Federal Courts Outline Part 3

Class 11: i. Baude & Sachs, The Misunderstood Eleventh Amendment, 169 U. Penn. L. Rev. 609 (2021) (Brightspace) Class 12: i. ii. iii. Casebook pp. 883-895 Casebook pp. 922-938 Pfrander & Wentzel, The Common Law Origin of Ex parte Young, 72 Stan. L. Rev. 1269 (2020) (Brightspace) 5. SUITS AGAINST GOVERNMENT OFFICIALS Class 13: i. ii. iii. Common Law Remedies Casebook pp. 752-777 Crocker, A Scapegoat Theory of Bivens, 96 N.D. L. Rev. 1943 (2021) (Brightspace) 1. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971, p. 858)  alleged that he had been subjected to illegal search by agents of FBN and sought money damages for harm suffered. DCT dismissed for failure to state a claim, CTA affirmed. SCT (Brennan) reversed and held that a federal c/a for money damages could be inferred directly from 4th Amendment. a. Source of the remedy: (1) Marbury = For every right, there must be a remedy. (2) Constitution = The enforcement of the Constitution is part of the Constitution. The judiciary has the authority and the duty to adjust its remedies so as to ensure the necessary relief for violations of federal rights. b. Rationale for requiring a federal forum = CTA held that the remedy against federal officers was under state tort law, not pursuant to a federally created c/a. Why did Brennan think that a federal forum was required? (1) State forum may be inadequate = Brennan thought that there were a few problems leaving the enforcement of constitutional violations to the states:    State courts are not obliged to enforce federal interest if there is no corresponding state action (Testa v. Katt). State cause of action may be inadequate. States may be hostile to the federal constitutional interest (2) Removal inadequate = Removal is insufficient as an alternative. We can’t make ’s right to a remedy dependent on ’s assertion of a federal defense and desire to remove. c. Situations in which federal cause of action may not be implied = Majority suggested 2 situations in which it would not recognize c/a for constitutional violations. (1) Special factors = Where there are “special factors” that counsel hesitation in implying a right of action absent affirmative action by Congress, the Court will not imply an action. But it didn’t say what would constitute special factors. (2) Equally effective substitute = SCT also will not create c/a if Congress has specified an alternative mechanism for enforcing federal rights that Congress believes provides an equally effective substitute. d. Harlan’s concurrence = Harlan agreed that there has to be a federal remedy for constitutional violations and didn’t see any separation of powers problem with the judiciary’s creation of the remedy. But he disagreed with Brennan on the source of the remedy. Harlan said that the remedy is derived from the statutory scheme that Congress has created for the enforcement of the Constitution—§ 1331. § 1331 gives the judiciary the common law-making power to enforce the Constitution. Why does the source matter? (1) Affects whether Congress can change the rule = Under Brennan’s rule, when SCT creates a common law remedy under the Constitution, Congress can come forward and change the rule. Not so under Harlan’s rule. Congress gives the Court the power under § 1331, and can’t change the rules that the judiciary promulgates under § 1331 w/o repealing the jurisdictional grant altogether. (2) Affects what would happen in absence in § 1331 = According to Harlan, if there were no § 1331, the Constitution would have to be enforced through state courts and use of state common law. Under Brennan’s rule, if Congress repealed § 1331, the states would have an obligation to enforce the Constitution. If they weren’t doing it, then Congress would be obligated to create Article III courts with such jurisdiction. Expansive application of Bivens a. Davis v. Passman (1979, p. 867) Court considered whether a female aide could sue a congressman for gender discrimination based on c/a inferred from 5th Amendment. SCT held that, generally, federal officers could be sued for money damages for violations of the Constitution. (1) Presumption that constitutional rights will be enforced through courts = SCT held that unless constitutional rights are to become merely precatory, litigants whose rights have been violated and who have no effective means other than the judiciary to enforce these rights must be able to invoke the jurisdiction of the courts for the protection of their constitutional rights. (2) Evidence of congressional intent to the contrary not dispositive = An amendment to Title VII of the Civil Rights Act specifically exempted congressional employees.  argued that this was a congressional determination that representatives and senators should not be subject to such suits. Court rejected this argument, narrowly construing the exemption as removing congressional employees from statutory liability under Title VII and not precluding all suits for employment discrimination under the Constitution. b. Carlson v. Green (1980, p.869) Mother sued federal prison officials on behalf of her deceased son, claiming that he was the victim of gross inadequacies of medical facilities and staff, which caused his death and constituted cruel and unusual punishment. A remedy was available under the Federal Tort Claims Act, so the issue was whether a Bivens suit should be allowed in light of the alternative remedy. (1) Bivens remedy will always be available unless: (a) Special circumstances = The ever-elusive “special circumstances” counsel hesitation. (b) Equally effective substitute = Congress has provided an alternative remedy which it explicitly declares to be a substitute for recovery and which it views as equally effective. (2) Applied to facts = FTCA allowed recovery against the US for intentional torts of the kind at issue, but the Court found nothing in the text or legislative history to indicate that the amendment was to be a substitute, rather than just an alternative. Court suggested 4 ways that the Bivens remedy was a better alternative:     An action against the individual wrongdoer is a more effective deterrent than an action against the government. Unlike FTCA, Bivens remedy permits punitive damages. Unlike FTCA, Bivens  can opt for jury trial. FTCA remedy applies only to acts that would be actionable under state law if committed by a private person. 2. Erosion of Bivens a. Alternative remedies (1) Bush v. Lucas (1983, p. 870) Aerospace engineer employed at space center operated by NASA claimed that he was demoted b/c of his public statements, which were highly critical of NASA. Civil Service Commission found in favor of Bush on 1st Amendment grounds, and recommended reinstatement w/ backpay (which agency accepted). During pendency of administrative procedure, Bush filed suit in state court against his superiors, seeking damages for defamation and for violation of 1st Amendment rights. (a) Bivens remedy foreclosed by alternative remedy = SCT stated that Bivens remedy did not exist b/c of existence of alternative remedy. Court assumed that civil service remedies were not as effective as damages remedy, and that Congress had not explicitly precluded the creation of a Bivens suit. Nonetheless, the existence of comprehensive civil service remedies prevented c/a under 1st Amendment. (b) Express congressional declaration not required = Previously, Court said that Congress must expressly declare that it was providing equally effective substitute in order to preclude a Bivens remedy. But Court said here that Congress could indicate its intent by clear legislative history, or perhaps even by the statutory remedy itself. (2) Schweiker v. Chilicky (1988, p. 871) Pursuant to a congressionally created policy of disability review, SSA wrongfully discontinued benefits to almost 200,000 individuals. Congress concluded that SSA was abusing the review process and adopted emergency legislation to stop the disqualifications.  was recipient who experienced many months of financial hardship and loss of medical benefits b/f benefits were restored. Filed DP suit. (a) Bivens remedy foreclosed by elaborate administrative scheme = SCT compared case to Bush and refused to imply a remedy under 14th amendment. SCT held that an elaborate administrative scheme was a “special factor” that counseled against an implied constitutional remedy. “When the design of a governmental program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the courts of administration, we have not created additional Bivens remedies. (b) Brennan dissenting = Brennan argued that Bush did not control for several reasons:    Civil service system in Bush offered more comprehensive remedies than SSA, which limited remedy to full restoration of improperly denied benefits. Congress had special expertise over government employment but not over welfare system. Congress did not anticipate that federal officials would violate constitutional rights when reforming disability system, and there fore did not purport to offer appropriate redress for constitutional violations in administrative scheme. b. Suits arising from military service (1) Chappell v. Wallace (1983, p. 872) Allegation of racially discriminatory practices by superior officers in Navy. Court held that special nature of military was a factor counseling hesitation, and declined to imply a Bivens remedy. (2) United States v. Stanley (1987, p. 872) Former servicemen sued b/c of severe injuries he sustained as result of having been given LSD, w/o his knowledge or consent, in an army experiment. SCT held that government was immune from suit under Federal Tort Claims Act, and concluded that Bivens suit was not available for injuries arising out of or incident to military service. O’Conner dissented—“conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission.” Class 14: i. ii. iii. 42 U.S.C. § 1983 Casebook pp. 986-1015 Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. 523 (2021) (Brightspace) ADD MONROE v. PAPE Class 15: OfÏcial Immunity i. Casebook pp. 1030-1060 ADD HARLOW v. FITZGERALD ADD ALL NOTES ON QUALIFIED/ABSOLUTE IMMUNITY Class 16: (Continued) i. ii. iii. iv. Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018) (Brightspace) Baude, Is Quasi-Judicial Immunity Qualified Immunity?, 73 Stan. L. Rev. Online (Forthcoming 2021) (Brightspace) Oldham, OfÏcial Immunity at the Founding (forthcoming) (Brightspace) Nielson & Walker, Qualified Immunity’s 51 Imperfect Solutions, 17 Duke J. Const. L. & Pub. Pol’y (forthcoming 2022) (Brightspace) 6. LIMITS ON FEDERAL JURISDICTION FROM JUDICIAL FEDERALISM Class 17: Res Judicata and Rooker-Feldman i. ii. Casebook pp. 1365-1369, 1377-1391 Casebook pp. 1404-1411 ADD RES JUDICATA NOTES - Allen v. McCury Exxon Mobile Rooker-Feldman Requirements – 3/28 Notes Anti-Injunction Act Exhaustion Prentis v. ACL TN v. Elliot Res Judicata Claim Preclusion - Claims that you did bring during first suit If you try to bring a second claim in later suit: o Cannot bring after final judgment if related to first claim Issue Preclusion - - Claims you do bring Issues within the claim Court determines the if the issue involved in claim 1 was essential to the success/failure of that claim o You cannot relitigate the same issue in a different case/claim o Once that issue has been ruled on, it is considered the same by subsequent courts in subsequent cases Parties not in first case can take advantage of issue preclusion in the subsequent case Cross-Jurisdiction - Second court answers the issue of res judicata the way that the first court would have Rooker-Feldman Doctrine - - Divests federal courts from jurisdiction on appeal from state courts o Only SCOTUS can hear state appeals 4 Requirements: o Person bringing federal district court suit must have lost in state court o Must be complaining about injury because of loss in state court o State court judgment must be rendered before filing suit o Must be inviting a rejection of what state court did Seems to have the same effect as res judicata Anti-Injunction Act - Parallel Litigation (one state, one federal) Options (theoretically): o Do nothing – let both suits proceed  Whichever court reaches judgment first wins o Try to consolidate the suits into the same court  No real way to do this across jx lines o One court stops the other court  State courts cannot force federal courts to stop  Federal courts can stop state courts (Supremacy Clause)  Anti-Injunction act prevents this  Congress decides o One court voluntarily stops  Abstention Anti-Injunction Act - - - Federal courts cannot enjoin state courts o 1874 – exception for bankruptcy SCOTUS implied exceptions o In rem matters (title to property)  If federal court had the case first o Specific federal statute saying enjoining was okay 1948 – Codification o Injunction expressely authorized o Injunction in aid of federal court jurisdiction o To protect/effectuate federal court judgment Mitchum v. Foster (1972) o 1983 allows federal court to enjoin state Kline v. Burke (1922) o In rem proceedings New exception – federal court proceeding where the U.S. is the plaintiff Class 18: Other Statutory Limits i. ii. 28 U.S.C. §§ 1651, 2283 Casebook pp. 1061-1089 Class 19: Pullman Abstention i. Casebook pp. 1094-1127 Class 20: Younger Abstention i. Casebook pp. 1127-1171 ABSTENTION - Court refuses to hear a case State court wins Exhaustion Doctrine - Must exhaust state administrative options before going to federal court Includes going to state courts acting in legislative capacity Prentis v. ACL TN v. Elliot NOTE: 1983 is an exception to exhaustion doctrine PULLMAN ABSTENTION - - - - R.R. Commission v. Pullman (1941) o State agency = state o No 1983 claim (sovereign immunity is abrogated by sovereign immunity Policy reasons for why federal court shouldn’t hear the case: o State law would be dispositive  So state can more easily resolve the claim o State law is not clear o State courts better at figuring out its own state’s laws o Federal court can avoid ruling on federal claim  IMPORTANT – Constitutional avoidance o Very sensitive matter for the state What happens? o Federal suit is dismissed o Plaintiff must refile in state court  If plaintiff loses, still cannot file in federal court (claim preclusion) How to resolve? o Bring federal question and state claim to state court  Get opportunity to appeal to SCOTUS o Tell state court that you are reserving the federal claims  England v. Louisiana State Bd.  Then go back to federal court without preclusion  “England reservation” o When state law question is a constitutional provision – precluded NOTE: Pullman Abstention cannot preclude NOTE: When seeking damages, can only stay or postpone, dismissal is not allowed until the state court comes to a final judgment CERTIFICATION - Alternative to abstention Federal court can ask the state supreme court to make a determination o Can still deny YOUNGER ABSTENTION Younger v. Harris (1971) - Criminal cases o Pending “danger of irreparable injury must be great and immediate” Equitable relief Court can abstain Exceptions - Bad faith prosecution or harassment Patent/Flagrant Unconstitutionality (of state law) Extraordinary circumstances MUST ABSTAIN under Younger (not the case for Pullman) YOUNGER HAS RES JUDICATA EFFECTS (not the case for Pullman) Younger extended to civil cases - Civil enforcement proceeding by the state Civil case between private parties = no younger abstention 7. UNIVERSAL INJUNCTIONS - Federal Judge enjoining defendant from doing something against the plaintiff Also prohibits unrelated parties from doing the same Class 21: i. ii. iii. Bray, Multiple Chancellors: Reforming the Nationwide Injunction, 131 Harv. L. Rev. 417 (2017) (Brightspace) Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920 (2020) (Brightspace) Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (Brightspace) Class 22: i. Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121 (2020) (Brightspace) 8. Case study Class 23: i. Whole Woman’s Health et al v. Jackson, Judge, District Court of Texas, 595 S.Ct. ___ (December 10, 2021) (Brightspace) 9. HABEAS CORPUS Class 24: i. Habeas Corpus, pp. 1-124 Class 25: i. Casebook pp. 1193-1200, 1265-72, 1272-75, 1280-87, 1290-1301, 1301-23 Class 26: i. Casebook pp. 1323-1354 WRIT OF HABEAS CORPUS - - - Ex Parte Bollman o Section 14 of first judicial act => authorized independent action in Habeas Corpus o SCOTUS appellate jurisdiction to issue the writ o Reviewing legality of commitment issued by lower court 2 Preconditions (to get habeas review) o Must be in custody o Must have exhausted all state remedies  Including state habeas relief options Res Judicata does not apply o 1996 – sec. 2254(d)(2) precludes relief unless court finds the state court made an “unreasonable determination of facts” o Sec. 2254(d)(1) – court must defer to state court unless its determination was contrary to clearly established law Habeas relief is tailored to the situation - Not always getting out of prison Sometimes a retrial Teague v. Laine - New constitutional rulings/rules/laws do not apply retroactively Unless the law under which you were convicted has been deemed unconstitutional Cannot ask for a new law as your Habeas relief o Court can dismiss if it thinks that is what you are seeking 2 Exceptions to Teague o If substantive law you were convicted under is actually unconstitutional o Found to be not eligible for the death penalty  i.e. too young Post-Conviction Collateral Review - Modern use of Habeas Corpus Any constitutional problem is fair game o Other than the 4th Amendment o Can be procedural o In fact, most claims are about procedural rights  Ineffective assistance of counsel  Evidence introduced in violation of due process  Brady  Miranda 4 Procedural Postures for Habeas Consideration 1.) Raised issue and lost a. Issue of law: de novo b. Issue of fact: state court deference c. Can bring Habeas 2.) Did not raise issue but still can a. Cannot bring Habeas b. Must exhaust state remedies, then can bring 3.) Did not raise the issue but now cannot a. Cannot bring Habeas b. Procedural default – bars HC relief 4.) Did not raise but never could have a. New evidence since conviction b. Can bring Habeas c. De Novo Brown v. Allen - Deference to state court for facts De novo for law AEDPA (1996) - Codified common law Habeas Only if state law went against clearly established federal law If SCOTUS didn’t clearly establish = new law Presume facts correct unless deemed unreasonable o By clear and convincing evidence Teague survives (AEDPA doesn’t have the same exceptions, but there is not reason to believe they do not still apply Procedural Default Ways around it: 1.) Could not have known about federal claim at the time the issue needed to be raised 2.) Ineffective assistance of counsel 3.) External Impediments a. Brady violations NOTE: These don’t guarantee habeas relief, just that you will get habeas consideration Actual Innocence - Another way around procedural default More likely than not to have been convicted beyond a reasonable doubt Innocence is not a constitutional violation o Only due process is required