CHECKLIST

Federal CourtsMolotSpring 2003

QUICK LIST
1. Standing?
2. Should court hear the issue or abstain?
a. Policy Question
b. Sovereign Immunity
c. Official Immunities
d. Article I to Article 3 (3 exceptions)
e. Abstention Doctrines: Pullman, Burford, Thibodaux
f. Younger & its progeny
3. Can C limit CTs jdxn. Through statute?
a. Lower FCT
b. SCT
c. Power b/w FCTs (Price Control Act)
d. Non-Art. III cts. (Essential Attributes + 7th A.)
4. Can FCT create FCL to deal with issue?
a. Competence & Discretion.
b. Uniquely fedl interest? Conflict w/state law and fedl interest? Then FCT may make FCL, but
doesnt have to.
5. Can FCT create implied remedies?
a. From statutes (Cannon, although rarely applied). Must look at Cl intent.
b. From Constitution, Bivens action.
6. Can St. Ct. refuse to hear?
a. Valid Excuse PLUS
b. Once it hears the claim, what procedures? Reverse Erie v. Statutory Construction
7. Sovereign Immunity?
a. Suit agst. fed. govt through offrs. for constl violations (Lee/Young/Larson).
b. Suit agst. fed. govt qua govt through statutes (Tucker Act, FTCA, APA)
c. Suit agst. state through offrs. for constl violations (Young)
1. Injunctive relief
2. Ltd. prospective relief (Edelman)
3. If alternative remedial scheme for statutory violations, then no recovery (ST)
d. Suit agst. state only possible if abrogation under 14th A., 5. SI applies in FQ & diversity.

Standing & PQ
1. Constitutional requirements: (Allen v. Wright)
a. Injury in fact
b. Fairly traceable
c. Redressable
2. Prudential requirements:
a. zone of interests
b. advisory opinions
c. generalized grievances (But after Lujan this may be a constl requirement).
3. Political Question
a. lack of judicially manageable stds.
b. textually committed elsewhere
c. NB: they are intertwined. Likely to be no stds. if committed elsewhere b/c Framers did not intend
judicial review.
d. NB: Rehnquist v. White v. Souter debate on the curtain.
Abstention Doctrines
1. Anti-Injunction Act
a. FCT will not enjoin state court proceedings unless:
1. expressly authorized by C ( 1983 is)
2. necessary in aid of jdxn. (in rem (Kline v. Burke Const.), removal)
3. relitigation exception
b. Once exception under 1983, Younger could still apply
2. Pullman (FQ jdxn.)
a. resolution of unclear state law would do away w/fedl constl issue
b. Getting to Constl question creates needless friction w/state cts.
c. Constl question is sensitive area of social policy.
d. FCT retains jdxn.
3. Burford (FQ or diversity)
a. substantive area of regulation where uniformity important
b. administrative scheme already in place
1. Legislature delegated power to some court to hear claims
2. Administrative scheme in place
3. A specialized court (w/expertise) makes determination
c. Dismisses case; retains no jdxn.
4. Thibodaux (Diversity only and state law unclear)
a. As a general rule, FCT cannot abstain (Meredith)
b. But, bizarre area where unclear state law and gets to state sovereignty issues (eminent domain).
If unresolved, will abstain.
c. If merely applying facts to law, will hear (Mashuda)
5. Younger et al.
a. Younger: if pending state court prosecution, FCT will not enjoin.
b. Steffel: if no pending prosecution, FCT will issue DJ. (and sometimes PI (Wooley v. Maynard))
c. Hicks: if no pending prosecution, but state then files, FCT will dismiss pursuant to Younger if no
substantive proceedings on the merits have been filed.
d. Doran: Can get around Hicks if no continuing violation. Consider also standing and rship b/w
parties.

Congresss Ability to Limit Jurisdiction

1. Lower FCTs (Sheldon v. Sill)
a. based on discretion to create them. So, C can create w/such limits as it chooses.
b. BUT, see Story: there must be some FCT for cases based on Art. IIIs language judicial power
shall extend to all cases and . . . to controversies)
2. SCT
a. C make exceptions to appellate jdxn. (Ex Parte McCardle)
b. But not if it interferes w/external or internal limits (Ex Parte Klein)
c. Hart Dialogues: essential role.
3. State Cts.
a. C can limit jdxn. under N&P clause if limiting is necessary to proper functioning of statute.
b. Concern w/parity, fedl rights, expertise, etc.
4. To certain FCTs
a. Price Control Act (Lockerty, Yakus)
b. FCTs are unlikely to find constl violations where procedures in place for going to certain FCT,
otherwise flood of litigation.
5. To ALL FCTS
a. Sagar and Amar: FCT must have jdxn. at least for constl claims, not to police indiv. rights, but
to maintain the structure of the Const. through the FCTs essential role
b. External limits are strongest argument b/c a fedl right is being burdened.
6. TO ALL COURTS
a. This argument is strongest when C stripped jdxn. from all cts. and an external right is implicated,
e.g. DPC, b/c a fedl right is being burdened. (Battaglia)
b. CTs will bend over backwards to find that C did not intend to strip jdxn. to avoid the thorny
Constl question of whether individuals have a constl right to a judicial forum, which also
implicates right to a remedy. If this is true, abstention doctrines will be out the window, as will
PQ, offl immunity and other judicially imposed limits on FCT jdxn.
CONGRESSS POWER TO DELEGATE TO NON-ART. III COURTS
1. Is the hearing before a non-Art. III court? If YES, proceed . . .
2. Does the case fall into one of the three historical exceptions or adjunct theory?
a. military courts
b. territorial courts
c. public rights exception.
NB: public rights grey area after Granfinanciera. Can be private right so closely integrated into
a public regulatory scheme as to be a matter appropriate for agency resolution w/ltd. involvement
by Art. III judiciary.
d. adjunct theory
3. Does it satisfy three factor test in Schor? NB: None of the factors is determinative.
a. Essential attributes
1. SOR for facts? SOR for law is de novo?
2. Narrow subject matter.
3. Ltd. enforcement power
4. Other powers? Issue writs, habeas, jury trials?
b. Nature of right at issue (public v. private)
1. public right generally okay
2. if private right (CL or constly based), CTs are skeptical, but possible (Schor).
c. Cs reasons for non-Art. III ct. (efficiency, expertise, effectiveness & logical rship to right
conferred)
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4. Once it is okay under Schor, adjunct or historical exception, THEN DOES IT VIOLATE 7th A.
RIGHT TO JURY?
a. Does it fall under public rights exception? If yes, then okay under Atlas Roofing.
b. If it satisfies Schor or adjunct theory, then problem. SCT has not decided the issue, but see
Granfinanciera
Concurrent Jdxn. of Fed. & State Courts
1. Presumption of concurrent jdxn. unless C affirmatively strips (permissible under N&P)
2. Can strip if: (Tafflin v. Levitt)
a. expressly in statute
b. implied through LH
c. incompatible w/intent of legislation
3. NB: Scalia would require express stripping b/c of Federalism & Madisonian Compromise
4. State cts. cannot refuse to hear fedl claims unless VALID EXCUSE: (Testa v. Katt)
a. not b/c inconsistent w/state law
b. yes if neutral administrative rules applied equally to state and fedl cases (forum non convienens)
5. Even if the state court hears the case, must then see if state law or procedure would 1) affect a
substantive right (reverse Erie) or 2) fly in the face of Congressional intent (Statutory construction).
Federal Common Law
Creating FCL
1. Authority for FCL: fedl interest and grant of jdxn. (rare if not constl grant)
2. Competence & Discretion: Can the CT fashion FCT and will is choose to do so?
3. Competence: Is there a uniquely fedl interest at issue?
a. Is fedl govt obligated under K?
b. Is fedl govt official civilly liable?
c. If neither, could still combine if its close enough (Scalia in Boyle)
4. Discretion: Would using state law pose a significant conflict w/fedl policy or interest?
a. NB: conflict does not have to be w/a fedl law, only a policy or interest (Scalias big pt. in Boyle)
5. NB: even if FCT has competence and discretion, it can choose not to create FCL if not necessary.
Can use state law, but its discretionary, i.e. Kimbell Foods
Enforcing FCL
1. Implied remedies for statutory violations possible, but rare after Cannon.
a. See also Seminole Tribe where issue really appears to be remedy: implying a remedy for
statutory violation but Rehnquist couches it in terms of state SI.
2. When will CT imply remedy for statutory violation? Old test is Cort v. Ash, but now really looks at
Cl intent and statutory language. Old Test:
a. statute created for benefit of special class
b. legislative intent: must affirmatively deny rather than create.
c. Would remedy be consistent w/purpose of statute?
d. Is it an area of law typically left to the state?
3. Implied remedies for constl violations (Ward v. Love County and Bivens)
a. Const. only affirmatively grants remedies in two places: takings and habeas. Anything else must
be implied.
b. Ward is a taxpayer suit and Pltf.s bring claim based on DP. Their constl right to property ($$) is
being denied w/o due process, so they request so hearing or remedial scheme.
a. issue is whether the remedy would be retroactive or prospective. SCT says either is okay so
long as oppty. for recovery.
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b. CURRENT LAW: retro and pro for constl violations (Harper v. VA Dept. of Tax)
w/exceptions for offl immunity and habeas (no retroactivity).
BIVENS
1. Implied remedy of money damages for constl violation by fedl officers (not agencies)
a. Can get injunctive relief for constl violations under Young and Larson
2. Is it a fedl or state law issue?
3. What is appropriate remedy?
a. $$ damages appropriate as deterrent
b. FCTs have always created remedies
c. No Cl intent to deny $$ remedy
d. Its damages or nothing
4. Exceptions: special factors counseling hesitation or alternative remedial scheme
a. NB: now having a remedial scheme is a specl factor, so it doesnt need to be intended to be a
substitute or even making party whole, just an alternative.
5. NB: Bivens is limited by official immunity
Official Immunity
1. Only few w/absolute immunity: judges, prosecutors, legislators under S&D clause
2. Official immunity is ltd. to activities that are not a violation of clearly established law.
3. Some debate over whether OI applies to 1983 claims b/c 1983 is a fedl law, therefore should
affirmatively abrogate OI, yet impossible since created in 1870 and no idea that law would develop
this way.
Sovereign Immunity
1. Fed. Govt
a. suit agst. offrs. for injunction (Lee, Young, Larson) or $$ (Bivens)
b. suit agst. govt through statutes (Tucker Act, FTCA, APA)
2. States
a. cannot get agst. state directly unless C abrogated under 14th A., 5 (ST) and cannot get around
by going to state court (Alden v. ME)
b. Major debate over state SI: Chisolm/Hans/Seminole Tribe/Alden. Rehnquist v. Souter over
constitutionality or CL of SI.
c. CAN bring agst. offrs. (Young) but must name the officer, not the state (Seminole Tribe)
d. If agst. officer can get injunctive relief (Young) or prospective $$ damage to bring into
compliance (Edelman) but not retroactive relief (Edelman).
e. NB: RELIEF AGST. OFFR. CAN BE FORECLOSED IF STATUTORY VIOLATION AND C
PROVIDED ALTERNATIVE REMEDIAL SCHEME. (ST)

TOPIC
Sovereign
Immunity (SI)
SI

CLAIM
AGAINST
Fedl
Govt/OFFICIAL
Fedl
Govt/OFFICIAL
Fedl Govt

Fedl Govt
Fedl Govt
State
State official
State official
State official

MAJOR CASES
CASE
HOLDING
US v. Lee (trespass case re: Lee
Suits agst. govt officials do not
property)
violate fedl SI.
Ex Parte Young (RR rates could
Suit for injunctive relief agst. officials
not be challenged b/c of
for constl violations does not violate
heavy fines)
SI.
SOVEREIGN IMMUNITY
VIOLATION
BASIS FOR
RECOVERY
Constl/statutory
Lee, Ex Parte Young,
violation
Larson
Official violates
Bivens
individuals
constitutional rights
K, constl and statutory TUCKER ACT
claims. EX: govt Ks;
tax claims; patent
infringement
Torts by govt that
FTCA
would be torts in state
where act occurred.
Statutory/Constl
APA 702
violations
Statutory/Constl
ST: almost impossible
violations
unless abrogated
under 14th A., 5
Constl/statutory
Ex Parte Young
violations
Constl/statutory
Edelman v. Jordan
violations
statutory violations
ST: LIMITS

AVAILABLE REMEDY
Injunction
Money damages against the
individual.
Waiver of govt immunity
but does not provide for
remedy. Must go after
official to get $$.
Money damages
Injunctive/Declaratory relief
Congressionally provided
Injunctive relief
Prospective $$ relief but
NOT retroactive
No recovery agst. offl if
alternative remedial scheme