, but not complaining witnesses Legislators need independence- litigation would divert time & energy from legislative work. o Limits Pulliam- only covers immunity from damages & not from injunctive relief or atty. Fees. Under 1988 Amended- Injunctive relief only to enforce prior declaratory relief. No liability for atty fees EXCEPT if judge acted in excess of jurisdiction. Qualified Immunity o Other fov. Officials--Public employees acting in good faith More limited protection than Official Vigorous exercise of authority. Damages remedy for citizens Protection of officials exercise of discretion Public interest in discouraging vigorous exercise of authority. Other factors Expense of litigation, diversion of official energy from public issues, deterrence of citizens from accepting public office, fear dampening ardor for discharge of official duties. o Exceptions Objective- Employee knew or reasonably shouldve known action would violate Ps Const. rights Subjective- malicious intent, more susceptible to a factual showing. Must show malicious intent to violate Ps const. rights Employee only liable if he acted with impermissible motivation or with such disregard of clearly established rights that cannot reasonably be characterized as good faith. o Harlow- officials have qual. Imm. Unless conduct violates clearly established Const. or Stat. rights. Bivens action against Nixon & staff by whistleblower Ds claimed immunity, most members of Exec. Branch QI is norm. Court readjusted balance to reduce cost of litigation by encouraging summary judgment in CR cases. Subjective element of QI prevents use of SJ in many cases bc involves a fact issue that leads to discovery & disruption of effective Gov. Objective- cut and dry if violated policies New std. for Qualified Immunity- 584 6

Notes Claimed violation of 1st amend and statutes but wasnt 1983 bc not against state. Biven- implied right of action different than 1983- STATUTORY CLAIM Pearson- Supp. 117- modified rules because might be hard to decide if clearly established o If const. right involved, it was not clearly established so qualified immunity applied. o Reichle- 121 supplement- Difficult to use qualified immunity P arrested for stalking Cheney, P alleged he was harassed by secret service. Alleged violation must be established, not in a broad general proposition, but in a particularized sense so the contras of the right are clear to reasonable official. Question wasnt general right to be free from retaliation of ones speech, but was the more specific right to be free from retaliatory arrest otherwise supported by probably cause. Courts never held was a right. o Mitchell v. Forsyth- appealing interlocutory appeals Denial of SJ is appealable right away, authorizes D entitled to be free from trial, but practically slows down litigation Same issue raised in Ashcroft- Supp. 121 Pleading Requirement Heightened pleading requirement applied to CR cases. Vicarious liability is inapplicable to Bivens and 1983 suits, P must plead that each Gov. official D, through own individual actions, violated Const. Alleged personal involvement is conclusory allegations, not plausible. o Paul v. Davis- Procedural guarantees of 14th apply whenever state seeks to remove or significantly alter protected status. Apparent from decisions, variety of interests, which are difficult of definition but nevertheless comprehended within meaning of liberty or property as meant in the due process clause. These interests attain constitutional status by virtue of fact they have been initially recognized & protected by state law, & we have repeatedly ruled that procedural guarantees of 14th apply whenever seeks to remove or significantly alter that protected status. o Daniels- Civil right is not intended to replace tort law. Some qualify as both PDP is n ot simply implicated by a negligent act of an official causining unintended loss of or injury to life, liberty or property. 14th Amendment- Fed gov exercising some control over states. Limits states rights 11th Amendment- Opposite of 14- Protects states rights o Protects states from being sued by citizens or subjects of foreign state o Recognition of sovereign immunity & is a restriction of SMJ on fed. cts. o Recognizes various ways around it Suits against Munic. OK Suits against state officers for prospective injunctive relief, just not to damages o Hans v Louisiana- expanded Chisolm & barred suits by citizens of state

Gov. Officials (only looking @ obj. part) performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly est. statutory or const. rights of which a reasonable person wouldve known. No discovery allowed unless P shows employees conduct violated clearly established const. or stat. rights that reasonably person would know. Civil rights causes are limited to protected rights, not gen. tort law.

Barring based on Fed. SMJ, div of citizenship, Const. Sov. Imm, or CL Sov. Imm. Would be anomalous for P to be allowed to sue in fed. ct. when foreign citizens are barred & also P barred from suing in state court. Alternate Interpretations of 14th Limit of Fed. SMJ Incorporation of pre-existing CL immunity into the Const. Recognition of pre-existing CL immunity Limit on diversity of citizenship jurisdiction SMJ is to protect state, but a state can waive State sovereignty incorporates federal supremacy. o Giles v Harris- 1903 11th bars suits vs. state for injunctive relief to give blacks voting rights Class action vs. county board of voting registration to register black voters. P claimed Al. Const. violated 14th and 15th by allowing whites to register but requiring blacks to pass test. Civil Rights Statute did not provide remedy for political wrongs. Civ. Rights stat. didnt protect vs. political, but if Ct. decided registration scheme was unconstitutional, how could court order registration under unconst. Scheme? Any order would not be enforceable bc state is not and could not be a part. Notes Surprising decision that significantly ltd. Enforcement of political rights Giles & Hans blocked enforcement of 14th & 15th amend. For remedies vs. ST. o Ex Parte Young- Provides way around Sov. Imm. 11th doesnt bar action seeking inj vs state official to prevent enforcement of unconstitutional law.This is a legal fiction If official action is alleged to be unconst., official is stripped of his official capacity. Deriv. action vs. state officials (Young was AG) for injunctive relief to stop enforcement of rate statutes. TC issued preliminary injunction. Was not against state, but against AH. Different from Hans because defensive Hans sought money from state, offensive because Sov. Imm protects Suit was to defend against State (via AG) from attacking, NO Sov. Imm. o Not seeking money, just preventing AGs actions Court held 11th didnt apply bc was against AG NOT state, 14th does Act to be enforced is alleged to be unconstconsequences of individual conduct. Supremacy of Fed Const. overrides. th 14 applies because official action is under color of state law but 11th doesnt because it was not an official act. Stripping 11th Amendment Protection rational 1. Federal Supremacy in Art. VI 2. An act in violation of Const. cannot be an Act of the State. o King can do no wrong, if he does wrong, not acting as king. Momentous decision because permits Fed. Cts to participate & get involved in Civ. R. Bars actions by one state against another IF the actions involve Ps state acting only as a nominal P acting on behalf of individuals. Does not appear to bar actions by individuals vs. Multi-state agencies. VOPA Supp. 124 VOPA is a state agency that investigates abuse & neglect in state mental hospitals. 8

VOPA sought hospital records relating to mortality reviews from state, but state obj., to production on grounds of privilege for Peer-Review materials. Young is a fictional premise that when a Fed. Ct. commands a St. Official to do nothing more than refrain from violating fed law, he isnt state for Sov. Imm. Same reasoning applies to actions brought by state agencies as actions by individual Young does NOT apply when state is real, substantial part in interest If judgment sought would expand self on public treasury or domain or interfere with public admin. Notes Text of 11th doesnt bar actions by state agencies vs. states, doesnt address Prospective Relief o Hans barred actions vs state by own citizens but Young authorizes suits brought against state officials to restrain officials from enforcing state laws violation Const. o Edelman- Limited Youngs restriction to limit prospective injunctive relief as opposed to damages on retroactive relief. Claimed st. officials violated fed. regs & denyied equal protection of law by not satisfying deadlines thus withholding benefit payments of public aid program funded by St. & Fed. Injunctive relief sought to compel officials to comply with regulations. Reaffirmed Young to prospective relief BUT Retroactive award is analogous to damages award, even though equitable in nature. Sov. Imm, not waived by accepting Fed. Funs 11th doesnt prove distinction b/t prospective & retroactive relief Edelman moves up when lawsuit is filed. To get benefits, must file suit ASAP. Review: 11th Amendment o The judicial power of the US shall not be construed to extend to any suit in law or equity..." Hans v Louisana o 11th amendment barred action against a state by a citizen of the state Ex Parte Young o 11th Amend. did not bar action seeking an injunction against a state official to prevent enforcement of unconstitutional law Edelman-1974 o Limited ex part young to prospective relief as opposed to damages or retroactive relief against a state official Cour d'Alene o 11th amendment barred quiet title action even though it was framed as an action for prospective injunctive and declaratory relief Fitzpatrick o Congress has power to authorize action against a state under the 14th amendment that was not barred by the 11th Garrett o Congress may abrogate 11th Amendment immunity of states only for appropriate legislations under the 14th amendment Seminole Tribe o Congress could not abrogate 11th immunity of states under the Indian commerce clause Tribe could not bring Ex part Young action against the governor Notes after Garrett 9

o Line between measures remedies & preventing unconst. Actions and measures that make a substantive change in gov law is hard to discern Congress must have wide latitude to determine where it lies. Distinction exists & must be observed. Must be a congruence & proportionality b/t injury to be prevented/remedied & means adopted to that end. Lacking such connection, legis. May become subs. In operation & effect. o Seminole Tribe IGRA, passed under ICA, req. states to negotiate in good faith with tribes to form compacts for conducting gaming activity subject to fed. regulations. Act provided for a right of action in Fed. St. if state violated IRGA. Suit brought in IGRA vs FL. & Gov alleging violations of IGRA Court held action against state was barred by 11th (699) AND YOUNG COULD NOT BE USED AGAINST GOVERNOR Congress prescribed a duty to negotiate in goof faith & provided for enforcement, BUT congress didnt have authority to adopt. Analyzing Congressional Abrogation of State Sov. Imm Even when Const. vests in Congress complete law making authority over a particular area, 11th prevents Congressional authorization of suits by private parties against non-consenting states. 11th restricts judicial power under Art. III & Art. I cannot be used to circumvent Const. limitations places on Fed. Jurisdiction. Court should not imply remedy when Congress already prescribed remedy under 2710 because of Schweiker. DISSENT 11th only applies to diversity actions Hans involved only Fed. CL which Congress can override Fitzpatrick should not have been limited to 14th Thus Hans was wrong & should be overruled by states forming the union, they gave of Sov. Imm to US & the people. Even if Hans not overruled, should be subjected to regulation by Cong. Stat. It should not be extended to bar congress from changing the CL by state. Young authorizes action for prospective relief against Gov. Schweiker does not apply because meant to imply a remedy, Congress specified the remedy. Supplemental Jurisdiction o SJ involves State law claims that arise out of the same transaction as fed. claim o EX: Tort claim that was asserted along with fed. Civ. Rights Claim o Pennhurst v Halderman A federal courts grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate supreme authority of federal law. On contrary, it is difficult to think of a greater institution of State Sov then when a Fed. Ct. instructs state official on how to conform their conduct to state law. Such a result conflicts directly with principles of Federalism that underlie 11th Young & Edelman are inapplicable in suit vs state officials on basis of color of St, law. Abstention o Raises ideas of federalism, even if Fed. Ct. has juris., they may refuse such o Statutory Constraints on Jurisdiction Anti-Injunction Act- 28 USC 2283 10

A court of US may not grant an injunction to stay proceedings in a state court except as expressly authorized by act of congress or where necessary in aid of jurisdiction, or to protect or effectuate its judgment. Tax Injunction Act- 1341 District courts shall not enjoin, suspend, or restrain the assessment, levy, or collection of any tax under state law where a plain, speedy & efficient remedy may be had in courts of such state o Atlantic Coastline RR- Fed. Cts may not prevent injunction of St. unless fits under exception Policy of Anti-Injunction Act Federalism concerns- two systems of courts should get along. Avoid friction between state & fed cts. Exceptions: Expressly authorized by Congress To Protect or effectuate courts jurisdiction o Necessary for Res Judicata Smith v Bayer- Supp. 145-46 Necessary in aid of its jurisdiction o Construed narrowly to require a direct conflict. Notes Mitchum- Expressly Authorized Exceptions covered 1983 o Congress enacting 1983 changed balance of powers between state & fed cts with respect to protection of fundamental rights Judicial Abstention Doctrine o Exhaustion of Administrative Remedies o Monroe v Pate- NOT required to exhaust judicial remedies to file Civ. Rights actions Not required to go to state courts for judicial remedies Exhausting remedies is required for most areas, but not civil rights actions Exception for Prisoner Claims- 42 USC 1997 (e)pg 766 o Pullman Doctrine- based on Federalism Concerns Pullman couldve sought review of Commissions order, preferable because state court is more aware of the issue, doesnt make federal courts guess. If state law didnt authorize Commissions order, would be no Const. Issue. A definitive ruling on Texas law would terminate controversy. Pullman Exceptions- whats required for Pull Abs. Unclear state law Federal issue depends on how state issue is resolved Definitive ruling from State court would terminate controversy. Notes Pullman attempts accommodate 3 impt. & potentially conflicting principles. o FC should decide cases within jurisdiction o Courts should avoid adjudication of Const. ?s when possible o Conflict b/t Fed & state system should be minimized Abstention should not apply to teachers promoting respect for flag because a state court could not eliminate statutes vagueness in single case. o Same applies to person behind distribution of leaflets. Court isnt obligated to interpret to avoid Const. infirmary, generally want to avoid, but not mandatory. Other concerns may override. Justice DouglasCost of Abstention 11

o May make sense for Fed. Ct to not interpret an ambitious state provision where its unclear, but there are tradeoffs. o Can amount to a delaying tactic because shuts down Fed. Legits, start up state proceedings, then appeals then back to Fed. o Harris v Naaco- When used widespread, dilutes stature of Fed. Cts making them secondary tribunals in admin of justice under Fed. Const Pullman has been greatly expanded. It has indeed been extended so far as to make presence in fed. ct litigation of a state law question a convenient excuse for requiring the federal court to hold its hand while a second litigation is undertaken in the state court. Certification of State Law Question o Act authorizes Fed. Cts. to direct questions of state law to St. SC for resolution. o Arizonans for Official English Certification covers territory once dominated by a deferral device Pullman abstention.. Attractive in theory, places state law ? in courts equipped to rule authoritatively on them, Pullman proved protracted and expensive. Certification procedure-- makes pullman less necessary, allows a fed ct faced with novel state law question to put the ? directly to the st's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response Post Abstention Problems o Abstention arises because both State & Fed, issues involved in case. If Fed abstains, parties proceed to state courts where theyre bound by State Courts decisions on State Law issues. o Are the parties also bound if State ct. decides federal issues? Idea of abstention is to get a binding determination of state law issues but shouldn't you get federal law issues settled by federal court, but if sent to state court you will be bound by the state court who is interpreting federal law and res judicata kicks in. Can avoid by Certification by Fed. Ct to State Supreme Ct for resolution of St. Law issues. This certifies questions to St. courts while retaining Federal ?s for Feds. Younger v. Harris Most Important Area o P Filed in Fed Ct. to enjoin crim prosecution on grounds it would violate const. rights. o Idea is you do not want Fed. Cts to interfere o Based decision on Federalism & Stare Decisis o Exception for Irreparable Injury & limitation that State Prosecution must be in good faith Abstention Review o Refusing Jurisdiction o Anti-Injuction Act-- 28 usc 2283 o A Court of the US may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments o Exceptions o Expressly Authorized by Act of Congress-- Mitchum v Foster o Covers Civil Rights Cases even though not said in Statute, can enjoin actions and state court proceedings if federal action is brought under 1983. o Aid of Jurisdiction If federal court gets there first, then can protect jurisdiction or judgment by enjoying action but can't be used if it comes after the State action. 12

o Protect Judgments o Judicial Abstention Doctrines o Exhaustion of Administrative Remedies Fed. Cts not suppose to proceed with a case until gone through o Pullman Abstention o Younger v Harris Exhaustion of Remedies o Patsy v Board of Regents No Exhaustion requirements for civil rights cases Based on leg. intent & St. decisis o Railroad v Pullman o Criteria o Unclear State law Ruling on the Fed. Law Issue depends on how the state law issue is resolved. A Definitive ruling from the state court would terminate the controversy. This procedure may not be appropriate if certification to the State Supreme Court is Available. Younger o In the absence of irreparable injury or bad faith, a fed court may not enjoin a pending state criminal prosecution on const. grounds. 2283 did not apply bc action was based on 1983 Instead, Judicial Abstention was based on Federalism o Notes Younger dealt with pending criminal pros., not threated criminal prosecution. Exceptions Bad faith Irreparable injury No adequate state remedy Flagrantly unconstitutional state statutes Samuels extended to cover pending declaratory relief actions as well Steffel v Thompson- Limited Young, doesnt apply to Dec. Relief where there was no pending criminal prosecution, but allows if genuine threat of enforcement of a dispute criminal statute. o Notes Only applies if there is no arrest Doral injunctive relief against threatened criminal prosecution was allowable as well as declaratory relief. Hicks v Mirandao Covers previous and criminal actions, does not have to be a pending state criminal proceeding for Younger to apply. Huffman- Extension of Younger to Civil Actions o Applies to state civil actions pursuant to criminal cases. o We not hold that where state criminal proceedings are begun against the fed. P after the fed. complaint is filed but before any proceedings of sub on the merits have taken place in fed court o Younger has also been extended to other civil actions where the state was a party, and to contempt proceedings, child abuse proceedings, admin proceedings involving sufficiently important state interests, attorney disciplinary proceedings and proceedings to enforce judgments o Notes What is federal proceedings of substance on the merits? 13

Fed Ct denied TRO & hadnt ruled on motion for Prelim injunction when crime action was filed in State Court Had TRO been granted o Granting of TRO before the filing of a crime action in State Court qualified as a proceeding of substance on the merits. Trainor- applied to civil enforcement proceedings brought by state. ANY enforcement proceeding with a state party trying to enforce any law, not just criminal Judice v Vail- Younger applied in Civil Contempt proceeding Moore v Sims- Applied to a civil action by the state taking children away from parents because involves an important state interest Middlesex County Ethics- Younger applied to Atty. Disciplinary Problems Oshea- Injunction would be a major continuing intrusion into daily conduct of state criminal proceedings Pennzoil- No injunction against the enforcement of a state court judgment of 11 billion because of importance of state interests. NOPSI- Younger does not apply to legislative or executive action involving electric utility regulations o Bufordo Requires federal courts to decline to exercise jurisdiction over cases that involve difficult issues of state law bearing on policy problems of substantial public importance. Habeas o Procedure for Fed. Courts review of State Court Convictions o Provided for in Constitution, Controversial idea o AEDOA of 1996 narrowed scope o Art 1 9- Suspension clause o 28 USC 2241- Authorizes Writs of HC on 5 grounds (e)(1) Habeas isnt available for alien enemy combatants o Boumediene- 2241 (e)(a)- violated suspension clause 1 9 applied to Guantanamo prisoners Although detainee treatment act provided for Fed. Ct review of Combatant status. Review Tribunals NOT adequate substitute for Habeas because : Did not authorize court to release prisoners if they were wrongfully held Did not provide the introduction of evidence for the courts review of CSRT o 28 USC 2254 Grounds are only that you are in custody in violation of Fed. Const. or Fed. Law 1 year after conviction is final, after appeal concluded Requirements for application Must exhaust state remedies before you can file (state courts) The conviction was contrary to or involved an unreasonable application of clearly established federal law, as determined by SCOTUS Conviction was contrary to, or involved unreasonable determination of facts in light of the evidence presented in state court Presumption of correctness of conviction unless you have clear and convincing evidence No evidentiary hearing on factual issues unless o New rule of Con. Law is made retroactive & was previous unavailable. 2255- Relief for federal prisoners is authorized by motion instead of petition. 14

Provides for motion to vacate on grounds that sentence violated federal law or sentencing court lacked jurisdiction 28 USC 2244- Finality of Determinations A court of appeals authorizes; and New rule of Con Law is made retroactive Fact could not have been previously discovered through reasonable due diligence By clear and convincing evidnce, no reasonable fact finder would have found D guilty 28 USC 2261-2266 Quid Pro Quo- deals with states giving stronger finality for state court judgments in exchange for states providing greater right to counsel for indigent prisoners sentenced to death Statute of Limitations- 6 months Limits on scope of review & stays of execution Requires certification of Attorney General o ONLY AZ has qualified for these provisions

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Eerie Doctrine- Vetical Law

Under the Erie Doctrine, a federal court sitting in diversity must apply state substantive law and federal procedural law. Cases after Erie: - The allocation of the burden of proof is a matter of state substantive law. Cities Service. - Issues of discovery are matters of federal procedural law. See Sibbach. - Conflicts of law are matters of state substantive law. See Klaxon. This does not mean that law of the particular state will apply; but must look at if the state was deciding the case, which choice of law would be applied. See Day. Under Hanna, a federal court sitting in diversity must first determine whether a Federal rule directly collides with the state law it is being urged to apply. If there is such a direct conflict, The Federal Rule must be applied if it is constitutional and within the scope of the Rules Enabling Act. If a direct collision does not exist, then the court applies the Erie rule to determine if state law applies. In deciding whether a Federal rule directly collides with a state law, the federal court must determine whether the scope of the federal rule is sufficiently broad enough to control the issue before the court. An inquiry into whether the rule is actually designed to regulate the processes of the court, or whether it will adjudicate the merits of the dispute can provide the answer. In short, can the rules exist side by side, each controlling the intended sphere of coverage without conflict? If there is no direct collision, then the court must look to the outcome determinative test to decide if applying the state law will affect forum shopping and lead to inequitable administration of the law. See Erie. In Guaranty Trust, the application of different limitations periods in federal and state courts on the same causes of action would be very outcome determinative. Finally, the court must determine whether there any countervailing federal interests prevent the state law from being applied. See Byrd.

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The court must balance the federal and state interests against each other to determine which law should apply. The test includes 1) considering states interest in applying state law, 2) considering the federal interest in applying federal law, and 3) considering the interest of maintaining a uniformity of outcome. See Byrd.

Removal
Under 28 U.S.C. 1441(a), a case removed from state court to federal court passes to the district court of the US for the district and division embracing the place where such action is pending. Only s may remove a case; s and 3rd party s may not. A diversity case cannot be removed if any is a citizen of the forum state in which the case was originally filed by the . Under 1441(c), if a federal question is joined with a state law claim, the entire case may be removed to federal court, which has the discretion to either 1) decide those cases in which state law dominates or 2) remand those state matters in which state law predominates on the grounds that they are separate and independent from the federal issue. See Eastus. Removal is appropriate in federal question cases, regardless of the citizenship of parties. The procedure for removal is under 28 U.S.C. 1446. Remand is authorized to state court under 28 U.S.C. 1147(c) if the jurisdictional amount is not in excess of $75,000. Effect of Dismissal: - If the creates diversity by voluntary dismissing a non-diverse , the suit becomes removable.

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- If the non-diverse party is involuntarily dismissed, the suit does not become removable. o There is an exception however for fraudulent joinder, when the court determines that the had no chance of success against a non-diverse simply added to defeat diversity.

Complete Preemption Doctrine: There is an exception to the well-pleaded complaint rule. There will be a federal statute that implicitly or expressly creates a cause of action and provides a remedy, pre-empting state law in that area. Where Congress has expressly or implicitly pre-empted state law in a particular area, a case may be removed to federal court if the originally brought the action in state court, and based on a pre-empted state law, the raises federal pre-emption as a defense. See Beneficial Bank. Abstention Even if a federal court has subject matter jurisdiction, it may abstain from hearing the case for variety of circumstances. Under the Pullman Doctrine, federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial constitutional question can be decided. The state statute must be unclear or the issue of state law uncertain, the resolution of the federal must depend on the interpretation of the ambiguous state law, and the state law could be interpreted to avoid or modify the federal issue. Under the Younger Doctrine, in the absence of bad faith, fraud or irreparable injury, a federal court must abstain from enjoining ongoing criminal proceedings. It has also been extended to abstain federal courts from enjoining ongoing state civil proceedings that involve important state interests if the state forum provides the federal a full and fair opportunity to pursue his or her claim.

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Under the Colorado River Doctrine, a federal court should dismiss cases for reasons of wise judicial administration, and this involves a balancing of certain factors: assumption of jurisdiction over a thing inconvenience of the forum, avoidance of piecemeal litigation, order in which the actions were filed, the law that provides the rule of decision, or protection of the federal s rights. Under the Buford Doctrine, federal courts must abstain in cases that involve difficult issues of state law bearing on policy problems of substantial public importance.

Supplemental Jurisdiction

Allows federal courts to have discretion to extend their jurisdiction to claims that would otherwise not be within federal court. See Gibbs. Federal Question Cases: - where the original claim comes within the courts federal question jurisdiction, 1367 allows the court to hear closely related statelaw claims. - 1367 also allows additional parties to the state-law claim to be brought into the case. Diversity Cases, 28 U.S.C. 1367(b) or the Carve Out - Supplemental jurisdiction also applies for added parties or claims in diversity-only situations on a limited basis. This rule takes away supplemental jurisdiction when the claims are made by s against parties joined under Rules 14, 19, 20, or 24, when the claims are by 19 s, or when the claims are by a seeking to intervene. 28 U.S.C. 1367(c)(3) allows the federal court to dismiss a case if the court has already dismissed all of the claims over which it had original jurisdiction. Federal court would have supplemental jurisdiction over the claim on account of the Exxon case because the claim arises out of the same accident as _____ so that the claim comes within 28 U.S.C. 1367(a) and the claim is not excluded by the carve out within 20 U.S.C. 1367(b)

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since it is not a claim by a against a person made a party under Fed. R. Civ. P. 20.

Res Judicata: Claim Preclusion

Claim preclusion prevents a party from prevailing on issues he might have but did not assert in the first action. In order for claim preclusion to apply, the case must have been brought by the same claimant against the same defendant, the same cause of action must be involved, the judgment must have been final and valid, and judgment must have been on the merits. In determining the scope of the claim, if the subsequent claim arose from the same transaction or occurrence that is the subject matter of the first claim, then the claim is precluded. See R2d Judgments 24 Claim preclusion indirectly bars cumpulsory counterclaims. What is on the merits? - Default judgments in favor of claimant are always on the merits. - Involuntary dismissals are generally on the merits unless the dismissal was based on o Lack of jurisdiction o Improper venue or o Failure to join an indispensible party - If judgment was based on a discovery sanction, it is probably on the merits. o See Semtek case exception though, where although the discovery sanction precluded the action to be asserted in the same state court, it could be re-filed in the federal system if that state allowed it. Under R2d of Judgments 18, the Doctrine of Merger precludes a winning from bringing a 2nd cause of action on a claim, except to enforce the judgment. Also, a losing is precluded from re-litigating any

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defense to the claim that he may have raised in the initial action but didnt. Under R2d of Judgments 19, the Doctrine of Bar precludes a losing from bringing a second action on a claim, even if the first case was erroneously dismissed. The appropriate action is for the to file an appeal. When res judicata or collateral estoppel is being asserted on the basis of a judgment that was entered in a different court system than the present suit, the judgment is given a binding effect based on Full Faith and Credit. Additionally, the second court must rely on the res judicata law of the original court to govern the binding effect of the judgment.

Collateral Estoppel: Issue Preclusion

In issue preclusion cases, an earlier judgment forecloses only on a matter actually litigated and essential to the decision. It does not prevent the reexamination of issues that might have been, but were not, litigated in the earlier action. The issue must have been essential to the judgment in the first suit. If the courts follow the First Restatement 68 approach, where the judgment is based on matter litigated as alternative grounds, the judgment is determinative of both grounds, although either alone would have been sufficient to support the judgment. See Jean Alexander. If the courts follow the R2d 27 approach, when a judgment is based on determinations of both issues, either of which standing independently would be sufficient to support the result, the result is not conclusive with respect to either issue standing alone.

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