Federal Courts Flashcards

Question

redressability requirement of standing

Answer 1

This redressability requirement focuses on the degree to which the proposed remedy would eliminate or redress the harm plaintiff allegedly suffered.

Answer 2

Linda R.S. v. Richard D.: Only a “speculative” connection existed between the desired result (the payment of child support) and the remedy sought (criminal prosecution of delinquent fathers) * Mother claimed violation in state’s refusal to pursue father for criminal non-support * Holding- no way to know whether prosecution or jail will cause father to pay child support. Court doesn’t see this in Heckler terms (i.e., stop the discriminatory scheme)

Answer 3

Frothingham v. Mellon (1923): No taxpayer standing. Federal taxpayers can’t rely on their status as taxpayers to confer standing to challenge allegedly illegal federal expenditures. Flast v. Cohen (1968): Federal taxpayer standing has been permitted in extremely limited circumstances to challenge congressionally approved expenditures alleged to be in violation of the Establishment Clause.

Answer 4

FCC v. Sanders: Competitor has standing to challenge FCC decision conferring license on rival, in the granting or denial of applications.

Answer 5

Trafficante v. MetLife: White and Black tenants have standing to seek relief against landlord for discrimination against White applicants. Allows for deputizing a private attorneys general. Havens Realty v. Coleman: A black “tester” asked about the availability of an apartment and was falsely told that it was not available. The tester had standing to sue under the Act even though he had no desire to live in the apartment. * Like information standing.

Answer 6

Lujan v. Defenders of Wildlife (1992): Congress cannot confer on Article III federal courts jurisdiction not authorized by Article III. Thus, if a plaintiff lacks standing in the Article III sense, Congress cannot by statute confer standing on that person. In other words, Congress cannot do away with the standing and timing requirements discussed earlier.

Answer 7

FEC v. Akins: FEC undercut the voters’ access to information, causing them an injury in fact that sufficed to support their standing. The creation by Congress of a right to information, though it was a right widely shared by all voters, was enough to satisfy Article III standards * Akins does not overrule Lujan. Rather, the Court, despite a strongly worded dissent by Justice Scalia (the author of Lujan), provided Congress the means to authorize citizen suits by recognizing that Congress can create a right, the invasion of which would support Article III standing.

Answer 8

Massachusetts v. EPA: Congress may have power to confer standing on states as preferred litigants. o Explained away as a state standing case. States get special solitude in the standing inquiry.

Answer 9

Spokeo v. Robbins: Allegations of a violation of the statute do not automatically confer standing; plaintiffs must show Article III injury that is both concrete and particularized The Court found that intangible injuries (such as that occasioned by the publication of an inaccurate report) could be concrete, but not simply because Congress created a right to sue. Instead, the concreteness inquiry focuses on whether the individual has suffered a real or de facto injury that Congress has made cognizable by granting a right to sue for its invasion

Answer 10

Uzuegbunam v. Preczewski (2021): The Court can redress an injury if all the plaintiff is seeking is nominal damages so long as there is a particularized, concrete injury. * State University Campus police stopped Uzuegbunam from distributing religious pamphlets, even though he was in a designated campus free speech zone and had a permit. He filed suit seeking injunctive relief (to stop the policy) and nominal damages for 1st Amendment violation. University discontinued policy, so only nominal damages left. o Held: (per Thomas, 8-1) Yes. We all agree he’s suffered a particularized, concrete injury, and nominal damages are redress enough. (Cites all the same cases from Spokeo concurrence on difference between public and private rights).

Answer 11

Risk of future harm is not a concrete injury, and Congress can’t create that right either (Risk of future harm can’t satisfy injury in fact for “case” or “controversy). * P sought to purchase a car. When dealer ran a credit check, TransUnion inaccurately reported that P was on terror watch list. Dealer refused to sell car, and P had to cancel upcoming trip to Mexico. * P filed suit under FCRA on behalf of class of people inaccurately on watch list during relevant period, claiming failure to ensure accuracy/maintain data integrity. * Parties stipulated class consisted of 8185 members, only 1853 of whom had had their inaccurate watch list status disclosed to third parties. o We look for “close relationship” to harms traditionally recognized at common law. Erroneous disclosure of terror watch list status is like common-law defamation. That required disclosure to a 3rd party.  Class members whose status was disclosed have suffered concrete harm.  Class members whose status was not disclosed have not. They just have a risk of harm, and you can’t get $$ for injuries you haven’t yet sustained.

Answer 12

o Thomas (+3): Where Congress creates private rights, unique to particular individuals, the concreteness inquiry doesn’t apply. This is not a generalized grievance case, where there’s some injury inflicted on the public writ large. Where Congress creates a private right, it alone gets to make the call when the harm/risk is enough to be actionable. You just joined my Uzuegbunam opinion, people! o Kagan (+2): I think we still use the concreteness inquiry, but I defer to Congress’s determination whether an injury is sufficiently concrete to be actionable, and only if Congress is insane will I step in.

Answer 13

Maybe but SCOTUS hasn’t decided. * Havens Realty v. Coleman (1982) – Fair Housing Act permitted Black plaintiffs standing to sue alleging statutory violations (racial steering practices) even if they didn’t intend to actually rent the property. * TransUnion v. Ramirez – Claim #2 was informational injury. TransUnion didn’t send me the required materials in its mailings. (Citing Akins). Court: You got what the statute required. “Moreover, the plaintiffs have identified no ‘downstream consequences’ from failing to receive the required information.” * Acheson v. Laufer (2023) – Tester standing under the Americans with Disabilities Act. Huge circuit split post-TransUnion on viability of tester standing. SCOTUS took case last term but then dismissed as moot (for non-merits reasons)

Answer 14

A case is moot when circumstances have changed to such an extent that the party can no longer obtain judicial relief that will be of any use. Like ripeness, mootness is concerned with timing. But whereas ripeness prevents a court from deciding a suit that is brought too early, mootness prevents a court from deciding a case too late, when the passage of time has made judicial relief irrelevant.

Answer 15

Mootness serves similar functions to standing and ripeness: (1) protecting separation of powers, (2) promoting better judicial decision-making by providing concrete facts for decision, and (3) docket control.

Answer 16

A case is moot when the controversy between the parties has clearly ceased to be “definite and concrete” and no longer “touch[es] the legal relations of parties having adverse legal interests.” * White law student challenged UW Law School admissions procedures, EPC violation. Sought order requiring his admission. Lower court granted, and he started up as a 1L. State Supreme Court reversed (when he was a 2L). US Supreme Court stayed. By time case argued at Supreme Court (Feb), he was in spring of 3L year, and school said he could graduate. DeFunis did not cast his suit as a class action, and the only remedy he requested was an injunction commanding his admission to the Law School. * Held: This is MOOT, as UW has said he will graduate. No exceptions to mootness doctrine apply.

Answer 17

A court will hear the case under this exception if the defendant is free “to return to his old ways” and there is a strong public interest in resolving the legal issue. But the exception will not apply—and the court will dismiss the case as moot—if there is no reasonable expectation that the defendant will resume the challenged activity. Courts are understandably suspicious of defendants’ efforts to thwart litigation process in injunction cases by voluntarily stopping complained-of activity. If there’s any likelihood they can start up again  Not moot.

Answer 18

Vitek (1980): Defendants face heavy burden to show the behavior won’t recur. It must be “absolutely clear” that the behavior won’t recur, and in turn demonstrate it’s moot. * Case not moot where convicted felon challenging transfer to a mental hospital is actually paroled. Not “absolutely clear” that it won’t happen again. He could violate parole and be sent right back.

Answer 19

City of Erie (2000 SO’C): If an ordinance can’t be enforced, then the issue is not moot. State anti-nude ordinance ruled unconstitutional; strip club that challenged it conveniently closed after Court granted cert. Not moot  City still can’t enforce its ordinance and plaintiff could open up another nude establishment.

Answer 20

FBI v. Fikre (2024): Removals from the no-fly list without a rationale is not moot because it’s not clear whether the person could be put back on the list. We won’t dismiss as moot Muslim man’s challenge to FBI’s decision to place him on no-fly list. They have taken him off but have given him no reason why he was put on. Thus, we cannot trust they won’t put him on again.

Answer 21

The capable of repetition exception applies to mootness applies if (1) “a reasonable expectation or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party,” and (2) that the harm complained of is of such short duration that it will become moot before litigation can remedy it. **Key is “reasonable expectation” that same injury will again befall this same plaintiff.**

Answer 22

* Friends of the Earth v. Laidlaw: Insist on initial stake and adversarial presentation at outset, but our recognized exceptions to mootness doctrine demonstrate that we are willing to overlook it once we’ve sunk a lot of time and money into our litigation. o Dissent, Scalia, says mootness has its roots in “the judicial power” rooted in Article III. o If mootness is based in constitution, then courts have to consider it sua sponte even if no parties raised it at any point in litigation. Cant carve out exceptions and it can be raised at any point in litigation.

Answer 23

* Munsingwear: If something moots a case on appeal, the party that lost below loses ability to challenge outcome. That’s not right! We shouldn’t be stuck with outcome. We vacate that opinion so we don’t have to live with it (“vacatur”).

Answer 24

* Bancorp Exception: Wait. If the party that lost below voluntarily settles, and that’s what makes it moot, we don’t feel too bad for that party. I mean, they wanted this! So we don’t vacate. (“No vacatur.”).

Answer 25

The Court will not decide political questions. Subject areas in which challenges to congressional or executive authority had sometimes been thought to raise non-justiciable political questions: foreign relations, questions involving dates of duration of hostilities, the formal validity of legislative enactments, the status of the Native American tribes, and questions about whether a republican form of government exists in the states.

Answer 26

The presence of any one factor may trigger application of the doctrine. (Baker v. Carr) 1. Textually demonstrable commitment to another entity 2. Lack of judicially discoverable/manageable standards 3. Impossibility of deciding without choosing among policies in a very non-judicial way 4. Impossibility of deciding without disrespecting coordinate branch of government 5. Unusual need for adherence to political decision already made 6. Potential embarrassment of lots of different answers by different departments of government

Answer 27

Herbert Wechsler The Court interprets the Constitution as committing question entirely to a coordinate branch. This in itself is a law-based inquiry. Deciding this question = “Doing Law” (Court patrols the boundaries of the circle.)

Answer 28

Alexander Bickel Court abstains from deciding when issue is hard and super-important and Court will take an institutional hit if it weighs in. Sometimes Court says “we have no jurisdiction” and hence says “we can’t even say anything here, not even law stuff.” This is a good thing. Courts should do this. Don’t worry about it!

Answer 29

This isn’t a “justiciability” doctrine at all. Courts aren’t sidelined from these cases. They are ruling on the merits. We give effect to what the political branches have done because they had political authority under the Constitution to do it. “ Beske translation: We took a look and decided they were acting within their “Circle.”

Answer 30

* April 1961 – case is first argued. o Tennessee argues that “this a non-justiciable question, up to the legislature of Tennessee.” See, e.g., Luther v. Borden. (The incumbent legislature of Tennessee, obviously, had vested interest in keeping lines exactly as they were. ) o Case split Court Court put case over to next term for reargument. Whittaker had nervous breakdown and resigned without voting. Byron White appointed. * Held (5-4): This is justiciable. o The Equal Protection Clause gives us standards that are well-developed and familiar to us. (In contrast to that wishy washy “Guarantee Clause” that we previously held was non-justiciable in Luther). There is no demonstrable commitment to another branch. Court employs Classical View language.

Answer 31

* District court judge challenged Senate Impeachment Rule XI o Held: This is nonjusticiable.  [1] Lack of judicially manageable standards: Word “Try” in Impeachment Clause is susceptible of many meanings. Constitution doesn’t limit it.  [2] Textual commitment to another branch: Word “Sole” manifests Framers’ intent that only Senate should have power over this, and there is lots of evidence in Federalist Papers that Framers considered and rejected giving Supreme Court a role. (Classical View language: we patrol the boundaries of the circle) (This is within the circle)  [3] Bad idea: Opening door of judicial review would expose political life of country to months of chaos (especially if a President were impeached). (Prudential View language)

Answer 32

 Justice White: I would reach merits (and judge loses). * Framers would never have intended to vest Congress with unreviewable power over impeachments. Inconsistent with idea of checks/balances. We get to play boundary cop. * Use of “sole” differentiates between role of House and role of Senate in impeachment. * Note that White’s view is, in essence, “we can review it, but when we do, we find that the Senate has tons and tons of discretion here and has not exceeded it.” (Big circle!)  Justice Souter: Yes, this case is a political question (not justiciable!), but we need a more functional analysis. What Senate did here looks good enough that we don’t need to weigh in, but I can imagine circumstances where arbitrary Senate rules (coin toss) would be reviewable.

Answer 33

(Classical view; we police the boundaries) * State Department policy required that children born to U.S. parents in Jerusalem put Jerusalem, not Israel or Jordan, on their passports. Congress passed statute giving parents option of asking for “Israel” on their children’s passports. The Zivotofsky family applied to the State Department for Israel designation, and the State Department refused. * D.C. Circuit: This is a Political Question. Constitution gives exclusive power of recognizing sovereigns to the President, and Congress taking a contrary position doesn’t change our view. * Held: (Roberts) Nope. This is justiciable and is not a political question. Even though Constitution assigns recognition power to executive (e.g. textual commitment), we have conflict between Congress and President here over this power, and the judiciary is the appropriate body to resolve the dispute. (Classical view; we police the boundaries) * We can’t decide political status of Jerusalem. That isn’t our call. That would be a clear PQ.

Answer 34

* Voters in NC and MD brought Equal Protection challenges to partisan gerrymanders. NC plan alleged to discriminate against Democrats and MD plan alleged to discriminate against Republicans. * Held: (5-4, per CJ Roberts) This is a nonjusticiable political question. We can’t decide how much is too much. o “To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers' decision to entrust districting to political entities.” * Dissent: (Kagan). o We can totally do this. Lower courts have coalesced around administrable standards. These schemes grievously harm our democratic system of governance.

Answer 35

The judicial power shall extend * To all cases (subject matter based) o Arising under the Constitution, federal laws, and treaties. (Federal question)

Answer 36

1. Substantive (policy/cause of action) 2. Jurisdictional (you can sue here)

Answer 37

So long as a question of federal law “forms an ingredient of the original cause,” Congress can confer jurisdiction on lower federal courts, including the Circuit Courts, to hear it. a. Congress can confer jurisdiction on lower federal courts even when the federal element will play a relatively small role in the case.

Answer 38

o Original (lower court) federal jurisdiction should be limited to situations where federal law provides the underlying right and, thus, plaintiff’s underlying substantive cause of action. (That is to say, I think Constitution requires a face-of-the-complaint rule.)

Answer 39

Verlinden v. Central Bank of Nigeria (1983): Congress may confer statutory jurisdiction so long as the presence of federal law issue is non-speculative. * Dutch corporation filed action in federal court against an instrumentality of Nigeria for breach of contract (a non-federal cause of action). * Foreign Sovereign Immunities Act (FSIA) clearly provides statutory jurisdiction (separate from 1331) where sovereigns lack immunity. * FSIA confers immunity and provides exceptions where sovereigns lack immunity—like for suits arising from commercial acts. If P proves case is within exception, suit proceeds and is governed by state law. * First thing foreign sovereign usually does when sued is claim immunity. (And then move to dismiss). * Nigeria instead immediately sought to dismiss for lack of subject matter jurisdiction FSIA confers SMJ in absence of “federal ingredient.” (Is jurisdictional statute for suit governed entirely by state law.) o CA2: You are right. FSIA is unconstitutional. * Can Congress constitutionally confer jurisdiction on federal courts where the cause of action is non-federal? o Held (9-0): Yes. Congress may confer statutory jurisdiction so long as the presence of federal law issue is non-speculative.

Answer 40

Congress can authorize federal jurisdiction whenever it thinks doing so is necessary to protect federal interests. This has been rejected. * Lincoln Mills: Federal substantive law governs, so jurisdiction provision raises no constitutional issues. When there is active federal policy in that field, but Congress has not acted then Congress can confer jurisdiction to protect federal interest.

Answer 41

o Citizen of DC sued VA defendant in Maryland raising issue of Maryland law o Previous case (Hepburn) held that a citizen of DC was not a citizen of a state within meaning of Diversity Clause (constitutional holding), but the statute authorized federal jurisdiction in actions between citizens of state and citizens of DC o Holding- statute is constitutional  2 justices would overrule Hepburn  3 justices would uphold statute without overruling Hepburn o Majority of Court upheld statute, but for totally different, mutually exclusive reasons o A different majority concluded that Congress cannot expand federal jurisdiction beyond what Article III permits

Answer 42

Congress can give lower courts less jurisdiction than the Constitution permits. * The power to create lower federal courts includes the power to define and limit the contours of their jurisdiction. * Judiciary Act prohibits jurisdiction in diversity cases where diversity was obtained by an assignment * Holding- Congress can give lower courts less jurisdiction than the Constitution permits o Constitution leaves creation of lower federal courts up to Congress, so when Congress decides to create them, it can confer less jurisdiction than is constitutionally permissible o Doesn’t imply any limits to this power o Consistent with Madisonian Compromise

Answer 43

Congress can withdraw appellate jurisdiction once it has conferred it, even during the pendency of an appeal; We’re not at liberty to inquire into Congress’s motives It allows Congress to strip its appellate jurisdiction irrespective or its motive or timing * McCardle was arrested for writing articles against the Reconstruction effort * During oral argument, Congress repealed the provision of the 1867 Habeas Act that authorized his appeal to SCOTUS with the express purpose of taking this case off the docket * Holding- Congress can withdraw appellate jurisdiction once it has conferred it, even during the pendency of an appeal o Congress can control the Supreme Court’s appellate power under the Exceptions Clause o Here the cat door of original habeas still existed o We’re not at liberty to inquire into the legislature’s motives

Answer 44

Reaffirms McCardle * Mississippi journalist killed Reconstructionist Mayor and brought habeas action * Holding- There is original habeas jurisdiction so SCOTUS can hear the case o But federal authorities immediately dismissed all charges against Yerger

Answer 45

o It is “preposterous” to allow exceptions to engulf the rule and eliminate appellate jurisdiction altogether. This would destroy the “essential function” of the Supreme Court in our constitutional plan. Constitution cannot authorize its own destruction. o Limits are necessarily built into Article III. Absurd to read the Constitution any other way.

Answer 46

o Sheldon + McCardle = congressional total power to regulate federal courts, unrestricted by any Article III internal limits. State courts are just as good.

Answer 47

o Like Wechsler, believes that Congress has the power to withdraw all jurisdiction. o Sees this as an important political counterweight that gives legitimacy to judicial review. That Congress can do this and has not is what courts can point to in an effort to justify their antidemocratic position in our society.

Answer 48

o Constitution says that judicial power “shall be vested” in one Supreme Court. This is mandatory. The Supreme Court (some federal court?) must have a role in the process – either original or on appeal from a state court or a lower federal court. o **This applies only to the first three bases for federal jurisdiction, where the Constitution says, “All cases.” ** o Where state courts aren’t permitted to hear an issue because federal jurisdiction is exclusive (copyright, trademark, immigration, antitrust, etc.), this necessarily means that Congress has to create some lower federal courts. Otherwise, Supreme Court won’t get its mandatory judicial power. o Where state courts are permitted to hear an issue, or where there are no inferior federal courts with authority to hear an issue, this necessarily means that the Supreme Court must have appellate jurisdiction over state courts.

Answer 49

Jurisdiction-stripping is okay so long as we have a cat door (i.e., a way to get to SCOTUS) * Addressing constitutionality of AEDPA preclusion of review of COA decision not to allow successive habeas petition * Holding- The restriction is constitutional because it doesn’t affect the Court’s authority to entertain “so-called original habeas petitions” o Essentially any sliver of a chance of SCOTUS review is sufficient to uphold a congressional restriction on appellate jurisdiction

Answer 50

Congress denying all federal and state jurisdiction is constitutional * Congress enacted Portal-to-Portal Act redefining work week and providing no federal OR state jurisdiction to impose liability * Holding- This provision denying all jurisdiction is constitutional o Congress can deprive state/federal courts of jurisdiction only if it doesn’t violate due process in doing so o If the underlying thing that is unreviewable violates due process, then Congress violates due process when it withholds jurisdiction to review it * Courts can’t be asked to turn a blind eye to colorable unconstitutionality o So the court must take a peek at the merits to determine whether Congress can or cannot extinguish the right or remedy

Answer 51

o Amending substantive law o Constraining federal/state jurisdiction o Giving jurisdiction to non-Article III actors, like Article I/legislative courts o Revising/changing final judgments of the federal courts o Prescribing rules of decision in pending cases

Answer 52

judicial decisions have to be final and cannot be subject to revision after they are issued; Congress cannot vest review of the decisions of Article III courts in officials of the executive branch

Answer 53

Congress can change the rules of decision on a going-forward basis in a way that negatively affects an ongoing decree (i.e., injunction) o SCOTUS ruled that a suspension bridge impeded passage of steamboats and had to be removed and entered an ongoing decree barring it o Congress passed a statute declaring the bridge part of a post office route and thus a lawful structure o Holding- the Act is valid

Answer 54

Once a decision reaches finality, Congress cannot change that decision through retroactive legislation; Pending decisions are subject to whatever changes Congress wants to make o Plaut’s insider trading action was pending when SCOTUS decided Lampf, then dismissed o Congress then passed a statute requiring courts to reopen cases dismissed as time-barred under Lampf o Holding- statute is unconstitutional  Offends principle of separation of powers  This is Congress taking the Court’s final decisions and demanding that they be reopened

Answer 55

 Once a decision reaches finality, Congress cannot change that decision through retroactive legislation  Pending decisions are subject to whatever changes Congress wants to make

Answer 56

o Prison litigation resulted in an injunction to remedy 8A violations; Prison Litigation Reform Act required existing injunctions to be dissolved on defendant’s motion o Holding- Plaut carefully distinguished money damages from ongoing injunctions and Congress can alter the prospective effect of previously-entered injunctions  These are new standards that govern prospective relief

Answer 57

o Congress can’t compel courts to “reopen” or change a suit for retrospective relief (e.g. damages) once it is final o However, it can change substantive law that applies to pending actions for prospective (injunctive) relief

Answer 58

Congress can’t pass a statute that dictates the result in a pending case without changing the underlying rules; NO SMITH WINS o SCOTUS had held that a person who received a pardon was per se loyal; Congress passed an act during pendency of the appeal saying that a pardon is not per se evidence of loyalty o Holding- the new act is unconstitutional because the end is illegitimate  Not a valid exercise of the exceptions power  Congress can’t prescribe rules of decision in a pending case (doesn’t hold up in later cases)  This infringes on the power of the executive by dictating the consequences of the presidential pardon o Mostly read for the proposition that Congress can’t pass a statute that dictates the result in a pending case without changing the underlying rules  Creates a line-drawing problem between the two  It’s not ok if the statute says “in smith v. jones, the court must find for smith”

Answer 59

It’s ok if Congress amends the underlying law and that affects jurisdiction in pending cases. o Congress enacted a compromise that specifically referenced how the courts should act in pending litigation o Holding- this is fine  This amends the underlying law, so no need to talk about Article III  Klein doesn’t apply when Congress amends the applicable law, even though this has the effect of making the case go away

Answer 60

Congress cannot enact a statute declaring who wins in a particular case, but Congress can make new laws that apply in pending civil cases, even when they are outcome-determinative o Under NY law, bank account assets were not attachable, but Congress passed a law that these plaintiffs could satisfy this judgment using the Bank Markazi account o Holding- this is fine and doesn’t violate Klein * Klein directed the result without altering the underlying legal standard because Congress wasn’t allowed to alter the effect of a pardon (separation of powers) anyway  No requirement that legislation be generally applicable  A statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts  Here, the the change in the rules had an incidental effect o Dissent – this is smith v. jones

Answer 61

Congress violates the Constitution when it compels facts or findings under old law, but doesn’t when it changes the underlying law and effectively dictates the result for one party o While suit challenging decision that certain land could be held in trust for an Indian tribe pending, Congress passed an act identifying this piece of land and provided that any action shall be promptly dismissed

Answer 62

o Congress passed Norris-LaGuardia Act, which sharply restricted the jurisdiction of federal courts to enjoin peaceful union activities  But employers could still seek injunction in state court under Truax o Holding- The restriction on jurisdiction to enter injunctive relief is constitutional  No question that Congress has the power to define and limit the jurisdiction

Answer 63

Congress denying all federal and state jurisdiction is constitutional o If the underlying thing that is unreviewable violates due process, then Congress violates due process when it withholds jurisdiction to review it o Courts can’t be asked to turn a blind eye to colorable unconstitutionality  So the court must take a peek at the merits to determine whether Congress can or cannot extinguish the right or remedy

Answer 64

o Where Congress can validly do something (like change the statutory definition of “workweek”), it can also validly extinguish all jurisdiction to review it. o Sometimes, instead of denying all jurisdiction, Congress will simply deny jurisdiction to enter a particular remedy. o Congress generally can extinguish all jurisdiction to provide one (among many) remedies for the violation of a right, so long as it leaves other remedies intact.

Answer 65

* Webster v. Doe- serious constitutional question if a federal statute were construed to deny any judicial forum for a colorable constitutional claim (i.e., a constitutional claim that probably wins) However, If a particular remedy is constitutionally required – as in the Takings Clause context or the suspension clause – judicial review is likewise required to provide it, and jurisdiction-stripping is improper.

Answer 66

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Article I, section 9, clause 2)

Answer 67

Preclusion of judicial review (state and federal) of deportation orders ok because IIRIRA and AEDPA did not withdraw general habeas jurisdiction under § 2241 o AEDPA and IIRIRA precluded judicial review of deportation orders and precluded a specific form of habeas review o Holding- The withdrawal of jurisdiction is permissible because IIRIRA and AEDPA preserve general habeas jurisdiction  Removal of habeas remedy altogether would raise a serious Suspension Clause issue --> whether the Suspension Clause guarantees the habeas remedy to executive detainees. At a minimum, Suspension Clause protects habeas as it was understood in 1789, and that arguably extended to executive detainees like St. Cyr who asserted their detentions were based on errors of law. * This matters because after St. Cyr’s “magic words” holding in 2001, Congress became very explicit, enacting three statutes expressly stripping federal courts of all habeas jurisdiction (the REAL ID Act of 2005, the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006). These statutes used the magic words.

Answer 68

At a minimum, the Suspension Clause guarantees right to 1789 habeas or an acceptable substitute. 1789 habeas = habeas for federal executive detainees so the preclusion of all habeaus review is unconstitutional. o In Rasul (2004), Supreme Court held that detainees at Guantanamo were permitted by the general habeas statute (§ 2241) to file habeas actions. o Congress responded by enacting Military Commissions Act of 2006 eliminating all habeas jurisdiction (including under § 2241) for any noncitizen that the U.S. had deemed an “enemy combatant.” o Instead, these guys had to go to Combatant Status Review Tribunals (CSRTs), which were subject to very limited judicial review.

Answer 69

This answers question left open in Boumediene: Suspension Clause limited to 1789 Habeas, pretty much. o Holding- Military Commissions Act violates the Suspension Clause, which guarantees right to habeas corpus or an acceptable substitute- this is not an acceptable substitute  Congress used magic words to preclude general habeas review, unlike St. Cyr

Answer 70

Lifetime tenure Salary Protection Nominated by the President; confirmed by the Senate See these as key safeguards against political pressure.

Answer 71

Can be removed at will. Usually a fixed term. No salary protection. Various methods of appointment.

Answer 72

o Territorial courts o Military courts o Adjudication of public rights disputes o Article III “adjuncts” o State courts

Answer 73

o Decisions are typically self-executing o “Exceptions” to Article III, thought to be outside “the judicial power” that Article III courts retain o Territorial courts, military courts, courts to vindicate “public rights” (claims against government for money, land, etc)

Answer 74

o Created pursuant to Congress’s Article I authority, but not seen as “exceptions” to Article III, so the Court has struggled with how to retain its role o Within an executive agency, officials can act in a legislative/rulemaking, executive, and adjudicative capacity

Answer 75

In cases involving “public rights” – that is, disputes between a person and the government – an Article III court does not need to hear the case (or any appeal). But this case involves “private rights” – disputes between two private parties. * It is fine to give these statutorily-created private rights to an administrative tribunal if and only if o Article III court resolves all questions of law de novo. Decision automatically goes to Art. III decision maker and doesn’t become operative on its own. o Only simple determinations of fact – like extent of injuries – are delegated to non-Article III tribunals. They can be conclusive upon reviewing courts if supported by evidence and within bounds of law. o However, questions of jurisdictional fact – whether facts trigger the statutory scheme or not – are different, and to avoid a serious constitutional question, we will read the statute as permitting a court to determine the underlying fact of employment. (p. 481) o In effect, the agency is operating as an “ADJUNCT.”  Federal courts are enforcement entities and agencies are adjuncts. * An Article III court will determine jurisdictional facts after its own hearing.

Answer 76

A bankruptcy court is not a legislative court. * Challenges the constitutionality of bankruptcy courts * Plurality holds that the Bankruptcy Act of 1978 violated Article III o Not “legislative courts”. A bankruptcy court is not a sparkly star.  These are private rights of action between debtor and creditor on traditional common law claims o Not “merely an adjunct”  Does not concern rights created by statute, so power to create adjuncts at a minimum  Bankruptcy court does far broader fact-finding and its judgments are self-executing * Not an adjunct if you issue self-executing judgments * If it’s an appellate model, it’s not an adjunct * After Northern Pipeline, public rights include matters between individuals and the government only

Answer 77

matters super-connected to an intricate and complicated federal scheme that itself is the source of rights are public rights * Challenge to FIFRA provision sending certain indemnification disputes amongst pesticide registrants to a non-Article III arbitrator * After Thomas, public rights include (1) matters between individuals and the government and (2) matters super-connected to an intricate and complicated federal scheme that itself is the source of rights

Answer 78

Consent. Customer waived right to Art. III consideration by filing initial claim. Other side chose to bring in counterclaim. Parties are not compelled to resort to agency process. * FTC was created to provide mechanism for agency adjudication of customers’ claims against brokers and permitted agency to consider (non-compulsory) counterclaims arising out of same transaction * Holding- this is permissible o Consent is key- customer waives right to Article III consideration by filing initial claim o It would be too impractical to separate these claims (i.e., one claim in an Article III tribunal and one in a non-Article III tribunal

Answer 79

Only a public right can be adjudicated by a non-Article III court without a jury. This is a private right. Thus, you get an Article III court and a jury (first time 7th Am. comes up).

Answer 80

* Trustee responded with tortious interference counterclaim, which bankruptcy court had authority to adjudicate as a “core proceeding” subject to limited appellate review * Holding- Article III does not permit this o Doesn’t fit into the public rights category  Her claim is an ordinary state law claim and not a traditional “public right”—not between individual and government.

Answer 81

Patents are initially creatures of statute – like franchises – and thus are public rights * PTAB given power to review the validity of (and sometimes cancel) a patent * Holding- Patents are initially creatures of statute and thus are public rights o Even though a third party initiates the proceeding, the real debate is between the PTO and the patent-holder (government and private party)

Answer 82

Wellness International Network: Parties can bring a private “Stern” claim voluntarily into bankruptcy court if both sides agree.

Answer 83

Public rights are limited to things “that bring no common law soil with them.” * Jarkesy was accused of securities fraud. SEC pursued civil enforcement action before an SEC ALJ, not federal court. * Jarkesy argued: Statutory provisions allowing SEC to seek self-enforcing civil penalties through agency enforcement violate my Seventh Amendment right to a jury trial. See, e.g., Granfinanciera. * Holding: This is just like common law fraud, and the SEC is seeking civil penalties, i.e. money. So it’s an action “at law,” and the Seventh Amendment jury trial is triggered unless this is a “public right.” o It isn’t a public right. This is exactly like Granfinanciera, which also considered a fraud claim. It doesn’t matter that the government is bringing these claims. This isn’t “between an individual and the government.”

Answer 84

the judges in every state shall be bound thereby (i.e., state-judges clause), anything in the Constitution or laws of any State to the contrary notwithstanding

Answer 85

Congress can make federal admiralty jurisdiction exclusive, thus stripping state courts of jurisdiction. * Shipowner challenged state jurisdiction over in rem action, noting exclusive federal jurisdiction over admiralty cases * Holding- The 1789 Act validly made federal admiralty jurisdiction exclusive o This is statutory, not constitutional  **Constitution doesn’t make this jurisdiction exclusive; statute does. And in doing so, statute is constitutional.**  Congress’s ability to make these calls is found in the Necessary and Proper Clause. o Strong national interest in navigation and diplomacy

Answer 86

A grant of federal jurisdiction is presumed not exclusive unless Congress says so explicitly. * A grant of federal jurisdiction is presumed not exclusive unless Congress says so explicitly o This is the “Claflin Presumption.” * Some statements supportive of implied exclusivity

Answer 87

* Deeply-rooted presumption in favor of concurrent state jurisdiction unless Congress bars it either: o (1) by explicit statutory directive (e.g., 28 USC 1338 – exclusive patent jurisdiction) o (2) by unmistakable implication from legislative history o (3) by clear incompatibility between state court jurisdiction and federal interests

Answer 88

o Scalia concurrence: Only a clear affirmative statement or manifest disruption of the federal scheme should divest states of jurisdiction, which is otherwise presumed.  Basically erases legislative history requirement from Tafflin

Answer 89

Yellow Freight System v. Donnelly: We presume concurrent jurisdiction in state court unless we see clear conflict with state jurisdiction (whatever that is)). (Yellow Freight). * State courts have concurrent jurisdiction over private actions in Title VII * Implied exclusion of concurrent state court jurisdiction is strongly disfavored * Baseline rule, thus, is concurrent jurisdiction in state court. o Note, though: This is subject to right of non-forum defendant to remove from state to federal court (where, on face of well-pleaded complaint, case “arises under” federal law).  Non-forum defendant rule applies to diversity, not federal question. o Defendant’s right to remove is essentially a right to divest state court of this concurrent jurisdiction.

Answer 90

Removal of state criminal cases is only appropriate when a federal official raises a federal defense. * Federal revenue official indicted for murder and sought to remove to federal court * Holding- Congress can constitutionally allow defendant to remove in a criminal case o Congress can do this under the Necessary & Proper Clause. This arises out of the federal revenue laws.  This doesn’t trench too much on state sovereignty. States had to surrender a bit of their power when they joined union. o Always recognized that Congress can authorize removal of civil cases, so criminal cases shouldn’t be any different * Later in Mesa, the Court qualifies that removal is appropriate only when a federal official raises a federal defense (as opposed to a state-law defense) o Federal officer tried to use 28 U.S.C. § 1442 (same statute as in Davis) when his only defense was that he contested the charge. o United States: This should be okay; in Davis, you allowed removal when his only defense was state-law self defense. o Court: Wrong-o. Davis’s whole defense depended on whether he was validly seizing the still (i.e., acting like a valid federal revenue agent) or attempting to steal it. **Thus, his claim required analysis of federal law. **

Answer 91

State court lacks power to issue writ of mandamus to federal agent. When acting in scope of duty, federal agent can only be checked by power that created him – the U.S. government.

Answer 92

Ableman v. Booth: state courts are powerless to issue writs of habeas against prisoners detained by federal authorities. Tarble’s Case: State courts lack power to grant the writ of habeas corpus to federal detainees. o State and federal governments cannot intrude onto each other’s domain, unless intrusion would be necessary by the federal government to preserve its rightful supremacy

Answer 93

Assuming a state has courts of general jurisdiction open, the Court will invalidate a state refusal to take jurisdiction over a federal claim or refusal to provide a federally-prescribed remedy in two circumstances: 1. Where it is discriminatory (state allows “comparable” state claim/remedy) OR 2. Where it is preempted because it conflicts with presumed federal policy (Haywood)

Answer 94

Mondou: States may not refuse to enforce federal laws on the basis that they disagree with their underlying policy. o Federal policy IS state policy

Answer 95

Federal law is the supreme law of the land and the state must enforce it unless they have a valid excuse (e.g., nondiscriminatory jurisdictional rule). o Federal law is the supreme law of the land and the state must enforce it o Federal laws are not laws emanating from a foreign sovereign o The state conceded that this same type of claim arising under state law would be enforced (nondiscrimination principle- can’t favor state laws over federal laws) * Nondiscriminatory jurisdictional rules related to forum convenience or other neutral procedure are valid excuses for not enforcing federal laws

Answer 96

The Court doesn’t only look for nondiscrimination. Rules that are styled as procedure but actually reflect policy disagreement with federal law are not permissible, even if they are nondiscriminatory * State argued: This is definitely a nondiscriminatory rule. We enacted it before you decided that § 1983 didn’t allow suits against states! Also, we treat state and federal claims against corrections officers the same. We hate them all. No discrimination against a federal claim here, folks. * Holding- this is not a valid excuse to not entertain § 1983 actions o A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it may appear

Answer 97

o Stevens + 4: “This case does not require us to decide whether Congress may compel a State to offer a forum, otherwise unavailable under state law, to hear suits brought pursuant to § 1983.” Key disclaimer: **We don’t have a situation where state doesn’t have open courts and don’t need to address that question, happily.**

Answer 98

 States are allowed to enact jurisdictional statutes denying jurisdiction over federal claims. Framers debated a provision requiring them to take jurisdiction but didn’t adopt it. **Thus, nothing in the Constitution requires that states exercise jurisdiction. A state can just say no, even if in doing so it discriminates against federal claims. The fact that Framers gave Congress discretion to create lower federal courts gives them an out if they need it.**

Answer 99

o Thomas (w/ friends Roberts, Scalia, Alito)  Even if I didn’t want to shelve all this doctrine, our precedents hold that if a state acts neutrally, there’s no obligation whatsoever on states to hear federal claim. Period. Here, NY is treating state and federal suits against correction officers the same

Answer 100

* National League of Cities v. Usery (1976): Congress cannot force state governments to adhere to Fair Labor Standards Act; 10th Amendment imposes limits on Congress’s ability to regulate states in their “traditional governmental functions.” * Garcia v. San Antonio MTA (1985): Overruling NLC – this “traditional governmental function” distinction is totally unworkable; Congress can impose FLSA on state employees. * 10th Amendment doesn’t impose limits here. States are adequately protected by their equal representation in Senate. Remedies here are political only. * New York v. United States (1992): Congress cannot require states to regulate disposal of internally generated radioactive waste. This is (no) “commandeering” state legislative authority. * Printz v. United States (1997): Congress cannot require state law enforcement officials to conduct background checks on gun purchasers. This is (no) “commandeering” state executive authority. Murphy v. NCAA: Reaffirms anti-commandeering principle * Federal statute made it unlawful for states to permit various forms of sports betting, but didn’t make sports betting a federal crime * New Jersey wanted to permit state-sponsored sports betting * Holding- the prohibition of state authorization of sports betting violates the anti-commandeering principle * Nothing in the Constitution permits Congress to boss state legislature around

Answer 101

SCOTUS has appellate jurisdiction over state cases falling within Article III categories (subject to the Exceptions Clause). the Court can decide an issue of state law if the federal question is dependent on the resolution of the state law question.

Answer 102

When the U.S. Supreme Court takes a case on appeal under § 25, does the statute now say it gets to decide every question presented by a case, including state law issues (i.e., interpretation of the 1844 deed?). State court decisions regarding state law are still mostly unreviewable. * Issue is whether the repeal of the phrase limiting appeals to errors on the face of the record and those related to the federal question in the case means that SCOTUS can now decide every question presented by a case, including state law issues * Holding- No o State court decisions regarding state law are generally unreviewable o Rationale:  Jurisdiction under § 25 plainly limited; only federal questions actually decided, and only when they are decided against federal rights. It makes no sense for Congress to limit our power so carefully and then give us LOADS of extra power to rule on state law things. Surely Congress would have said something clear if it intended to do this.  Congress did NOT do this; question whether Congress could do it, consistently with the Constitution, thus isn’t presented.

Answer 103

o If federal question below (burdening federal right) was rightly decided:  SCOTUS affirms, doesn’t even look at state issues (Murdock) o If federal question below (burdening federal right) was wrongly decided, and it’s the only issue decided:  SCOTUS reverses o If federal question below (burdening federal right) was wrongly decided and there were other issues in the case:  Examine record to see if resolution of the federal question was necessary to the result or if the court relied on an alternative, state-law ground to reach the same result  If federal question alone dictated result, reverse  If same result would obtain regardless of resolution of federal question, affirm

Answer 104

No; severability question was not federal law. Where an adequate non-federal (i.e., state) ground independently justifies decision, we lack jurisdiction despite possible existence of federal claim * State court invalidated a contract on state and federal grounds * Holding- no SCOTUS jurisdiction

Answer 105

o State law is antecedent where federal rightholder must prevail on both state and federal grounds to get relief. o Where state rule is antecedent to determining federal right, we need to make sure there is some review of the state’s resolution of the state question; otherwise, federal interests could be thwarted. Screen for shenanigans.

Answer 106

* NAACP v. Alabama ex rel. Patterson o Alabama sought to preclude SCOTUS review by arguing that decision was supported by the state ground that NAACP had petitioned for cert after being held in contempt, rather than seeking a petition for mandamus beforehand o Holding- No  Alabama had never invoked this rule before and had permitted other to seek cert in the past, so this is not an adequate state ground * Staub v. Baxley (1958): o City prosecuted labor organizer for promoting union activity without prior permit. He sought to raise 1A and 14A arguments and challenged state statute in its entirety. o State court: We decline to reach constitutional claims because he didn’t challenge individual sections of statute one by one. o SCOTUS: This is an inadequate state ground. o Dissent (Frankfurter): States should be allowed to make their own procedure, and this procedure isn’t discriminating against federal claims. o H&W: Frankfurter’s right that SCOTUS allows state rules to thwart asserted federal claims all the time. Cases like these definitely the exception. * Lee v. Kemna o State court held that Lee didn’t file continuance motion in writing as required by state law o Holding- inadequate state ground  Trial judge did not alert counsel to any procedural defect, and also understood and could rule intelligently on the substance of the motion  Invocation of this empty formality is just plain mean

Answer 107

o State law ground is clearly independent where it has nothing to do with federal claim. (Contract had inadequate consideration under state law and violates the Sherman Act). o State law ground is clearly not independent if it expressly incorporates or is dependent on federal law. Supreme Court can review. (Indiana ex rel. Brand – which we will discuss) o State law ground is also clearly not independent if state court’s construction of federal law heavily influences resolution of state law question and it’s clear that it’s super-interwoven. Supreme Court can review.

Answer 108

State decision fairly appears to rest primarily on federal law or to be arguably interwoven with federal law AND Independence of state ground is not clear from the face of the decision. Saying you’re relying on both constitutions suggests its interwoven/not clear o When state decision rests primarily on federal law and adequacy and independence of state ground is not clear, the decision is presumed to be based on federal law o Only if state decision clearly indicates that it is based on an adequate and independent state ground will the Court assume that the doctrine applies o In other words, when we see dual reliance sentence, we assume decided on fed ground, unless there is a clear statement otherwise

Answer 109

o State decision fairly appears to rest primarily on federal law or to be arguably interwoven with federal law AND o Independence of state ground is not clear from the face of the decision * Saying “this violates state and federal constitutions” = dual reliance (both arguably interwoven and not clear)

Answer 110

o Our prior practice has been inconsistent and unclear. o Practice of assuming A/I ground and dismissing has thwarted uniformity – unreviewable holdings of fed law out there. o Practice of seeking state court clarification has overburdened state court dockets. o Practice of figuring out ourselves whether state law justifies the decision burdens us and confronts us with unfamiliar issues of state law. o We respect state courts **so much** that we must do this.

Answer 111

o Why not reverse presumption – i.e. assume state law basis? That has always been our traditional default. o Our primary role is to vindicate individual rights. We shouldn’t be troubled by state courts overprotecting their citizens by reading individual rights expansively.

Answer 112

o State claim is “on/off” switch for federal right:  Martin- resolution of state law question (whether land successfully confiscated before treaty) could make treaty question go away entirely o Contracts Clause  State court decision that there never was a contract could make constitutional question go away entirely o 14th Amendment  State court decision that you never had a liberty or property interest could make constitutional questions go away entirely

Answer 113

Whether there a contractual right is primarily state law, and we give “great weight” to views of state court but will independently review question to prevent “manipulation” and ensure vindication of federal rights. * Facts o Indiana Teacher’s Tenure Law, incorporated in Brand’s contract, gave tenure after 5 years. Brand taught for 5 years, at which point Indiana legislature repealed the rule and threatened to fire her. o Brand: I have tenure per the contract, and this statute violates the Contracts Clause. o State court: There was no enforceable contractual right to tenure as a matter of state law. So, no Contracts Clause violation! * State court held that there was no protectable contract as a matter of law

Answer 114

Board of Regents v. Roth: No statute, policy, or rule created a legitimate interest to reemployment, so state law created no property interest * State university professor challenged failure to reappoint, urging property interest in job sufficient to mandate hearing * Holding- existence of underlying property interest is a question of state law Webb’s Fabulous Pharmacies: State cannot characterize something that is clearly property (interest in a fund) as “not property”

Answer 115

SCOTUS has recognized some general liberty interests (Ingraham: freedom from corporal punishment; Youngberg: freedom from involuntary confinement; Obergefell: Marry people of same sex). However, state law can also create liberty interests that would not otherwise exist – like interests in pardons or parole. Before Sandin, inquiry focused on content of prison regulations – for example, whether language was mandatory or discretionary in conferring interest (as in Brand case). * Sandin v. Connor: Will find a state-created liberty interest only where deprivation imposes “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”

Answer 116

States courts are as competent as federal courts to vindicate federal constitutional norms. **Absent clear indication, we should presume Congress is indifferent about whether state or federal courts resolve a question.**

Answer 117

The Constitution incorporates strong premise of national supremacy over asserted state sovereignty interests and contemplates a special role for the federal judiciary. **Absent clear indication, we should presume Congress prefers easy access to federal courts for vindication of federal rights.**

Answer 118

* Generally, the federal courts have authority “to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

Answer 119

 Species of equitable remedy subject to traditional limitations on equity jurisprudence: * Plaintiff must have no adequate remedy at law. (damages won’t work). * Plaintiffs must face imminent, irreparable injury if injunction not granted. * Balance of harms favors granting injunction. * Injunction is in public interest (or isn’t against public interest).  NO INJUNCTIONS OF CRIMINAL PROCEEDINGS

Answer 120

A limit on federal courts power to issue injunctions on state court proceedings o A court of the United States may not grant an injunction to stay proceedings in a state court:  (1) except as expressly authorized by Act of Congress, or  (2) where necessary in aid of its jurisdiction, or (All Writs Act, subject to trad. Factors)  (3) to protect or effectuate its judgments

Answer 121

A limit on federal courts power to issue injunctions on state court proceedings o A court of the United States may not grant an injunction to stay proceedings in a state court:  (1) except as expressly authorized by Act of Congress, or  (2) where necessary in aid of its jurisdiction, or (All Writs Act, subject to trad. Factors)  (3) to protect or effectuate its judgments

Answer 122

If someone acts under the color state law and deprives person of rights under federal laws and Constitution, you have an action for damages and an injunction Embodies the Nationalist Model – distrust of state actors and belief in primacy of federal courts for vindication of federal rights.

Answer 123

yes, but once it is started, there is a hard stop * No injunction may issue in this in personam action.

Answer 124

in personam = first to judgment rule – While no priority attaches to the first-filed proceeding, second court must give preclusive effect to first final judgment (state or federal) on the merits. in rem = first to file (Princess Lida)

Answer 125

Toucey v. New York Life Ins. Co.: leads to codification of the relitigation exception of AIA (must be able to effectuate its judgments – Courts had created a “relitigation” exception to the AIA, allowing district courts to stay a proceeding in state court where it had previously been litigated in federal court, sparing litigants the inconvenience of pleading and proving res judicata – Holding- no statute contains this exception, so it doesn’t exist * AIA later amended to codify the relitigation exception

Answer 126

– Plaintiffs were arrested as civil rights activists; charges were dropped, but threat of bad-faith continued enforcement chilled plaintiffs’ civil rights activities * No pending action here, trying to resemble RR mechanism – Plaintiffs filed § 1983 action in federal court seeking injunction against further prosecution – Holding- the injunction can issue * Traditional limits imposed on equitable remedies are not a problem here * “Chilling speech” itself = imminent, irreparable injury not remediable by action at law. Relief of defense at trial does not suffice. * Big expansion of Ex parte Young mechanism

Answer 127

No, Atlantic Coastline (1970): District court can ONLY enjoin if within one of three AIA statutory exceptions. – AIA embodies principles of federalism and must be strictly enforced

Answer 128

National policy forbids federal courts from staying or enjoining PENDING state CRIMINAL proceedings except in extraordinary circumstances, like a showing of bad faith or harassment so we don’t have to answer whether 1983 is an exception. * Harris indicated in state court for something about communism; federal court granted injunction against state prosecutor under § 1983 – If found guilty, SCOTUS is at the top of the state court pyramid and can review constitutionality claims even if it takes years to get there

Answer 129

yes per Mitchum v. Foster. o If § 1983 were not within an exception, the Court would have to overrule Younger o But principles of “comity and Our Federalism” mean federal courts should only enjoin pending state criminal prosecutions in exceptional cases * 1983 says nothing about AIA. Essentially reads the “expressly authorized” exception to the AIA as “impliedly authorized.” Best not to assume implied exceptions going forward

Answer 130

o Rem exception- Court first assuming jurisdiction over property can exclude other courts, if necessary, by enjoining other proceedings  Princess Lida/Kline – Court had long recognized this as an implication from All Writs Act o Removal- Federal courts can stay state proceedings where defendant has validly removed a case initially filed in state court.

Answer 131

o Federal courts can enjoin state proceedings to respect preclusive effect of its decisions instead of a litigant raising res judicata defense in state court  The relitigation exception is limited to “those situations in which the state court has not yet ruled on the merits of the res judicata issue.”

Answer 132

* This exception is rare and narrow, and authority to issue injunction extends only when it is super-clearly appropriate. * [1] Issue must be identical  see Chick Kam Choo * [2] Parties must be identical  Rule against non-party preclusion

Answer 133

Need (in case seeking an injunction): [1] Hard state question that could be independent basis for result that. . . [2] would conveniently make hard federal question go away. If so, we will stay, telling P to file in state court, telling state basis for filing (Windsor) while reserving federal question (England). Certification is a thing, but courts still regularly abstain.

Answer 134

* Federal district courts can dismiss case involving complicated state regulatory scheme of huge importance to state. (Burford) – Quackenbush: But ONLY dismiss if relief sought is equitable, not damages. * Federal district courts can dismiss case where state proceedings already underway involve super-complicated question we can analogize to an in rem action, especially where Congress has manifested a preference against piecemeal litigation, but only in “exceptional circumstances.” (Colorado River + Moses Cone).

Answer 135

The Court will stay federal proceedings where state law is substantially uncertain and there’s a reasonable possibility that the state court’s clarification will eliminate the need to decide the federal constitutional question o Pullman conductor case  Avoids needless friction with sate policies- state court could reject this and make the big constitutional issue go away  Abstention will reduce the likelihood of the Court getting the state law question wrong  Pullman can either challenge outright per Texas law or raise federal claim as a defense in a subsequent enforcement action.

Answer 136

a. In Windsor, when a federal court abstains under Pullman (i.e., challenges the constitutionality of a state statute), a litigant must “expose” the federal constitutional issue to the state court that is deciding the unsettled question of state law so that it informs its analysis.

Answer 137

must comply with Windsor, but can make clear that the statement of the basis of the federal claim is only being made to comply with Windsor and expressly reserve resolution of your federal claim in federal court o Insulates federal question from preclusive effect

Answer 138

BUT where you present and urge the same legal theory before the state court in “state law garb,” you have basically pressed your federal claim and can’t avail yourself of the England reservation. There is preclusion

Answer 139

* Nearly all states now have mechanism by which federal court can “certify” a question to state supreme courts if it wishes to retain jurisdiction. * Still, many federal circuits opt to abstain because certification is too abstract (and because they often want cases to go away). **Survey shows they are all over the place, and Pullman Abstention still very much alive.**

Answer 140

Federal district courts can dismiss case involving complicated state regulatory scheme of huge importance to state. * Action in federal court to enjoin agency order granting oil/gas drilling permit on state law and (federal) Takings Clause grounds. o Claims to rights here, seeking no damages * Burford abstention has basically been rejected ever since o Mere existence of state regulatory scheme doesn’t justify abstention- has to be sufficiently complex super-complex/vital to state, and federal court’s role has to be potentially disruptive.

Answer 141

Federal district courts can dismiss case where state proceedings already underway involve super-complicated question we can analogize to an in rem action, especially where Congress has manifested a preference against piecemeal litigation, but only in “exceptional circumstances.” (Colorado River + Moses Cone). * District court dismissed federal government suit against 1,000 water users seeking declaration of government’s right with respect to certain rivers and tributaries. Subsequently, U.S. was added to pending state suit filed involving same parties and same baffling array of complex issues that was 300 miles away. District court abstained (and here, that meant dismissed). o Claims to rights here, no damages * Holding- doesn’t fit with other abstention cases, but “exceptional circumstances” warrant dismissal here o State courts are deeply entrenched in these issues o Federal court is an inconvenient forum

Answer 142

Moses Cone While state action pending, one party filed suit in district court to compel arbitration pursuant to arbitration clause Holding- Abstention is inappropriate here Colorado River is a very narrow doctrine mandating abstention only in “exceptional circumstances”

Answer 143

Exceptional circurmstances test doesn’t apply to declaratory judgments. Declaratory Judgment is a completely discretionary equitable remedy. “Exceptional circumstances” test doesn’t apply in declaratory judgment context Completely discretionary remedy

Answer 144

Dismissal is only an appropriate remedy in abstention when the action is one at equity. When plaintiff seeks damages (action at law), dismissal is never okay. When a suit involves damages, all you can possibly get is a stay

Answer 145

decisions by federal courts that don’t have a clear link to the Constitution or to a federal statute

Answer 146

law enacted by Congress or state legislatures

Answer 147

law created by judges over time. Law evolves in absence of statute, reflecting social customs, and judicial opinions establish precedents that guide future cases

Answer 148

judges develop rules on everything over time without benefit of an enabling statute  This is Swift v. Tyson, English common law universe  Erie overrules Swift v. Tyson and holds that there is no “general” federal common law

Answer 149

2. Federal common law to protect federal interests  This is protection of propietary rights 3. Federal common law to effectuate perceived congressional intent, which can be express of implied

Answer 150

* Federalism component: Where federal courts develop federal common law, they displace state prerogatives (particularly if alternative to federal standard is employing state standard). * Separation of Powers component: Federal courts only possess authority Congress confers on them. When federal courts develop federal common law, they may be displacing the legislative branch

Answer 151

Rights and duties of United States regarding its commercial paper are a matter of federal law. In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law. * US government sought reimbursement that would have been time-barred under Pennsylvania law o Before Erie, federal courts would make up their own rule. Now, we’re wondering who gets to make the rule. * Holding- Erie does not require application of Pennsylvania law here

Answer 152

* (1) Is a federal interest/right implicated that justifies the creation of a federal standard? * (2) If yes, does the situation call for a uniform federal standard, or does it make more sense, given the balance of federal and state interests that are implicated, to import a state standard? * Where there is no need for uniformity, application of state law arguably will not frustrate the specific objective of a federal program. Application of the federal rule might in fact disrupt commercial relationships based on state law. o Here, application of state law would make U.S. obligations vary by state, which is bad. We are making a new federal rule: Delay can be a defense IF (and only if) you can show that you suffered damage/injury because of it. This is binding everywhere (including in state court) due to the Supremacy Clause and thus fosters predictability.

Answer 153

Where the enabling statute manifests a federal policy, federal common law applies. * FDIC sought to collect on a $5,000 note with a sidebar that it would not be redeemed. FDIC acquired note as collateral for loan but received no notice of this original understanding. FDIC sought to collect and filed suit in federal district court in Missouri. * Issue: which law applies? * Holding- should fashion federal common law here o Enabling statute manifests federal policy to protect FDIC from misrepresentations of this kind o Big benefits to uniformity here

Answer 154

1. Legal Process School/Purposivist Approach: Best exemplified by Hart & Sacks a. Judges should use various methods of construction – text, legislative history, and knowledge of the mischief sought to be addressed – to determine statutory purpose and how best to effectuate it. b. Default position: In the face of a statutory gap, judges should act.

Answer 155

2. Textualist Approach best exemplified by Scalia. a. “Purpose” assumptions are inconsistent with the reality of the legislative process. There are too many actors, too many circuitous paths, and too many backroom deals for us to derive a coherent sense of purpose. b. Judges should be guided by the text and not by intentions or ideas external to it, and by the original meaning of the text, not by its evolving meaning over time

Answer 156

It is appropriate for courts to find an implied private right of action to effectuate Congress’s statutory purpose. * Court finds an implied private right of action under § 14(a) of the Securities Exchange Act, which prohibits fraudulent proxy materials Congress said nothing about a private right of action, but its chief purpose was to protect investors, which implies the availability of a right of action where necessary to achieve this result

Answer 157

 Was the statute enacted for P class? Was statute enacted to benefit plaintiff? In other words, does statute confer a federal right on plaintiff?  Is there any indication of intent, express or implied, to create a remedy for this class?  Is it consistent with underlying congressional purpose to imply a private right of action?  Is this an area best left to state regulation?

Answer 158

Cannon v. University of Chicago: Court finds private right of action in Title IX contect. * Plaintiff claimed she was denied admission on the basis of her sex in violation of Title IX, which does not expressly authorize a private right of action * Holding- a private right of action exists as a matter of federal common law o Here, yes; language very similar to that used in Voting Rights Act. Congress has focused on a benefited class. Statute enacted to benefit class plaintiff belongs to o Nothing in legislative history precludes private right of action. Congress knew we were already doing this for civil rights statutes. They even provided for attorneys’ fees! o Furthers statutory objective of preventing discrimination. Congressional purpose is to avoid use of federal funds to support discrimination and providing citizens with protection against such practices. o Not an area best left to the states. We are talking about federal money.

Answer 159

Courts may decide that an implied private right of action exists if they intended to create a personal right and a private remedy. * Alabama Department of Public Safety adopted policy that driver’s license tests had to be in English in violation of Title VI o Department is subject to Title VI (§ 601) and its implementing regulations (promulgated under authority of § 602). o Private citizens can only sue under § 601 for intentional discrimination. o Regulations under § 602 bar policies imposing disparate impact, and Court “assumes” their validity. * Holding- no private right of action to enforce disparate impact regulations under Title VI o § 602 lacks rights-creating language  Rights-creating language in regulations doesn’t matter because a regulation can’t create a statutory right where Congress has not  Scalia/textualist opinion here

Answer 160

o Did Congress intend to create a personal right? o Did Congress intend to create a private remedy? * Only if the answer to both is yes may a court hold that an implied private right of action exists under a federal statute

Answer 161

Wisniewski v. Rodale (3d Cir.): In cases where Congress has created a private right of action but no remedy, they may have just created a defense. * Company sent unordered books to petitioner and then demanded payment; petitioner filed suit claiming private right of action under Postal Reorganization Act * Holding- Congress clearly intended to create a right, using explicit rights-creating language o But no reason to believe Congress intended to create a remedy, so no private right of action

Answer 162

Express Remedies in the Constitution: * Suspension Clause * Article I, Section 9[2]: o The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. * DP/Takings Clause * Fifth Amendment: o “nor be deprived of life, liberty, or property, without due process of law”; o nor shall private property be taken for public use without just compensation

Answer 163

Bivens had been clearly recognized in three contexts for non-military/terror/foreign policy plaintiffs: [1] Fourth Amendment; [2] Eighth Amendment; and [3] Equal Protection/DP.

Answer 164

Ziglar v. Abbasi: 2-step. [1] New? If no, proceed; [2] If yes, any “special factors counseling hesitation”? Answer is almost certainly “yes.”  Where allowing a claim would necessitate judicial scrutiny of policies and intricate decisions in a delicate context, Congress, not courts, must give the green light.  Court should consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” (Answer is usually “NO”).

Answer 165

Egbert v. Boulé: Bivens technically preserved, but test is now insurmountable in some circuits. **Depends on where you land.**

Answer 166

There is an implied private right of action to get damages for constitutional harm perpetrated by federal bad actors under the 4th Amendment. * Federal DEA agents charged into Bivens apartment and committed various constitutional violations (e.g., ripped up his couch, children present, threatened to arrest everyone, stripped searched him, and was never prosecuted) over Thanksgiving. Harlan's concurrence: o Benefit to uniformity here; we don’t want federal officers’ punishment to vary based on the state where they commit the wrong. o Exclusionary rule does nothing for [the innocent] Bivens. “For people in Bivens’ shoes, it is damages or nothing.”

Answer 167

o Congress could create a right of action for constitutional violations perpetrated by federal officers, as it has for constitutional violations perpetrated by state officers (28 U.S.C. § 1983), but it has not.

Answer 168

* To 5A violations- Davis v. Passman o Extends Bivens to 5th Amendment. Davis, a congressional staffer, can bring Bivens action alleging Equal Protection violation when fired from job (by a member of Congress) due to her sex. “For Davis, as for Bivens, it is damages or nothing.”

Answer 169

* To 8A violations- Carlson v. Green o Parents brought Bivens action against prison officials who failed to provide medical attention to their son o Victims of a constitutional violation can bring suit in federal court to recover damages despite absence of statute conferring right of action unless (1) special factors counsel hesitation or (2) Congress explicitly creates a substitute remedy that is equally effective (and FTCA doesn’t cut it)

Answer 170

another remedy is adequate even if not perfect

Answer 171

don’t want to touch the internal workings of the military and will just presume that they have their own system (without looking to see whether it is effective

Answer 172

 Bivens isn’t overruled where it has already been permitted, but the Court is extremely reluctant to extend it due to separation of powers concerns

Answer 173

o U.S. Border Patrol agent Mesa shot 15-year-old Mexican citizen Sergio Hernández as he stood on the Mexican side of the border.  A claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad  Lots of reasons to hesitate here: Foreign relations; national security; respect for the separation of powers.

Answer 174

* Bivens action [??] for money damages against officers for certain 4th, 8th, and Equal Protection violations. * FTCA action against United States (subbed in for employee) for money damages for negligence (and intentional torts if law enforcement) unless within discretionary function exception (discretion + major policy judgment).

Answer 175

1. Compensation for victims of governmental wrongdoing, which promotes justice and fosters respect for the rule of law; 2. Preservation of discretion and avoidance of rules that skew what officers and the government do. We don’t want to impose costs that may be contrary to the public good.

Answer 176

* The Judiciary Act of 1789 o Act initially gave lower federal courts jurisdiction in cases where United States was plaintiff/petitioner but not in cases in which government was defendant. o By implication, is this statutory recognition of sovereign immunity?  Justice Story: This permits the United States to sue but does not in any way make it subject to suit without its consent.

Answer 177

suing an officer

Answer 178

* Little v. Barreme (1804): If an officer is found liable, they could seek idemnification from Congress through a private bill. Held officers liable even if they were acting in good faith.

Answer 179

* US v. Lee (1882): Can sue an officer except for contracts (US subs in) no sovereign immunity bar where US is not a necessary party  Naming officer rather than government is not always enough to avoid sovereign immunity bar (e.g., contracts), but it is here

Answer 180

congressional consent for the gov to be sued: * Broadly waives sovereign immunity for non-damage remedies, creating strong presumption that agency action is reviewable. an agency or an officer or employee thereof acted or failed to act

Answer 181

issue final judgments awarding damages in contracts cases, Takings Clause cases, and tax refund cases – a wide swath of cases “not sounding in tort.”

Answer 182

o Waives sovereign immunity for tort claims (not constitutional claims) against the United States.  Immunity waived – thus permitting suit – for claims that are: * “[1] against the United States, * [2] for money damages, . . . * [3] for injury or loss of property, or personal injury or death * [4] caused by the negligent or wrongful act or omission of any employee of the Government * [5] while acting within the scope of his office or employment, * [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Answer 183

 FTCA is now exclusive remedy for any tort claim arising from acts/omissions of government employees acting within the scope of employment. Employees have immunity from tort suits arising from their job duties. * This supersedes Little v. Barreme and United States v. Lee actions. * **However, employees do not have immunity from Bivens (that is, constitutional) claims.**  If AG certifies that government employee was acting in scope of employment, U.S. government subs in as party defendant in tort action.  **This is widely understood as preempting all garden-variety state tort remedies against federal officers acting within scope of employment.**

Answer 184

 Generally, no waiver of immunity – thus precluding suit/no liability – for intentional torts. * BUT “Law Enforcement Proviso”: Liability permitted for certain intentional torts by law enforcement. o assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution (NOT excessive use of force). o This exception-to-the-exception applies any time a law enforcement officer is acting within scope of employment (not just when they are investigating).  Discretionary Function Exception * No waiver of immunity for tort claims – thus no liability – “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” o Congress doesn’t want courts coming in to review officials’ exercise of discretion and substituting their own policy preferences.

Answer 185

* Dalehite v. United States (1953): Where plaintiffs challenge such exercises of high-level policy judgment, FTCA doesn’t permit suit. Plaintiffs haven’t alleged a specific act of negligence; they are challenging whole program/scheme to manufacture and transport the fertilizer given the potential risks. * Berkovitz v. United States (1988): When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply and gov can be sued. DF exception only applicable where employee faces some element of choice/discretion.  The discretionary function exception is designed to protect only where there is discretion AND the decision represents a permissible policy judgment.

Answer 186

o [1] Did challenged conduct involve some element of choice/judgment?  challenged conduct is not discretionary if a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” (Berkovitz) o [2] IF challenged conduct involved choice/judgment, is it the sort of choice/judgment the discretionary function exception is designed to protect?  Exception doesn’t shield split-second decisions or garden-variety decisions;  The discretionary function exception “only protects decisions that are ‘fraught with ... public policy considerations.”

Answer 187

o Within DF exception (so no claim permitted): claims related to the maintenance and design of the road, including suggestions that Park Service should have reduced the traffic load, used different material in construction, or milled the surface of the curve to create grooves.  These involve balancing of many factors and prioritization. o Not within DF exception (so suit permitted): claims related to placement of warning signs. This is so even if placement involves some choice (i.e., exactly where to place the signs).

Answer 188

Chisholm v. Georgia (1793):No state sovereign immunity. States can be sued. Leads to 11th Am. o 3 Justices pointed to Article III, Section 2[1]: Conferring jurisdiction for controversies between 2 states necessarily presumes that states can be sued. o 1 Justice found that sovereign immunity for states was incompatible with popular sovereignty. States necessarily ceded some of their sovereignty in agreeing to the Constitution. o 1 dissenting Justice (Iredell): We should interpret the Judiciary Act of 1789 in light of the common law principle of sovereign immunity. Congress needs to pass a special statute to permit this kind of suit. (That is to say, we need a clear statement before assuming they did this.)

Answer 189

o 11A proposed days after Chisholm decision  “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects or any foreign state”

Answer 190

* Hans v. Louisiana (1890): Eleventh Amendment confirms the background rule: states can’t be sued in federal court without their consent, no matter the plaintiff. o Hans, a Louisiana citizen, bought Louisiana bonds issued to finance the state’s participation in the Civil War.  In 1874, a change to the Louisiana constitution canceled all interest on the bonds.  Hans filed suit against Louisiana in federal district court, with jurisdiction premised on federal question (violation of the Contracts Clause).  State sought dismissal under the Eleventh Amendment.  Hans argued: C’mon. Clear text of the Eleventh Amendment bars ONLY suits by non-citizens against States. I’m a citizen, so it does not apply or bar my suit. o (Justice Bradley for unanimous Court): Eleventh Amendment bars this action.  EVERYONE understood that states enjoyed immunity from suit in federal court at the time of the framing. The four (of five) Justices in Chisholm got that wrong, and the Eleventh Amendment simply corrected Chisholm’s erroneous holding. o Eleventh Amendment confirms the background rule: states can’t be sued in federal court without their consent, no matter the plaintiff. Anything else is “absurd.” o Concurrence (Harlan): Chisholm was right, but Eleventh Amendment changed the game.

Answer 191

 1. State expressly consents/waives immunity.  2. State implicitly consents/waives immunity (by removal; by filing suit in federal court in the first instance).  3. State sues another state. Here, big national issues sufficient to override state sovereign immunity concerns.  4. United States sues state. Again, big national issues. This was surrendered in Convention.  5. Congress validly abrogates state sovereign immunity (more on this in next class).  6. Suit is against local government, not state. (BUT state agency = state.)  7. Officer suits (e.g., Ex parte Young).

Answer 192

Suits against officers to enjoin the enforcement of unconstitutional acts do not violate the Eleventh Amendment. State official who is about to commence proceedings to enforce unconstitutional state legislation may be enjoined from doing so. 1983 is mechanism for bringing ex parte young claim o RR shareholders filed suit claiming state rate setting was confiscatory under the DP and Commerce Clause and sought injunction barring state attorney general from enforcement. AG claimed Eleventh Amendment immunity, stating that case was, effectively, against State of Minnesota.

Answer 193

o This is more than just a recognition of the officer suit workaround; this is use of an officer suit to preemptively jump into federal court and short-circuit any proceedings in state court. o Key mechanism for securing a federal forum (in the first instance) for litigation of constitutional restraints on state actors.

Answer 194

Can get prospective relief (at equity/injunction), even if it incidentally requires state expenditure of money or ancilliary attorney's fees, but not retrospective relief (aka damages)

Answer 195

Ex Parte Young is not available for a state law claim Ex parte Young “fiction” is not available to enjoin a state official’s threatened violation of state law. This trenches too much on state sovereignty.  This is so even if state law claim is legitimately arising out of same facts as federal claim and even if result may be inefficient claim splitting.

Answer 196

Congress can waive a state’s immunity to enforce § 5 of the Fourteenth Amendment  Congress enacted statute pursuant to § 5 of the Fourteenth Amendment, which shifted the federal-state balance. * Congress is enforcing the 14th Amendment, which says no state can deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws  Eleventh Amendment is necessarily limited by Fourteenth, and when Congress acts under § 5 power it may provide for private suits against states.

Answer 197

Waiving a state's immunity to lawsuits to which the state has not consented

Answer 198

While Congress may abrogate under the Fourteenth Amendment (14>11), that same reasoning doesn’t extend to Congress’s Article I powers.  Can Congress abrogate state Eleventh Amendment immunity under its Article I Indian Commerce Clause powers? * Held (Rehnquist – 5-4): No. Union Gas is overruled.

Answer 199

Where Congress provides an alternate remedial scheme against a state officer, Ex Parte Young relief is not permitted. (DON'T APPLY THIS TO FUTURE CASES)

Answer 200

 Congress clearly has power to abrogate when South Carolina citizen sues South Carolina on a federal question.  Hans did not hold that Eleventh Amendment precludes suit by citizens against their own states in the face of contrary congressional direction. Hans laid down constitutional common law, which Congress can overrule (by abrogation).

Answer 201

 Eleventh Amendment should apply only to diversity cases. Hans was flat wrong in extending it to a Contracts Clause case. I wouldn’t overrule Hans outright but would treat it as federal common law, subject to congressional abrogation.

Answer 202

Ex Parte Young relief is not available against private citizens even if they’re sort of acting on behalf of the state (and carrying out something that may violate federal law). The whole workaround scheme of suing state officials now subject to manipulation by states after Whole Women’s Health ratifies Texas SB-8 scheme.

Answer 203

To abrogate under Section 5, Congress needs to show that its legislation has a valid remedial or preventative purpose. To do this, Congress needs to have considered some actual, non-trivial evidence that the state either is violating the constitutional rights of the plaintiff (United States v. Georgia) or that the state has engaged in a pattern of violating the constitutional rights of others, thus justifying prophylactic legislation. **Where Congress has not demonstrated any particular issue with states violating the Constitution, a prophylactic abrogation generally fails; thus, states get Eleventh Amendment immunity from damage actions.**

Answer 204

To abrogate state immunity under § 5, Congress must show congruence and proportionality between the identifiable constitutional problem and the means selected to remedy it  Congress’s power to act under Section 5 is only “remedial” or “preventative.” When it acts, Congress must show a legitimate remedial or preventative end and that the means chosen are “congruent and proportional” (super-reasonably adapted) to that end. (McCulloch)

Answer 205

applies to bankruptcy, foreign affairs, eminent domain, and any other power that states surrendered “completely” in convention. Whatever that means. . . . (PennEast Pipeline and Torres).

Answer 206

States can’t be sued in their own courts for violations of federal law unless they consent. o Based on balance. If suits aren’t permitted in federal court (because Congress cannot abrogate under the Commerce Clause), then suits shouldn’t be allowed to proceed in state court. o Framed in terms of congressional power: Congress cannot make state courts do this.

Answer 207

* Creates cause of action (aka the vehicle to bring your Ex Parte Young or another claim): 1. Every [person] who, 2. [under color of any statute, ordinance, regulation, custom, or usage], of any State or Territory or the District of Columbia, 3. subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to [the deprivation of any rights, privileges, or immunities secured by the Constitution and laws], 4. shall be liable to the party injured in [an action at law, suit in equity,]or other proper proceeding for redress. Doesn't create any legal rights itself.

Answer 208

– Fourteenth Amendment Section 5.

Answer 209

– Yes! (Fitzpatrick v. Bitzer) (5 of 14) – But: Will v. Michigan Dep’t of State Police (1989): § 1983 does NOT abrogate Eleventh Amendment immunity—so you can’t sue States or state agencies under § 1983.

Answer 210

o State o State agency o A state officer sued in his official capacity for DAMAGES is not a “person” under § 1983. **Court will dismiss.**  Remember Edelman: When you are seeking retrospective relief (damages) against a state officer, you are effectively suing the state itself.  **Bookmark this: This does not apply to municipal officers (after Monell).

Answer 211

o State official sued in official capacity for prospective relief. o State official sued in individual capacity for damages (even if indemnified). **immunity defenses apply**

Answer 212

* Monroe v. Pape (1961): Monroe equates “under color of state law” for § 1983 purposes with the Fourteenth Amendment’s state action requirement. If a state actor violates constitutional rights, the actor acts “under color of state law” and his/her victim has a § 1983 suit. After Monroe, this is not a robust hurdle for a litigant. o Defendants argued: Because this conduct was barred by state/local laws, this isn’t “under color of state law.” Under color of = permitted by. o Question Presented: To what extent does § 1983 reach acts by state officers that are either unauthorized or, in fact, specifically illegal, under state law? o Holding  Douglas (8-1 Court): Suit can proceed against officials despite fact that his conduct violates state law and even though state law also provides remedies for this violation.  Major goal of statute was to provide a supplemental federal remedy in addition to state remedies. State remedies, though adequate in theory, can be unavailable in practice.  If you are “clothed with the authority of state law,” you are acting “under color of state law.”

Answer 213

 Monell (1978): Cities and counties can be sued directly for damages and injunctive relief where the challenged action “implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers. Moreover, local governments may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though [not officially hardened into law.]”  Con: No “respondeat superior” liability.  Pro: City can’t claim “qualified immunity.”

Answer 214

 Pembaur (1986): Single decision of a high-ranking local policymaker with decision-making authority = official “policy” and is enough for Monell-type 1983 liability.  Praprotnik (1988): Look to local law to see who is a policymaking official; where city actor has no policymaking authority, her action doesn’t give rise to Monell liability.  Here, only mayor and aldermen had policymaking authority over personnel decisions. Director of Urban Design seemed important, but local rules proved she wasn’t—her decisions were subject to formal review.

Answer 215

A city will be liable for “failure to train” only where its actions amount to “deliberate indifference.” No liability for simple mistake, rogue conduct, or indifference of individual officer. City itself must be the bad actor. * Focus on adequacy of training program. a known or obvious consequence of his action. Here, no proof that they knew or had constructive notice

Answer 216

Failure in hiring: Bd. of Cty. Comm’rs v. Brown - Plaintiff doesn’t claim sheriff directly violated law or authorized a constitutional violation. Plaintiff must show policymaker was “moving force” and acted with deliberate indifference to the risk of the particular injury suffered by plaintiff

Answer 217

congressional aides & bosses Not Secretary or Assistant Secretary

Answer 218

o Alternative remedial scheme for absolute immunity functions: Judicial review (judges), sanctions for misconduct (prosecutors), electoral process (legislators and their aides), impeachment (president).

Answer 219

President of the United States enjoys absolute immunity (forever) against (civil) suits for damages based on his official acts. A sitting President can’t claim general immunity from state subpoenas issued in conjunction with a criminal investigation, but he can raise subpoena-specific challenges that a particular subpoena impedes constitutional duties. For criminal:  No immunity: For “unofficial acts.” Also, can’t use evidence for which P is immune to support charges for unofficial acts.  Absolute immunity: For conduct “within his exclusive sphere of constitutional authority.” Stuff Congress is excluded from doing. This includes prosecutorial decision-making and discussions with DOJ officials.  Presumptive immunity: For “official” acts that do not implicate exclusive powers. Official acts defined to “outer perimeter.” Immune unless government can show that prosecution would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

Answer 220

Harlow v. Fitzgerald: Government officials are generally entitled to some immunity to shield them from undue interference with their duties and disabling possible effects of liability. However, normal executive officials generally have qualified, not absolute, immunity. * Gravel, extending absolute immunity to legislative aides, is distinguishable. We’ve already rejected absolute immunity for cabinet officials (Butz).

Answer 221

comes from Harlow v. Fitzgerald  Thus, our new standard is objective: officials are shielded from suit unless their conduct violates clearly established rights of which a reasonable person (knew) or would have known. * Brennan (+2) Concurrence: o Knew or should have known means clever officials who actually know they are violating law are liable (even if rule isn’t “clearly established”). o Some discovery may be necessary on this point. (Is this consistent with Majority opinion’s rejection of subjective standard?  No) * Burger Dissent: o Absolute immunity needed here for separation of powers reasons.

Answer 222

Anderson v. Creighton: Knowledge that Fourth Amendment precludes warrantless searches absent exigent circumstances is not enough. Reasonable officer must understand that his/her specific behavior is likely to violate that right. If officer could have reasonably believed his conduct did not run afoul of that rule, qualified immunity applies.

Answer 223

o Ashcroft v. al-Kidd: “every reasonable official” has to understand it as a violation  “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”

Answer 224

We decide whether an officer violated a clearly established right by looking at this from the officer’s perspective  Dissent * This case sends a message that officers “can shoot first and think later.”

Answer 225

o In other words, there appears to be a distinction between police making arrests (woman with knife in Kisela) and when the suspect is already under police control (living in feces, pepper spray while in custody)

Answer 226

o Did defendant violate plaintiff’s constitutional right? o Was that right clearly established? o Pearson v. Callahan (2009) (Alito) (p. 1326): We unanimously reverse Saucier. Courts have discretion in order of inquiry.  While Saucier approach frequently makes sense, it is dumb to have judges waste their time on utterly novel constitutional questions or wacky arguments.

Answer 227

o Camreta v. Greene (2011): We usually follow a doctrine of constitutional avoidance, but in the qualified immunity context, that can lead to massive uncertainty in the law.  CA9 said [1] this is a Fourth Amendment violation BUT [2] it’s not a clearly established Fourth Amendment violation, so officers get immunity.  Officers sought review of holding [1]. (Why?) Could establish a rule for future cases  QP: Can Court review holding [1] given grant of immunity? * Thus, CA9 decision in case A that ultimately grants immunity is enough to create clear rule that will govern, and defeat immunity, in analogous case B in CA9. * (But Kennedy concurrence in Al-Kidd: This might not bind a national actor, like the Attorney General of the United states. We shouldn’t let the strictest circuit rules bind national actors where courts disagree.  This is still unsettled.)

Answer 228

* Safford Unified School District #1 v. Redding (2009) said that, where lower courts are in substantial disarray, with many well-reasoned majority and dissenting opinions, law may not be sufficiently clear to defeat an immunity claim.

Answer 229

* Thomas: I hate this. We’re inserting our own policy preferences. * Baude: Qualified immunity is not supported by historical sources, is not an appropriate reaction to judicial overreach in construing Section 1983, and is not a sound application of fair notice principles. There was no good faith defense in common law. * SOC: Officers shouldn’t be liable unless they have advance notice that their conduct is wrong. * Fallon: In the absence of official immunity doctrines, courts would be less willing to expand categories of individual rights. We shouldn’t assume that removing immunity will leave all other things – merits (definition of right), right of action, justiciability doctrines – intact. In a world without immunity, Bivens shrinks, 1983 shrinks (either by judicially-created exceptions or, failing these, by acts of Congress), and/or the Court shrinks the definition of substantive rights – à la Sandin.

Answer 230

Only legal authority can justify a detention. If restraint cannot be justified as lawful, the court should order release

Answer 231

* Some debate at Constitutional Convention over whether and to what extent new Constitution ought to guarantee or protect habeas. o Article I, section 9 – the Suspension Clause  “The Privilege of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.”

Answer 232

o Section 14 of the Judiciary Act (1789) * Boumediene was a federal executive detention case. Post-conviction review was not a common use for habeas in 1789. * Moreover, until 1867, there was no federal habeas review of inmates in state detention under statute. * Recall that, in Ableman (1859) and Tarble’s Case (1871), Supreme Court had held that state courts could not entertain petitions regarding federal detention.

Answer 233

o Federalism: Shouldn’t we trust state courts to adequately protect federal rights? Expansion of habeas manifests distrust of state courts; restrictions on habeas correspondingly demonstrate belief that state judiciaries can capably handle. o Finality: Are we comfortable with the costs of habeas in undermining finality? o Protect the Actually Innocent v. Ensure Fair Process?: What is the remedy even about? o Judges’ own sense of burdens/benefits

Answer 234

o SO’C in Engle (1982)  Collateral review of a conviction extends the ordeal of trial for both society and the accused.  Degrades the prominence of the trial itself  Habeas corpus frequently makes it hard to punish bad guys.  Passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.  Finally, the Great Writ imposes special costs on our federal system. * The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.

Answer 235

A federal court can relitigate an issue in habeas even if the state court had a fair opportunity to pass on it. A district court does not defer as to questions of law or mixed questions of law and fact  Not a big federalism problem; it’s only in a tiny minority of cases that petitions are granted. Don’t submit to “baseless fear/bogeyman” worry.  Congress could have left this to state courts but chose to confer it on us in 1867, and it is entitled to do so.  Can’t be that state determination forecloses our inquiry; otherwise Act of 1867 is meaningless.  This isn’t district court “reviewing” state court; this is “federal law” trumping “state law” under the Supremacy Clause, and Congress bestowing on lower federal courts authority to decide.

Answer 236

 Adopts “Process View”: Federal courts should defer to previous state judgments if the processes by which those results were generated furnished the prisoner with a "full and fair" opportunity to litigate any federal claims. Fair process = proxy for accurate results. * Most habeas petitions are plainly bogus. * There’s no particular need for federal courts to review. * Courts should not be made to litigate again and again the same question on the same evidence. * We shouldn’t permit habeas unless (ordinary res judicata principles:) o Petition raises jurisdictional claim that states did not allow in their courts; OR o Although state law allowed a remedy, petitioner was wrongfully precluded from using it. * Fair process = systemic regularity = all we need/want/could hope for.

Answer 237

Federal courts should defer to previous state judgments if the processes by which those results were generated furnished the prisoner with a "full and fair" opportunity to litigate any federal claims. Fair process = proxy for accurate results. Error correcting.

Answer 238

Yackle - If state court judgments regarding federal claims were entitled to preclusive effect in federal court, the core function the federal courts serve in habeas would be eviscerated. Those courts would no longer offer litigants with federal claims an independent federal forum for the vindication of their federal rights.

Answer 239

o Habeas is substitute for Supreme Court review to ensure proper application of federal law. **Here, error correction may be possible. Petitioner can get what SCOTUS was unable to provide on direct.**

Answer 240

Friendly: * Petitioners who receive fair hearing (fair process) at state level can only attack a conviction if they can show that, but for an error, the system may be punishing an innocent person. * Suggests a nature-of-claim approach. 4A doesn’t relate to guilt or innocence.

Answer 241

* Stone v. Powell (1976): Habeas is generally not available for Fourth Amendment claims UNLESS litigant can show “I did not have a full & fair opportunity to litigate the question.” The exclusionary rule is not a personal constitutional right but a deterrent against police misconduct. Enforcing it in habeas will have only marginal additional deterrent value and significant offsetting costs Brennan dissent: You are inching closer to a rule that only defects relating to actual innocence will be redressable in habeas. A 4A violation is a real constitutional error

Answer 242

o Rose v. Mitchell (1979; 6-3 Blackmun): Stone confined to 4A exclusionary rule facts. Habeas petitioners CAN raise claim of racial discrimination in grand jury selection.

Answer 243

o Withrow v. Williams (1993; DHS, 5-4): Petitioner can advance habeas petition alleging violation of Miranda, which protects a “fundamental trial right.” The administration of Miranda warnings makes trials more reliable, which is important to us.

Answer 244

* Jackson v. Virginia (1979): legal innocence pointing to constitutional defect o Here, prosecution submitted no evidence of premeditation, an essential element of first-degree murder.

Answer 245

o Herrera v. Collins:  Court held that freestanding innocence claim was not cognizable in habeas absent a showing of a constitutional violation in initial proceeding. Habeas isn’t about error correction; it’s about making sure people aren’t incarcerated in violation of the Constitution.  But in a CAPITAL case a truly persuasive demonstration of ‘actual innocence’ would warrant habeas relief if there were no state avenue open to process such a claim.” The bar for this capital case relief is extraordinarily high

Answer 246

* Petitioner must be “in custody” (a concept that includes out on parole). * Petitioner must exhaust state remedies, including direct appellate review. * Petitioner files petition against person who has him/her in custody – typically state warden. * Proceeding is civil (i.e., collateral) in nature (not an appeal of criminal convictions) * Claims not raised in state courts generally defaulted (i.e., waived). This is like an adequate and independent state procedural ground. * Only very rarely can petitioner file a second petition. (post-AEPDA) * Fewer than .4% of non-capital petitions succeed. Nowadays, 9% of capital petitions succeed.

Answer 247

* Direct Review o D is convicted and sentenced in state trial court. o D appeals  intermediate court, highest state court. o D can petition for certiorari with U.S. Supreme Court raising any federal claims. o D’s conviction becomes “final” after time for filing cert expires or after SCOTUS denies cert. * Collateral Review (Habeas) o D’s conviction is final. o D attacks conviction by means of a separate habeas proceeding in federal court, raising federal claims.

Answer 248

– Rule applies prospectively only. Doesn’t even help defendant in Case A! (pure prospectivity) – Rule applies to defendant in Case A and to all other defendants arrested for conduct after announcement of Rule (but not to any defendants in already-pending cases) (selective prospectivity) – Rule applies to defendant in Case A and to defendant in Case B, whose case is on direct appeal at the state level. (retroactivity to cases pending on direct) – Rule applies to defendant in Case A, to defendant in Case B whose case is pending on direct, and to habeas litigant in Case C, whose cert petition was denied last year and whose case is thus otherwise “final.” (full retroactivity)

Answer 249

* Linkletter v. Walker (1965): Court will decide whether to apply Case A to other cases in the pipeline (whether pending or on habeas on an ad hoc basis. o QP: Should Mapp v. Ohio, which applied the exclusionary rule to the states, be applicable to state convictions that have already become final?

Answer 250

 [1] the purpose of new rule;  [2] the extent of reliance on old rule; and  [3] the effect on the justice system if we were to retroactively apply the rule. **Generally, if rule is a “clear break” with existing precedent (e.g. super-shockingly new), nonretroactivity is presumed.** o Using the three-factor balancing test, the Court says Miranda does not apply to any pending or habeas cases.

Answer 251

* Griffith v. Kentucky (1987): Full retroactivity for cases pending on direct

Answer 252

Court generally will not make or apply “new” constitutional rules in habeas actions. To do so undermines finality and is too disruptive for states that provided perfectly fair trials under old rules

Answer 253

o A “new” rule is a rule that breaks new ground and was not dictated by precedent existing at the time defendant’s conviction became final.

Answer 254

1. New substantive rule: We will apply a new rule retroactively in habeas where new rule places primary conduct beyond the power of the state to proscribe. For example …Loving, Lawrence. This exception also applies where state is categorically barred from sentencing a particular defendant to a particular sentence (e.g. Roper v. Simmons – can’t execute person who committed crime when under 18). 2.  Where new rule sets forth a “watershed rule of criminal procedure” that implicates fundamental fairness and without which there’s a high risk of inaccurate conviction (used for Gideon). * The Court never, as in NOT ONCE, found any “new” rule to fit within this exception

Answer 255

* Butler v. McKellar (1990): Expansion of an old rule is a new rule. * A case does not announce a new rule if it merely applies a governing principle from a prior case to a nonidentical set of garden-variety facts (e.g., expanding ineffective assistance of counsel). * Wright v. West (1992): State argued that state court’s application of settled constitutional law (old rule  so available on habeas) to petitioner’s facts (mixed question of law and fact) required deference, a holding that specifically asked Court to overrule Brown v. Allen. o Held: 9-0  We are going to duck this question because we all agree that this petitioner’s constitutional claim lacks merit anyway. o Thomas (+ Scalia, Rehnquist): federal courts should ordinarily defer to reasonable state court judgments on the merits. That’s what we think Teague means. o S’OC (+ Blackmun, Stevens, Kennedy): Brown v. Allen decisively rejected this and all precedents thereafter, including Teague, reinforced that. And ahem, I wrote Teague. Teague doesn’t require deference.

Answer 256

If state court decided the question on the merits, no relief unless  clearly wrong statement of legal standard (rare – but TWilliams is such a case) OR  clearly wrong application of correctly-stated standard to facts we have actually seen and addressed before (rare) OR  “unreasonable” (i.e., super-dead-fishy wrong) application of correctly-stated law to facts.  If state court decision was close call or just arguably wrong, it stands.

Answer 257

“contrary to” means “opposite.” A state decision that is substantially different from one of our decisions runs afoul of this provision * It must either contradict the standard in Strickland (by, for example, getting the legal standard wrong) or reach a different result on facts indistinguishable from those in one of our prior cases.

Answer 258

 “unreasonable application” inquiry asks whether the state court’s application of the correctly-stated standard was objectively unreasonable. This, too, doesn’t mean just wrong. It means hideously stinky wrong.

Answer 259

 AEDPA really didn’t do much to change the pre-AEDPA landscape.  Federal courts have an independent responsibility (Marbury) to interpret federal law, and a construction of AEDPA that requires us to defer to state courts would violate Article III. (In other words, Brown is required by Constitution.)  If a state court is wrong as a matter of federal law, its decision is contrary to or involves an unreasonable interpretation of federal law.  Contrary to = Wrong.

Answer 260

State and federal courts must give retroactive effect to new substantive rules.  Seventeen-year-old Montgomery was convicted of murder in 1963 and sentenced to life without parole. He had no opportunity to present mitigating evidence at sentencing. **This case relates to state habeas proceedings.**  If granted habeas to this guy, we would just give him a new sentence.  Dissent * Scalia – Teague is a federal habeas case, shouldn’t apply to state habeas, no constitutional dimension * Thomas – Nobody is entitled to state post-conviction relief. States can opt not to provide post-conviction relief and close their courts to this altogether

Answer 261

where there’s a well-reasoned lower state court opinion, and an unexplained affirmance by a higher court, the reasoning of the lower state court “flows through” and is the presumed reasoning of the higher court

Answer 262

* Harrington v. Richter (2011): We will presume that a state court has adjudicated “on the merits” even when it denies a federal claim without any explanation. o State courts can decide where to allocate resources for written opinions. o Habeas court must determine what theories could have supported the result and assess whether they are reasonably consistent with prior Supreme Court holdings. * Johnson v. Williams (2013): Richter presumption applies even when state court addresses some claims and seems to be ignoring federal claim.

Answer 263

Wilson v. Sellers says the lower court's reasoned decision unless state can rebut (unlikely)

Answer 264

Situations where state court does not address defendant’s claim on the merits (and, thus, § 2254(d) of AEDPA does not get triggered) because defendant has failed to follow state procedural requirements. This is like adequate & independent state ground (Fox Film.)

Answer 265

 The lawyer for 2 capital petitioners served statement of case one day late, so state court refused to consider their claims of jury discrimination and coerced confessions.  Held: This defect precludes federal habeas review. “A failure to use a state’s available remedy, in the absence of some interference or incapacity, bars federal habeas corpus.”

Answer 266

o Fay v. Noia: A federal habeas petition is not an appeal, and thus the adequate state ground rule is not implicated. **That said, if petitioner has “deliberately bypassed” state procedures, district court has discretion to deny relief.**  Noia was convicted of murder on the basis of a “confession” obtained after numerous officers slapped, punched, kicked, and threatened him and deprived him of food over a period of 27 hours.  Noia did not appeal his conviction or sentence. State denied his collateral attack because of failure to appeal.  Held (Brennan): We reject Daniels. A federal habeas petition is not an appeal, and thus the adequate state ground rule is not implicated. There is no state interest served in cutting off an inmate’s opportunity to vindicate his constitutional rights by collateral attack. * We have key federal policy of affording remedy to people restrained in violation of the federal Constitution. * **That said, if petitioner has “deliberately bypassed” state procedures, district court has discretion to deny relief.**

Answer 267

petitioner is only excused from procedural default if s/he can show “cause” for the failure to object and actual “prejudice” resulting from the trial court’s error  State court (on habeas) refused to consider defendant’s claim challenging admission of a confession obtained without administration of Miranda warnings because his lawyer had not contemporaneously objected at trial. He also failed to press it on direct appeal.  Held (Rehnquist): Review is precluded. * Petitioner’s failure to comply with state procedure requiring contemporaneous objection is an adequate and independent state ground. It would have prevented direct review and should likewise prevent habeas. * A contrary rule on habeas (i.e., the Fay rule) would encourage sandbagging. * From here on, petitioner is only excused from procedural default if s/he can show “cause” for the failure to object and actual “prejudice” resulting from the trial court’s error. * We reject Fay v. Noia’s more lenient “deliberate bypass standard.” That was dicta.  Brennan Dissent: Barring petitioner from federal courthouse insulates state constitutional violation from review. “It is a harsh rule indeed that denies him any review at all where the state has granted none” – particularly where it’s the lawyer’s error that precluded review.

Answer 268

If a state procedural default conclusion is inadequate, it will not preclude habeas. o Petitioner objected, but not in writing. Court, per RBG, said that putting it in writing wouldn’t have changed anything, so no procedural default. o “[T]he question courts must ask to determine adequacy is whether 1) application of the procedural rule is firmly established and 2) regularly followed in the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances.”

Answer 269

novelty, super-bad lawyering, external impediment (brady)

Answer 270

Where rule did not exist at time of defendant’s trial or appeal (that is, new rule representing a “clear break” announced post-trial), default is excused. i. After Teague, this exception can only excuse trial-level procedural default when the subject falls within the substantive Teague exception. (can’t be ordinary new rules.) 1. E.g., a defendant who received death penalty for crime committed at age 17 can claim “cause” for failure to challenge when subsequent SCOTUS decision, Roper v. Simmons, says this violates the Constitution.

Answer 271

Procedural default, even when it’s lawyer’s fault, generally precludes review. **However, if default is caused by lawyer who is constitutionally ineffective under Strickland v. Washington (1984), will we excuse it.** i. Counsel mistakenly failed to include one claim in brief (even though he had listed it in the notice of appeal). ii. Held (SO’C, 5-4): Procedural default, even when it’s lawyer’s fault, generally precludes review. iii. **However, if default is caused by lawyer who is constitutionally ineffective under Strickland v. Washington (1984), will we excuse it.** 1. Strickland standard: Attorney’s conduct violates 6th Amendment if and only if 2. Conduct is objectively unreasonable; AND 3. But for conduct, reasonable probability that result would have been different.

Answer 272

Memo reflecting racial discrimination in creation of the jury pool (just enough to ensure underrepresentation not so much as to create prima facie case) unearthed in independent voting rights lawsuit. Court held that defendant’s failure to raise was excused because of officials’ interference/concealment. b. Strickler v. Greene (1999) & Banks v. Dretke (2004): Cause where officials suggested they had handed over all exculpatory evidence when they in fact had not. c. Look for Brady v. Maryland violations! d. Brady: DP violation if inmate can show that state either willfully or inadvertently suppressed exculpatory evidence and prejudice ensued.

Answer 273

Unclear; must be demonstrable showing that error worked to defendant’s actual and substantial disadvantage

Answer 274

a. Murray v. Carrier (1986): A petitioner who cannot demonstrate “cause and prejudice” may nonetheless have excusable default “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” i. Schlup v. Delo (1994): We think this means that, to prove “actual innocence” as a “gateway” claim, petitioner must show that constitutional violation “more likely than not” (51% confidence) resulted in the conviction of one who is actually innocent. not limited to capital cases, easier standard to meet. See House v. Bell

Answer 275

* Townsend v. Sain (1963): Habeas petitioners “typically” get hearings in federal district court upon showing of defective state process. o Keeney v. Tamayo-Reyes (1992): No hearing unless petitioner demonstrates “cause and prejudice” for failure to present evidence in state court OR failure to relitigate would cause “fundamental miscarriage of justice.”

Answer 276

No hearing if petitioner failed to develop facts in state proceedings unless o claim relies on new constitutional rule that the Supreme Court has made retroactive or a factual predicate that could not have been previously discovered through due diligence AND o facts sufficiently show by clear and convincing evidence that but for the error, no reasonable factfinder would have found the defendant guilty.

Answer 277

* Michael Williams v. Taylor: If the prisoner was diligent, § 2254(e)(2) does not apply, and federal habeas court should proceed to analyze whether an evidentiary hearing is appropriate or required under pre-AEDPA standards. o Petitioner sought evidentiary hearing on three claims not raised/developed in trial: Brady violation, undisclosed juror bias, and prosecutor’s knowledge of undisclosed juror bias. o Petitioner conceded that he could not establish that, but for the error, there was clear and convincing evidence that NO reasonable factfinder would have found him guilty. (Thus, couldn’t satisfy the conjunctive § 2254(e)(2) standard.) o Instead, he argued that provision did not apply to him at all, and thus didn’t place new restrictions on his ability to get a hearing, because he had not “failed” to develop facts. * If the prisoner was diligent, § 2254(e)(2) does not apply, and federal habeas court should proceed to analyze whether an evidentiary hearing is appropriate or required under pre-AEDPA standards. * Diligence = request for hearing at state level (usually denied). * Pre-AEDPA standards: Keeney (Wainwright = cause and prejudice standard).

Answer 278

New facts developed in a hearing under § 2254(e)(2) cannot be used for § 2254(d)(1) claims already decided on the merits. o When we assess whether state court decision is “contrary to” or an “unreasonable application” of clearly established law, we look at the actual record before the state court. New facts developed in a hearing under § 2254(e)(2) can’t help you there.

Answer 279

* Old rule: Court had discretion to dismiss for “abuse of writ” if defendant presented the same claim he had raised in a prior habeas petition or filed a successive petition, but a court could also grant relief if ends of justice better served by doing so. o McCleskey v. Zant (1991): Can present new issue in successive petition only if you satisfy the cause & prejudice standard – e.g., some excellent reason why you are coming back and some showing that result would have been different. SCOTUS explicitly linked this standard to the one applicable for procedural default (Wainwright v. Sykes).

Answer 280

* No successive petitions without prior authorization by court of appeals. COA will apply following criteria: o Always dismiss claim that prisoner previously presented. No exceptions.  A claim is a repeat claim if “the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments … or proved by different factual allegations.” * Under § 2244(b)(2), dismiss a successive federal habeas petition raising new claims unless o (A) Claim based on new rule of constitutional law made retroactive to habeas cases o (B)(i) factual predicate could not have been discovered previously through exercise of due diligence  AND (ii) the facts underlying the claim, when combined with all the evidence, would be sufficient to establish by clear and convincing evidence that, but for the error, all reasonable jurors would acquit.

Answer 281

 Tyler v. Cain (2001 5-4) – Retroactive = **actually held to be retroactive by SCOTUS.** * Held: The Supreme Court does not make a rule retroactive just because it makes a new rule. We need 2 cases. One making the new rule and another recognizing “that case made a new rule, so it was retroactive.” o **But SO’C “limiting” concurrence: If the Court makes a rule that clearly fits within Teague’s first exception, then it has logically dictated retroactivity and we don’t need a second case.**  Welch v. United States (2016) – holding that Johnson laid down new substantive rule and remanding for application to prisoner’s case. [Didn’t need a “second” case.]

Answer 282

* Ripeness: Claim that you are not competent to be executed is not ripe until you are about to be executed. Thus, it is not a successive petition when you file it before execution and is not subject to these rules. (Panetti v. Quarterman (2007)

Answer 283

* Exhaustion means presentation of claim to state courts in the first instance. o Generally, need to give state courts one pass – must take advantage of any open trial or direct appellate options that remain. (Usually, you don’t need to seek state collateral relief.)

Answer 284

o Rose v. Lundy: We adopt “total exhaustion” requirement; if petitioner’s habeas petition includes any unexhausted claims, district court should dismiss whole petition outright. Get case back once exhaustion is complete.  The Court has also stated that a criminal defendant whose conviction was affirmed by an intermediate court of appeals must exhaust discretionary review available in the state supreme court. That individual need not seek certiorari before the U.S. Supreme Court, however, for § 2254(b)(1)(A) requires only that “the applicant has exhausted the remedies available in the courts of the State.”  But petitioner does not have to ask the state for collateral relief based on same evidence/issues already decided by direct review unless that is the only state-provided channel to raise a claim. (**As is often the case with ineffective assistance of counsel claims**).

Answer 285

* AEDPA § 2244(d) created a one-year SOL for filing federal habeas: o One year from date judgment became final OR o One year from date impediment to filing is removed [e.g., D learns of Brady violation] OR o One year from date new constitutional right made retroactive by SCOTUS is recognized [e.g. new rule that fits within Teague exception] OR o One year from date that factual predicate could have been discovered through exercise of due diligence. * Any petitioner who can make a credible showing of actual innocence (in the Schlup 51% sense) can also get around the SOL. (McQuiggin v. Perkins)

Federal Courts Flashcards

(309 cards)