SCOTUS to resolve attorney fees and preliminary injunctions

Cert granted in Holcomb (now Lackey, since Holcomb left office) v. Stinnie. The cert briefing is fair game in prepping for arguments.

Abstention Papers

Here, here, here, and here.

Final Class

Audio. 

One final word on voluntary cessation: FBI v. Fikre, decided last month, offers a helpful explanation of the limits on voluntary cessation in mooting a case. Plaintiff sued the FBI for placing him on the no-fly; the FBI attempted to moot the case by removing him from the list.

I should have Abstention papers back by Wednesday; you can pick them up outside my office.

Remedies papers due at the start of arguments on May 10. See this post on everything you need to know about arguments. Please notify me of any food needs.

Thank you all for a great semester, especially getting to be outside. Congrats to those for whom this was the final class of law school.

More on universal injunctions

This is from Prof. Ed Hartnett (Seton Hall Law School), the author of the leading Supreme Court practitioner's guide, writing about scope of injunction:

There is an important and unresolved issue about the appropriateness of an injunction providing relief to nonparties. Such injunctions are sometimes called nationwide injunctions or universal injunctions, but the concern is not with their geographic scope, but their provision of relief for nonparties--creating, in effect, a class action without meeting the requirements of [FRCP] 23, while undermining both the limitations on non-mutual issue preclusion . . .  and the principle that district court decisions have no binding precedential effect. . . . Because decisions of the Supreme Court do have binding precedential effect on all courts, litigants rarely have an incentive to make the breadth of an injunction their primary contention on the merits before the Supreme Court; counsel might see stronger reasons to focus on this issue on a stay application.

For Monday (final class)

Tuesday audio. Abstention papers due at the beginning of class.

Prep the remainder of Ch.9, including the review puzzles. Have a look at the SCOTUS opinions in the Idaho case, which illustrates a lot of what we discussed about scope of injunction and what happens after the injunction. Recall Doran, in which the Court explicitly said the injunction as to two bars did not prohibit the city from prosecuting anyone else under the same ordinance, subject to the law of precedent and stare decisis.

Note a change in law in § 9.17[1]--the Fourth Circuit overruled circuit precedent and ceased to be the one circuit holding that a plaintiff does not prevail when he obtains a preliminary injunction, without more. That is one of our oral argument cases.

Injunctive Relief

On Tuesday we will discuss the procedure of injunctive relief in all its pieces--scope of injunction, stays and injunctions pending appeal, emergency motions and the "shadow docket."

This cases arises from a challenge to Idaho's ban on transgender care for teens; the district court entered a preliminary injunction prohibiting enforc (the scope is unclear); the Ninth Circuit declined to stay the injunction (allowing enforcement of the law); SCOTUS stayed the injunction to the extent it protected beyond the plaintiffs, but left it in effect as to the two or three named plaintiffs. Justice Gorsuch (joined by Thomas and Alito) explains why universal injunctions are bad. Justice Kavanaugh (joined by Barrett) tries to explain when the Court should become involved; Justices Jackson (joined by Sotomayor and Kagan) dissents.

Have a look before Tuesday's class and certainly after Tuesday's class.

For Tuesday

Monday audio. Abstention Papers due next Monday.

Consider the arguments for and against a finality requirement for RF, grounded in the text of § 1257 and § 1331 and in the underlying policy of RF.

For tomorrow, prep § 9.01 and Parts A and B (different from what I told you)--we will go in the order of the chapter of Damages and Prospective Relief.

    • What are the competing ways of dividing categories of remedies?

    • What monetary recovery is available and what are the limits on that? What is the problem with cases settling?

    • What is the process for seeking injunctive relief?

    • We will hit on a brief overview of standing and mootness; more on those in Fed Courts.

Recent cases and controversies (Updated)

1) From the Sixth Circuit: Considering whether the county (and the country treasurer) are arms of the state or the county.

2) You should have seen the stories about the student who attempted to give a protest speech during a dinner for graduating students at the private home of dean of Berkeley Law. Lots of discussion of whether the student enjoys First Amendment protection (she almost certainly does not). Note that this assumes the dean acted under color in hosting this party at his home -- did he?

3) Media Matters sued the Texas AG in the District of the District of Columbia, claiming a First Amendment violation from the state's investigative document demand, seeking information about MM's critical reporting about Twitter. No Younger absention (at least Paxton did not raise it), probably because the demand is not part of any sort of state proceeding. Paxton challenged personal jurisdiction and standing (which we will discuss as part of Remedies; the district court denied dismissal as to both. For our purposes, the case illustrates an important general point: Litigating and vindicating constitutional rights is not all about substantive constitutional law; much of your time will be spent with the procedural rules we cover in this class, in Fed Courts, and, as here, in Civ Pro.

Arguments

Standing Order on Procedure and Argument Schedule. Video of arguments from last semester after the jump.

Lunch will be provided. If you have dietary needs or restrictions (Kosher, Hallal, Vegan, Vegetarian, gluten-free, picky eater, etc.), please let me know well prior to May 10.

Also, you should collectively decide whether you want to do one final argument in which everyone is on the Court and I argue Respondent side in Kohn v. State Bar.

Prof. Mirow decided to have some fun

 

Procedure Papers

Here, here, and here.

For Monday

Tuesday audio.

We will finish the Younger Puzzles, then move to Rooker-Feldman and the Abstention Review puzzle (SKS).

    • What is the distinction between Younger and Rooker, which both seem to be about allowing state courts to adjucate federal issues.

    • What is the narrow definition of Rooker and how has it been expanded? How should it differ from Preclusion (review that portion of Chapter 7)?

I hope to get to Remedies at the end of class. The last panel should prep just Overview in § 9.01. We then will cover all of Chapter 9 in the final two classes. Note that Remedies papers will be due when at the beginning of arguments on May 10.

For Tuesday

Monday audio. Procedure papers due tomorrow. Confer w/ co-counsel and co-justice about roles prior to 9 am tomorrow.

Some clarifications from after class:

    1) States must establish certification processes; absent that state decision, certification is impossible. Many certification processes are discretionary--the state high court can decline to answer the certified question. So what happens if the state refuses to answer the question? The federal court can continue and work with its best understanding of the statute. Or it abstains under Pullman and the plaintiff takes the long way through the state system. Recall that certification and Pullman overlap in requiring an ambiguity--so if the law is ambiguous enough that the federal court believed certification appropriate (and it asked the state court to answer, only for it to refuse), the federal court probably must abstain under Pullman if the state court declines certification.

    2) Some confusion about Constantineau. Plaintiffs challenged the law on federal due process grounds; Wisconsin argued that the question of the law's validity on state due process was ambiguous. Had the Court accepted that, plaintiff would go through the state judiciary and obtain a decision as to the law's validity under state due process. If plaintiff wins because the law is invalid under the state constitution, the dispute is over--the law is invalid and cannot be applied against him. If plaintiff loses, he returns to federal court and the 14th Am issue is unavoidable; the law is valid as to state law and now the federal court must assess its validity under the federal constitution.

    3) Another reason certification is preferable to Pullman: If the state court imposes a limiting construction on state law, the plaintiff may still argue that even the narrowed law violates the federal constitution. The case may inevitably return to federal court. So certification--right to the highest court, right back to the federal court--is preferable.

    4) § 7421 does not have a "plain, speedy, and efficient remedy" element. But the federal courts all know about the Tax Court and accept that as an alternative, so it's unnecessary. Federal courts are more skeptical of state tax procedures, as seen in the Sixth Circuit's decision in Howard.

We will work the two Pullman Puzzles, then move to Younger, which is the most prominent and common abstention doctrine in § 1983 litigation. Our discussion will hit the underlying policies, then we will use the Puzzles to work through the multi-part steps of the analysis. Be able to work through all three steps of the Younger analysis for each puzzle, using the major SCOTUS cases (the ones listed on the Syllabus). Be ready to discuss:

    • What the Court means by "Our Federalism."

    • How Younger interacts with § 2283 as interpreted in Mitchum one year after Younger.

    • Whether this is abdication or postponement and how a federal forum comes into play. Note the pre- and post-1988 versions of § 1257.

    • How parity explains Younger.

Entity Liability Papers

Here, here, here, and here.

For Monday

Tuesday audio. Procedure papers due start of class next Tuesday. I will collect information on argument roles at the beginning of class Monday; please confer with opposing counsel and co-justice before you enter class that day.

Here is the en banc Ninth Circuit opinion in Yoshikawa v. Seguirant rejecting the stand-alone § 1981(c) cause of action and holding that plaintiffs must bring § 1981 violations as § 1983 and laws claims. The court agrees on that result; there is disagreement as to what happens next.

We continue with Statutory Abstention, then move to Pullman. How does history and purpose show § 1983 to be an "expressly authorized" exception, given the general language of "suit in equity?" Why have the tax injunction acts (§§ 1341 and 7421) and what do they require and exclude? What are the two circumstances in which a federal court might abstain under Pullman? What is the connection between Pullman and certification?

How far does prosecutorial immunity go?

This case may be designed to find out.

The DA and ADA for Starr County (TX) secured an indictment of the plaintiff for murder following a medication abortion. Plaintiff was arrested and held for three days until the DA dismissed the charges. The State Bar also sanctioned the DA.

The plaintiff recognizes that prosecutorial immunity presents a problem and tries to plead around it. The complaint focuses on the investigation prior to grand-jury presentment, which DA officials carried out without working with the local sheriff or police department. It does include allegations about the DA's office lying to the grand jury, which would be immune. But it tries to frame the claim around an exception to the "independent intermediary" doctrine. Under that doctrine, the actions of an immune independent intermediary (a judge in issuing a warrant, a grand jury in indicting, or a prosecutor in pursuing either) may break the causal chain between plaintiff's injuries and the constitutionally defective actions of police officers during an investigation. For example, a prosecutor's decision to pursue a prosecution may break the causal chain between the injury (wrongful conviction) and an initial arrest without probable cause. But there are exceptions to that, where the intermediary is not independent of the defendant. Plaintiff appears to argue that independent intermediary does not apply when the same person acts as investigator and prosecutor, as there can be no "independence."

There also is a claim against the County, based on the active (although not lead) involvement of the DA. This claims tees-up the competing strands of entity liability we discussed last week--is the DA the policymaker; was he sufficiently involved in the investigation and prosecution or did the ADA carry the ball; and is the DA Office county or state when performing the function of investigating and prosecuting state law. This is not a close question--the Fifth Circuit long ago held that, as a matter of Texas law, a county prosecutor acts as an arm of the state in enforcing state penal law.

Finally, note the plaintiff's strategic choices. Immunity is, unquestionably, an affirmative defense, which the plaintiff need not negate in her complaint. So does it make sense to plead it? Or is the plaintiff better off standing on her complaint, waiting for the 12(b)(6), and responding to that.

For Tuesday

Monday audio. Entity Liability papers due at the beginning of class.

We will finish the Heck Puzzles and the rest of Chapter 7. We start with Dominguez--§ 2254 is off the table because Dominguez no longer is in custody pursuant to a state-court judgment, although he has not been released. What vehicles does he have to challenge his continued detention in federal court? What are the two broad issues for the plaintiff to raise in Poventud?

Also, please note a couple of things: Habeas is incredibly detailed and complicated; we barely scratched the surface, other than to know the basics so you can distinguish it from § 1983. Entire books and classes can be taught on it. One way of thinking about what is and is not Heck-barred is to think about retroactive v. prospective remedies; we see this in Edwards v. Balisok--Heck barred the claim for damages for past withdrawal of good-time credits without due process, but not the claim for an injunction requiring future proceedings considering good-time credits to comport with due process.

We then move to Abstention, so that panel should be ready to go. For tomorrow, prep § 8.01 and Part B; we will go in a slightly different order from the book. What does the Anti-Injunction Act do and why does § 1983 qualify for the "expressly authorized" exception?

Evangelizing cops, qualified immunity, and appealability

Every case always comes up again. This one comes from the Sixth Circuit, where a police officer discussed religion and baptized a woman following an arrest for marijuana possession. The district court denied summary judgment; the officer appealed. The Sixth Circuit lacked jurisdiction because the district court identified factual disputes and the officer did not conede the plaintiff's version of facts, although that concession might have been sufficient to create appellate jurisdiction.

For Monday

Tuesday audio. Entity Liability papers due Tuesday.

We continue with Procedure; prep the rest of Chapter 7, beginning with the § 7.05 puzzles. Understand the basics of habeas corpus and how Heck strikes the balance between habeas and § 1983. Why insist on lines between habeas and § 1983? What role does SCOTUS review play in challenges to state convictions--how do you know when a case reaches SCOTUS on habeas or direct review?  What is the statute of limitations on a § 1981 claim against a municipality?

Abstention panel should be ready to go on Tuesday.

For Tuesday

Monday audio.

We will finish with the Noah C. puzzle on Entity Liability. Having found the Board as the policymaker, what do we next have to figure out for the damages and injunction claims. How is the injunction claim affected by whether the Principal is the policymaker and whether the Board signed off on the suspension? See Humphrey in the reading. Entity Liability papers will be due next Tuesday.

We move to Civil Rights Procedure, covering the first two sections (Chapter 7, Parts A and B); many jurisdictional statutes to review, so be ready to discuss and explain the precise language of those provisions and how they operate. Note that the Title VII provisions (42 U.S.C. § 2000e) are in App. C.

    • Why is immunity, especially qualified immunity, immediately reviewable under the collateral order doctrine?

    • How do 3-judge courts and declaratory judgments respond to the concerns over EpY? Why have 3-judge courts for the three current classes of cases in the modern statute?

    • Be ready to discuss the basics of habeas corpus. We then will get into Heck next week.