Federal Practice Manual for Legal Aid Attorneys

The Shriver Center's Federal Practice Manual for Legal Aid Attorneys covers all stages of federal litigation, from drafting and filing the complaint to trial practice and limitations on relief. This popular resource, available free of charge online, includes relevant recent caselaw and legal developments. Edited by Jeffrey S. Gutman, Professor of Clinical Law at George Washington University Law School, with the assistance of a group of experienced legal aid advocates, the manual includes links to federal statutes, Supreme Court case citations, and relevant regulations. Moreover, the full text of the manual is searchable by keyword.

 

Updated 2015

Chapter 1: Preparing for Litigation

Updated 2013 by Jeffrey S. Gutman

Litigation can be a powerful tool for solving problems for clients. It can also be expensive, protracted and, ultimately, unsuccessful. Other tools, such as legislative and administrative advocacy, community education, direct action and use of the media, should always be considered along with litigation options. Before filing suit, the lawyer must first determine that a lawsuit is the appropriate strategy, or one of several strategies, for solving the client's particular problem or attaining a specific goal. The purpose of this MANUAL is to assist legal aid lawyers in assessing and exercising the power of litigation most effectively.1

Updated 2013 by Jeffrey S. Gutman


1.1 Introduction

Updated 2013 by Jeffrey S. Gutman

For most public interest and legal services organizations, the decision whether to engage in litigation and which cases to pursue is the product of strategic planning. Planning benefits from an understanding of the history, trends, successes and limitations of the practice of public interest law.1 Professor Deborah Rhode describes such practice as "at mid-life" and her recent survey of public interest organizations offers compelling insights necessary for such an understanding.2 Public interest law, once identified with progressive causes, but now embracing conservative ones as well, emerged from the "test case" strategy of the NAACP Legal Defense and Educational Fund in an era in which the federal judiciary was sympathetic to civil rights claims, government agencies could be changed through public law litigation and the challenges to seemingly clear injustices resonated with broad segments of the American people. In hindsight, litigation victories by public interest organizations were relatively easy to achieve as the facts were often starkly presented and favorable precedent developed in the areas of standing, civil rights, judicial review, redressability and attorney's fees. 

By the 1980s, a more conservative judiciary was less receptive to the sorts of claims advanced in the 1960s and 1970s and deregulated federal agencies were less receptive to efforts by advocates in the environmental, consumer, anti-poverty, and labor movements. The difficulty the progressive movement had in building on its early successes resulted in a more defensive orientation aimed at trying to minimize the erosion of those advances.3 It also led to a critique of public interest law by those arguing that litigation, once seemingly successful, was not well suited to progressive reform.4 Instead, the changing environment was favorable to the growing conservative public interest movement which often skillfully used litigation to advance its aims.5 In the view of progressive critics, litigation-oriented public interest law diverted resources and energy from other forms of advocacy more likely to achieve deeper and more substantive progress.6

As reflected in Professor Rhode's empirical study, there is a well-established recognition of the complexity of social problems and the limitations of litigation as a means for addressing them.7 Litigation requires considerable resources and there is substantial competition among growing numbers of public interest organizations for those limited resources.  Important limitations on some legal services organizations were imposed by the Legal Services Corporation in the 1990s.8 Significant retrenchment in legal doctrine that had once favored progressive causes, such as justiciability, private enforcement and attorney's fees, each covered in this MANUAL has dimmed the prospects of success in progressive public interest litigation.  Even when lawsuits are successful, enforcement on the ground is often difficult as state actors are often resistant to change.9 The result has placed progressive public interest law at a crossroads.

There is tension between a recognition of the limitations of litigation and the relative accessibility and familiarity of the courts as a forum for addressing social problems.  Similarly, there is an understanding that alternative means of advocacy may be more effective than litigation, but such efforts are often complex and beyond the skill sets of many lawyers.10 The empirical data suggests that many organizations have adapted accordingly. Generally, compared with groups in the 1970s, the public interest law organization of today are relatively smaller, and staffed with higher proportions of non-lawyer professionals.11 This suggests that growing numbers of smaller organizations are increasingly specialized in niche areas, have developed substantial expertise in these narrower areas and employ the skills of both lawyers and other professionals to advance their agendas.  The means by which they do so and their prospects of success (and funding) are not uniform across subject matter.  For example, the need to address environmental harm and gay rights has considerable public support and has met with some litigation success.  Coalition building and fundraising is relatively easier in these areas.  In contrast, segments of the public are unsupportive, if not hostile, to advocacy for less popular causes, such as those involving immigrants and prisoners, where powerful and successful opposing organizations are very active.12

Professor Rhode's survey showed that public interest organizations, progressive and conservative, have, since the 1970s, continued to devote a significant amount of time to litigation, but that proportion has declined.  Relatively more time is devoted to legislative work, community education and coalition building.13 For some, litigation is pursued not because there is an expectation of victory, but to limit loss, focus public attention on a subject or to develop momentum for legislative change.  For many organizations, then, litigation is part of a broader advocacy campaign, frequently conducted with coalition partners and community organizations.14 These efforts are fraught with potential challenges, from funding the project to managing the often competing needs and expectations of partner groups.15 Funding issues have led to creative solutions, like teaming with pro bono private counsel, other public interest organizations, public interest law firms and law school clinics,16 but group efforts by their nature require management and ongoing consultation.17 Surmounting these challenges requires careful and creative strategizing with clients and consideration of potential assets, such as boards of directors, pro bono resources, community and other partners and the preferences of funders. 

Professors Rhode and Cummings offer important lessons for analyzing the place of litigation in this strategy:

A central theme is that the effective use of litigation requires a strategic analysis of the forces that shape its outcome, including organizational capacity, the likelihood of success on the merits, the challenges of enforcement, and the possible political responses.  This strategic analysis should be informed by two considerations.  The first relates to how lawyers can maximize the political impact of litigation.  Litigation typically works best when it is strategically embedded in broader political campaigns that help define litigation goals and enforce legal mandates.  The second consideration involves which lawyers are most capable of bringing litigation in different circumstances.  The way that legal groups are structured affects the content and scope of their litigation dockets . . . .18

Each public interest organization and legal services office considering litigation, particularly impact litigation, must carefully evaluate the organization's goals and priorities, the needs of its clients and its capacity to manage the litigation. It must identify the client’s goals and analyze whether litigation is a strategy that may achieve those objectives.  The organization must assess whether other organizational priorities may suffer if resources are devoted to litigation and what the impact of either a victory or a loss might be.  It will need to answer the following basic questions:

  • What are the client’s goals?
  • Who has the power and resources to provide what is desired?
  • What will cause the person or entities to do what needs to be done?
  • How will the organization achieve its client’s goals?
  • What resources will be required?
  • Can other organizations meaningfully and helpfully participate in the effort?
  • When does the organization need to get results?
  • How long will alternative methods for achieving the client’s goals take?
  • What are the benefits and risks involved in potential strategies?
  • How will you know when it has succeeded or failed?

Only when these questions have been carefully considered and provisionally answered can you be confident that you are providing the best advocacy for your client. If, based on your planning assessment, litigation is a viable strategy, additional and somewhat more technical questions must be asked.  Many of these questions will be addressed later in this chapter:

  • What are the capacities and limitations of your firm or organization?
  • Who will the client or clients be?
  • What will your claims be?
  • On what law will you rely?
  • What specific claims for relief will you make?
  • In what forum will the suit be filed?
  • How will the lawsuit be staffed and financed?

Before addressing these questions, we turn next to a consideration of the alternatives and complements to litigation.

Updated 2013 by Jeffrey S. Gutman

1.2 Alternatives and Complements to Litigation

Updated 2013 by Jeffrey S. Gutman

All options for obtaining relief, instead of or in conjunction with litigation, should be considered and used where appropriate. If the problem can be resolved without litigation, it should be.  Litigation can often be more expensive in time and cost than alternatives.  The prevailing law may cast doubt on the prospects for success and the available remedies may only imperfectly resolve the issue.  In certain cases, alternatives to litigation may more quickly resolve problems faced by a broader group of people.  These non-litigation strategies can also be used in conjunction with litigation, either sequentially or simultaneously.  The Clearinghouse Review: Journal of Poverty Law and Policy has featured numerous articles reporting on such efforts./1/  While successful reform campaigns are too numerous to mention, particularly noteworthy examples can offer advocates ideas and inspiration.  

1.2.A.  Examples of Systemic Reform Efforts

1.2.A.1. The Shelter Access Project in the District of Columbia

The Washington Legal Clinic for the Homeless created the Shelter Access Project to promote equal access to emergency homeless shelters for residents of the District of Columbia./2/  The Project educated and trained shelter residents on their rights under the Americans With Disabilities Act through brochures and oral presentations.  The Project attempted to provide technical assistance to the government agencies and private contractors which administered the shelter care system.  When these efforts proved largely unsuccessful, Project staff and residents testified before the District of Columbia City Council to educate policymakers and their staffs on the city's legal obligations and the consequences of its failure to meet them.

When recognition of shelter inaccessibility grew, the responsible parties chose not to cooperate but instead shifted blame and costs on each other.  The Project turned again to the City Council and successfully urged passage of the Homeless Services Reform Act/3/, which required homeless shelters to comply with federal disability standards and to implement policies and procedures designed to make shelters more accessible.  ADA compliance was to be enforced and coordinated by a Cabinet-level Office of Disability Rights. 

At the same time, the Project referred complaints about inaccessibility to the Department of Justice Civil Rights Division.  The volume of such complaints may have prompted the Division to initiate a review of the District's homeless shelter system's compliance with the ADA.  Project staff assisted the Division's review by providing a report summarizing the long history of noncompliance and offering specific recommendations for reform.  Ultimately, the Division and the District of Columbia government entered into a settlement agreement following the Department's inspection of fifteen shelters for physical accessibility.  The Project continues to monitor and press both the District government and the Justice Department to ensure timely compliance with the agreement.  When clients have continued to face disability discrimination, attorneys with the Project overcame initial hesitation to sue non-profit or faith-based homeless service providers.  Opting against lengthy and potentially difficult class action litigation, the Project partnered with law firms and a law school legal clinic to bring individual federal lawsuits to remedy these violations.  

1.2.A.2. Fighting Foreclosures in Los Angeles

Neighborhood Legal Services of Los Angeles County faced increasing numbers of clients in foreclosure actions./4/  Neighborhood Legal Services found that referrals to hotlines and resource-intensive affirmative litigation in individual cases were not making a significant impact in addressing the enormous foreclosure problem in the San Fernando Valley.  As a result, Neighborhood Legal Services partnered with a large community organization, One LA-IAF, which had identified foreclosure as a priority issue for its members.  The project began with a foreclosure-prevention workshop, but the large numbers of participants made referrals to government counseling agencies and measurement of the effectiveness of such referrals difficult. 

Instead, the project divided homeowners into groups according to their loan servicer and engaged in collective negotiations.  A HUD-certified counseling organization joined the project and staff from Neighborhood Legal Services and One LA-IAF teamed to train clients on mortgage foreclosure principles.  Counselors assisted clients in determining affordable monthly payment levels and modification alternatives.  Neighborhood Legal Services prevailed upon federal and state legislators to arrange meetings with high-level representatives of the loan servicers who agreed to meet with groups of homeowners.  Clients were empowered to participate in the resulting negotiations and were directed to report on the results of their efforts. 

Based on information provided from program participants, the project proposed specific measures to avoid foreclosure and One LA-IAF introduced the proposal at a large public meeting which attracted considerable press coverage.  Litigation by state attorneys general against particular servicers made them more inclined to participate constructively in the negotiations.  The collaboration between Neighborhood Legal Services, community organizations and volunteers has leveraged the resources and expertise of each, producing more assistance to homeowners than any one group or strategy could produce on its own.

1.2.A.3. Expanding Health Care in Illinois

Recent efforts to expand health care in Illinois highlight the skills and capacities that public interest lawyers can bring to advocacy campaigns, as well as the necessary skills such lawyers often lack that are required to make such efforts successful./5/  In the late 1990s, the Shriver Center became aware that many low income working parents were losing their health insurance coverage as they moved from welfare to work.  The Center developed a policy proposal designed to expand health care coverage for these families.  At the same time, a new Chicago community organization, United Power for Action and Justice, identified access to health care as a key issue it wanted to address. Overcoming potential risks and initial difficulties, the Shriver Center and United Power teamed together and were able to secure passage of an incremental expansion of the program that became known as FamilyCare.   Shriver Center attorneys deployed their skills in policy analysis and development and lobbying, while United Power used its expertise in public relations, media, organizing public meetings and assembling stories and support from individuals to accomplish the expansion in health care coverage.

Litigation played a more important role in the Shriver Center's efforts to enforce provisions of the Medicaid Act to secure access to doctors and levels of care for Cook County, Illinois children.  The litigation in Memisovski v. Maram/6/ had the traditional hallmarks of such litigation, repeated motions to dismiss, extensive discovery, and the investment of twelve years of time and resources.  Ultimately, the plaintiffs prevailed and opted to pursue settlement rather than face further delays on remedial litigation and likely appeals.  Taking advantage of a presence of a new governor who had campaigned on health care reform and research showing the benefits and cost savings available through preventative care for children, the case was settled in 2005.  Health care coverage was expanded for these needy children. 

1.2.A.4. Reforming Disability Compensation in Washington

A multi-pronged approach to problem solving was employed in Lightfoot v. District of Columbia. Lightfoot involved a challenge to the policies by which the disability compensation benefits of injured D.C. city employees were reduced, suspended or terminated.  One of the co-counsel in the federal litigation, the D.C. Employment Justice Center, founded a group called the Injured Worker Advocates.  A Center attorney who was not involved in the federal litigation supported this group.  The Injured Worker Advocates is a group of former city workers who have banded together to protest and press reform of the manner in which injured municipal employees are treated in the District.

The Injured Worker Advocates used public rallies and other forms of publicity to increase membership and build support for legislation that Center lawyers drafted for City Council consideration.  Using legislative advocacy, the Injured Worker Advocates and Center persuaded the City Council to hold a hearing on the disability compensation program.  Many Injured Worker Advocates group members testified at the hearing, which coincided with the legislative process required to confirm the director of the relevant agency to his post.  Their stories, as well as victories in court, led to the dismissal of the director and important new legislative reforms.  Subsequently, the Center and others submitted public comments on proposed rules to implement the new legislation.  At the same time, the litigation surfaced facts and favorable judicial opinions that supported the need for legislative reform and were designed to furnish both prospective and retroactive relief to class members.

1.2.B.  Administrative Advocacy

Administrative advocacy can take a variety of forms in connection with agency adjudication, rule-making and investigation./7/  Numerous federal and state benefit programs have procedures for the administrative appeal of adverse decisions.  The advocate should evaluate whether these procedures comport with principles of due process and determine whether the administrative appeal is a mandatory or permissive prerequisite to judicial review.  These administrative appeal procedures should permit the advocate to review the administrative record, to present documents and testimony in a hearing before a neutral decisionmaker and to question agency representatives.  Some procedures have required or permitted options available to mediate the dispute.

In addition to having quasi-judicial procedures for enforcement of a statute, many agencies have procedures for filing administrative complaints or requests that an agency commence an investigation into questioned practices.  The advocate should determine whether the agency has formal or informal processes for such filings and assemble a compelling factual case to persuade the agency to exercise its discretion to review or investigate the matter at issue.  Advocates may file comments in response to notices of proposed federal or state rule-making, and many administrative procedure acts permit the filing of requests to commence a rule-making./8/

Administrative advocacy can be informal. Advocates can contact agency personnel and their supervisors, up to the agency head or attorney or general counsel.  Call agency contacts who have agreed with your position, or are at least open-minded, to see if they are willing to take official or unofficial action.  A local administrator is often surprisingly amenable to changing a local practice if the local agency knows that its federal or state oversight agency is supportive of the change.  Even if unsuccessful, informal administrative advocacy can serve as informal discovery of the agency’s position.  Keep careful records of your conversations and commit the agency’s position to writing when possible.  If agency positions conflict with legislative directives, advocates or their clients/9/ may notify the relevant legislator or legislative committee chair to bring the matter to their attention.  Questions from legislative staff may prompt the agency to reconsider its position or interpretation.  Typically, legislative staff requests are color-coded and given the highest priority.

1.2.C.  Legislative Advocacy

As explained above, because social problems have become more complex and, in some cases, litigation is not well suited to address them, advocates must consider legislative advocacy.  Such advocacy can take many forms, from support for new legislation to increased funding for certain programs.  It is therefore important for legal aid attorneys to consider legislative reform and to develop the drafting skills required to draft proposed legislation.  As noted in the vignettes above, marshaling support for legislative reform requires networking and identifying groups which share the same concerns and have the skills and contacts necessary to contribute meaningfully to the advocacy.  Individuals should be identified who have been harmed or stand to benefit from legislative change.  Attorneys can contribute by drafting testimony for such individuals and preparing them to answer questions that may be posed by legislators or staff.  Legal aid attorneys should become familiar with state legislative processes, develop contacts with key staff members and understand how to advance a cause on the legislative agenda.  Quite frequently, legislative change supported by key community constituencies can produce more lasting and effective change than other forms of advocacy.

1.2.D.  Press and Media

Newspapers and other media are useful in several ways.  Publicity and articles can get a message out and shape public opinion.  This is especially useful if you need public opinion to support your lobbying efforts or to encourage the public to take a particular action.  An article or story can reflect public opinion and bolster your moral standing or provide a margin of comfort for a judge who might otherwise be afraid to issue a novel order.  News reporting can serve as another source of fact finding and can force your adversaries to pin down their position as they are quoted.  Readers of an article may bring further evidence or potential plaintiffs to your attention./10/

When you approach the media, you must do so with an understanding of the way the media operates. In most cases the reporter is interested in the general public interest of the story.  Very few local reporters have the resources for true investigative reporting.  The press release may form the core of the story and may represent all that the reporter knows about the issue.  Commonly, the reporter will call you and your adversary for a quote.  You should have a quote prepared, and you should understand that the reporter will listen to your articulate explanation and may use the one sentence you wish you never said.  You can start the conversation by saying that you would like to give some information on background and then indicate when you want to be quoted, but such control is not always granted or honored.

Create a message that will be understandable and persuasive to your audience.  A radio or television interview is not the time to talk about motions to dismiss and burdens of proof.  It is the time to talk in sound bites, just as when you were first formulating the solution to your client’s problem.  If you work at it, you may be able to develop a relationship with a reporter who is interested in your story.  You will be able to give background information to the reporter, and the reporter may be willing to share information obtained during an interview or investigation.  Do not be lulled, however, into thinking that the reporter is on your side or your friend.  You may find your confessions and doubts incorporated into a future article.

In general, you can contact the media in three ways.  You can simply call the city desk, relevant beat reporter, or a reporter with whom you have a relationship.  You can issue a press release that conforms to the format used in your community.  You can call a press conference by issuing a press release or making direct calls and inviting the media to appear at a particular time and place.  You can often attract a lot of attention in this manner, despite the short attention span of the media.  The press conference should be planned with as much care as an oral argument; include the sound bites you want aired and be prepared for challenging questions.  A spokesperson who is a client or group representative makes the story more immediate.  An attorney as the spokesperson can project a level of seriousness, knowledge, and intent.  Often a combination of both works best.  Prepare the client and practice, just as you would for testimony.

You can also approach the editorial board of the newspaper to solicit a favorable editorial.  Ask to arrange a meeting with the editorial board or representative at which you will have an opportunity to present your story and argue your position.  Even if you do not obtain a favorable editorial, the off-the-record remarks and feedback you obtain from the editorial board can serve as a useful barometer of community response.  The newspaper may be interested in publication of an Op-Ed piece that will get the matter before the public.  And even when this is not possible, shorter letters to the editor may be published. Recently, in Washington, D.C., an attorney with the Public Defender Service arranged for press coverage and a Washington Post editorial critical of a judge's delay in granting a certificate of innocence for an exonerated criminal defendant. The judge issued a favorable order the day after the editorial was published.

To insure internal control of your media strategy, you should have a clear understanding within your office, litigation team, and with your client as to how media inquiries will be handled.  In general, one attorney in your office should be the point of contact with the media for the case, and that attorney should know and understand the media strategy for the litigation.  Your agreement with your client as to how media inquiries will be handled should be in the retainer.

Increasingly, publicity does not require a reporter as an intermediary.  With Facebook, Twitter, community list serves and blogs, advocates can independently make the public aware of an issue, solicit proposed solutions and identify partners with similar views./11/  Generation of public support for a cause is key to a mobilization strategy designed to educate the public about the issue and to place it on a legislative or agency agenda.

1.2.E.  Community Education

Community education is one of the most important undertakings of a legal services attorney./12/  In most circumstances, it will also be an adjunct to litigation.  Community education may be particularly necessary when you are trying to locate plaintiffs or witnesses or when you want to test the capacity of a public system.  For instance, before commencing litigation to challenge the failure of a paratransit system to comply with the Americans with Disabilities Act, the attorneys and the organizational client educated potential riders of their rights, surveyed people with disabilities about their experiences with the system and obtained data about noncompliance as a result.  Community education can be especially useful after you have settled or won the case to let people know about the new resources available or the new rules that will apply to them.  You can include community education as part of your settlement or request for relief.

When you engage in community education, be sensitive to the forms and levels of communication best understood and appreciated by your target audience and their spoken languages.  Always consider alternate formats, such as large print, tape, and Braille for people with visual impairments, and the availability of interpreters when conducting outreach and community presentations.  You may also want to develop materials targeted at social service providers who work with the audience you are trying to reach, both to ensure they can advise clients of their options and rights, and so they can recognize problems and refer clients who are in need of representation to your office.

1.2.F.  Direct Action and Community Development Work

Direct action can refer to two different approaches to obtaining your desired solution.  First, you can simply fix or coordinate the fixing of the problem.  For instance, the defendant in a lawsuit initiated by her town to declare her house an imminent health hazard and to raze it contacted a legal services lawyer.  Legally, the attorney could have raised procedural defenses or counterclaims relating to the client’s disability.  Instead, the lawyer contacted a local community group that, working with a local church, sent a team of people and a dumpster to the house.  The volunteer team cleared out years of debris, and performed some emergency repairs. 

Direct action may also mean mobilizing a group of people to apply pressure to the government or other entity to obtain a specific result./13/  Disability groups have engaged in direct action, often in conjunction with litigation, to obtain accessible transportation or access to public buildings.  Direct action in your case might occur on a smaller scale.  It may be as simple as turning out a crowd at a public hearing or in the courtroom.  It may be a sit-in at the welfare office to protest a new rule or at a local restaurant to obtain an accessible restroom.  In most cases, combining direct action with a media strategy is useful.

Community development work involves the use of public and community resources to obtain the desired results.  It can refer specifically to becoming involved in your town, city, or state’s process for allocation of federal and state community development dollars.  It can also mean working with a local not-for-profit or for-profit development company to create housing, job opportunities, or other community enhancements.

1.2.G.  Amicus Participation

One alternative to the substantial investment of time and resources required for the preparation, initiation, and prosecution of direct litigation on behalf of your clients is to participate, selectively and strategically, in pending lawsuits involving other parties that have raised the same or similar issues.

1.2.G.1 The Amicus Curiae

Through the vehicle of the amicus curiae—the “friend of the court”—legal aid attorneys can vigorously represent their clients’ interests, often in the context of precedent-setting decisions, without formally initiating or intervening in the underlying litigation.  Amicus participation thus affords attorneys the opportunity to influence directly and immediately the outcome of cases that may dramatically affect their clients’ lives while avoiding most of the resource constraints imposed by conventional litigation.

Unlike their counterparts in many other public interest law organizations, legal aid advocates do not routinely participate as amici in cases involving other parties.  However, given the modern expanded role of the amicus curiae in federal litigation/14/ and the increasing success of amicus arguments presented by a wide variety of interest groups, including conservative public interest organizations,/15/ legal aid advocates should more fully utilize this effective (and efficient) alternative to direct litigation./16/

Over time, the role of the amicus curiae evolved to encompass overt advocacy on behalf of the amicus organization’s legal position, and modern amici invariably provide active support for one or more parties to the litigation./17/  Indeed, under current federal rules, an amicus seeking leave to participate in a case must articulate its specific interest in the litigation, identify the party that it intends to support, and (in the U.S. Supreme Court) disclose certain relationships which may exist between the amicus and the parties to the case./18/

1.2.G.2 The Amicus Brief

1.2.G.2.a. Contents of the Brief. 

Typically, an amicus simply submits a brief in support of its legal position.  Under the federal appellate rules, such briefs may be filed “only if accompanied by written consent of all parties, or by leave of court granted on motion, or at the request of the court.”/19/  Generally an amicus who is unable to obtain the requisite consent will file a motion for leave to file its brief and at the same time “conditionally file” the brief itself—a procedure permitted under Rule 29./20/  The motion must identify the “interest of the applicant,” and the brief should be filed (or conditionally filed) within the same time allowed for the party whose position the amicus supports./21/

A similar procedure governs amicus participation in the Supreme Court and is set forth in Supreme Court Rule 37.  Although Rule 37.2 states that motions for leave to file an amicus brief after the parties refuse to consent are “disfavored,” in practice the Court currently grants “nearly all” motions for leave to file an amicus brief, even when consent is denied by a party./22/  No express provision in the Federal Rules of Civil Procedure applies to amicus advocacy in the district courts.  However, those courts might well look for guidance to Federal Rule of Appellate Procedure 29, and an amicus seeking to be heard in the district court should follow the process set forth in Rule 29./23/

 An amicus brief can target a specific weakness in a party’s argument, develop variations on the arguments made by the parties and present emotive or otherwise “risky” arguments that a party cannot or should not address./24/  Often an amicus brief can serve as an important factual supplement to the record or furnish relevant technical data or background information not otherwise available to the court./25/

1.2.G.2.b. New Issues or Arguments

  Often an amicus may seek to argue a legal theory or raise a legal issue that the parties themselves have not argued or raised.  As a rule, courts are reluctant to permit an amicus “to interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore.”/26/  This principle is merely a corollary to the more basic jurisprudential prohibition against the consideration of issues that are not argued in the lower court/27/ or raised in the appellant’s opening brief./28/  However, courts often exercise their discretion to rule upon new issues raised by amici when “the issue is purely one of law and either does not affect or rely upon the factual record developed by the parties”/29/ or where “exceptional circumstances” warrant consideration of the argument./30/   Courts will find such “exceptional circumstances” when the issue presents “a significant question of general impact,”/31/, where the issue implicates “substantial public interest,”/32/ or where failure to consider the issue would cause an “unduly harsh” result./33/ Furthermore, since the federal courts have an independent and continuing obligation to resolve jurisdictional questions, even when not raised by the parties, an amicus who presents such issues may in fact be welcomed./34/

Consistent with these principles, the Supreme Court has sometimes expressly refused to consider issues raised solely by an amicus./35/  However, the Court periodically deviates from this general rule and bases its decision on an argument presented only in an amicus brief./36/  Hence, amici organizations and their counsel should not be deterred from offering new issues or theories for the Court’s consideration.

An amicus (or any other party on appeal) who offers new legal theories or alternative legal grounds in support of the lower court’s judgment will benefit from the “settled rule” that holds “if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”/37/  Thus a reviewing court “may affirm on any ground supported by the record even if it differs from the reasoning of the district court.”/38/  An amicus who argues in support of the lower court’s disposition therefore should be accorded greater latitude in presenting new or alternative claims on appeal.

1.2.G.2.c. Reply Briefs and Oral Argument

 The Supreme Court prohibits the filing of amicus reply briefs./39/  Other federal courts have adopted the same rule./40/  However, an amicus that has been permitted to file a brief in connection with a petition for certiorari or other discretionary review (e.g., a rehearing or rehearing en banc in the court of appeals) certainly may seek to participate in the briefing on the merits if review is granted./41/

Both the Supreme Court and federal appellate rules provide that a motion by an amicus to participate in oral argument will be granted only for “extraordinary” reasons, particularly when the party whose position the amicus supports does not consent to share its allotted argument time./42/  However, in significant cases the courts of appeals are probably more likely than the Supreme Court to permit argument by an amicus, and the allied parties to the litigation are more likely to share their argument time./43/

1.2.G.3 Advantages and Disadvantages of Amicus Participation

Many traditional public interest law organizations have long favored amicus participation as a resource-efficient way to concentrate their advocacy upon cases which appear poised for a precedent-setting decision in order to obtain the most direct and immediate impact for their constituents.  Direct litigation may consume years of time and expenses with no guarantees that the outcome, even if favorable, will establish any lasting precedent.

The influence of amicus advocacy upon court decisions is quite difficult to measure in objective terms./44/  Recent empirical research, based on surveys completed by federal judges, suggest that under certain circumstances, judges find amicus briefs useful./45/  This research shows that judges are influenced by the identity of the drafter of the brief./46/  This suggests potential advantage if a legal aid organization is able to secure the assistance of a prominent Supreme Court practitioner.  Amicus briefs that offer new legal arguments, highlight impacts of a decision on interests shared by non-parties and support an inadequately represented party are generally regarded as helpful./47/ 

Many organizations that regularly appear as amici point to “the frequent citation of amicus briefs in Justice’s opinions” as support for the inference that “the [U.S. Supreme] Court often finds such briefs helpful.”/48/  For example, in 2005, the Court relied extensively on amicus briefs from various professional and government organizations in deciding to prohibit the use of capital punishment against persons who were under 18 at the time they committed their capital crimes./49/  In fact, the majority's reliance on amicus briefs was so pronounced that one of the dissenters castigated the majority for "look[ing] over the heads of the crowd and pick[ing] out its friends."/50/  In addition, it is widely believed that the Court’s 2003 decision upholding the consideration of racial diversity in a law school admissions policy was significantly influenced by the numerous amicus briefs filed in support of the program by “major American businesses” and “high ranking retired officers and civilian leaders of the United States military,” all attesting to the importance of “exposure to widely diverse people, cultures, ideas, and viewpoints.”/51/

However, the limited role of the amicus curiae places significant constraints upon the use of the amicus vehicle as a strategic option, and legal aid advocates must always consider whether direct initiation of litigation (or formal intervention in pending litigation) better serves their clients’ interests.  For example, because amici lack formal party status, it is well-settled that an amicus may not, on its own: appeal a lower court judgment; seek rehearing or other discretionary review; broaden the scope of the remedy or seek relief not requested by the parties; or (generally) obtain attorney fees and costs./52/  Advocates who become aware of significant cases at the trial level should consider whether intervention in the litigation is the most appropriate means to protect their clients’ interests, particularly if no current party to the litigation apparently is motivated to protect those interests or to appeal an adverse judgment./53/

1.2.G.4 Practical Considerations

Watchful legal aid advocates will discover significant opportunities to advance their clients’ interests in the context of litigation between other parties.  Legal aid attorneys successfully have provided a voice for their clients through amicus appearances in important cases involving bankruptcy, consumer protection, civil rights, housing, and social security issues./54/  Counsel who seek to participate as amici in appropriate litigation should collaborate as closely as possible with the party to be supported in order to coordinate briefing and argument strategy.  All amicus advocacy should be done, with appropriate retainer agreements, on behalf of a current client or clients who have a stake in the outcome of the case at issue.  Often the actual “amicus” is an organization or association with goals or missions relevant to the issues being litigated, and the legal services advocate serves as counsel to the amicus organization./55/  Where the legal services organization itself carries credibility with the court, it may appear as amicus in its own right./56/

Advocates who are attuned to the possibilities of amicus participation may realize some significant corollary benefits for their general practice.  Regular monitoring of other cases raising issues of significance to clients will certainly increase awareness of the opportunity (or perhaps the necessity) for advocacy on those issues in a variety of forums.  Amicus participation also can be a catalyst for greater networking and collaborative efforts with advocates in both the private and public interest sector.  Counsel who regularly consider the opportunities and possibilities of amicus advocacy also will be more likely to obtain an advantage in their own litigation by inviting the participation of influential organizations and allies to serve as their clients’ amici in appropriate cases.

____________________________________________________________________________________________________

1. See Stephen Bingham and Luna Yasui, The Legal Barriers to Employment Project - a New Model, 43 Clearinghouse Review 4 (May-June 2009)

2. Amber W. Harding, Case Note:  In from the Cold: Making Homeless Shelters Accessible to People with Disabilities in the Nation's Capital, 43 Clearinghouse Review 84 (May-June 2009).

3 D.C. Code §§ 4-751.01, et seq.

4. Antonio Hicks, Strength in Numbers: Legal Advocates and Community Organizers Partner to Fight Foreclosures, 43 Clearinghouse Review 69 (May-June 2009). 

5. John Bouman, Growing the Toolbox: Diverse Strategies for Public Interest Lawyers in Campaigns to Expand Access to Health Care for Low-Income People, 43 Clearinghouse Review 173 (July-Aug 2009).

6. Memisovski v. Maram, 2004 U.S. Dist. LEXIS 16772, 2004 WL 18783312 (N.D. Ill. Aug. 23, 2004).

7. Some administrative action, however, may have preclusive effect. See Chapter 3.4 of this MANUAL.

8. See 45 C.F.R. § 1612  (restrictions on legislative and administrative rule-making activities).

9. Restricted programs are expressly permitted to “advis[e] a client of the client’s right to communicate directly with an elected official.” 45 C.F.R. § 1612.5(c)(6).  With narrow exceptions, they may not attempt to influence the passage or defeat of legislation.  45 C.F.R. § 1612.3.

10. For further advice on the use of media, see Patricia Bath, Elizabeth Arledge and Joe Surkiewicz, Using the Media, 39 Clearinghouse Review 458 (Nov.-Dec. 2005).

11. See, e.g. E Advocate, Social Media Advocacy: Five Influential Steps (2011).

12. LSC-funded attorneys may not conduct or support training that advocates a specific public policy. 45 C.F.R. § 1612.8.

13. LSC regulations prohibit attorneys in LSC-funded programs from grassrootslobbying, 45 C.F.R. § 1612.4, engaging in public demonstrations or civil disturbances during working hours, 45 C.F.R. § 1612.7, or organizing, 45 C.F.R. § 1612.9.

14. See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743 (2000).

15. Kenneth Jost, The Amicus Industry: Conservatives Catch Up with Liberals in Getting the Attention of the Supreme Court, California Lawyer, Oct. 2001, at 40.  See also Paul M. Collins Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc'y Rev. 807 (Dec. 2004).

16. For an extensive discussion of the role of the amicus curiae, and for examples of its application to legal services advocacy, see Gary E Smith & Beth E. Terrell, The Amicus Curiae: A Powerful Friend for Poverty Law Advocates, 29 Clearinghouse Review 772 (Nov.-Dec. 1995).

17. See Samuel Krislov, The Amicus Curiae Brief From Friendship to Advocacy, 72 Yale L. J. 694, 695-96 (1963); Funbus Systems Inc. v. California Public Utilities Commission, 801 F.2d 1120, 1125 (9th Cir. 1986) (partisan advocacy by amici is “perfectly permissible”).

18. See S. Ct. R. 37; Fed. R. App. P. 29.  In 1997 the Supreme Court added a provision requiring all amicus briefs to disclose (1) whether counsel for a party authored any part of the brief and (2) every person or entity, other than the amicus and its counsel, that made a monetary contribution toward the preparation of the brief. S. Ct. R. 37.6.

19. Fed. R. App. P. 29.

20. Id.

21. Id.

22. Kearney & Merrill, supra note 14, at 760.  As a result, parties represented by experienced lawyers in the Supreme Court rarely refuse consent for leave to file an amicus brief. Id.  See Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla. St. U. L. Rev. 315 (Winter, 2008) (arguing for a broad standard for accepting amicus briefs).

23. See United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D. N.Y. 1991) (denying leave to file an amicus brief after consideration of the Rule 29 factors).

24. See Krislov, supra note 17, at 711.

25. These are sometimes called “Brandeis briefs,” after a famous turn-of-the century filing by future Supreme Court Justice Louis Brandeis, who urged support of a law limiting women workers to ten hours per day by packing his brief with sociological data about the negative effect of excessive hours on workers’ health.  Muller v. Oregon, 208 U.S. 412 (1908).

26. Lane v. First National Bank, 871 F.2d 175 (1st Cir. 1989). See also World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 n.3 (5th Cir. 2009), Zango, Incorporated v. Kaspersky Lab, Incorporated, 568 F.3d 1169, 1177 n.8 (9th Cir. 2009), Riverkeeper, Incorporated v. Collins, 359 F.3d 156, 163 (2d Cir. 2004); Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001), aff'd sub nom. Eldred v. Ashcroft, 537 U.S. 186 (2003).

27. See, e.g., Service Employees Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir. 1994); McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir. 1991).

28. E.g., Continental Insurance Co. v. Northeastern Pharmaceutical and Chemical Co., 842 F.2d 977, 985 (8th Cir. 1988) (en banc); Preservation Coalition Inc. v. Pierce, 667 F.2d 851, 861-62 (9th Cir. 1982); Consumers Union v. Federal Power Commission, 510 F.2d 656, 662 n.9 (D.C. Cir. 1974).

29. Hamilton v. Madigan, 961 F.2d 838, 841 n.6 (9th Cir. 1992).

30. Resident Council of Allen Partway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043, 1049 (5th Cir. 1993); Preservation Coalition, 667 F.2d at 862.  Courts also will consider whether all parties have had a fair opportunity to brief the issue. Continental Insurance, 842 F.2d at 985.

31Service Employees Union, 35 F.3d at 487.

32. Continental Insurance, 842 F.2d at 985; Consumers Union, 510 F.2d at 662; Platis v. United States, 409 F.2d 1009, 1012 (10th Cir. 1969).

33. Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1306 n.l (9th Cir. 1970).

34. Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994); General Engineering Corp. v. Virgin Islands Water and Power Authority, 805 F.2d 88, 92 n.5 (3d Cir. 1986); American Meat Institute v. Environmental Protection Authority, 526 F.2d 442, 449 (7th Cir. 1975) (court “required” to consider jurisdictional issues raised by amici).

35. See, e.g., United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1375 n.4 (2010).

36. See, e.g., Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion); see also Kearney & Merrill,  supra note 14, at 745, n.5 (collecting cases).

37. Helvering v. Gowran, 302 U.S. 238, 245 (1937) (emphasis added).

38. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994); see also DELTA v. Humane Society, 50 F.3d 710, 712 (9th Cir. 1995).

39. S. Ct. R. 37.3.  

40. See, e.g., Ninth Cir. R. 29-1.

41. See, e.g., Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc) (legal services advocate permitted to file amicus brief on the merits and to participate in oral argument after filing brief in support of successful petition for rehearing en banc).

42. S. Ct. R. 28.7; Fed. R. App. P. 29.

43. The Supreme Court does not favor “divided argument,” S. Ct. R. 28.4, and counsel for the parties in cases before the Court rarely agree to share their argument time with amici.  See Smith & Terrell, supra note 16, at 780.

44. For an extensive empirical analysis of the influence of amicus briefs upon Supreme Court decisions, see Kearney & Merrill,  supra note 14, at 828-30.

45. Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 Rev. Litig. 669 (Summer, 2008).

46. Id. at 688-700.

47. Id.

48. Id. at 745 (Court made reference to an amicus brief in nearly 30 percent of decisions, in cases where at least one amicus brief was filed, over a fifty-year period).

49. Roper v. Simmons, 543 U.S. 551 (2005) (repeatedly referring to various amici and citing their briefs). 

50. Id. at 617 (Scalia, J., dissenting). 

51. Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003) (specifically citing numerous amici briefs in support of the affirmative action policy).

52. Smith & Terrell, supra note 16, at 783-87.

53. Id. at 787-88.

54. Id. at 787 & n.152 (listing examples).

55. Id. at 792 & nn.192-94.

56. Id.  Counsel should of course obtain approval of the board of directors before formally involving the legal services organization itself in any litigation.  LSC-funded attorneys may not participate as amici in class action litigation. 45 C.F.R. § 1617.

Updated 2013 by Jeffrey S. Gutman


1.3 Factors for Strategic Consideration

Updated 2013 by Jeffrey S. Gutman

As your office considers the possibility of litigation, it will need to consider who the client is, the client’s goals, the capacities of the organization, available resources and time considerations, as well as who can provide the relief that the client seeks.

1.3.A.  Who Is Your Client?

 Part of the lawyer’s job is deciding who will be the client.  A person who walks into your office with a grievance will not necessarily become your client in a lawsuit.  In individual matters, questions may arise as to who the client is: The parent or the child? The leaseholder or the family member barred from the property? The guardian or the ward?  These issues and potential conflicts must be addressed at the outset through careful legal, factual, and, occasionally, ethics research.

Lawyers generally, and legal aid lawyers in particular, need to think carefully about not only which issues are suitable for litigation, but also which clients will best present those issues as parties to litigation.  The lawyer has some flexibility in deciding who the client will be.  The lawyer may seek clients and not simply wait for individuals to ask for help.  For example, when the lawyer knows that a wrong is about to occur or has been occurring, the lawyer may seek out people who want to challenge it./1/  This may take the form of public education about the issue or may involve more actively contacting potential clients through networking with organizations and client groups./2/

Before accepting someone as a client in potential litigation, issues of standing, ripeness and mootness, discussed in Chapter 3 of this MANUAL, must be considered.  Minimizing standing and mootness problems may justify retaining multiple plaintiffs.  Yet, representing more than one person may create conflicts, both ethical and practical.  Depending on the nature of these issues, such hurdles may counsel in favor of a non-litigation approach.

In many situations, the client may be a community organization.  Working with a community organization, especially in the context of tackling systemic issues, has many advantages.  The community group may have its own resources to contribute to the advocacy strategy.  The group may lend financial and volunteer support, credibility, networking, and potential plaintiffs in any litigation.  Most importantly, the group may understand the importance of the issues at hand and the social forces that have created the problem and can lead to its solution.  The involvement of a community group can also ensure that attorneys advance the litigation in accordance with community needs.

Working with organizational clients involves special considerations./3/   Most important, the attorney and the group must agree on who speaks for the group. Counsel should also understand whether the group speaks for the community or constituency at large or only for its particular members or leadership.  The attorney must have open communications with the group and its leadership so that there is an understanding and agreement on the respective roles of attorney and client.  The institutional interests of the organization may diverge from the desires of individual members of the group.  The retainer agreement must incorporate all elements of the attorney-client relationship, and should spell out the mechanism by which the decisions of the group will be made and conveyed.  While the retainer may specify the name of an individual member of the group, the retainer should state who speaks for the group in case the named individual leaves the group.  The attorney and group must agree on the advocacy approach and on determining whether the objectives have been achieved, whether through litigation, settlement, or other means.

The retainer agreement is the blueprint for the relationship with the client.  In addition to including any language mandated by the state bar or legal services program, the retainer should anticipate the potential attorney-client relationship problems that can arise during litigation.  The respective responsibilities of the attorney and client should be discussed.  The grounds for termination of the attorney-client relationship and how such termination will be handled, costs and fees, including attorney’s fees, and settlement offers should be addressed.  A retainer should also warn a client that he or she will need to report any monetary awards received as a result of litigation and any attorneys' fees awards as income for federal tax purposes.  Some attorneys include language explaining the typical time frame for litigation.

In bringing a class action, retainer agreements and conversations with the class spokespersons must make clear that the lawyers’ responsibilities are to all class members, not just the named plaintiffs.  For example, in challenging mass evictions and proposed demolition of housing, be clear about the extent to which counsel is representing people who want to stay, people who left but will not return, and people who are in need of the housing and do not want the property demolished.  If potential conflicts are foreseen, or if those conflicts already exist, the attorney may choose to represent one of the subgroups and recruit private or other nonprofit counsel to represent other subgroups.  A conflict of interest with the local legal services office is often one of the criteria that the local office uses for placing a case with pro bono counsel.

The lawyer should not simply use the office’s standard retainer agreement without ensuring it meets the needs in the contemplated case.  While such agreements can serve as a model, they may need modification.  These agreements must be explained carefully to the client(s) and a memorandum of that conversation should be drafted and kept in the case file.

1.3.B.  What Are Your Client's Goals?

The answer to this question will shape the course of your advocacy strategy as certain approaches will be better than others in achieving clearly identified objectives.  In many cases, a client will need to define these objectives in terms of solving the immediate or individual problem, or in terms of solving deeper systemic problems that have manifested themselves in what has happened to the particular client.  Effective interviewing and counseling is necessary in order to define problems and objectives.  The lawyer must neither defer reflexively to the client’s definition nor unilaterally impose her own.  Failure to accurately and collaboratively define client needs and objectives can result in misdirected advocacy strategies, ethical headaches and client dissatisfaction.  For these reasons, initial client meetings must be carefully planned and considered.

The advocate and the client need to think initially not in legal terms but, instead, consider in a broader way the range of possible solutions and strategies for the problem the client has presented and the implications of each approach.  This avoids prematurely selecting litigation as the strategy and inappropriately allowing formulaic ways of requesting relief to limit unnecessarily the goals of the advocacy.  Focus first on the desirable outcome and not merely what is believed is attainable.  Litigation may not achieve all that is desirable.  Other approaches may achieve much of what is sought more quickly and less expensively, potentially with less risk to the client or others in similar situations, or with less risk of creating a negative precedent or provoking negative legislative or administrative responses that could undermine the client’s goals.  If such alternatives are not feasible or successful, then more narrowly focus on what is legally attainable after completing the legal research and fact investigation.

In some cases a client will have a clear view of what strategy to employ, and in those situations the lawyer’s job is to do the technical, professional analysis and work necessary to competently pursue the matter in accordance with the client’s wishes.  In other situations, the client has limited expectations or understanding of the possibilities and the lawyer’s job is to counsel the client regarding options, implications and risks.  Part of the advocate’s job is to make sure that the client has a full picture of the kinds and extent of relief available as well as the potential approaches and obstacles in achieving them.  Do not begin any legal work on behalf of a client until you have a clearly defined understanding of the client’s concerns and objectives, a full discussion of the range of potential solutions and their pros and cons, and a written agreement on how to proceed.

What a client wants must be assessed with a measure of sympathetic skepticism.  The advocacy strategy and its potential for achieving the client’s goals will turn on the client’s situation and whether the client’s desires are, or may reasonably be, supported in existing law or policy or rational and logical extensions of such law and policy.  Thus, as the advocate begins work with a client, it is wise to develop a provisional legal or policy theory (discussed below), which will help define the bounds of the possible and influence your advocacy strategy.  It is also important to consider whether particular approaches may have unintended consequences for the client.  For example, depending on the circumstances, a client who must rely, or anticipates needing to rely, on needs-based public benefits for subsistence, may ultimately be harmed by a financial recovery.  In some cases, program beneficiaries may get along fine if they are ineligible for benefits for a short time, but the loss of some types of benefits may mean a long-term loss that could jeopardize the client’s well-being or stability.  Individuals receiving needs-based public benefits generally have an obligation to timely report pending litigation and any recovery to the administrator of the benefit program, and, in some cases, may need to assign some or all of their interests in a financial recovery.  In addition, advise your client on the impact of a potential financial or attorneys’ fees award.  Because the Supreme Court has ruled that settlement awards constitute income to the client, attorneys’ fees are also considered income and may be taxable to the client./4/  In these cases, the client must be notified that income and any fees generated are taxable income for federal income tax purposes and must be reported.  Every situation has to be individually evaluated and the client made aware of potential consequences and strategies to mitigate loss of needed assistance so that the client can make a fully informed decision on how to proceed.  This may counsel against litigation, or it may inform the remedies sought in the case.

1.3.C.  What Are the Capacities and Limitations of Your Firm or Organization?

The extent of any potential advocacy effort is always circumscribed by the capacities and limitations of the firm or agency.  The principal limitations are resources, which consist of staff time and funds available for advocacy-related expenses.  Legal aid firms typically are engaged in a constant and never-ending institutional struggle to evaluate and satisfy the advocacy needs of their clients with extremely scarce organizational resources.

Many legal aid organizations are funded, at least in part, by the federal Legal Services Corporation (LSC).  In 1996, Congress enacted a series of sweeping restrictions,/5/ subsequently codified in LSC-promulgated regulations, which limit the range of activities in which attorneys employed by LSC-funded programs may engage./6/  These restrictions include, for example: class action litigation; legislative and administrative advocacy; representation of aliens and prisoners; “welfare reform” advocacy; abortion-related advocacy; and redistricting advocacy./7/  Not all of these restrictions were new. Congress and LSC had long limited some of the advocacy which LSC grantees could undertake using LSC funds.  However, the 1996 changes not only added numerous subjects to that list, but also extended many of those limitations or prohibitions to any funds used by the grantee./8/

The LSC regulations, which are subject to changing political currents/9/, must be read carefully.  Many of the restrictions are limited in their terms and permit attorneys’ specific actions (sometimes using non-LSC funds) that fall within the scope of the general restriction./10/  An in-depth analysis of all the restrictions is beyond the scope of this MANUAL.  However, the restrictions do not prevent “impact advocacy” either through litigation or other means of legal representation.  Many significant legal changes have come about through the vigorous litigation of an individual client’s claim (or a group of clients’ claims): the setting of a legal precedent, a change in the law, or the obtaining of specific injunctive or declaratory relief, including broad prospective relief./11/  Class-like relief may be available in declaratory and injunctive actions on behalf of an individual, group, or institutional plaintiff./12/  Throughout this MANUAL, we endeavor to point out obvious issues regarding the LSC restrictions, but assume that attorneys in LSC-funded programs are cognizant of the entire regulatory scheme and its implications for their advocacy.

In addition to prohibiting certain forms of advocacy, these restrictions may counsel against the LSC-funded organization taking a certain case as a strategic matter.  In some instances, for example, where the appropriate advocacy strategy is class action litigation, ethical obligations to the client may require recruiting a non-restricted attorney to handle the case.  The point here is that advocates in LSC-funded programs must be creative, prepared to adjust their strategy in light of the restrictions, counsel their clients on these limitations, and refer them elsewhere if appropriate.

1.3.D.  What Resources Are Available?

As part of the initial planning stages of the advocacy, prepare a budget that covers both the time and staff resources and financial resources necessary to conclude the project.  If the plan is to conduct litigation, it should include an estimate of the time and staff necessary to draft and research motions, interview witnesses, review documents, conduct discovery and litigate at trial.  The financial estimate should include fees and costs, such as for depositions, transcripts, experts and witnesses.  If your office is raising funds for litigation, translate the time and staff resource requirements into a dollar figure for salary and overhead.

It can be easy to accept a case and commence litigation under the assumption that the case will settle or reach a quick conclusion.  In fact, a legal services lawyer often brings challenges to an agency’s actions where the facts are not in dispute and only a legal issue is presented.  But the result may not always be as expected.  The office should know how much it would cost to pursue the case to completion.  The possibility of appeal should be considered.  You need to be as clear as possible regarding how far your office can carry the legal strategy./13/

If your agency cannot afford to bring a case that will have broad social impact, the case may be a candidate for non-litigation approaches or obtaining litigation funding.  Foundation and private supporters may fund litigation if the litigation is understood to be part of an overall strategy for obtaining an important community objective or protecting a vulnerable population, and litigation is the best tool to achieve a well-articulated goal.

Another way to obtain financial resources is to partner or co-counsel with a private law firm./14/ Often the legal services program can provide the substantive expertise, and the law firm can contribute litigation and trial experience and cover ongoing litigation expenses.  In-kind assistance such as copying, secretarial and paralegal support for this litigation can free up program resources for use on other matters.  Civil rights groups and national nonprofit legal organizations such as the National Women’s Law Center, the American Civil Liberties Union, or AARP can provide expertise and in-kind assistance, media campaigns, research, and staffing resources.  Organizations are careful stewards of their resources and work on cases that further their mission.  Your relationship with a national organization may be one of full partnership or co-counsel, or it may consist of getting help in discrete portions of the litigation.  As with any other relationship formed to advance your litigation, clear communication of expectations and responsibilities is critical and should be confirmed in a co-counsel agreement, memorandum of understanding, or letter.

If your agency cannot afford the litigation, then you should not and cannot bring the litigation.  You must explain to the client the costs of the litigation and the risks of bringing underfunded litigation—making bad law and getting a bad decision for the client.  Clients often have no idea of the costs of litigation and have notions distorted by the cultural mythology about lawyers and how lawyers are paid.  They may think that they will obtain millions of dollars in damages and that you will receive a portion, or they may care so passionately about an issue that they may push you to commit resources you do not have.  Either way, your job requires understanding the reality of the economics of litigation and giving your assessment to your client.  You owe it to your client to make this determination promptly so the client can explore other possible sources of representation or advocacy before any legal or practical deadlines occur.

1.3.E.  Who Can Provide the Relief Sought?

Once you and your client are reasonably clear about the client’s goals, you must decide who is able to provide the relief sought or is able to direct that it be provided.  Consideration of this question deserves some creativity.  The relief may come directly from a private individual or local agency, but there may be one or more public agencies—federal, state, or local—with the authority to order that the relief be provided or with the power to provide it directly.  Thus, a local housing authority may be subject to direction from the U.S. Department of Housing and Urban Development (HUD); a nursing home from the U.S. Department of Health and Human Services; a private landlord from local code enforcement officials and from the mortgagee.  You should identify all potential sources of relief.  This will help illuminate the viability of non-litigation approaches to resolution and help narrow the range of particular parties in litigation.

With respect to litigation, each party that may play a role in providing essential relief should be evaluated.  An attempt to get relief that costs money from a local housing authority could include HUD because HUD’s resources might be needed.  A lawsuit seeking relief that involves financial consequences for a private landlord might include the mortgagee.  However, the advantages of bringing in an additional party must be weighed against the disadvantages.  For instance, suing HUD may delay the litigation and make informal advocacy with HUD impossible.  As in all other decisions, you must work with the client to determine what approach best meets the objectives of the particular litigation.

1.3.F.  Time Considerations

Your advocacy strategy will be significantly influenced by the timing needs of your client and the estimated time needed to accomplish the client’s goals through varying strategies.  A reality of legal services practice is that the need for our services is greater than what we can provide.  You must estimate the time you are able to spend on the matter.  You must also have a clear sense as to the timetable by which your client needs or wishes relief.

You will need to carefully and realistically counsel your clients on the time likely to be required to advance their goals.  Clients are understandably dissatisfied when matters take longer than expected.  Reasonable expectations must be explained and decisions made on advocacy strategies with the client’s needs in mind.  Do not accept a case or commence litigation or any other form of advocacy if you do not have a plan for staffing the matter and a realistic estimate of the time to pursue it.

If you have decided on a litigation strategy, keeping adequate time records is an important aspect of managing the litigation.  You may need to keep contemporaneous time records to comply with legal services program rules or to obtain attorney’s fees from the court.  Good time records can be useful should you ever have to move for or defend against sanctions.  Pre-filing investigative time should be recorded as well.  These records can also be considered in determining the staffing needs of your office, drafting funding proposals, and setting office priorities.  Many offices are now using software that captures and analyzes time devoted to cases.  

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1. Although Legal Services Corporation (LSC) rules place restrictions on solicitation of clients, provision of legal information and outreach are permitted. 45 C.F.R. § 1638.4.

2. An American Civil Liberties Union (ACLU) attorney’s letter soliciting a potential litigant came within the zone of First Amendment protection for associational freedoms where the purpose of the solicitation was to advance the civil liberties objective of the ACLU and not to derive financial gain.  In re Primus, 436 U.S. 412, 427-32 (1978); see also NAACP v. Button, 371 U.S. 415, 428-30 (1963).

3. LSC-funded programs seeking to represent a group or organizational client using LSC funds must ensure that the group meets certain financial eligibility criteria. 45 C.F.R. § 1611.6.

4. Commissioner v. Banks, 543 U.S. 426, 430 (2005); see also U.S. Department of Treasury, IRS Publication 525, Taxable and Nontaxable Income 31-32 (2011).

5. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, §§ 501-509, 110 Stat. 1321-51 to 1321-59; see also 42 U.S.C. §§ 2996 et seq. (the Legal Services Corporation Act).

6. See 45 C.F.R. pts. 1600 et seq. 

7. Id. Other areas of restricted practice include political activities, client solicitation, grassroots organizing, “fee-generating” case representation, criminal and habeas corpus proceedings, defense of evictions in certain situations involving drug activities in public housing, and cases involving assisted suicide, euthanasia, and mercy killing.

8. The 1996 restrictions were, and continue to be, the subject of significant constitutional challenges raised by various legal aid organizations, clients, and individual advocates.  See, e.g., Legal Aid Society of Hawaii v. Legal Services Corporation, 145 F.3d 1017 (9th Cir.), cert. denied, 525 U.S. 1014 (1998); Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001). In Velazquez the U.S. Supreme Court invalidated, principally on First Amendment grounds, one aspect of the restriction upon advocacy related to “welfare reform” measures and remanded the plaintiffs’ remaining claims.  In late 2004, the federal district court in Velazquez and a companion case, Dobbins v. Legal Services Corporation, upheld the facial validity of the 1996 regulations, but ruled that LSC had applied the restrictions imposed upon the use of non-LSC funds in an unconstitutionally narrow manner.  Dobbins v. Legal Services Corporation, 349 F. Supp. 2d 566 (E.D.N.Y. 2004), modified in part, 356 F. Supp. 2d 267 (E.D.N.Y. 2005).  The resulting preliminary injunction was vacated on appeal. Brooklyn Legal Services Corp. B v. Legal Services Corp., 462 F.3d 219 (2d Cir. 2006), cert. denied, 552 U.S. 810 (2007); see also Legal Aid Services of Oregon v. Legal Services Corporation, 587 F.3d 1006 (9th Cir. 2009) (affirming rejection of challenges to LSC statute). 

9.  The restrictions on receipt of attorney's fees were recently eliminated.  75 Fed. Reg. 21506 (Apr. 26, 2010) (amending 45 C. F. R. pts. 1609, 1610, and 1642).

10. For a thorough discussion of all the restrictions, see Alan W. Houseman and Linda Perle, What Can and Cannot Be Done: Representation of Clients by LSC-Funded Programs (CLASP 2001).

11. See, e.g., Raun J. Rassmussen, Affirmative Litigation Under the Legal Services Corporation Restrictions, 34 Clearinghouse Rev. 428 (Nov.-Dec. 2000); Gary F. Smith & Nu Usaha, Dusting Off the Declaratory Judgment Act: A Broad Remedy for Classwide Violations of Federal Law, 32 Clearinghouse Rev. 112 (July-Aug. 1998).

12. See Chapter 9 of this MANUAL.

13. For instance, if you know that your program cannot bring an appeal under any conditions, either for financial, staffing, or programmatic reasons, and pro bono appellate counsel is unlikely, a settlement offer might be evaluated very differently than if you knew that you would appeal an adverse decision.

14See Greg Bass & Jocelyn Larkin, Affirmatively Litigating: Cocounseling with Private Law Firms on Major Litigation, 42 Clearinghouse Rev. 605 (Mar.-Apr. 2009).

Updated 2013 by Jeffrey S. Gutman


1.4 Crafting and Preparing the Lawsuit

Updated 2013 by Jeffrey S. Gutman

As part of the process for deciding upon the best advocacy strategy, the attorney will have preliminarily assessed the legal and factual bases for the claims that the client wishes to assert.  If counsel has determined that litigation is the most appropriate vehicle for advancing these claims, the process of crafting and preparing the lawsuit will begin in earnest.  The key to this process is developing the core legal theory or legal theories to be presented to the court and marshaling the factual evidence needed to support these theories.

1.4.A. Developing the Legal Theory

As the client describes the problems to be addressed, the attorney will begin analyzing whether the acts or omissions of concern violate any constitutional principles, laws or regulations, or federally approved plans guiding state action or common law norms.  As this analysis unfolds, consider what public or private entities or individuals are arguably responsible for the harm alleged.  In exploring which legal claims will be asserted in the lawsuit, it is useful to start with some preliminary legal brainstorming.  Make a list of the types of legal protections that may be infringed by the detrimental actions the client describes.

Be creative in developing a comprehensive list of possibilities. Chapter 5 of this Manual describes many potential claims in detail.  A helpful approach is to use a hierarchy of legal claims and, then, to apply it to each potential defendant in the case:

  • Is there a federal constitutional right or protection that a defendant is violating?
  • Is there a state constitutional right or protection that a defendant is violating?
  • Is there a federal statute or regulation that a defendant is violating?
  • Is there a state or local statutory right or regulation that a defendant is violating?
  • Is there a federally approved state/county plan that a defendant is violating?
  • Is there a federal, state or local common law right or norm that a defendant is violating?
  • Is the defendant engaging in action that violates the federal or state Administrative Procedure Act?

Do not prematurely disregard or discount potential claims until your legal research leads you to conclude that there is no basis for proceeding with such a claim.  Assemble and study each statutory and regulatory provision arguably implicated in the issue presented by your client.  Consider the plain meaning of these provisions, cross-referenced provisions, exceptions, and any indications of discretion afforded the potential defendant.

Next explore whether other courts have considered the legal claims you may raise, or similar claims.  Starting with your jurisdiction, examine relevant opinions from both federal and state courts.  However, be aware that reliance solely on computerized research tools will miss unreported cases or cases that have not yet been decided.  Research the database of Clearinghouse Review articles./1/ Check if the national support centers know of litigation relating to the issue the client is experiencing./2/  Consult with attorneys in the relevant practice area to determine whether the potential issue has been litigated and, if not, why not.

In examining what other courts have done, pay particular attention to potential barriers to enforcing the relevant constitutional provision, statute, regulation or plan and which potential defendants have asserted these defenses.  Consider who was named as defendants in these cases and what relief was sought. This MANUAL contains extensive discussions of many of these possible limitations, from the case or controversy requirements, to Section 1983, to immunity.  If you have identified particularly useful or interesting federal cases, and they are relatively recent, you should be able to access pleadings and briefs filed in the case through PACER, although there is a modest fee for doing so.  Counsel in these cases may also be a valuable source of both briefs and advice.

If your client does not need emergency relief, prepare a litigation memo setting out the legal claims, the strength of the claims, and the pros and cons of bringing specific claims.  Identify the applicable statutes and regulations and key cases.  Drafting the memo will serve as a useful device to refine your thinking, document your research, share with colleagues, convert into pleadings or briefs, and defend, if necessary, against a Rule 11 motion.  If you recommend using a new or novel legal claim, it is wise to discuss your research conclusions with a more experienced colleague or an expert in the practice area who may be located outside your program.  As the litigation proceeds, revisit this memorandum, but be open to considering other claims or approaches your initial research missed or which have surfaced as a result of discovery or other case developments.

After identifying the best legal claims for your client, meet with the client to explain both the opportunities and any barriers to prevailing on the claims.  Provide your assessment as to the advantages and disadvantages of each claim, the potential nature of relief as to each, and, if appropriate, the pros and cons of filing in alternative fora.  As discussed above, make sure that the client has a clear understanding of the nature of the claims, the client’s participation in discovery, the time considerations required, and the prospect of relief.  If litigation cannot provide all the relief sought by the client, counsel the client on whether this additional relief is available through another form of advocacy.  Clients may also have unrealistic expectations about the likelihood and extent of monetary damages, and they may not understand the implications of a monetary recovery on any needs-based public assistance upon which they may rely./3/  Discuss and document potential limitations, if not prohibitions, on monetary recoveries./4/

Finally, draft a paragraph that will serve as the core theory of the case -- the central defining idea that drives your lawsuit.  It should summarize, in a brief and persuasive way, the nature of the wrong committed and relief sought to remedy it.  Written in lay, rather than legal terms, this fundamental message may be repeated in the opening paragraph of the complaint, in a press release, or at the beginning of an oral argument.  This clearly defined motivating concept behind the lawsuit should remain the touchstone that guides the litigation.

1.4.B. Factual Investigation

Sound legal practice, as well as Rule 11, require counsel to engage in a reasonable factual investigation prior to filing a lawsuit.  The first source of information about the case usually will be the client.  There are many texts devoted to the art and practice of client interviewing./5/  The scope of this Manual does not permit a review of interviewing techniques. Suffice it to say that effective client interviewing is essential to the success of litigation.  A sloppy interview can lead to missed facts, omitted legal claims, litigation delays and worse.  Young attorneys should conduct their first few client interviews in the presence of a senior colleague prepared to give detailed feedback.  If you think a client’s problem will lead to a lawsuit, it is a good idea to have an experienced litigator present for one of the interviews with the client.

1.4.B.1 Your Client

Before filing the complaint, you will likely interview or review the facts with the client for several purposes and on several occasions.  At intake, your focus will be on obtaining an overview of the facts and legal issues to see whether the problem meets your program’s priorities, to ascertain the immediacy of the client’s need, and to determine if the client meets income and other program requirements.  At your first interview, it is good practice to tell the client that she can speak with you in confidence and that if there are facts the client does not want you to disclose, you will keep them secret.  Once eligibility for service has been established, you will need to conduct a detailed interview in order to establish an attorney-client relationship, complete a retainer and learn necessary facts so that you can conduct relevant legal research, investigate further facts, evaluate the merits of the case, and determine your case strategy.  This research may well require you to conduct additional interviews.  Use these opportunities to explore additional issues of potential legal relevance that your client may not have initially disclosed.  Make sure you understand the facts clearly.  During the pre-filing interview, review each factual allegation set forth in the complaint with the client to ensure it is complete and accurate.  Review all documents that the client may have that are relevant to these factual assertions.  These interviews also permit you to gauge the client’s demeanor and credibility.  If a client has cognitive problems or suffers from mental illness, for example, you can assess limitations on capacity and determine whether it is possible to proceed.  These interviews also offer an opportunity to ask about witnesses and others who may have encountered the same problem faced by your client.

Clients often do not understand why they have to tell their story repeatedly; they may feel that counsel are not listening or understanding them.  Thus, being clear about the purpose of the interview and letting clients know early that they will have to tell the same story several times can ease the attorney-client relationship.  You may also need to ask questions that upset or offend the client.  Use this as an opportunity to educate your client about why the questions are important and relevant.  If you establish that you are on the client’s team and are asking the kind of questions the judge or other side is likely to ask, the client will understand that you are trying to help./6/

At a pre-filing interview, ask the client to sign a formal written retainer or engagement letter.  Have the client sign releases to obtain information from health care providers, housing providers, schools, police departments, and other entities.  It is wise to request documents from these third parties early in your factual investigation.  Not only is there often delay in receiving them, but also when received, these documents may shed light on additional sources of information or lead you to reevaluate the strength of the client’s claim.

1.4.B.2. Informal Investigation

The goal of a pre-filing factual investigation is twofold.  First, you must understand the facts so that you can advocate most effectively.  Second, you can obtain evidence for trial or leads on information to request in discovery.  Evidentiary constraints should not restrict your informal investigation.  Although you should attempt to obtain the most credible form of information available by, for example, notarizing witness statements or locating original documents, obtaining witness statements containing hearsay or unauthenticated documents is acceptable.  You can deal with the evidentiary issues should they arise later in the litigation.  To do so, however, you will need to keep careful track of when, how, and under what circumstances you received particular information and documents.

The extent of a pre-filing investigation depends on the needs of the case, time restrictions, and your available resources.  You need to be flexible and creative in identifying sources of information other than the client.  When appropriate, and with the consent of the client, interview the family, associates, friends, the client’s coworkers and other relevant persons who may have information regarding the case.  Be mindful of, and comply with, you state's version of Model Rule of Professional Responsibility 4.2.   Such individuals may be indispensable sources of information and should be interviewed with an eye to obtaining detailed statements at the interview.  After completing the interview and preferably before leaving, prepare a handwritten statement in the first person and in the interviewee’s words, and present it to the individual to read and sign.  You can return later with a typed statement to be signed and, if necessary, notarized./7/  Whenever possible, the statements should be in declaration or affidavit form so that they may be used to support motions, such as motions for preliminary injunction, or to oppose motions for summary judgment.

Talk to other people affected by the challenged policy or practice.  Reach out to organizations likely to be allies and who may know others suffering from similar problems.  In a recent case challenging Medicaid co-payments, for example, plaintiffs’ lawyers printed 2” x 3” yellow cards explaining federal Medicaid rights and distributed thousands of them through ally organizations.  Since the cards included the legal aid office’s phone number, persons injured by the unlawful practice called for advice.  These calls presented a rich source of plaintiffs and facts.  Read newspaper and magazine accounts.  Examine relevant governmental or academic reports.  Students and volunteers can be very helpful in the early stages of investigation.  They can take photographs, call similarly situated individuals, and camp out in front of offices to interview people.

The Internet can be a valuable source of information.  If your office uses Lexis, Westlaw, or any other online legal or information service, consulting with your service representative about needed information is well worth the time.  You may find that some resources are available at no added cost.  Some resources targeted to non-attorneys may have information about businesses, corporations, investors, and owners.  You can also search dockets to identify other cases in which the parties, attorneys, and judges have been involved.  You can access a variety of legal aid list-serves usually by signing up with a national backup center and list-serves sponsored by national attorney associations, such as the National Association of Consumer Advocates and the Association of Trial Lawyers of America.  A quick post about a potential defendant may result in networking with an attorney who has handled a case against the same party and is willing to share discovery and strategy with you.

A potentially important source of facts may be those persons arrayed on the other side.  These may be staff of a housing authority, a state or county welfare agency, a school or juvenile detention facility, or a private or public employer.  The temptation is to ignore such people until after suit is filed, when discovery devices may be employed.  Usually, however, investigation should extend to the opposition prior to suit for several reasons./8/  The suit may dry up sources of information or create such hostility that impedes cooperation.  Information gathered prior to suit will help in drafting pleadings and framing theories.  Full investigation prior to suit will deflect motions for sanctions under Rule 11.  And, you may obtain information that will lead to a settlement.

Inquiries and investigation, pursued consistent with Rule 4.2, directed toward the opposition will sometimes meet with surprising success.  For instance, employees in a state or county agency may question or oppose policies that they enforce.  Prior to suit, they may be free and willing to meet and discuss those policies and make information or materials available.  Also, before litigation is filed, agencies may have ongoing relations or meetings with clients; during such meetings, relevant information may be disclosed.  Similarly, required or optional administrative hearings may offer avenues for obtaining information.  Some administrative procedures permit some measure of discovery.  Documents or witnesses may be subpoenaed by the hearing officer or the attorney, and there is typically an opportunity to review and copy a client’s file.  During the course of the hearing, government employees or hearing officers may be asked about or may disclose information regarding policies and their enforcement.  In such cases, it is useful to ensure the hearing is recorded.  At the same time, if you are too overt in seeking information to support future litigation, these employees may be less forthcoming and less willing to participate in pre-filing dispute resolution.  Openness versus subtlety is a strategy consideration during all stages of litigation.

Most states have sunshine laws or public record laws that provide full or limited access to agency records, including plans, communications and internal reports.  Indeed, many such records exist online in an agency website or electronic reading room. On the federal level, there is the Freedom of Information Act (FOIA)./9/ Apart from these statutory or regulatory provisions, formal requests or letters of inquiry may produce useful information that can help you draft the complaint. At the same time, the absence of responsive information may be potentially valuable. The disclosure of the absence of written policies and procedures governing the termination of benefits may form the basis of claims that this lack of written guidance violated both due process principles and the local administrative procedure act. If a FOIA request is ignored or documents improperly withheld, but are regarded as essential, a suit to enforce the Freedom of Information Act may be needed.  Prior to filing suit, it is often effective to send the draft complaint to the agency general counsel and again demand the documents requested.

In addition, many local and state government agencies must periodically report to the sources of their appropriations.  Federal and state oversight agencies may similarly audit or analyze the agency.  Such reports and audits can be enormously valuable in surfacing information regarding agency policies and critiques of them.  Careful advocacy with the monitoring agency or committee may lead it to inquire further and require the monitored agency to prepare additional reports.  Once data is obtained, the next step is analyzing it.  If you do not have facility with spreadsheets, mapping software, or other programs that can turn numbers into information, you may be able to use a graduate student as a volunteer or short-term consultant.  Local universities can be great sources of help for statistical, economic, and sociological analysis. Some professors have been willing to assign legal services case data analysis as a class or homework project.

Likewise, investigation directed toward related disciplines may be useful.  A housing case may be helped by literature or expertise from the fields of social work, architecture, or planning.  A welfare case may be assisted by persons who teach, write, or study in the social work or public health fields.  You may want your client to see a psychologist to evaluate psychological harm.  A corrections case may turn upon testimony or research from experts in corrections or criminal justice.  As attorneys, we tend to be narrow in training and perspective.  Other disciplines may yield theories for litigation, authority, and scholarship as well as expert witnesses.

Pre- or post-filing consultation with experts raises discovery issues./10/  Whether information relating to your expert is discoverable will turn largely on whether the expert will testify at trial.  If you have merely consulted with an expert in connection with preparing for litigation, information relating to the expert is discoverable only if permitted by Federal Rule of Civil Procedure 35(b) or if extraordinary circumstances are shown.

1.4.B.3. Organizing Factual Information

Organization of the facts and the file should begin as soon as you know that you will commence litigation.  Your system should be flexible enough to accommodate growth of the file.  The particular way that you organize your file will depend on its potential size, the type of case, your personal style, and your program’s use of computer case management tools.

Whatever organizational system you choose, you must be able to locate quickly information when you need it, and someone else should be able to find the information easily.  The latter is a critical piece of responsible lawyering—if someone has to take over the case from you or cover for you in your absence, your client’s interests must not be compromised.  Almost all federal litigation is substantial enough to require an index to the file as a whole and an index or master list of evidence. Software is available to help you track documents and evidence.

As you organize and create your file, keep in mind that you are organizing each of the following types of documents:

  • Pleadings
  • Correspondence (including e-mail messages)
  • Other court filings, such as motions
  • Records of telephone calls
  • Interview notes and other informal investigation
  • Discovery, including demands, responses, and the documents produced
  • Documents that your client supplies or you locate during investigation
  • Legal research
  • Other research
  • Time records

If you are unsure what system will work for you, using an accordion folder for most of these categories is a good place to start.  You can then create subdivisions with file folders for each motion, factual topic, or witness.  Correspondence and phone logs should be secured into a file to ensure that the chronology of the case development is preserved.  Use scanning technology to store facts in your computer.

Whether your program is restricted or not, you must keep accurate time records.  The biggest mistake attorneys make in obtaining attorney fees is to under-record time and to underestimate the time that they spent if they do not record it contemporaneously./11/  If your adversary accuses you of non-cooperation, ethical violations, or rule violations, accurate and detailed time records ensure that you will be able to document how your case time was spent.  Again, many vendors offer timekeeping software.

1.4.C. Impact, Law-Reform, and Test-Case Litigation

Your primary purpose in bringing litigation may be to get your individual client the relief to which she is entitled under the law. Or, you may have a much broader purpose.  You may want to ensure that the legal violation does not recur, to compensate past victims of the illegal action, or to change the law.  When the outcome of your case will affect large numbers of people, your suit may be considered impact litigation.  When the goal of your litigation is to change the law or the way the law is interpreted and applied, your suit may be considered law-reform or test-case litigation.

Bringing this type of litigation requires extra care and attention on several levels.  First, exploring uncharted legal territory or seeking to revisit and change existing precedent may implicate Rule 11./12/  Particularly diligent and documented legal research is required in such cases, especially because a prompt response to a Rule 12(b)(6) motion is likely to be required.  Such cases also require careful client counseling on the reasonable likelihood of success and appeal of adverse decisions.  The possibility of an adverse decision requires a careful assessment of whether the potential for such new precedent would worsen the legal landscape of your jurisdiction, thereby impairing the interests of clients, client organizations or other stakeholders.  The possibility of appeal requires consideration of the composition of the relevant appellate court.  If the court is regarded as hostile to the sort of claim your clients present, it may be best to consider bringing the case or encourage the bringing of the case in another jurisdiction, or pursuing the issue in another forum.  The likelihood of appeal also means the lawyer needs to assemble a solid appellate record.

Second, be sensitive to the approach taken to put the case together.  In some cases, you will bring test-case or law-reform litigation based on an issue that a client brings into your office; your client seeks a solution to his individual problem, but the resolution of the case will have broad impact.  In other cases, your program may identify an issue worthy of litigation, but have no client to serve as the plaintiff.  Such clients may not have yet been identified, they may be hesitant to serve as plaintiffs, or their individual claims have been mooted as a result of successful administrative advocacy.  If a case is certified as a class action under Rule 23, class representatives may need to be prepared to compromise their individual goals in developing case strategy or reaching a settlement, and this must be discussed with potential plaintiffs in advance of filing and seeking class certification.

The process of identifying potential clients and plaintiffs may implicate restrictions on soliciting clients, such as those contained in Model Rule of Professional Conduct 7.3./13/  Nonetheless, lawyers may inform potential clients of their rights./14/  Nonprofit organizations may solicit potential litigants to further their public policy goals./15/  By working with community groups you can generally avoid ethical or legal services restriction barriers to locating affected individuals and potential plaintiffs./16/  Nonetheless, care should be taken.  It is wise to consult your jurisdiction’s ethical rules and any state bar formal or informal opinions on issues relating to solicitation of clients.

Even when it is difficult to identify potential plaintiffs to challenge a particular law or practice, the legal aid lawyer should not forget the maxim “bad facts make bad law.”  Particularly when advancing a difficult or novel legal claim, unsympathetic clients or those perceived to be undeserving can reduce the chances of success. A classic illustration of this principle occurred in Lassiter v. North Carolina Department of Social Services./17/  Lassiter presented the question of whether due process required providing counsel to an indigent parent in a proceeding to terminate parental rights.  Given the number of termination proceedings that take place in states that did not provide counsel, selecting a client who appeared to be a victim of an uncaring bureaucracy would have been possible. Instead, the petitioner chosen to present the question was a convicted murderer who had no real hope of release from prison before her child became an adult and who had been provided counsel in an earlier proceeding.  The Supreme Court rejected her claim in a 5-to-4 decision; one member of the majority concurred, conceding that the question was extremely close. The answer might have been different if a more sympathetic client had been chosen./18/

In contrast, when attorneys sought to challenge the provisions of the Food Stamp Act enacted to eliminate unrelated members of a household from food stamp eligibility, they recognized the importance of a sympathetic client.  The lawyers chose as the lead plaintiff Jacinta Moreno, a farmworker forced by economic circumstances to share housing with nonrelatives.  The choice of plaintiff shifted the focus of the litigation from the propriety of seeking to eliminate hippies’ eligibility for food stamps to the unanticipated effect of the provision on the neediest potential beneficiaries. The plaintiff prevailed in the Supreme Court by a 5-to-4 margin./19/  Similarly, in the Lightfoot v. District of Columbia case, the lawyers recognized that pre-termination process does not depend on the underlying merits of the continued claim for benefits.  Nonetheless, they attempted to select plaintiffs who were substantively deserving of these benefits and who suffered demonstrated harm when they were terminated.  In addition, in selecting a plaintiff who had not yet been terminated, but who had a stake in the content of future termination rules, the plaintiffs’ lawyers selected a plaintiff who had been terminated in the past and had years of difficult experiences with the defendant agency.

Third, coordination with other legal aid programs, state and national backup centers, and other organizations concerned with the issue is important when you engage in test-case or law-reform litigation.  By definition, your case may affect a large number of people or may change the law.  Although you may be sure that your outcome is desired and your strategy a good one, you should ensure that you fully understand the implications of your litigation and that your approach does not conflict with other reform projects underway.  Similarly, in large pieces of litigation, you may be working with multiple co-counsel, amici, and clients.  You must coordinate and plan among co-counsel and others.  You should have written co-counseling agreements outlining who will be the lead counsel, what their duties will be, who has authority to make decisions, how regularly you will communicate through conference calls or meetings for strategy discussions and updates, who is responsible for covering litigation costs, and who is responsible for any attorney fee aspects of the litigation.

As noted above, legal services restriction regulations do not prevent the legal services attorney from engaging in law-reform or test-case litigation.  The regulations restrict certain activities and may alter strategic choices.  However, the creative attorney can still change and improve the system, the laws, the rules, and the practices that affect clients’ lives.  If you not only win your case, but also insist on a broader solution, the eviction case on which you go to court next week may be the vehicle for changing the way that the housing authority gives notices to all its residents.  You may file a case to obtain unemployment benefits for your client and change the definition of misconduct in your state.  The form of the litigation may be different, but the commitment, intelligence, creativity, and zeal of legal aid attorneys are needed to provide our clients with meaningful and effective representation.

1.4.D. Pre-filing Negotiation and Offers of Settlement

Most cases are resolved through settlement rather than through trial or judicial determination.  Failing to consider and prepare for settlement possibilities early in your planning is foolish. You must prepare your client for the settlement process during one of your initial meetings.  The client must understand the ultimate goal of the litigation, the risks in achieving it, and that there may be very good reasons to be pleased with less than what you are seeking in the complaint. You should explain to the client that what constitutes an acceptable settlement will change over time.  As new evidence is evaluated, the investment in the case increases, the assessment of risks changes, and the strategy of the defendants and actions they take may undermine or support claims.

Sometimes an attempt to settle a case before filing litigation can be very effective./20/  A demand letter accompanied by a draft complaint will get attention.  If time permits, you may also include a draft order or consent decree.  A settlement before filing is attractive to defendants who do not want negative publicity or a record of involvement in litigation.  It can be useful when the defendant wants to comply with the law but you have been unsuccessful in getting the issue to the attention of the person with the authority to make the change.  A pre-filing attempt to settle can be a chance to obtain informal discovery as you ascertain the defendant’s position and reasons for it. The disadvantages of a pre-filing attempt to settle are the loss of surprise, the possibility of the defendant rendering your claims moot, and the delay necessary to engage in pre-filing negotiations.  If these efforts result in the prospect of useful negotiations, protect your client's interest by drafting and entering into a tolling agreement to toll the statute of limitations during these talks.

Even where the adverse action seems to be final and from the highest authority, a formal request for settlement before litigation may be effective if it sets out the facts, clearly explains legal claims and how the defendant is violating the law, states with precision what you want the other side to do, and sets a clear deadline by which to take action.  If you state that your client will sue if a settlement is not reached by a date certain, you must be prepared to follow through.  If you make such a threat and do not carry it out, you will lose your credibility and adversely affect future negotiating strength.

A demand letter should be polite but firm.  It should make clear the strength of the case and be suitable to attach as an exhibit to the complaint or a motion.  The objective is to produce a letter that, when read by a judge, will evoke incredulity at the recipient’s noncompliance.  When time does not permit writing such a letter, a telephone call can accomplish the same result. Confirm the call later by letter. Even where the adverse action is taken deliberately, the demand letter—especially if coupled with a draft complaint—will send the message that your client has a capable, determined, and knowledgeable attorney who is about to sue.  This may initiate the involvement of your opposition’s counsel, who may be able to talk sense into your opponent or urge settlement efforts.  At the least, the letter and documents provided can serve as a starting point for post-filing settlement discussions.

___________________________________________________________________________________________________


1. Clearinghouse Review: Journal of Poverty Law & Policy is published by the Sargent Shriver National Center on Poverty Law.  Its website is www.povertylaw.org.

2. A list and contact information for the national support centers appears on the inside of the back cover of each Clearinghouse Review.

3. Note that for any given benefit program, income and asset limits, treatment of lump sums, and obligations of program beneficiaries to report and/or assign pending litigation recoveries, and the ability of the provider of benefits to claim a portion of recoveries, is typically governed by state requirements, except the SSI program, which is governed by federal law.  Analysis of the potential effect of a recovery and strategies to protect client access to needed assistance should be considered in advance of filing as it may affect client decision-making regarding the litigation and inform the determination of the relief sought.

4. See Chapter 8.3 and Chapter 9.1 of this Manual for discussions on damages.

5. See, e.g., G. Nicholas Herman & Jean M. Cary, A Practical Approach to Client Interviewing, Counseling, and Decision-Making (2009); David A. Binder, Susan C. Price & Paul R. Tremblay, Legal Interviewing and Counseling: A Client Centered Approach (2004); Robert M. Bastress & Joseph D. Harbough, Interviewing, Counseling, and Negotiating: Skills for Effective Representation (1990).

6. Throughout the case, the attorney-client relationship must be supported by clear and regular communication.  Regular, direct and explicit communication and information will keep you and the client working together as a productive team.  Even if you have no “news” to share, an update call or letter just to let the client know the case status is sound legal practice.  Confirming letters to the client, in addition to your case log or notes, can help the client keep track of information.  Needless to say, they also help you if the client later denies facts told to you or claims that you mishandled the case; nonetheless, the main purpose of the letters is to give information and to reinforce a working relationship.

7. In federal practice, notarization is not needed; instead of affidavits, one may use declarations made under penalty of perjury. See 28 U.S.C. § 1746 .

8. See Chapter 6.1 of this MANUAL for a discussion of the ethical issues governing such interviews.

9. Freedom of Information Act, 5 U.S.C. §§ 552 et seq.

10. See Chapter 6.1 of this MANUAL.

11. On attorney fees, see Chapter 9.4 of this MANUAL.

12. Chapter 4.2 of this MANUAL discusses Federal Rule of Civil Procedure 11 and Rule 11(b)(2) in particular.

13. Model Rule of Professional Conduct 7.3 generally prohibits solicitation of clients when a “significant” motivation for doing so is pecuniary gain.

14. “[A] State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.”  Shapero v. Kentucky Bar Association , 486 U.S. 466, 468 (1988).

15. In re Primus, 436 U.S. 412 , 443-46(1978) (ACLU was such a nonprofit).

16.  45 C.F.R. § 1638.

17. Lassiter v. Department of Social Services, 452 U.S. 18 (1981).

18. Lassiter is not unique. Both Wyman v. James, 400 U.S. 309 (1971), and Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974), were made more difficult by unappealing clients.

19. U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

20. Legal services restriction regulations require, absent narrow exceptions, that certain disclosures be made regarding your client’s identity to defendants in settlement discussions, and to LSC after litigation is filed, and that certain records be kept before filing the litigation.  Your client needs to be aware of, and consent to, such disclosures.  See 45 C.F.R. §§ 1636, 1644.

Updated 2013 by Jeffrey S. Gutman


Chapter 2: Jurisdiction

Updated 2013

This chapter addresses three topics. First, we discuss the subject matter jurisdiction of the federal courts and review the principal legislative provisions by which Congress has vested federal courts with jurisdiction. Second, we review the abstention doctrines, which are limitations on the exercise of that jurisdiction. Third, we cover the jurisdiction of state courts over federal claims.

Updated 2013

2.1 Courts of Limited Jurisdiction

Updated 2013 by Jeffrey S. Gutman

Federal courts are courts of limited jurisdiction./1/ Article III, Section 1 of the U.S. Constitution establishes the Supreme Court and gives Congress the power to create inferior federal courts. The outer boundary of federal judicial power is defined in Article III, Section 2, which lists the categories of cases over which federal judicial power may extend. The two most significant categories are commonly known as federal question and diversity jurisdiction. These constitutional provisions are not self-executing. Beginning with the Judiciary Act of 1789, Congress has created a system of federal courts and has vested it with much, but not all, of the jurisdiction permitted by Section 2. The Constitution therefore established the potential scope of federal jurisdiction, and Congress has defined the actual, more limited, breadth of it.

Federal jurisdiction generally exists when a federal statute creates a private right of action and supplies the substantive rules of decision. That presumption may be overcome only when a federal statute expressly limits the exercise of subject matter jurisdiction/2/ or by "fair implication" limits the exercise of subject matter jurisdiction by federal courts./3/ For example, in Mims v. Arrow, the Supreme Court recently held that a provision in the Telephone Consumer Protection Act of 1991, which afforded a person or entity a private right of action against alleged violators "in an appropriate court of [the] State," did not divest the federal courts of federal question jurisdiction.

The U.S. Supreme Court has, however, developed common law doctrines that may restrict the exercise of statutorily conferred jurisdiction. Some of the restrictions are derived from Article III’s case and controversy requirement, discussed in Chapter 3 of this MANUAL.  Others fall within the ambit of the abstention doctrine, discussed in this chapter.


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1. Mims v. Arrow, 132 S. Ct. 740, 747 (2012). 

2. See 28 U.S.C. § 1341, 1342.

3. Mims, 132 S. Ct. 740, 748-49. For an example, see Wade v. Blue, 369 F.3d 407, 411 (4th Cir. 2004). Federal jurisdiction may not exist over a federally created right of action when the controlling substantive law is nonfederal. Thus, in Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900), the Court illustrated a second, narrow exception to the general rule. The Court there found no federal jurisdiction over a claim involving a federal mining patent because local law established the standards for determining the merits of the claim.

Updated 2013 by Jeffrey S. Gutman

2.2 Pleading Requirements

Updated 2015 by Jeffrey S. Gutman

The burden of pleading and demonstrating subject matter jurisdiction rests on the party invoking federal jurisdiction. Thus, a federal court plaintiff must make in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.”/1/ Likewise, a defendant who removes a case from state court must allege the basis of federal jurisdiction in the notice of removal./2/ In contrast, most state courts of general jurisdiction are presumed to have jurisdiction over all civil actions unless such jurisdiction is specifically prohibited. As a result, plaintiffs typically do not need to plead or prove the existence of subject matter jurisdiction in state court./3/

Failure to plead properly the existence of jurisdiction may be cured by amendment. Indeed, 28 U.S.C. § 1653 provides that such amendment may occur in the trial or appellate courts. Because federal courts lack power to act without subject matter jurisdiction, defendants may not waive objections to jurisdiction and may move to dismiss on jurisdictional grounds at any time./4/ Moreover, both trial and appellate courts may raise subject matter jurisdiction issues sua sponte, even after entry of judgment./5/

The federal courts have been "less than meticulous"/6/ in distinguishing between statutory limitations which are jurisdictional and those which are essential elements of a claim for relief.  The Supreme Court attempted to clarify this distinction in Arbaugh v. Y&H Corp./7/  In Arbaugh, the plaintiff won a federal judgment after trial in a Title VII case. Subsequently, the employer moved to dismiss the action on the ground that it was not an "employer" subject to Title VII because it employed less than fifteen persons.  The question presented was whether Title VII's limitation on the definition of "employer" was jurisdictional, permitting post-judgment dismissal of the action, or whether satisfying the "employer" definition was an essential element of plaintiff's claim for relief, the absence of which may be challenged in a Fed. R. Civ. P. 12(b)(6) motion, and clearly waived if not raised before judgment.  The Court held that Congress must specify limitations of this sort as jurisdictional and did not do so in Title VII.  In the absence of a clear statement that Congress regarded the restriction as jurisdictional, the Court held that it should be treated as nonjurisdictional./8/

The Court has also considered this distinction in "claim-processing" contexts in which an individual fails to file timely an administrative appeal regarding a government benefit. The most recent such case is Henderson v. Shinseki/9/ a case in which a veteran failed to appeal the denial of a claim to the Veteran's Court within the 120 days prescribed by Congress. The Court held that, ordinarily, such claim-processing deadlines are not jurisdictional, and may therefore be tolled or waived, since they do not govern the court's "adjudicatory capacity" as personal and subject matter jurisdiction do./10/ Congress can intend such a rule to be jurisdictional, but must do so clearly.  In Henderson, no jurisdictional attributes appeared in the relevant VA statutes, which are otherwise to be interpreted in favor of veterans./11/

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1 Fed. R. Civ. P. 8(a)(1). Plaintiffs do not need to cite the statutory basis of federal court jurisdiction as long as they plead sufficient facts to establish jurisdiction. See Andrus v. Charlestone Stone Products Company, 436 U.S. 604, 608 n.6 (1978); Radici v. Associated Insurance Companies, 217 F.3d 737, 740 (9th Cir. 2000); Jensen v. Schweiker, 709 F.2d 1227, 1229 (8th Cir. 1983). If the defendant facially challenges the jurisdictional allegations by arguing that they are insufficient to invoke federal jurisdiction, the court will employ a  Fed. R. Civ. P. 12(b)(6) standard and assume the truth of sufficiently pled jurisdictional allegation for purposes of resolving the motion.  If the defendant challenges the truth of the factual assertions, the court will consider evidence outside the pleading and impose on the plaintiff the burden of demonstrating the facts asserted to warrant federal jurisdiction.  Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), cert. denied, 544 U.S. 1018 (2005). See 2 James Wm. Moore, et al., Moore's Federal Practice - Civil section 12-30 (2010). 

2. 28 U.S.C. § 1446(a).

3. See Section 2.9 for a discussion of state court jurisdiction over federal claims.

4. See Fed. R. Civ. P. 12(h)(3) .

5. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); see also Reed Elsevier v. Muchnick, 559 U.S. 154, 130 S. Ct. 1237 (2010) (copyright registration requirement in Copyright Act is not jurisdictional and does not preclude federal jurisdiction over suits to enforce copyright claims by those who failed to register their copyright).  The Supreme Court recently listed cases in which it found certain requirements jurisdictional and nonwaivable and others waivable claims processing requirements in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67, 130 S. Ct. 584, 596-97 (2009).

6Arbaugh, 546 U.S. at 511.

7. Arbaugh, 546 U.S. 500.

8. Id. at 515 (noting that the fifteen employee threshold requirement was not in the jurisdiction section of the statute). Compare CNA v. United States, 535 F.3d 132, 140-43 (3d Cir. 2008) (scope of employment limitation in Federal Tort Claims Act is jurisdictional as it is in the same sentence as the grant of jurisdiction).

9. Henderson v. Shinseki, 131 S. Ct. 1197 (2011).

10. Id. at 1202-03

11. The Court reached the same result in Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817, 824-26 (2013), where it found a Medicare statute that permitted providers to appeal reimbursement decisions to a board within 180 days not to be jurisdictional.

Updated 2015 by Jeffrey S. Gutman

2.3 Federal Question Jurisdiction

Updated 2013 by Jeffrey S. Gutman

Title 28, Section 1331 of the United States Code confers upon federal district courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” Section 1331, which grants what is commonly referred to as federal question jurisdiction, is an all-purpose jurisdictional statute,/1/ available regardless of the defendant's identity and, since 1980, is not limited by any requirement that a minimum dollar amount be in controversy./2/ Section 1331 (and 28 U.S.C. § 1343) also confers jurisdiction in actions authorized by 42 U.S.C. § 1983 against defendants acting under color of state law./3/ It is generally available in suits against the federal government and its agencies and in actions against federal officers and employees./4/

2.3.A. Article III

Both Article III, Section II of the Constitution and 28 U.S.C. § 1331 use the same phrase, “arising under,” to define federal question jurisdiction, but the Supreme Court has not interpreted the constitutional and statutory language identically. In addressing the constitutional language, the Court has been expansive, broadly interpreting “arising under” to include any case in which a federal question is an “ingredient of the original cause.”/5/ A federal ingredient is very likely present in any case in which the plaintiff or defendant rests or may rest on a proposition of federal law as part of its claim or defense./6/ In Osborn v. Bank of the United States, federal law established the Bank of the United States. That ingredient alone made constitutional a statute enabling the bank to sue and be sued on its contracts (generally state law claims) in federal courts. Because the Bank was incorporated by federal law, any case involving it arose under federal law./7/ However, the Court subsequently made clear that a statute that does nothing more than to establish federal jurisdiction cannot serve as the federal law under which an action arises./8/

The most recent Supreme Court Case confirming Osborn's broad reading of Article III is Osborn v. Haley./9/ Osborn sued Haley, a non-diverse federal employee, on state law grounds in state court. Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), the federal government certified that Haley was acting within the scope of his employment, substituted the United States as defendant, and removed the case to federal court.  After the government asserted later that the alleged conduct had not, in fact, occurred (thereby contradicting the basis for the certification), the district court rejected the certification and remanded the case to state court.  The Supreme Court held that the Westfall Act prohibits remand of certified cases to state court. That result naturally led to a question of how Article III would permit the federal court to retain jurisdiction over a case involving state law claims between non-diverse parties when the court concludes that the Westfall certification was improper. Without citing Osborn v. United States, the Court held that whether the employee had Westfall Act immunity was an issue "arising under" federal law for purposes of Article III and that the court had discretion to retain jurisdiction after that issue was decided./10/ Thus, the court permitted the threshold certification, even an erroneous one, to satisfy Article III in a case otherwise raising only state law issues between non-diverse parties. 

2.3.B. Section 1331

In contrast, since Congress conferred general federal question jurisdiction in 1875, the Court has consistently held that the statutory grant is not as broad as the Constitution would allow./11/ The primary test that has been developed for determining whether a civil action arises under the Constitution or laws of the United States for purposes of  § 1331 requires (1) a substantial federal element and (2) such element being part of the plaintiff’s “well-pleaded complaint.”

2.3.B.1. The Substantial Federal Element

A case clearly arises under the Constitution for purposes of § 1331 when the plaintiff claims, for example, that a government officer or employee, acting in his or her official capacity, injures the plaintiff by taking an action that violates a provision of the Constitution or by acting pursuant to an unconstitutional statute. The federal question jurisdiction of the district courts also encompasses causes of action created by federal statutes, such as 42 U.S.C. § 1983, which explicitly authorizes a private remedy for acts that are taken under color of state law and violate rights secured by federal law./12/ In such cases, federal law both creates the cause of action, supplying the underlying substantive rules that govern defendants’ conduct, and authorizes plaintiffs to enforce the rights created.

As Justice Stevens remarked for the Court in an opinion that canvassed § 1331 jurisprudence, “[t]he ‘vast majority’ of cases that come within this grant of jurisdiction are covered by Justice Holmes’s statement (in American Well Works v. Layne and Bowler Co.) that a ‘suit arises under the law that creates the cause of action.’”/13/ With rare exceptions,/14/ then, when a federal law creates the claim and the rules of decision governing it, federal jurisdiction exists./15/

The more difficult question is the converse: when, if ever, does federal question jurisdiction exist when the claim is presented under state law?  A recent and colorfully written First Circuit decision refers to these cases as potentially involving "embedded" federal questions./16/  The Court interpreted § 1331 more broadly in Smith v. Kansas City Title and Trust Co./17/ than it had in American Well Works.  In Smith, a bank shareholder invoked state law to challenge a bank's investment in bonds issued pursuant to an allegedly unconstitutional federal law. The plaintiff therefore sought to prevent the state bank from buying the federal bonds. Justice Holmes, in dissent, argued that the case should be regarded as arising solely under the state law defining the bank’s powers./18/ Yet, the Court held that federal jurisdiction existed because the state law claim involved an inquiry into the constitutionality of a federal statute./19/

The apparent conflict between Smith and American Well Works made it difficult to determine when federal jurisdiction existed in cases where state-created actions require an interpretation of federal law. Merrell Dow Pharmaceuticals v. Thompson/20/ added to this complexity. One count of what was otherwise a purely state law tort action against a drug manufacturer for harm caused by one of its drugs alleged that the drug was misbranded in violation of the Federal Food, Drug, and Cosmetic Act and that the violation created a presumption of negligence. The Court joined the parties in assuming that the Act did not create a private cause of action. On that assumption, the Court held that assertion of federal jurisdiction would “flout, or at least undermine, congressional intent”/21/ not to create a federal remedy for violation of federal law. Thus, Merrell Dow suggested that federal jurisdiction was not available for state law claims that sought to enforce federal standards when there was no federal private right of action to enforce them.  In doing so, Merrell Dow confused the existence of a federal claim or remedy with the presence of federal jurisdiction.

More recently, however, the Supreme Court appears to have confined Merrell Dow to its facts. In Grable and Sons Metal Products v. Darue Engineering,/22/ the Supreme Court upheld federal jurisdiction in a state law quiet title action that turned entirely on the interpretation of a federal Internal Revenue Service notice provision. As subsequently explained in Gunn, the Court held that federal jurisdiction is appropriate in state law actions if the federal issue is "(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress."/23/

The Court viewed Merrell Dow’s focus on the absence of a federal private right of action (there was no available federal quiet title claim) as a clue to, but not dispositive of, the interpretation of this federal-state balance. Rather, the Court distinguished Merrell Dow on the ground that finding jurisdiction there would have swept thousands of state negligence per se claims based on federal standards into the federal courts, thereby upsetting the division of labor between federal and state courts. Jurisdiction over quiet title actions arising from federal tax controversies would not similarly affect the “normal currents of litigation.”/24/ Declaring that Merrell Dow did not, as some courts believed, overrule Smith, the Court reaffirmed the notion that federal courts can hear some state law claims that turn on questions of federal law. The Court thereby adopted a functional test for “arising under” jurisdiction./25/

Subsequently, in Gunn v. Minton, the Supreme Court clarified the third Grable factor: substantiality. Gunn was a state law legal malpractice claim against an attorney who allegedly failed to make a particular argument on behalf of the plaintiff in a patent infringement claim./26/ To prevail, the plaintiff would have to show that he would have won his patent case had his attorney made the argument. The Court observed that resolution of the mertis of the patent law argument was necessary and actually disputed./27/ While the issue was substantial in the sense that it was important in the plaintiff's case, the Court held that the issue must be important in terms of the federal system as a whole./28/ Here, a state court decision on the viability of the unstated patent law argument would neither change the result that the court previously found the patent invalid nor likely have created new law because the state court can be expected to hew closely to the pertinent federal precendents./29/

2.3.B.2. The Well-Pleaded Complaint

Not only must the action “arise under” the Constitution or federal law, but the federal question must also appear on the face of a “well-pleaded complaint.”/30/ In practice, this means that plaintiffs may not invoke federal jurisdiction by raising contrived federal issues in the complaint/31/ or anticipated federal defenses./32/ "Nor can federal jurisdiction rest upon an actual or anticipated counterclaim."/33/ Conversely, the Court has not been willing to allow a plaintiff to avoid federal jurisdiction by artfully omitting a substantial federal question essential to its case./34/ 

Somewhat more difficult are cases in which federal preemption may be a defense to state law claims.  Generally, the well pleaded complaint rule would disregard such a potential federal defense and view such claims as not invoking federal jurisdiction.  However, the Supreme Court has crafted an exception when federal law completely occupies, and thereby preempts, the entire field addressed by the state law claim.  In such cases, these state law complaints are recharacterized as necessarily invoking federal law, thereby permitting the defendant to remove the action to federal court./35/

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1. In addition to the general federal question jurisdiction conferred by Section 1331, Congress has enacted a number of more specific statutes conferring jurisdiction on the district courts in cases arising under particular federal laws. One of these, once of considerable importance, grants jurisdiction of cases arising under any congressional act regulating commerce,  28 U.S.C. § 1337(a) . Section 1337 and provisions conferring jurisdiction in admiralty, bankruptcy, and patent, trademark, and copyright cases (28 U.S.C. §§ 1333, 1334, and 1338) are in the district court jurisdiction chapter of the Judicial Code (Chapter 85 of Title 28). Others, such as the provision for district court jurisdiction of actions to review adverse social security decisions, are in other titles of the Code, typically in agency organic statutes. Besides conferring jurisdiction in the federal courts, such organic statutes may waive sovereign immunity, create causes of action, or specify relief.

2. Until 1980, § 1331 was limited by a $10,000 amount-in-controversy requirement. Before the repeal of this limitation, plaintiffs with federal statutory claims involving $10,000 or less for each plaintiff had to rely on other jurisdictional provisions not so limited. Plaintiffs often invoked  28 U.S.C. § 1337(a)  since much legislation that is litigated finds its constitutional authority in the commerce clause. In this regard, § 1337 is now superfluous. See ErieNet, Incorporated v. Velocity Net, Incorporated , 156 F.3d 513, 519-20 (3d Cir. 1998). Similarly, before 1980, in § 1983 litigation involving $10,000 or less, plaintiffs relied on 28 U.S.C. § 1343(a)(3), the jurisdictional counterpart of § 1983. While this jurisdictional provision is now also superfluous, it is often still invoked along with § 1331 in civil rights cases.  See, e.g., Clinton v. Jones, 520 U.S. 681, 685 n.1 (1997); Dixon v. Burke Co., Ga., 303 F.3d 1271, 1274 (11th Cir. 2002).

3. See 28 U.S.C. § 1343.

4. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

5. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 823 (1824); see also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.480, 492 (1983) (Foreign Sovereign Immunities Act is constitutional as actions against foreign sovereigns or foreign plaintiffs in U.S. courts require the application of federal law).

6. Osborn, 22 U.S. (Wheat.) at 825. See The Pacific R.R. Removal Cases, 115 U.S. 1 (1885); see also Gunn v. Minton, 133 S. Ct. 1059 (2013) (no dispute that state legal malpractice claim alleging negligence in prosecuting patent infringement suit falls within Article III).

7. American National Red Cross v. S.G., 505 U.S. 247, 264 (1992) (Article III authorizes Congress to confer federal jurisdiction over claims involving federally chartered corporations).

8. Verlinden, 461 U.S. at 496.

9.Osborn v. Haley, 549 U.S. 225 (2007).

10. Id. at 245.

11. See generally Charles A. Wright & M. Kane, Law of Federal Courts § 17 (6th ed. 2002), see also Verlinden, 461 U.S. at 495; Louisville and N.R. Co. v. Mottley, 211 U.S.149 (1908). By employing in § 1331 the identical “arising under” phrase as is found in Article III, Congress might have been thought to be conferring federal question jurisdiction to the limit of Article III. But the Court has interpreted the statute narrowly to keep the district courts’ caseload manageable and to minimize intrusion on state courts.

12. See Grable and Sons Metal Products v. Darue Engineering and Manufacturing, 545 U.S. 308, 312 (2005).

13. Merrell Dow Pharmaceuticals  Incorporated v. Thompson, 478 U.S. 804, 808 (1986) (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (which in turn quoted American Well Works Co. v. Layne and Bowler Co., 241 U.S. 257, 260 (1916) (suit for damages to business allegedly resulting from slanderous accusations that plaintiff had infringed defendant’s patent arises under state law even though federal patent law was an ingredient to the claim))). A civil action based on federal common law also arises under the laws of the United States for the purpose of jurisdiction under § 1331. Illinois v. City of Milwaukee, 406 U.S. 91 (1972).

14See Shoshone Mining v. Rutter, 177 U.S. 505 (1900).

15. Mims v. Arrow, 132 S. Ct. 740, 748-49 (2012).

16Rhode Island Fishermen's Alliance v. Rhode Island Department of Environmental Management, 583 F.3d 42, 48 (1st Cir. 2009). The Supreme Court recently characterized this category of cases invoking federal jurisdiction as "slim." Gunn, 133 S. Ct. at 1065.

17. Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921).

18. Id. at 213–14 (Holmes, J., dissenting).

19. Id. at 201–202; see also Sweeney v. Abramowitz, 449 F. Supp. 213 (D. Conn. 1978) (federal court has jurisdiction over suit for malicious prosecution based on filing of a claim under § 1983 because an essential element of plaintiffs’ complaint is that the defendant had no probable cause to believe that he had a valid § 1983 claim).

20. Merrell Dow Pharmaceutical, Incorporated v. Thompson, 478 U.S. 804, 804 (1986).

21. Merrell Dow, 478 U.S. at 812. Like several of the other cases that have defined the contours of “arising under” jurisdiction, Merrell Dow involved not an original action in a federal district court but an attempt to remove a case brought in state court to the federal court. The Supreme Court said that “[s]ince a defendant may remove a case only if the claim could have been brought in federal court . . . the question for removal jurisdiction must . . . be determined by reference to the ‘well-pleaded complaint’” under § 1331. Id. at 808.  See also Caterpillar, Incorporated v. Williams, 482 U.S. 386, 392 (1987); Franchise Tax Board, 463 U.S. at 9-10.  Removal is treated separately in this chapter in Section 2.7.

22. Grable and Sons Metal Products v. Darue Engineering, 545 U.S. 308 (2005).

23. Gunn, 139 S. Ct. at 1065; Grable, 545 U.S. at 314.

24. Grable, 545 U.S. at 319.

25. The Supreme Court subsequently held that Grable did not extend federal jurisdiction to a claim by a private health insurer that sought reimbursement of money recovered in a state court tort action by a former federal employee insured under the Federal Employees Health Insurance Benefits Act.  Empire HealthChoice Assurance Co. v. McVeigh, 547 U.S. 677, 700-01 (2006).

26. Gunn, 133 S. Ct. 1059.

27. Id. at 1065-66.

28. Id. at 1066. The government's interest in federal tax collection made the issue in controversy in Grable substantial in this sense. Id.

29. Id. at 1067. Had the patent issue been a novel one, the Court reasoned that if the issue were rare, it would be insubstantial, and if it were common, it would inevitably arise in a federal patent case, reviewable by the Federal Circuit and thereby promoting uniformity of federal patent law. Id.

30. Franchise Tax Board, 463 U.S. at 9–10.

31. Nor can federal jurisdiction be founded on insubstantial or frivolous federal claims. Hagans v. Lavine, 415 U.S. 528, 535, 542–43 (1974).

32. The case most often cited for this proposition, though not the first, is Mottley, 211 U.S. at 149. In Mottley the plaintiff alleged that a federal defense the plaintiff anticipated violated the Constitution. The Supreme Court denied jurisdiction because “a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.” Id. at 153. See also Merrell Dow, 478 U.S. at 808 (relying on Mottley, 211 U.S. 149).

33. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (citing Holmes Group, Incorporated v. Vornado Air Circulation Systems, Incorporated, 535 U.S. 826 (2002)). In Vaden, the Court held that a federally preempted state law counter-claim cannot serve as the basis for federal jurisdiction. Id. at 66-67; see also Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 476 (1998) (defense of claim preclusion based on prior federal judgment does not justify removal).

34. Franchise Tax Board, 463 U.S. at 22.

35. For example, in Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 66 (1987), a disability benefits case preempted by ERISA, the Court permitted removal to federal court where Congress “clearly manifested an intent” to preempt the field and all state causes of action; see also Aetna Health Care Incorporated v. Davila, 542 U.S. 200, 208-09 (2004); Beneficial National Bank v. Anderson, 539 U.S. 1, 8 (2003).

Updated 2013 by Jeffrey S. Gutman

2.4 Other Jurisdictional Statutes

Updated 2013 by Jeffrey S. Gutman

Two less commonly used jurisdictional statutes in legal services practice are those involving diversity jurisdiction and with declaratory judgments. They are discussed briefly below. 

2.4.A. Diversity Jurisdiction

Article III, Section 2, Clause 1 of the Constitution provides that federal judicial power extends to cases between citizens of different states and between a citizen of a state and a citizen of a foreign country. The diversity statute, 28 U.S.C. § 1332(a)(1), grants original jurisdiction to U.S. district courts over cases between citizens of different states when the matter in controversy exceeds $75,000./1/ Federal jurisdiction based on diversity of citizenship requires “complete diversity.” All plaintiffs must be citizens of states different from the state of citizenship of any defendant./2/ If there is any overlap of state citizenship between any plaintiff and any defendant, diversity is defeated and the case cannot be brought in, or removed to, federal court unless there is an independent basis for federal jurisdiction./3/ Diversity must exist at the time of filing, not when the claim arose/4/ unless the diversity-destroying party is dismissed prior to judgment./5/

Citizenship for purposes of diversity jurisdiction requires citizenship of the United States and a particular state. State citizenship turns on domicilethe concurrent establishment of state residence and subjective intent to remain there indefinitely./6/ The District of Columbia, the territories (e.g., U.S. Virgin Islands, Guam, American Samoa), and the Commonwealth of Puerto Rico are considered states for purposes of diversity./7/ Aliens admitted for permanent residence are citizens of the state in which they are domiciled./8/ A corporation typically has dual state citizenship —the state in which the corporation is incorporated and the state in which it has its principal place of business./9/

The policy of diversity jurisdiction, to protect out-of-state parties against possible home-state bias, is manifested in the provisions governing removal. A case may not be removed to federal court on the basis of diversity if any defendant is a citizen of the forum state./10/

Federal courts have historically applied a domestic relations exception to limit their jurisdiction, refusing to entertain cases otherwise within their diversity jurisdiction./11/ In Ankenbrandt v. Richards, the Supreme Court traced to Barber v. Barber the origin of the doctrine./12/ Barber held that federal courts had no jurisdiction over suits for divorce or alimony./13/ The Ankenbrandt Court dealt with a tort dispute brought in federal court by a mother against her former husband and his companion, alleging physical and sexual abuse of the couple’s children. The Court found federal jurisdiction of the action since the domestic relations exception specifically served only to “divest . . . the federal courts of power to issue divorce, alimony, and child custody decrees.”/14/

A similar “probate exception” has been read into the diversity statute. The Supreme Court analyzed this exception and generally limited it in Marshall v. Marshall./15/ There, the Court held that “the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.”/16/

The Class Action Fairness Act of 2005/17/ imposed significant changes to 28 U.S.C. § 1332, applicable to civil actions filed on or after February 18, 2005. The changes define the jurisdiction of the federal courts to hear class actions which do not raise federal questions. In brief, the federal courts have original jurisdiction to entertain class actions in which the amount in controversy exceeds $5 million and in which any member of the plaintiff class is diverse from any defendant./18/ Considering the factors set forth in 28 U.S.C. § 1332(d)(3)(A)-(F), the court may decline jurisdiction over such cases in which more than one-third, but less than two-thirds, of the members of the plaintiff classes and the primary defendants are citizens of the forum state. The federal court must decline jurisdiction over two categories of class actions: 1) when more than two-thirds of the members of the plaintiff classes are citizens of the forum state, at least one important defendant is a citizen of the forum state, the principal injuries were incurred in the forum state, and either no similar class actions had been filed during the prior three year period or 2) when two-thirds or more of the plaintiffs and the primary defendants are citizens of the forum state./19/

2.4.B. Declaratory Judgment Act

The Declaratory Judgment Act is not, strictly speaking, a jurisdictional statute./20/ Under the Act, federal courts have the power in cases of “actual controversy” to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”/21/ In suits against federal agencies or officials for review of adverse agency action, plaintiffs often seek judgments declaring the action illegal as well as (occasionally in lieu of) injunctive relief.  The Act does not confer or expand federal jurisdiction./22/ Therefore, the Act cannot be used defensively to raise federal issues that would not appear on the face of a well-pleaded complaint./23/ Rather, the Act creates an additional remedy that is available to a district court in a case in which (1) the case or controversy requirement of Article III of the Constitution is met and (2) the court independently has subject-matter jurisdiction because of either the presence of a federal question or diversity of citizenship./24/





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1. 28 U.S.C. § 1332(a)(1). Section 101 of the Federal Courts Jurisdiction and the Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758 (2011), amended 28 U.S.C. § 1332(a)(2) which now more clearly eliminates federal jurisdiction in cases between a citizen of a state and a citizen of a foreign state when the foreign citizen is a lawful permanent resident and domiciled in the same states as the same citizen. As before, diversity jurisdiction also exists when the parties include “citizens of different States and . . . citizens or subjects of a foreign state are additional parties,” id. § 1332(a)(3), and “a foreign state as plaintiff and citizens of a State or different States,” id. § 1332(a)(4).

2. See Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806); see also Exxon Mobil v. Allapattah Services, 545 U.S. 546, 553 (2005).

3. See Ankenbrandt v. Richards, 504 U.S. 689 (1992). Removal jurisdiction is discussed in this Chapter in Section 2.7.

4. See Freeport-McMoran v. KN Energy, 498 U.S. 426, 428 (1991) (per curiam).  

5. See Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 574 (2004) (explaining Caterpillar v. Lewis, 519 U.S. 61 (1996)).

6. See Garcia Perez v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004).

7. 28 U.S.C. § 1332(e); see National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 603(1949).

8. 28 U.S.C. § 1332(a).

9. 28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010), the Supreme Court resolved decades of confusion over a corporation's principal place of business when a firm's operations are directed from one state, but significant corporate activities occur elsewhere. Essentially adopting what has been known as the "nerve center" test, the Court held that the principal place of business or ordinarily where the company maintains its headquarters so long as the headquarters is the location where corporate officers "direct, control, and coordinate the corporation's activities." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1186, 1192 (2010). Section 102 of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758, amended 28 U.S.C. § 1332(c)(1) by clarifying that any corporation, foreign or domestic, is a citizen of its place of incorporation and principal place of business wherever those may be.

10. See 28 U.S.C. § 1441(b); Lincoln Property Co. v. Roche, 546 U.S. 81, 83 (2005).

11. Most courts have not applied this exception in cases resting on federal question jurisdiction.

12. Ankenbrandt, 504 U.S. at 693.

13. Barber v. Barber, 62 U.S. (How.) 582, 584 (1858); see Ankenbrandt, 504 U.S. at 693.

14. Ankenbrandt, 504 U.S. at 703–04; see also Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir. 2001) (tort claims regarding management of former spouse not barred by domestic relations exception); Friedlander v. Friedlander, 149 F.3d 739, 740 (7th Cir. 1998) (tort claims not barred by exception). A similar exception excludes probate matters from federal jurisdiction. Federal courts may not probate a will or administer an estate but may entertain claims against administrators and executors as long as they do not interfere with probate proceedings. See generally 13E Charles A. Wright et al., Federal Practice and Procedure § 3609 (5th ed. 2009).

15. Marshall v. Marshall, 547 U.S. 293 (2006).

16. Id. at 311.

17. Class Action Fairness Act of 2005, Pub. L. No. 109-2 (codified in parts of 28 U.S.C. §§ 1332, 1335, 1453, 1711-15).

18. 28 U.S.C. § 1332(d)(2)(A). This does not apply to class actions in which the “primary defendants are States, State officials, or other government entities against whom the district court may be foreclosed from ordering relief,” or in which there are less than 100 class members. 28 U.S.C. § 1332(d)(5).

19. Id. § 1332(d)(4).

20. Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

2128 U.S. C. § 2201(a). See Medimmune v. Genentech, 549 U.S. 118, 126 (2007) (plaintiff did not have to terminate licensing agreement before seeking a declaratory judgment that underlying patent was invalid).

22. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); cf. Franchise Tax Board, 463 U.S. 1, 18-19 (1983) (state declaratory judgment acts do not expand removal jurisdiction).

23. See Franchise Tax Board, 463 U.S. at 15; Skelly Oil Co., 339 U.S. at 671–72.

24. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240(1937).

Updated 2013 by Jeffrey S. Gutman

2.5 Litigation Against the Government

Updated 2015 by Jeffrey S. Gutman

Section 1331 is the principal basis of federal jurisdiction in litigation against the federal government and its agencies for injunctive relief. Under Bivens v. Six Unknown Named Agents, individual employees of the federal government are subject to suit for damages for acts in violation of plaintiffs’ federal constitutional rights./1/  Jurisdiction over such actions is also provided by § 1331. In addition, Congress has enacted a variety of specific jurisdictional statutes governing  particular kinds of litigation against the government based on the nature of the judicial proceeding or the subject matter of the controversy. These jurisdictional grants may also contain specific remedial provisions that establish conditions to suit or create immunities.

2.5.A. Mandamus Jurisdiction

Section 1361 of Title 28 confers on the district courts “jurisdiction of any action in the nature of mandamus to compel” a federal officer, employee, or agency “to perform a duty owed to the plaintiff.” The mandamus jurisdiction conferred by this provision is available only if the plaintiff has a clear right to relief, the duty breached is “a clear nondiscretionary duty,”/2 / and no other remedy is available./3/ If a federal official, however, goes far beyond “any rational exercise of discretion,” mandamus may lie even when the action is within the statutory authority granted./4/ The significance of this statute as a separate source of federal jurisdiction has faded with the abolition of the amount in controversy requirement for federal question jurisdiction and with the elimination of the sovereign immunity defense to suits against federal agencies, officers, and employees for injunctive relief./5/

2.5.B. Administrative Procedure Act

The Administrative Procedure Act creates a cause of action against agencies of the federal government acting under federal law. The Act authorizes judicial review, establishes the form and venue of judicial review proceedings, states what agency actions are reviewable, and describes the scope of review of such actions./6 / The Act eliminates the defense of sovereign immunity in cases seeking relief other than money damages and claiming that a federal agency, officer, or employee acted or failed to act in an official capacity or under color of legal authority./7/

While these judicial review sections of the Act are important in providing for judicial review of agency action and describing its scope, they do not of their own force confer jurisdiction on the district courts./8/ A plaintiff bringing an action under the APA, therefore, must also have a jurisdictional foundation for the action. Federal question jurisdiction under § 1331 is typically available for claims under the APA./9/

2.4.C. Tucker ActDamage Claims Against the Federal Government

The Tucker Act gives the U.S. Court of Federal Claims jurisdiction

to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort./10/

When it applies, the Tucker Act provides the exclusive method by which to file actions against the United States./11/

For damage claims of $10,000 or less, the U.S. Court of Federal Claims and federal district courts have concurrent jurisdiction./12/ If the claim is over $10,000, the Court of Federal Claims has exclusive jurisdiction./13/ If a plaintiff wishes to remain in district court instead of the Court of Federal Claims, the plaintiff may waive all damages over $10,000./14 / If a plaintiff has multiple claims, none of which individually exceeds $10,000, the claims are not aggregated for jurisdictional purposes./15/ The Court of Federal Claims is also authorized to grant very limited equitable relief and declaratory judgments, most notably in cases involving termination of government contracts and challenges to awards of such contracts./16/

The Act creates no substantive rights; it confers jurisdiction and waives sovereign immunity over claims based on a "money-mandating" constitutional provision or statute or contract that themselves create the right to damages against the United States./17/ The Tucker Act, therefore, can be used as the jurisdictional basis for claiming government benefits provided for by a substantive statute. The statute of limitations for bringing a claim is six years./18/

In some cases, the exclusive jurisdiction of the Court of Federal Claims over damage claims exceeding $10,000 is not a bar to a plaintiff’s request for equitable relief from a district court if there is another basis for federal jurisdiction./19/ The district courts have jurisdiction over mixed claims involving both injunctive (or declaratory) relief and monetary relief that does amount technically to “damages” in excess of $10,000./20/ On the other hand, courts look behind the pleadings to determine whether the jurisdictional provisions of the Tucker Act apply./21/ A plaintiff may not avoid jurisdiction in the Court of Federal Claims by “framing a complaint in the district court as one seeking injunctive, declaratory, or mandatory relief when, in reality, the thrust of the suit is one seeking money [damages] from the United States.”/22/

All appeals from non-tax claims under the Tucker Act, whether arising in the Court of Federal Claims or district courts, go to the U.S. Court of Appeals for the Federal Circuit./23/ The Federal Circuit also has exclusive jurisdiction of appeals from the district courts that contain a mixture of Tucker Act and Federal Tort Claims Act claims./24/

2.5.D. Federal Tort Claims Act

Pursuant to the Federal Tort Claims Act (FTCA),

district courts . . . have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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./25/

Under the FTCA, federal district courts may entertain tort claims for damages against the United States based on the actions of government employees in cases in which the United States has not abrogated its sovereign immunity under the Tucker Act. The FTCA’s consent to be sued and waiver of sovereign immunity apply only to cases in which “a private person” would be liable. Further, under the statute, the United States is exempt from (i.e., it has not waived its sovereign immunity for) claims based on discretionary acts of government employees,/26/ claims based on injury suffered in a foreign country,/27 / intentional torts,/28/ claims requiring an inquiry into sensitive military matters,/29/ and misrepresentation./30/

The extent of the United States’ liability under the Act is determined by state law, except that punitive damages are not allowed./31/ The Supreme Court, however, has liberally permitted damages that were more than a plaintiff’s actual loss, as long as the damages were not intended to punish the defendant for intentional actions./32 /

The Act also imposes certain procedural prerequisites to filing a suit in district court. For instance, before filing a civil action, a plaintiff must “file an administrative claim to the appropriate Federal agency” within two years after the claim accrues./33/ The administrative claim must specify the amount requested by way of compensation, and a plaintiff may not later in court seek an amount in excess of the administrative claim./34/  If the agency does not dispose of the administrative claim within six months, the claimant may consider the lack of decision to be a final denial and proceed to court./35/ If the agency denies the administrative claim, suit must be filed within six months of the date of mailing of such denial./36/



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1. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Suits against federal employees in their1 individual capacities are not suits against the United States for purposes of venue or service of process.

2. Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)); see also Ingalls Shipbuilding Inc. v. Asbestos Health Claimants, 17 F.3d 130, 133 (5th Cir. 1994) (“Mandamus is only appropriate when the claim is clear and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt. Mandamus is thus not generally available to review discretionary acts of public officials.”) (internal quotations and citations omitted).

3. See Baptist Memorial Hospital v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010); Taylor v. Barnhart, 399 F.3d 891, 894 (8th Cir. 2005); Lifestar Ambulance Service v. U.S., 365 F.3d 1293, 1295 (11th Cir. 2004), cert. denied, 543 U.S. 1050 (2005) (plaintiff must exhaust administrative remedies).  Mandamus has also been invoked successfully in efforts to overturn judicial rulings, see, e.g., Cheney v. United States District Court, 542 U.S. 367, 380- 82 (2004) (ultimately successful effort to vacate discovery orders in Federal Advisory Committee Act case); to challenge a court’s decision to transfer the venue of a case, see, e.g., In re Chatman-Bey, 718 F.2d 484, 487–88 (D.C. Cir. 1983); and to compel performance of a prior court order, see, e.g., Kahmann v. Reno, 967 F. Supp. 731, 733–34 (N.D.N.Y. 1997).

4. See United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929 (1969).

5. 5 U.S.C. § 702; see Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235-36 (10th Cir. 2005) (noting district court had mandamus jurisdiction in prison conditions case, and that mandamus and injunctive relief might be “interchangeable”).

6. Administrative Procedure Act, 5 U.S.C. §§ 701–706. Other sections of the Administrative Procedure Act address agency procedure and the interaction of agencies and Congress. See 5 U.S.C. §§ 551 et seq.  A full discussion of the Act is found in Chapter 5.1.B of this Manual.

7. 5 U.S.C. § 702.

8. See Califano v. Sanders, 430 U.S. 99, 105–07 (1977).

9. While jurisdiction is found in 28 U.S.C. § 1331 , practitioners should also look to the agency’s organic statute or other provisions in the Judicial Code. For instance, some suits to review agency actions are committed to the exclusive jurisdiction of the court of appeals. See  28 U.S.C. §§ 2341–2351.

10. 28 U.S.C. § 1491(a)(1) (the "Big Tucker Act").

11. Congress has the power to remove the Tucker Act as a jurisdictional basis for suit, but it must manifest that intent unambiguously. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984); Slattery v. United States, 635 F.3d 1298, 1321 (Fed. Cir. 2011) (en banc). However, when provisions in other statutes specify comprehensive remedial schemes, those statutes displace the Tucker Act and its waiver of sovereign immunity. United States v. Bormes, 133 S.Ct. 12, 18 (2012) (interpreting the Fair Credit Reporting Act); United States v. Fausto, 484 U.S. 439, 452–55 (1988) (finding Civil Service Reform Act implicitly withdraws certain actions by civil servants from the reach of the Tucker  Act).

12. 28 U.S.C. § 1346(a)(2) (the "Little Tucker Act").

13. Jan's Helicopter Service v. FAA, 525 F.3d 1299, 1304 (Fed. Cir. 2008).

14. See Roedler v. Department of Energy, 255 F.3d 1347, 1351 (Fed. Cir. 2001); Smith v. Orr, 855 F.2d 1544, 1552–53 (Fed. Cir. 1988).

15. See Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983); Glaskin v. Klass, 996 F. Supp. 67, 73 (D. Mass. 1998).

16.  28 U.S.C. § 1491(a)(2), (b)(2) .

17. United States v. Navajo Nation, 556 U.S. 287, 290 (2009); United States v. Testan, 424 U.S. 392, 398-400 (defining "money-mandating" statutes). One exception is that the Little Tucker Act does not provide jurisdiction for claims arising under the Contract Disputes Act of 1978,  41 U.S.C. §§ 601 et seq.  See  28 U.S.C. § 1346(a)(2).

18. 28 U.S.C. § 2501; John R. Sand & Gravel Company v. United States, 552 U.S. 130 (2008).

19. Brown v. United States, 631 F. Supp. 954, 957 (D.D.C. 1986); see Favereau v. United States, 44 F. Supp.2d 68, 71 (D. Me. 1999); see also Village of Oakwood v. State Bank & Trust Co., 539 F.3d 373 (6th Cir. 2008) (district court jurisdiction available under FDIC's sue-and-be-sued clause).

20. Bowen v. Massachusetts, 487 U.S. 879, 910 (1988) (state seeking monetary and equitable relief under Medicaid program). Significantly, in Bowen the Court held that not all actions that would result in the payment of money were necessarily actions for money damages: “The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as ‘money damages’" Id. at 893.

21. Suburban Mortgage Associates v. United States Department of Housing and Urban Development, 480 F.3d 1116, 1124-26 (Fed. Cir. 2007); Tootle v. Secretary of Navy, 446 F.3d 167, 169 (D.C. Cir. 2006).

22. Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997) (internal quotations omitted).

23. 28 U.S.C. § 1295(a)(2)–(3).

24. United States v. Hohri, 482 U.S. 64, 75-76 (1987).

25. Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).

26. 28 U.S.C. § 2680(a). The test for what is a “discretionary function” also has been much litigated, but the general formulation of the inquiry involves whether the action “involve[d] an element of judgment or choice” and whether the conduct was “based on considerations of public policy.” Berkovitz v. United States, 486 U.S. 531, 536 (1988); see United States v. Gaubert, 499 U.S. 315 (1991). Federal employees are absolutely immune from tort liability if the attorney general certifies that the employee was acting within the scope of employment. 28 U.S.C. § 2675(d). If the certification is made, the United States is substituted as the defendant. Id.

27. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004).

28. 28 U.S.C. § 2680(h). For two recent Supreme Court cases dealing with this exemption, see Millbrook v. United States, 133 S. Ct. 1441, 1446 (2013) (waiver of sovereign immunity extends to acts or omissions of law enforcement officers that arise within scope of their employment, regardless of whether they are "engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest"); Levin v. United States, 133 S. Ct. 1224 (2013) (Gonzalez Act abrogates FTCA's intentional tort exception and permits suit against United States alleging medical battery).

29. Feres v. United States, 340 U.S. 135, 138 (1950).

30. Block v. Neal, 460 U.S. 289 (1983).

31. 28 U.S.C. § 2674see also Molzof v. United States, 502 U.S. 301, 305–06 (1992).

32. See Molzof, 502 U.S. at 306–07.

33. 28 U.S.C. § 2401(b) (statute of limitations); 28 U.S.C. § 2675(a) (requirement of administrative claim); United States v. Kubrick, 444 U.S. 111, 113 (1979). 

34. 28 U.S.C. § 2675(b).

35. Id. § 2675(a).

36. 28 U.S.C. § 2401(b). Both of these FTCA time limits are subject to equitable tolling. United States v. Wong, No. 13-1074 (U.S. April 22, 2015).

Updated 2015 by Jeffrey S. Gutman

2.6 Supplemental Jurisdiction

Updated 2013 by Jeffrey S. Gutman

In 1990, Congress enacted the supplemental jurisdiction statute, 28 U.S.C. § 1367, which largely codified, with certain critical distinctions, the former common law doctrines of pendent, ancillary, and pendent-party jurisdiction.  When applicable, these doctrines permitted the federal court to take jurisdiction over state law claims over which there was no independent basis of jurisdiction so long as they were anchored to a claim in the action over which federal jurisdiction was appropriate.  

2.6.A. Historical Basis of Pendent and Ancillary Jurisdiction

In order to understand the supplemental jurisdiction statute, the legal aid lawyer should first be familiar with the basic pre-codification principles of pendent and ancillary jurisdiction established by the Supreme Court.

2.6.A.1. Pendent Jurisdiction

The doctrine of pendent jurisdiction governed the exercise by federal courts of subject matter jurisdiction over claims that lack an independent basis of jurisdiction. When a plaintiff files a federal claim against a defendant, under what circumstances may it add a state law claim over which there is no independent basis of federal jurisdiction to the complaint? The Supreme Court’s decision in United Mine Workers v. Gibbs created the modern test for determining when federal courts may exercise pendent jurisdiction over state law claims./1/ By “establishing a new yardstick for deciding whether a federal court has jurisdiction over a state-law claim brought in a case that also involves a federal question,” the Gibbs Court intended “not only to clarify, but also to broaden, the scope of federal pendent jurisdiction.”/2/

The Court in Gibbs drew a distinction between power and discretion. Under the two-prong test adopted in Gibbs, federal courts must first determine whether they have the constitutional power to exercise pendent jurisdiction. This power exists when there is a substantial federal claim over which federal courts have subject matter jurisdiction,/3/ and when both the “state and federal claims derive from a common nucleus of operative facts” so that a plaintiff would “ordinarily be expected to try them all in one judicial proceeding./4/ When the entire action before the federal court comprises a single constitutional “case,” the court may, under Article III, exercise jurisdiction over the action, including the state-law claims./5/

If the federal court has the power to exercise jurisdiction over the pendent claim, the federal court may nevertheless refuse to exercise pendent jurisdiction based on “considerations of judicial economy, convenience and fairness to litigants.”/6/ Questions of economy arise when the federal claim is dismissed or resolved before the pendent state claim. The Gibbs Court observed that “if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”/7/ The Court subsequently qualified this statement to permit trial courts to entertain pendent claims after the jurisdiction-conferring claims are dismissed as moot./8/ Ultimately the issue turns on whether sending the pendent claim to state court would result in the wasteful and duplicative expenditure of resources. The Gibbs Court was also mindful of principles of comity, and cautioned against making “[n]eedless decisions of state law.”/9/ Indeed, “if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may by dismissed without prejudice and left for resolution to state tribunals.”/10/

2.6.A.2. Pendent Party Jurisdiction

Some federal courts subsequently used the Gibbs approach to support the exercise of jurisdiction over new parties over whom there was no independent basis of federal jurisdiction. When a plaintiff files a federal claim against a defendant, under what circumstances may the court entertain jurisdiction over a state claim against a second defendant when there is no independent basis for federal jurisdiction?  Such state law claims might, for example, fall short of the amount in controversy requirement or be filed against a non-diverse second defendant. The Supreme Court first considered the question of pendent party jurisdiction in Aldinger v. Howard./11/  The plaintiff there sued county officials under Section 1983, and asserted a pendent state law claim against the county. Because the state law claim against the county arose from the same nucleus of facts as the Section 1983 claim against its officials, the Gibbs test appeared to support the assertion of jurisdiction.

Nevertheless, the Court rejected the attempted use of pendent party jurisdiction and held the asserted expansion of subject matter jurisdiction to be inconsistent with congressional limitations on the exercise of jurisdiction. The Court observed that adding a transactionally related state law claim against a defendant subject to a properly filed federal claim was quite different from adding a pendent claim to a new defendant. The Court further held that Congress impliedly negated the exercise of pendent party jurisdiction over counties pursuant to 28 U.S.C. § 1343 because counties were not “persons” subject to Section 1983. The specific basis for this latter conclusion was later overruled in Monell v. New York City Department of Social Services./12/  Still, Aldinger continued to stand for the proposition that, before exercising pendent party jurisdiction, the court must determine whether Congress had impliedly negated the authority for doing so.

In Owen Equipment and Erection Company v. Kroger, the Court extended the reasoning of Aldinger to a case involving Rule 14(a) of the Federal Rules of Civil Procedure./13/ There, the plaintiff in a tort case over which the court had diversity jurisdiction amended her complaint to add claims arising from the same accident against a non-diverse third-party defendant. Reasoning that the exercise of jurisdiction would be inconsistent with the statutory requirement of complete diversity, the Court rejected jurisdiction over the claims.

Finley v. United States marked the death knell of pendent party jurisdiction./14/  In Finley, the Supreme Court held that a plaintiff suing the United States under the Federal Tort Claims Act was not allowed to assert a pendent party claim against jointly liable, non-diverse defendants, even though the claim against the United States was within the exclusive jurisdiction of the federal courts. The plaintiff was therefore consigned to suing the United States in federal court and the private defendants in state court.  Modifying the test established in Aldinger, the Court held that federal courts had no authority to assert subject matter jurisdiction over pendent parties absent an affirmative grant of jurisdiction by Congress. In the absence of a legislative basis for the assertion of pendent party jurisdiction, the plaintiff had to establish an independent basis of subject matter jurisdiction for each defendant sued. Since most jurisdictional statutes say nothing about pendent jurisdiction, the Finley Court called into question the statutory bases of both ancillary and pendent jurisdiction./15/  

2.6.A.3. Ancillary Jurisdiction

The related doctrine of ancillary jurisdiction developed to empower a federal court to hear some counterclaims and third-party claims over which it lacked an independent jurisdictional base./16/   In a case in which a plaintiff filed a federal claim against a defendant, under what circumstances may the defendant bring claims against the plaintiff or others over which there is no independent basis of subject matter jurisdiction?  Such claims are brought by defending parties which have not chosen the federal forum. Generally, when a claim bore a logical relationship to the main claim or arose out of the same transaction or occurrence, courts permitted ancillary jurisdiction. Ancillary jurisdiction consequently extended to compulsory counterclaims, cross-claims, and additional parties to such claims./17/   It did not generally extend to permissive counterclaims, which, by definition, lacked the required factual nexus with the main claim./18/  

However, the Court in Owen cautioned that satisfying the Gibbs constitutional test is necessary, but not sufficient, to confer ancillary jurisdiction. Jurisdiction may also be limited by statute. Thus, since the diversity statute has been interpreted to require complete diversity, the Owen Court held, a plaintiff may not advance even transactionally related state claims against a non-diverse third-party defendant. As noted above, the Finley Court’s insistence on an express legislative grant of ancillary jurisdiction effectively precluded most exercises of it.

2.6.B. Statutory Codification of Supplemental Jurisdiction

Congress responded to Finley in 1990 by enacting 28 U.S.C. § 1367. The supplemental jurisdiction statute retains the basic division described by the Supreme Court in Gibbs between the power of a court to entertain a pendent claim and the discretionary authority of a court to decline to exercise that power. However, in codifying supplemental jurisdiction, Congress also chose to incorporate several of the discretionary factors that warranted declining jurisdiction./19/  

The statute first delineates the power of the federal court to hear supplemental claims and claims against supplemental parties. Section 1367(a), which provides that “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” confers power to entertain supplemental jurisdiction in mandatory terms./20/   Rather than using Gibbs' “common nucleus of operative fact” standard, Section 1367(a) explicitly makes direct reference to the constitutional “case or controversy” requirement, signaling Congress’ intent to vest the federal courts with the full measure of supplemental jurisdiction permitted by the Constitution. Some post-enactment cases have indicated that the "common nucleus" and "case or controversy" tests are the same, but the trend is otherwise with three courts of appeals holding that Section 1367(a) extends supplemental jurisdiction to at least some permissive counterclaims./21/ The statute also expressly retains the doctrine of pendent party jurisdiction by mandating the inclusion of claims involving “the joinder or intervention of additional parties.”/22/

Section 1367(b) imposes some limitations of supplemental jurisdiction in cases in which original federal jurisdiction rests on diversity. In such cases, the statute codified the result in Kroger and does not permit supplemental jurisdiction over claims by plaintiffs against persons made parties under Rules 14, 19, 20 and 24 when doing so would destroy complete diversity. Yet, the Supreme Court recently interpreted Section 1367(a) and (b) broadly when the jurisdictional issue involved the amount in controversy requirement. In Exxon Mobil  Corporation v. Allapattah Services,/23/a class action, the Court decided that federal courts may exercise supplemental jurisdiction over class member claims which fail to satisfy the amount in controversy requirement if their claims are part of the same case or controversy presented by at least one plaintiff who alleges a sufficient amount in controversy. So long as the federal court has original jurisdiction over a claim made by at least one plaintiff, there is a “civil action of which the district courts have original jurisdiction,”/24/ to which supplemental claims may adhere./25/  The decision in Exxon Mobil is important to legal services attorneys because it holds that Section 1367(a) overrules Zahn v. International Paper Company,/26/  which held that each class member in a class action seeking to invoke diversity jurisdiction must meet the amount in controversy requirement./27/  In Exxon Mobil's companion case, Ortega v. Star-Kist Foods Inc., the Court reached the same conclusion in a non-class action case in which the plaintiffs were joined under Rule 20.  The Court found nothing in § 1367(b) that withdrew supplemental jurisdiction in either Exxon Mobil or Ortega,where plaintiffs were joined by Rule 23 and Rule 20, respectively./28/

Section 1367(c) sets forth the occasions in which a federal court may exercise its discretion not to hear a supplemental claim or add a supplemental party, despite the power of the court to do so. A federal court may decline to assert supplemental jurisdiction over a pendent claim if any of the following four circumstances specifically enumerated in Section 1367(c)(1)-(4) apply: “the claim raises a novel or complex issue of State law,” “the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,” “the district court has dismissed all claims over which it has original jurisdiction,” or “in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” The first three factors in Section 1367(c)(1)–(3) “are rephrased Gibbs factors.”/29/ The statute offers no guidance on the fourth ground for declining supplemental jurisdiction. The courts have accordingly used a range of factors to define this exception to supplemental jurisdiction,/30/ some resting principally on Gibbs' language of fairness, economy, comity, or convenience,/31/  even though these terms are not found in the statute./32/ Section 1367(c) applies equally to claims removed from state court./33/ 

The statute, then, has a framework that alternately uses mandatory commands and discretionary criteria for the exercise of supplemental jurisdiction. Section 1367(a) uses the term “shall,” indicating that once a supplemental claim is determined to be related to the federal claim within the court’s original jurisdiction such that they form the same case or controversy, the court must assert supplemental jurisdiction over the related claim. In contrast, the use of “may” in Section 1367(c) appears to confer on federal courts at least some discretion to decline to hear claims over which supplemental jurisdiction is potentially available. The circuits are split over the question of whether the word “may” in Section 1367(c) broadly incorporates the discretionary Gibbs factors or whether Section 1367(c) more narrowly sets forth the only bases for declining supplemental jurisdiction.

The Seventh Circuit has taken the former approach,/34/ followed by the First, Third, and D.C. Circuits./35/  In Executive Software North America Inc. v. U.S. District Court, in contrast, the Ninth Circuit held that the statutory structure adopted by Congress demonstrated its intent for Section 1367(c) “to provide the exclusive means by which supplemental jurisdiction can be declined by a court...."  "Accordingly, the court stated, "unless a court properly invokes a [S]ection 1367(c) category in exercising its discretion to decline to entertain pendent claims, supplemental jurisdiction must be asserted."/36/  The Ninth Circuit reasoned that, although subsections (c)(1)–(3) “appear to codify concrete applications of the underlying Gibbs values,” the statute “channels” their application and alters “the nature of the Gibbs discretionary inquiry."/37/  Once a court identifies one of the “factual predicates” corresponding to one of the Section 1367(c) categories, the exercise of discretion “is informed by whether remanding the pendent state claims comports with the underlying objective of most sensibly accommodat[ing] the values of ‘economy, convenience, fairness, and comity.’"/38/ 

In addition, the Executive Software court found that the “other compelling reasons” referred to in the Section 1367(c)(4) “catchall” subsection referred back to the circumstances identified in subsections (c)(1)–(3), thus requiring the court to balance the Gibbs discretionary values of economy, convenience, fairness, and comity. Nonetheless, the Ninth Circuit also found that the “exceptional circumstances” referred to in subsection (c)(4) meant that the court’s discretion should be employed only when the circumstances were “quite unusual.” This would require a district court to “articulate why the circumstances of the case are exceptional in addition to inquiring whether the balance of the Gibbs values provide compelling reasons for declining jurisdiction in such circumstances."/39/  The Ninth Circuit’s approach has been either expressly adopted or effectively utilized by the Second, Eighth, and Eleventh Circuits./40/ The Fifth Circuit appears to have adopted yet a different approach: balancing the Section 1367(c) statutory conditions against each other and then weighing the Gibbs common law factors./41/ 

The Supreme Court has not directly acknowledged this controversy./42/ The Court in City of Chicago v. International College of Surgeons observed that federal courts “can decline to exercise jurisdiction over pendent claims for a number of valid reasons.”/43/ “Accordingly,” the Court added, “we have indicated that ‘district courts [should] deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine.’”/44/ The Court flatly stated that “[t]he supplemental jurisdiction statute codifies these principles.”/45/

The Court has also addressed the applicability, in light of the Eleventh Amendment, of Sections 1367(a) and (d) in the context of claims against non-consenting states. In Raygor v. Regents of the University of Minnesota, the Court noted that Pennhurst had barred the adjudication of pendent state-law claims against non-consenting state defendants in federal court before the enactment of Section 1367./46/  The Court held that Section 1367(a) did not alter this principle, “even though nothing in the statute expressly excludes such claims.”/47/ The Raygor/48/ Court further held that Section 1367(d), which tolls the period of limitations for supplemental claims while they are pending in federal court and for thirty days after they are dismissed, does not apply to toll the period of limitations for state law claims asserted against non-consenting state defendants and dismissed on Eleventh Amendment grounds.

2.6.C. Tactical ConsiderationsWhether or Not to Raise Supplemental Claims

A threshold question for advocates is whether to join federal and transactionally related state law claims in federal or state court. A recent Kansas Supreme Court Case, Rhoten v. Dickson, suggests caution before reflexively filing in federal court./49/ In Rhoten, the plaintiff joined federal and related state law claims in federal court. The trial court granted the defendant's motion for summary judgment on the federal claim and the court dismissed the remaining state law claims pursuant to Section 1367(c). When the plaintiff refiled the state law claims in state court, the defendant moved to dismiss them on grounds of claim preclusion. The Kansas Supreme Court agreed, even though the plaintiff did not split its claims, the dismissal of the state claims was not a determination on the merits and the result left Section 1367(d) a dead letter. Were Rhoten reflective of the prevailing view of state courts,/50/ it is possible that federal courts would retain jurisdiction over state law claims to avoid the unfair application of claim preclusion, but there is no guarantee of this and advocates should consider state preclusion law when deciding the forum for anticipated litigation involving related federal and state law claims.

One response to this problem would be to file the federal claims in federal court and later file the transactionally related state law claims in state court. Advocates should ordinarily not do so; a judgment entered in one forum will usually preclude the undecided claims./51/ One can assert that the state law claims were not joined because the federal court would have exercised its discretion to decline jurisdiction over them. However, most state courts confronted with state law claims that were not joined (or attempted to be joined) in earlier federal court litigation have been unwilling to assume that federal courts would have refused to exercise pendent jurisdiction and have applied claim preclusion to bar litigation of the state law claims in state courts./52/ Rather, some state courts have refused to preclude litigation of state claims only when federal courts clearly would have declined to hear them as pendent claims for jurisdictional/53/ or discretionary reasons./54/ When these courts cannot conclude that the federal court would clearly have declined jurisdiction over the state claims, they apply claim preclusion./55/

____________________________________________________________________________________


1. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

2. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349 (1988) (citing Gibbs, 383 U.S. at 725).

3. In determining whether a federal claim is sufficiently substantial to confer pendent jurisdiction, the Supreme Court requires federal courts to determine whether the claim is “so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court.” Hagans v. Levine, 415 U.S. 528, 543 (1974).

4. Gibbs, 383 U.S. at 725. Such an expectation would turn on the plaintiff's desire to avoid losing omitted claims on grounds of claim preclusion. Consequently the “common nucleus of operative fact” test is commonly equated to the “transaction or occurrence” standard employed in several federal rules of civil procedure and in preclusion law.

5. The Supreme Court has refused to read Gibbs to allow supplemental jurisdiction over transactionally related claims which fail to satisfy Article III case or controversy requirements, such as standing or mootness.  DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 352 (2006).

6. Gibbs, 383 U.S. at 726.

7. Id.

8. See Rosado v. Wyman, 397 U.S. 397, 404 (1970).

9. Gibbs, 383 U.S. at 726.

10. Id. at 726–27.

11. Aldinger v. Howard, 427 U.S. 1 (1976).

12. Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

13. Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 372-73(1978).

14. Finley v. United States, 490 U.S. 545 (1989).

15. Id. at 551.

16. See Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).

17. The Supreme Court, however, has made clear that the context in which the ancillary claim is asserted is important. In Owen, a diversity case, plaintiff asserted a state-law claim against a nondiverse third-party defendant arising out of the same transaction or occurrence. Although the court assumed that federal jurisdiction over the claim would be constitutional, Section 1332(a) negated jurisdiction.

18. See generally 6 Charles A. Wright et al., Federal Practice and Procedure § 1422 (5th ed. 2008); Jones v. Ford Motor Credit Co., 358 F.3d 205, 210-13 (2d Cir. 2004) (summarizing pre-Section 1983 law). But see Ambromovage v. United Mine Workers of America, 726 F.2d 972, 990 (3d Cir.1984) (suggesting that some permissive counterclaims may be constitutionally joined).

19. 28 U.S.C. § 1367.

20. McLaurin v. Prater, 30 F.3d 982, 984 (8th Cir. 1994) (“The [supplemental jurisdiction] statute’s use of the word ‘shall’ . . . is a mandatory command.”).

21. See Achtman v. Kirby, McInerney and Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006); MCI Telecommunications Corporation v. Teleconcepts, Incorporated, 71 F.3d 1086, 1102 (3d Cir. 1995), cert. denied, 519 U.S. 815 (1996); Rodriguez v. Doral Mortgage Corporation, 57 F.3d 1168, 1175 (1st Cir. 1995). The First, Second and Seventh Circuits have held that the "case or controversy" requirement is broader than the common nucleus of operative fact standard and thus, does not align with the distinction between compulsory and permissive counterclaims. Global NAPS v. Verizon New England, Inc., 603 F.3d 71, 87-89 (1st Cir. 2010);  Jones v. Ford Motor Credit Co., 358 F.3d 205, 213, n.5 (2d Cir. 2004) (expressing uncertainty as to whether this constitutional limit was congruent with Gibb's "common nucleus" test, suggesting that it might be broader); Channell v. Citicorp National Services, 89 F.3d 379, 385 (7th Cir. 1996) (requiring only "[a] loose factual connection between the claims" to satisfy Section 1367(a)). See also Sparrow v. Mazda American Credit, 385 F. Supp. 2d 1063, 1067 (E.D. Cal. 2005).  While the issue has been addressed by academic commentators, it is presented squarely in a practical context: whether a federal court has supplemental jurisdiction over any permissive counterclaims.

22. 28 U.S.C. § 1367(a); see Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1181 (7th Cir. 1993). 

23. Exxon Mobil v. Allapattah Services, 545 U.S. 546 (2005).

24 28 U.S.C. § 1367(a).

25. Exxon Mobil, 545 U.S. at 559.

26. Zahn v. International Paper Co., 414 U.S. 291 (1973).

27. See 28 U.S.C. § § 1332(d)(2) , (6) (establishing $5 million amount in controversy requirement, aggregated among class members in class actions subject to Class Action Fairness Act).

28. Exxon Mobil, 545 U.S. at 560-61.

29. R. Hinkle, The Revision of 28 U.S.C. § 1367(c) and the Debate Over the District Court’s Discretion to Decline Supplemental Jurisdiction, 69 Tenn. L. Rev. 111, 120 (2001).

30. Compare Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008) (affirming decision to retain jurisdiction over state law claims, holding that the court was familiar with the case and it raised simple state law issues) with Hays County Guardian v. Supple, 969 F.2d 111, 125 (5th Cir. 1992), cert. denied, 506 U.S. 1087 (1993) (“exceptional circumstances” and “compelling reasons” existed to decline supplemental jurisdiction under Section 1367(c)(4) since deciding “state-law claims in federal court while identical claims are pending in state court would be a pointless waste of judicial resources”). 

31. See Gibbs, 383 U.S. at 726; Carnegie-Mellon, 484 U.S. at 350 (“[A] federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness and comity in order to decide whether to exercise jurisdiction over a case . . . .”).

32. In Carlsbad Technology v. HIF Bio, Inc., 129 S. Ct. 1862 (2009), the Supreme Court held that an order remanding state law claims under Section 1367(c) is subject to appellate review because such a remand is not one for lack of subject matter jurisdiction. Had such a remand been interpreted as one for lack of subject matter jurisdiction, rather than an exercise of discretion, 28 U.S.C. §§ 1447(c) and (d) would bar appellate review.

33. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357 (1988).

34. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993).

35. See O’Connor v. Commonwealth Gas, 251 F.3d 262, 272-73 (1st Cir. 2001); Rodriguez v. Doral Mortgage Corporation, 57 F.3d 1168, 1177 (1st Cir. 1995) (“the district court, in reaching its discretionary determination on the jurisdictional question, will have to assess the totality of the attendant circumstances”); Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (“Section 1367(c) . . . was intended simply to codify the preexisting pendent jurisdiction law, enunciated in Gibbs and its progeny . . . .”); Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910, 921 (D.C. Cir. 1996); Diven v. Amalgamated Transit Union and Local 689, 38 F.3d 598, 601 (D.C. Cir. 1994) (“Despite Congress’ use of ‘shall’ [in Section 1367(a)], the statute fairly exudes deference to judicial discretion—at least once the threshold determinations have been met and the court moves on to consider the exceptions.”).

36. Executive Software North America Inc. v. U.S. District Court, 24 F.3d 1545, 1556 (9th Cir. 1994) (citations omitted).

37. Id.

38. Id. at 1557 (citations and interior quotation marks omitted).

39. Id. at 1558.

40. See Itar-Tass Russian News Agency v. Russian Kurier Inc., 140 F.3d 442, 447 (2d Cir. 1998); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994); Palmer v. Hospital Authority, 22 F.3d 1559, 1569 (11th Cir. 1994).

41. Enochs v. Lampasas County, 641 F.3d 155, 159-60 (11th Cir. 2011).

42. For additional characterizations of the circuits’ treatment of the Gibbs supplemental jurisdiction decisions, see J. Corey, The Discretionary Exercise of Supplemental Jurisdiction Under the Supplemental Jurisdiction Statute, 1995 BYU L. Rev. 1263, 1288-95 (1995), and Hinkle, supra note 130, at 120-35.

43. City of Chicago v. International College of Surgeons, 522 U.S. 156, 172(1997).

44. Id. at 172–73 (quoting Carnegie-Mellon, 484 U.S. at 357) (further citations omitted).

45. Id. at 173.

46. Raygor v. Regents of the University of Minnesota, 534 U.S. 533, 540-41 (2002); see Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 120 (1984).

47. Raygor, 534 U.S. at 541–42.

48. Id. at 546–48. The Supreme Court further noted that “serious doubts about the constitutionality” would be raised if Section 1367(d) did in fact toll state claims against state defendants when those claims were dismissed on Eleventh Amendment grounds. Id. at 542. The Court’s ruling did not reach “the application or constitutionality of Section 1367(d) when a State consents to suit or when a defendant is not a State.” Id. at 547. The tolling provision does, however, apply to suits against counties. Jinks v. Richland Co., 538 U.S. 456, 465-67 (2003).

49. Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786, 800 (2010).

50. Rhoten is an outlier. A recent law review article assembled substantial authority to the contrary. See Patricia J. Kluin, Comment, Kansas' Rationale is Dust in the Wind: Why the Dismissed Supplemental Claim Exception to the General Rule of Claim Preclusion is Necessary, 50 Washburn L.J. 511, 525 n.148 (2011).

51. Restatement (Second) of Judgments § 25 cmt. e (1982.)

52See, e.g., Milone v. Nissan Motor Corporation, 594 A.2d 642, 644 (N.J. Super. Ct. App. Div. 1991).

53. E.g., Mayronne v.Vaught, 655 So. 2d 390, 392–93 (La. Ct. App. 1995); Craig v. County of Los Angeles, 221 Cal. App. 3d 1294, 1300 (Cal. Ct. App. 1990).

54. E.g., Morales v. Parish of Jefferson, 54 So. 3d 669, 674 (La. Ct. App. 2010); Toomey v. Blum, 54 N.Y.2d 669, 426 N.E.2d 181, 442 N.Y.S.2d 774 (1981); see Merry v. Coast Community College District, 158 Cal. Rptr. 603, 610 (Ct. App. 1979); Pierson Sand and Gravel, Incorporated v. Keeler Brass Co., 596 N.W.2d 153, 157-59 (Mich. 1999); Beutz v. A.O. Smith Harvestore Products, Incorporated, 431 N.W.2d 528, 532 (Minn. 1988).

55. E.g., Mancuso v. Kinchia, 60 Mass. App. Ct. 558, 566-67 (Mass. 2004); Berg v. Berg, 2008 Tex. App. LEXIS 2108 *10-14 (Tex. Mar. 28, 2008); Penn v. Iowa State Board of Regents, 577 N.W.2d 393, 401 (Iowa 1998) ; Anderson v. Phoenix Investment Counsel Incorporated, 440 N.E.2d 1164, 1168–69 (Mass. 1982); Rennie v. Freeway Transportation, 656 P.2d 919, 924 (Or. 1982).

Updated 2013 by Jeffrey S. Gutman

2.7 Removal Jurisdiction

Updated 2015 by Jeffrey S. Gutman

In addition to motions to change venue, removal serves as a device for defendants to avoid the plaintiff's choice of forum. Sections 1441 and 1442 of Title 28 of the U.S. Code cover the removal of cases from state court to federal court. Section 1446, which was substantially amended by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, sets forth the procedure for removal and Section 1447 deals with post-removal procedure, including remands to state court.

2.7.A. General Removal28 U.S.C. § 1441

It is useful to remember, as the Fourth Circuit observed, that “[r]emoval statutes do not create jurisdiction. They are instead a mechanism to enable federal courts to hear the cases that are already within their original jurisdiction.”/1/  Removal provides a federal forum to defendants wishing to litigate federal claims in federal rather than state court and to defendants in diversity cases filed in the plaintiff's home state court. Because removal jurisdiction requires that the case invoke original federal jurisdiction, the discussion in Chapter 2.3 of federal court jurisdiction is helpful in understanding principles of removal jurisdiction.

The key provision of the principal federal removal statute, 28 U.S.C. § 1441(a), authorizes a defendant to remove from state court to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction ....”/2/  Section 1441(a), in effect, requires federal courts considering removal petitions to decide whether they could have initially exercised jurisdiction over the case./3/  With respect to federal question cases, for instance, “[t]he well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction.”/4/  Thus, a defendant may not remove based on their federal defenses or a federal counterclaim./5 / In addition, the plaintiff may take advantage of the well-pleaded complaint rule and prevent possible removal by omitting federal claims. The Supreme Court has noted that, “[t]he rule makes the plaintiff master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”/6 / However, in an exception to the well-pleaded complaint rule, removal may be permitted in those comparatively rare cases where the plaintiff’s state-law claim is completely preempted by federal law./7 /

If federal question or one of the more exotic bases for federal jurisdiction do not apply, general removal jurisdiction must be founded upon diversity. Section 1331 and interpretive common law will govern the removal of diversity cases. However, in a significant limitation to original diversity jurisdiction, removal is permitted only when none of the defendants are citizens of the forum state./8 / All circuits but one, the Eighth, have held that this requirement is not jurisdictional and can be waived if not the subject of a timely motion to remand./9/ The Federal Courts Jurisdiction and Venue Clarification Act now codifies the common law principles that, in multi-defendant cases, all defendants must join in a petition for removal./10/ Fraudulently joined defendants are generally disregarded for purposes of determining diversity or unanimity for removal./11/

Removal jurisdiction does not expand the limitations elsewhere imposed on original federal jurisdiction. For example, the All Writs Act,/12 / which allows federal courts to issue writs in aid of their jurisdiction, but which does not itself provide an independent grant of federal jurisdiction, cannot provide the basis for removal./13/ Similarly, principles of “ancillary jurisdiction” cannot confer the original jurisdiction necessary for removal, because the assertion of jurisdiction over ancillary claims depends initially on original jurisdiction over a case or controversy./14/ In addition, removal otherwise permitted by Section 1441(a) may be barred by Congress if such prohibitions on removal are expressly stated./15/

Under Section 1441(a), the removed “civil action” must also have been pending in a state “court.”/16/ The federal courts are divided on whether removal can extend to proceedings before administrative agencies. Most have applied a functional test, allowing removal in cases when a state agency functions like a court./17/ Other courts have rejected the use of such a test because they found the statutory term “state court” to be unambiguous./18/ 

The Court recently decided two important cases relating to removal and the Eleventh Amendment. In Wisconsin Department of Corrections v. Schacht, the Court held that the presence of an Eleventh Amendment-barred claim against a State defendant in an otherwise removable case did not deprive the federal court of the removal jurisdiction that would otherwise exist./19/ The Court noted that the Eleventh Amendment “does not automatically destroy jurisdiction” but instead “grants the State a legal power to assert a sovereign immunity defense,” which can be waived./20/ Thus, a State’s successful assertion of an Eleventh Amendment defense after removal prevents the federal court from hearing the barred claim, but it does not destroy removal jurisdiction over the remaining claims, which the court may proceed to hear./21/

In addition, noting its long-standing acknowledgment of the principle that a State’s voluntary appearance in federal court constitutes a waiver of immunity, the Supreme Court held in Lapides v. Board of Regents that a State waived its Eleventh Amendment immunity when it removed a case from state court to federal court./22/ The Court’s holding, however, was limited to a situation in which a state statute waived sovereign immunity from state law suits in state court and in which no valid federal claim was asserted against the State./23/ The Court did not reach the question whether removal of federal claims/24/ or state claims over which the state did not waive sovereign immunity in state courts abrogated a State’s Eleventh Amendment immunity./25/

2.7.B. Federal Officer Removal28 U.S.C. §  1442

Under 28 U.S.C. § 1442(a)(1), the United States, any federal agency, or any officer of the United States or agency (or person acting under that officer) being sued in their individual or official capacity may remove to federal court any civil action arising from “any act under color of such office.” The statute thus authorizes removal to federal court of state court actions against federal agencies and individuals who are acting in the course of their employment, by or on behalf of the federal government./26/

Federal agencies and officers may, therefore, remove cases under Section 1442 that other defendants could not under Section 1441: “The special right of removal conferred on federal officers by statute has been held to be absolute, and may be exercised even though the action might not have been brought initially in a federal court.”/27/ Removal is proper when none of the other defendants in the action joins in the removal notice or when the federal officer is sued as a third-party defendant rather than as an original defendant./28/

Most significant, federal officers may only remove to federal court state cases in which they have a federal defense, such as absolute or qualified immunity./29/ Without such a federal defense, the Supreme Court declined to interpret Section 1442 to permit removal of cases arising solely under state law./30/ Moreover, federal officers must establish that the state suit is “for an act under color of office.”/31/ To do so, the officer must show a “‘causal connection’ between the charged conduct and asserted official authority.”/32/ Such a connection usually serves as the predicate for a colorable immunity defense./33/ Section 1442, therefore, allows removal only when the federal defendant’s act essentially was ordered or demanded by federal authority, thereby giving rise to the federal defense required by the statute./34/

2.7.C. Removal of Joined State-Law Claims

Should attorneys for plaintiffs file claims in state court that arise under both federal and state law, defendants may remove all claims. The Supreme Court has suggested that “t]he presence of even one claim ‘arising under’ federal law is sufficient to satisfy the requirement that the case be within the original jurisdiction of the district court for removal.”/35/ The presence of related state law claims does not alter the fact that pleaded federal claims constitute “civil actions” within the original jurisdiction of the federal courts for purposes of removal./36/

Federal courts may exercise removal jurisdiction over state law claims joined with removed federal claims under the doctrine of supplemental jurisdiction. The codification of supplemental jurisdiction principles in 28 U.S.C. § 1367, the Court has held, “applies with equal force to cases removed to federal court as to cases initially filed there; a removed case is necessarily one ‘of which the district courts ... have original jurisdiction.’”/37/ Thus, when joined state law claims meet the statutory standards of supplemental jurisdiction, federal courts may exercise removal jurisdiction over both the state and the federal claims.

The Federal Courts Jurisdiction and Venue Clarification Act has clarified what a federal court must do when a federal question claim is joined by a state law claim that is not within the original or supplemental jurisdiction of the federal court. In such case, the entire case may be removed and the district court must then sever and remand the state law claims./38/ This newly drafted provision eliminates the constitutional and interpretive difficulties presented in its predecessor's  separate and independent claim language.

2.7.D. Removal Procedure

The statutory procedures for removal are to be strictly construed./39/ A defendant removing a civil action must file in the U.S. district court for the district and division in which the state proceeding is pending a “notice of removal” that contains “a short and plain statement of the grounds for removal” and that attaches the process, pleadings, and orders served upon the defendant in the action./40/ The notice of removal must generally be filed within thirty days. The Supreme Court has clarified what triggers the thirty days to run:

First, if the summons and complaint are served together, the 30-day period for removal runs at once. Second, if the defendant is served with the summons but is furnished with the complaint sometime after, the removal period runs from the receipt of the complaint. Third, if the defendant is served with the summons and the complaint is filed in court, but under local rules, service of the complaint is not required, the removal period runs from the date the complaint is made available through filing. Finally, if the complaint is filed in court prior to any service, the removal period runs from the service of the summons./41/

The thirty days does not being running upon receipt of a faxed courtesy copy of a complaint, unaccompanied by formal service./42/

In a case not originally removable, the defendant may remove to federal court within thirty days of receiving information in an “amended pleading, motion, order or other paper” which allows the defendant to “ascertain ... that the case is one which is or has become removable ....”/43/ The Federal Courts Jurisdiction and Venue Clarification Act has resolved a circuit court split over the so-called “last-served defendant rule.” Under the new provision, each defendant has thirty days to remove, but if the defendants are served at different times, an earlier-served defendant which did not timely remove, may consent to a removal filed by a later-served defendant./44/

In cases founded upon diversity jurisdiction, removal is not permitted more than one year after commencement of the action unless the court finds that the plaintiff has  “acted in bad faith in order to prevent a defendant from removing the action./45/  Removal is effected when, promptly after filing the notice of removal with the federal court, the defendant files a copy with the clerk of the state court and gives written notice to all adverse parties./46/

2.7.E. Remands28 U.S.C. § 1447(c)

28 U.S.C. § 1447(c) provides that a motion to remand on grounds other than subject matter jurisdiction must be filed within thirty days of removal. This implies that a motion to remand on subject matter jurisdiction grounds may be filed at any time. The statute further provides that,“[i]f at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.”/47/ Removed civil actions that could not originally have been filed in federal court must be remanded to state courts. The district court has discretion to enter an order awarding attorney’s fees when remanding a removed case to state court under Section 1447(c), unless the removing party has “an objectively reasonable basis for removal.”/48/ Federal courts have a general non-statutory power to remand pendent state claims besides the power to remand cases under the removal statutes. The Court in Carnegie-Mellon University v. Cohill held that federal courts possessing discretion to hear pendent state law claims may remand those claims to state court instead of dismissing them outright./49/

An order denying a motion to remand is not a final judgment and is, therefore, not reviewable until after final judgment, unless certified pursuant to 28 U.S.C. § 1292(b)./50/ Whether an order granting a motion to remand is appealable presents a more difficult question. Although Section 1447(d) quite clearly provides that, with one exception, a remand order is not reviewable on appeal, the Court has not adopted that reading. Instead, the Court has held that "[Section] 1447(d) must be read in pari materia with [Section]  1447(c), thus limiting the remands barred from appellate review by [Section] 1447(d) to those that are based on a ground specified in [Section] 1447(c)."/51/ There is no dispute that, when a district court remands a properly removed case because it lacks subject-matter jurisdiction, the order is unreviewable./52/ Remands based on a procedural defect in the removal petition are not reviewable./53/ When, however, a court remands state law claims as a matter of discretion under Section 1367(c), such an order is not based on the lack of subject matter jurisdiction and is, therefore, reviewable./54/ The Court has not yet quite decided, however, whether an appellate court can look behind the district court's "colorable" characterization of why the motion to remand was granted./55/

 ____________________________________________________________________________________


1. Lontz v. Tharp, 413 F.3d 435, 444 (4th Cir. 2005) (citation omitted).

2. Defendant is defined narrowly. A state-court plaintiff may not remove a counterclaim, which, had it been an independent action, would have been subject to original federal jurisdiction. Shamrock Oil and Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941). Most courts have held that third-party defendants are not entitled to remove under Section 1441. Palisades Collections LLC v. Shorts552 F.3d 327, 333 (4th Cir. 2008); Casul v. Modell's NY II, Inc., No. 04 Civ. 7204, 2004 U.S. Dist. LEXIS 19604, *5-6, 2004 WL 2202581, at *1-2 (S.D.N.Y. Sept. 30, 2004); Sanford v. Premier Millwork and Lumber Company, 234 F. Supp. 2d 569, 571 (E.D. Va. 2002); Johnston v. St. Paul Fire and Marine Insurance Company, 134 F. Supp. 2d 879 (E.D. Mich. 2001); but see Mignogna v. Sair Aviation, Incorporated, 679 F. Supp. 184, 189 (N.D.N.Y. 1988); Soper v. Kahn, 568 F. Supp. 398, 402 (D. Md. 1983); Ford Motor Credit Company v. Aaron-Lincoln Mercury, Incorporated, 563 F. Supp. 1108, 1112-14 (N.D. Ill. 1983).

3. See City of Chicago v. International College of Surgeons, 522 U.S. 156, 163 (1997). The Supreme Court previously treated the removal jurisdiction of the federal courts as derivative; the Court reasoned that federal courts could entertain cases removed from state courts only if the state court originally had subject-matter jurisdiction of the suit. See Lambert Run Coal Company v. Baltimore and Ohio Railroad, 258 U.S. 377, 382 (1922). Congress ended this practice in 1986 by amending  28 U.S.C. § 1441(e)  to provide that the federal court to which the action is removed “is not precluded from hearing and determining any claim” in the action because the state court “did not have jurisdiction over that claim.” Thus, federal courts may now exercise removal jurisdiction in cases in which they have subject matter jurisdiction but the state courts do not.

4. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 n.9 (1983); see also Holmes Group Incorporated v. Vornado Air Circulation Systems, 535 U.S. 826, 830 n.2 (2002).

5. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998) (affirmative preclusion defense resting on prior federal judgment is not a basis for removal); Holmes Group, 535 U.S. at 831-32 (rejecting argument that counterclaim should be regarded as part of a well-pleaded complaint because it would "radically expand" removal jurisdiction).

6. Caterpillar Incorporated v. Williams, 482 U.S. 386, 392 (1987).  An “independent corollary” to the well-pleaded-complaint rule is the “artful pleading” doctrine, which holds that “‘a plaintiff may not defeat removal by omitting to plead necessary federal questions.’” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (quoting Franchise Tax Board, 463 U.S. at 22).  If the federal court determines that the plaintiff has “artfully pleaded” claims in this manner, it may allow removal even though no federal question appears on the face of the complaint. Id. The artful-pleading doctrine generally allows removal in cases where federal law completely preempts state-law claims pleaded by the plaintiff. Id.

7. Beneficial National Bank v. Anderson, 539 U.S. 1, 9 (2003); see also Aetna Health Care Incorporated v. Davila, 542 U.S. 200 (2004) (ERISA preempts state law tort claims against ERISA-regulated health providers; defendants may therefore remove state claims).

8 28 U.S.C. § 1441(b) ; see Lincoln Property Company v. Roche, 546 U.S. 81, 88 (2005); Caterpillar Incorporated v. Lewis, 519 U.S. 61, 68 (1996) (the “complete diversity” requirement of Section 1332(a), which mandates that the citizenship of each plaintiff must be diverse from the citizenship of each defendant, applies to removal jurisdiction based on diversity); but see 28 U.S.C. § 1453(b) (defendant in class action filed in state court may remove the action “without regard to whether any defendant is a citizen of the State in which the action is brought” and removal may be accomplished without the consent of all the defendants).

9. Lively v. Wild Oats Markets, Incorporated, 456 F.3d 933, 938-42 (9th Cir. 2006), cert. denied, 549 U.S. 1207 (2007).

10. 28 U.S.C. § 1441(b)(2)(A).  

11. Whitaker v. Am. Telecasting, Incorporated, 261 F.3d 196, 207 (2d Cir. 2001); Heritage Bank v. Redcom Laboratories, Incorporated, 250 F.3d 319, 323 (5th Cir. 2001).

12. All Writs Act, 28 U.S.C. § 1651(a).

13. Syngenta Crop Protection Incorporated v. Henson, 537 U.S. 28, 33 (2002).

14. Id. at 33-34.

15. Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691, 694 (2003). Certain state-court civil actions, such as those arising under state workers’ compensation laws or the federal Violence Against Women Act of 1994, for example, expressly may not be removed to federal court. 28 U.S.C. §§  1445(c), (d).

16. McDowell v. Wetterau, Incorporated, 910 F. Supp. 236 (W.D. Pa. 1995) (removal allowed from state justice-of-the-peace court); but see Williams-Willis v. Carmel Financial Corporation, 139 F. Supp. 2d 773, 775 (S.D. Miss. 2001) (removal not allowed from tribal court); DeCoteau v. Sentry Insurance Company, 915 F. Supp. 155 (D. N.D. 1996) (same).

17. See, e.g., Volkswagen de Puerto Rico Incorporated v. Puerto Rico Labor Relations Board, 454 F.2d 38, 44 (1st Cir. 1972); Maryland Commissioner of Financial Regulation v. Western Sky Financial LLC, Civ. No. WDQ-11-0735, 2011 WL 4894075, *4 (D. Md. Oct. 12, 2011) (applying the functional test, but finding that it was not met); Gottlieb v. Lincoln National Life Insurance Company, 388 F. Supp. 2d 574 (D. Md. 2005); Civil Rights Division ex rel. Joseph v. Asplundh Tree Expert Company, No. 08-60493-CIV, 2008 WL 2616154, *5 (S.D. Fla. May 15, 2008) (finding that the functional view goes byond the statutory language of Section 1441, but applying the functional test in absence of guidance from Eleventh Circuit); BellSouth Telecommunications v.Vortec Telecommunications, 185 F. Supp. 2d 1280 (N.D. Fla. 2002). The Seventh Circuit’s use of a functional test in Floeter v. C.W. Transport Incorporated, 597 F.2d 1100, 1102 (7th Cir. 1979), was questioned by the Circuit in Wirtz Corp. v. United Distillers and Vintners North America Incorporated, 224 F.3d 708, 713 (7th Cir. 2000) (stressing need to examine Floeter decision in greater detail and limiting its holding to its facts).

18. See, e.g., Porter Trust v. Rural Water Sewer and Solid Waste Management District No. 1, 607 F.3d 1251, 1254-55 (10th Cir. 2010); Oregon Bureau of Labor and Industries ex rel. Richardson v. U.S. West Communications Incorporated, 288 F.3d 414, 419 (9th Cir. 2002); Sun Buick, Incorporated v. Saab Cars USA, Incorporated, 26 F.3d 1259, 1261-67 (3rd Cir. 1994); Johnson v. Albertson's, LLC, 3:08CV236/MCR/MD, 2008 U.S. Dist. LEXIS 602302008, *3-5 WL 3286988, *1 (N.D. Fla. Aug. 6, 2008).

19. Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 391-92 (1998).

20. Id. at 389 (citations omitted). The Supreme Court also rejected the argument that a remand was appropriate under 28 U.S.C. § 1447(c). If an Eleventh Amendment defense pertains to subject-matter jurisdiction, Section 1447(c) requires a remand only when the entire case is without subject-matter jurisdiction, not when jurisdiction is lacking over only one claim within the case. Id. at 391–92.

21. Id. at 392–93.

22. Lapides v. Board of Regents, 535 U.S. 613, 624 (2002).

23. Id. at 617. See Omosegbon v. Wells, 335 F.3d 668, 673-74 (7th Cir. 2003); Bank of Lake Tahoe v. Bank of America, 318 F.3d 914, 916–19 (9th Cir. 2003) (Nevada waived Eleventh Amendment immunity from state-law claims by joining in removal to federal court).  Plaintiff’s Section 1983 damages claim against the State was barred since a State was not a “person” for purposes of such a claim. Lapides v. Board of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Michigan Department of State Police, 491 U.S. 58, 66 (1989)). The Lapides Court accordingly noted that the U.S. district court might remand the state-law tort claims against the State to state court under the supplemental jurisdiction standards referred to in 28 U.S.C. § 1367(c)(3). Lapides, 535 U.S. at 618, 624.

24. Since Lapides, several Courts of Appeal have extended its holding and found that states waive their Eleventh Amendment immunity from suit over federal claims as well when they remove such claims to federal court. Lombardo v. Pennsylvania, 540 F.3d 190, 198 (3rd Cir. 2008) (state waives immunity from suit but retains immunity from liability); Meyers v. Texas, 410 F.3d 236, 240-50 (5th Cir. 2005), cert. denied, 550 U.S. 817 (2007); Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004); Estes v. Wyoming Department of Transportation, 302 F.3d 1200, 1206 (10th Cir. 2002).

25. Whether removal of state-law claims over which the state had not waived sovereign immunity in state court waives such immunity seems to have divided the courts. Embury, 361 F.3d at 566 (implicitly finding a waiver); compare Stewart v. North Carolina, 393 F.3d 484, 490-91 (4th Cir. 2005) (finding no waiver of immunity over state claims to which it would have been immune in state court); see also Meyers, 410 F.3d at 249-50 (criticizing Stewart).

26. The statute also permits removal by any person acting under the authority of a federal officer. For an interesting recent decision interpreting this provision, see Watson v. Philip Morris Companies551 U.S. 142 (2007) (holding that cigarette manufacturer could not use § 1442(a)(1) to remove claims of false advertising on the grounds that it was heavily and actively regulated by the Federal Trade Commission; statute requires delegation of power or authority). See also Isaacson v. Dow Chemical, 517 F.3d 129 (2d Cir. 2008) (finding chemical companies that produced Agent Orange are persons acting under color of federal office); Kaye v. Southwest Airlines Co., No. 3:05-CV-0450-D, 2005 U.S. Dist. LEXIS 18389, 2005 WL 2074327 (N.D. Tex. Aug. 29, 2005) (airline could not use provision to remove because its collection of certain fees was not sufficiently controlled by the government).

27. 14C Charles A. Wright et al., Federal Practice And Procedure § 3727, at 169 (5th ed. 2008).

28. Id.

29. In Jefferson County v. Acker, 527 U.S. 423 (1999), federal judges were permitted to remove to federal court collection actions filed by the county in state court seeking payment of an occupational license fee. The judges asserted an ultimately unsuccessful federal defense on the grounds of intergovernmental tax immunity. See also Isaacson v. Dow Chemical, 517 F.3d 129, 138-40 (2d Cir. 2008) (holding that the defense does not have to be an immunity defense in case involving government contract).

30. Mesa v. California, 489 U.S. 121, 139 (1989).

31. 28 U.S.C. § 1442(a)(3).

32. Willingham v. Morgan, 395 U.S. 402, 409 (1969) (citation omitted). Such a connection was established by the federal judges in Jefferson County whose legal theory was that the county’s enforcement action was grounded upon their being engaged in the occupation of federal judges.

33. See Mesa v. California, 489 U.S. 121, 133 (1989) (federal employees prosecuted for crimes involving vehicles had no immunity defense and therefore did not act "under color of such office").

34. Wright et al., supra note 183, at 146–57.

35.Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 386 (1998) (citing College of Surgeons, 522 U.S. at 163–66). See also Exxon Mobil Corporation v. Allapattah Services, Inc., 545 U.S. 546, 563 (2005) (“College of Surgeons stressed that a district court has original jurisdiction of a civil action for purposes of § 1441(a) as long as it has original jurisdiction over a subset of the claims constituting the action.”) (emphasis supplied).

36. Exxon Mobil, 545 U.S. at 563 (citing College of Surgeons, 522 U.S. at 166).

37. City of Chicago v. International College of Surgeons, 522 U.S. 156, 165 (1997) (citing 28 U.S.C. § 1367(a)) (further citation omitted).

38. 28 U.S.C. § 1441(c).

39. Syngenta Crop Protection Inc. v. Henson, 537 U.S. 28, 32 (2002).

40. 28 U.S.C. § 1446(a). In Dart Cherokee Basin Operating Company v. Owens, 135 S. Ct. 547, 554 (2014), the Supreme Court held that a notice of removal need only plausibly state a basis for federal jurisdiction. It need not include evidence that jurisdictional requirements, such as the amount in controversy, are met.

41. Murphy Brothers. v. Michetti Pipe Stringing Incorporated, 526 U.S. 344, 354 (1999) (interpreting what is now 28 U.S.C. § 1446(b)(1).

42Murphy Brothers v. Michetti Pipe Stringing Incorporated, 526 U.S. 344 (1999). The “initial pleading” in the statute refers not only to the complaint but also to any pleading “contain[ing] sufficient information to enable the defendant to intelligently ascertain the basis for removal.” Whitaker v. American Telecasting Incorporated, 261 F.3d 196, 203 (2d Cir. 2001) (quoting Brooklyn Hospital Center v. Diversified Information Technologies Incorporated, 133 F. Supp. 2d 197, 201 (E.D.N.Y. 2001)). 

43. 28 U.S.C. § 1446(b)(3). See, e.g., Eyak Native Village v. Exxon Corporation, 25 F.3d 773, 779 (9th Cir. 1994), cert. denied, 513 U.S. 1102 (1995) (plaintiffs’ reply brief, filed two years after commencement of action in state court, set forth removable federal claim which triggered thirty-day removal period).

44. 28 U.S.C. § 1446(b)(2)(B), (C).

45. 28 U.S.C. § 1446(c)(1). The Federal Courts Jurisdiction and Venue Clarification Act of 2011, P.L. 112-63, added provisions relating to ascertaining the amount in controversy in diversity cases. 28 U.S.C. § 1446(c)(2).

46. Id. § 1446(d).

47. Id. § 1447(c).

48. Martin v. Franklin Capital Corporation, 546 U.S. 132, 141 (2005). 

49. Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988).

50Neal v. Brown, 980 F.2d 747, 748 (D.C. Cir. 1992).

51. Carlsbad Technology v. HIF Bio, Inc., 556 U.S. 635, 638 (2009)

52. Things Remembered v. Petrarca, 516 U.S. 124, 127-28 (1995) (interpreting prior version of statute); Cook v. Wikler, 320 F.3d 431, 435-39 (3d Cir. 2003).  

53. Powerex Corp. v. Reliant Energy Services, 551 U.S. 224, 231 (2007).

54. Carlsbad Technology, 556 U.S. at 638 (although several concurring Justices suggested that this area was ripe for revisiting in an appropriate case).

55Powerix Corp., 551 U.S. at 231.

Updated 2015 by Jeffrey S. Gutman

2.8 Abstention—Discretion to Decline Jurisdiction

Updated 2013 by Gregory Bass, 2015 by Jeffrey S. Gutman

Federal courts have a “virtually unflagging obligation” to exercise the jurisdiction vested in them by Congress. /1/  Nonetheless, the Supreme Court has identified certain important countervailing interests that have justified the development of doctrines under which federal courts have discretion to decline to exercise jurisdiction./2/ These abstention doctrines allow federal courts to defer to state courts and state judicial proceedings as the basis for refusing to exercise jurisdiction. Although the abstention doctrines have different characteristics and will be discussed separately, the Court has observed that the “various types of abstention are not rigid pigeon holes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes.”/3/

2.8.A. The Younger Doctrine--Equitable Abstention

2.8.A.1. Doctrinal Foundations

The Supreme Court limited the ability of federal courts to enjoin or otherwise to interfere with state judicial proceedings in Younger v. Harris and subsequent decisions./4/ In Younger, plaintiffs sought a federal injunction against a state criminal prosecution on the ground that the state statute alleged to have been violated was unconstitutionally vague. The Court held that such an injunction could be granted only in extraordinary circumstances to prevent immediate irreparable injury. This standard was not met when the federal plaintiff has a defense in the state proceeding. Such a defense was regarded as an adequate remedy at law even when the pendency of the criminal prosecution is alleged to chill First Amendment rights incidentally. The Court held that the result was also commanded by principles of federalism, comity, and equality.

Recognizing that, in some circumstances, state court defendants should not be subjected to a criminal trial, the Younger Court established some exceptions to its broad policy of nonintervention. When state court criminal prosecutions are brought in bad faith or for the purpose of harassment (such as repeated prosecutions without any hope of ultimately securing a conviction), federal equitable principles justify intervention./5/ The Court explained that there might also be “extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment."/6/ The Court in Younger further noted the possibility of exception in cases involving “a statute [that] might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.”/7/

Although the case itself arose as a suit to enjoin a pending state criminal proceeding, the Younger doctrine has expanded substantially. In a companion case, the Court held that declaratory judgment actions were also barred when injunctions against pending state criminal proceedings were unavailable./8/ The Court has further expanded Younger beyond state court criminal proceedings. In Huffman v. Pursue Limited, the Court applied Younger to an attempt to enjoin a state court nuisance proceeding based on alleged violations of state obscenity statutes./9/ Noting that the statutes were closely related to, and in aid of, criminal statutes, the Court held that abstention was required. The Court has regarded as open the issue of whether Younger considerations apply to all civil proceedings./10/ However, the Court has applied Younger to civil cases in which the state was a party in civil enforcement proceedings,/11/and to civil proceedings involving important state interests in which the state was not a party, but where the state court’s ability to exercise a particular judicial function was at issue. /12/

In addition to expanding Younger from criminal to civil proceedings in which the state had an important interest, the Court has applied this abstention doctrine to pending state administrative proceedings. In Middlesex County Ethics Committee v. Garden State Bar Association, the Court relied on the Younger doctrine to deny a requested federal injunction against state bar disciplinary proceedings./13/ The Court justified that decision, in part, on the close relationship between lawyer disciplinary proceedings and the supervisory role played by the state courts. In addition, in Ohio Civil Rights Commission v. Dayton Christian Schools, Incorporated, a sectarian school, the respondent in a state administrative proceeding involving alleged gender-based employment discrimination, unsuccessfully sought a federal injunction against the pending proceeding on First Amendment grounds./14/ In applying Younger, the Court emphasized the important state interest in rooting out employment discrimination, and the school’s opportunity to raise the First Amendment claim in the administrative proceeding, to justify its refusal to permit the district court to entertain suits challenging the validity of administrative enforcement proceedings on these grounds.
 
Some courts have since addressed the Dayton Christian Schools extension of Younger abstention to civil administrative cases in terms of whether the state proceeding is remedial or coercive./15/ The Supreme Court, however, has rejected the coercive/remedial dichotomy as unnecessary and unhelpful given the "susceptibility of the designations to manipulation."/16
 
In its decision in New Orleans Public Service Incorporated v. Council of City of New Orleans, the Supreme Court balked at extending Younger abstention beyond nonjudicial state proceedings.  In a Section 1983 challenge to the operation of a city council utility rate order on the grounds of federal preemption, the Court noted that, “it has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action.”/17/ To the contrary, the Court stated, “[s]uch a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.”/18/ Analyzing the city council’s rate-making proceeding and the subsequent state court challenge to it, the Court determined that the rate-making decision itself was a completed legislative action and that the state court review was not an extension of the legislative process. Federal court relief, accordingly, would not represent “the interference with ongoing judicial proceedings against which Younger was directed.”/19/

Most recently, in Sprint Communications, Inc. v. Jacobs,/20/ the Supreme Court confirmed that the Younger exception extends only to the three categories of proceedings listed in NOPSI -- state criminal prosecutions, civil enforcement proceedings, and "civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions."/21/ Citing Middlesex, the Court clarified that the second category involves state enforcement actions that are "akin to" criminal prosecutions./22/ Such cases generally feature a state actor initiating the state proceeding to sanction the federal court plaintiff who challenges it./23/

2.8.A.2. The Three-Part Test for Applying Younger

A number of federal courts have adopted, in slightly varying formulations, a three-part threshold test derived from Middlesex County Ethics Committee for assessing the propriety of invoking Younger./24/ Under this analysis, absent extraordinary circumstances inherent in the exceptions stated in Younger, abstention is generally proper when three standards are met: (1) there are ongoing state adjudicative proceedings, which (2) implicate important state interests, and which (3) provide an adequate opportunity to raise the plaintiff’s federal claims./25/ Sprint, however, has recently rejected this approach. The Court instead held that the Middlesex factors are to be considered only when the case falls within one of the three NOPSI categories./26/ Given the clarification of this complex area of the law provided in Sprint, advocates facing a Younger issue should first research post-Sprint cases in their circuit.

These factors have generated varying amounts of case law in the lower courts. We examine them in reverse order, addressing first those issues most likely to occur in litigation pursued by legal services advocates. With respect to the third Middlesex factor, a key assumption of the Younger doctrine is that plaintiffs should be able to assert federal defenses to a state proceeding in the course of that proceeding./27/ If the underlying state proceedings do not afford plaintiffs a meaningful opportunity to present their federal claims, then abstention is not appropriate./28/ Thus, in Dayton Christian Schools, a question arose as to whether the federal court plaintiffs could have raised their First Amendment defense in the course of the state proceeding./29/ The Court assumed that they could not, but it nonetheless observed that the school could have raised its federal claims in the state court appeal of any state administrative orders./30/ 

Many lower federal court decisions have since hinged their Younger abstention analyses upon finding the state forum to be an adequate outlet for the raising of federal claims. For example, in affirming abstention in a suit seeking an injunction against the prosecution of a state attorney discipline complaint, the Sixth Circuit held that the state proceedings gave adequate opportunities for the plaintiff to raise his constitutional challenges to the grievance procedures./31/ The court noted that, even if the attorney disciplinary board could not declare a rule of professional conduct unconstitutional, the board could still refuse to enforce the rule or otherwise narrowly construe it./32/ Similarly, in another challenge to lawyer disciplinary proceedings, the Ninth Circuit found Younger to be satisfied, notwithstanding that the state constitution precluded the bar from considering federal constitutional claims, because discretionary state judicial review was available./33/

The adequate state forum factor also frequently arises in the specific context of institutional reform litigation raising systemic constitutional challenges to the administration of state agency or court proceedings. These cases generally present the issue of whether broad-ranging federal court challenges to procedural deficiencies in child welfare, public benefits, and other adjudicatory systems should be dismissed due to asserted opportunities for plaintiffs to raise these same systemic claims in the very state court and administrative hearings that form the bases for the litigation. The decisions have produced somewhat mixed outcomes./34/

Courts frequently give short shrift to the second Middlesex factor regarding the implication of important state interests. While many state interests can conceivably be said to relate to significant guarantees of public health, safety, and welfare, it is important to closely analyze these declared interests. For example, after surveying numerous Younger abstention decisions reviewing various state interests, the court in  Harper v. Public Service Commission discounted the state interest proffered by the defendantthe improper disposal of solid wasteand recast it as an actual state interest in limiting access of out-of-state companies to the waste removal market./35/ The court declined to allow Younger abstention, ruling that this state “interest” actually interfered with the comity and federalism concerns embodied in the Commerce Clause./36/ Similarly, the court in McCartney v. Cansler declined to abstain in a challenge to reductions or terminations of mental health and developmental disability services received by children eligible under the Medicaid Act, despite the plaintiffs' pending administrative appeals, since the Medicaid program is subject primarily to federal law that outweighs state interests./37/
 
Finally, and not to be overlooked, the Younger doctrine logically assumes the existence of an ongoing state proceedingthe first Middlesex factor. This has generated a fair amount of discussion in the lower courts. If no state court proceeding is actually pending at the commencement of the federal litigation, declaratory, injunctive or compensatory relief may be available to the federal plaintiff./38/ In Ankenbrandt v. Richards, a diversity action brought by a mother on behalf of her children and alleging torts of physical and sexual abuse committed by her former husband and his companion, the Court held the application of Younger abstention to be erroneous since the state proceedings had concluded prior to the filing of the federal lawsuit./39/ The Court reasoned that Younger had never been applied “when no state proceeding was pending nor any assertion of important state interests made.”/40/

A determination of whether state proceedings are actually “pending” at the time of the federal action being brought can be confusing, especially in institutional reform cases./41/ While this determination may prove to be pivotal to the court’s decision to abstain,/42/ it is important to note that the actual order of the state and federal court filing dates alone may not solely influence the outcome of any abstention analysis. In Hicks v. Miranda, the Court held that, even where the state proceeding commences after the federal suit is filed, Younger still applies as long as the state proceedings were initiated “before any proceedings of substance on the merits have taken place in the federal court.”/43/

Although the Younger doctrine severely limits the federal court’s ability to enjoin pending state court proceedings, the mere existence of a state court proceeding with some relationship to the litigants or issues involved in a federal court case does not, standing alone, justify the invocation of Younger. The Younger abstention doctrine justifies, as “the normal thing to do,” the “withholding of authorized equitable relief because of undue interference with state proceedings. . . .”/44/  In ruling that parallel state and federal actions filed by the same plaintiff did not present a sufficient level of undue interference to allow abstention, the Eleventh Circuit stated in Wexler v. Lepore: “We interpret the Younger doctrine as preventing federal courts from being the grand overseers of state courts and court-like administration.”/45/  In modifying its prior influential ruling that the Middlesex three-part test is only triggered when federal court relief would directly ‘interfere’ with ongoing state proceedings,/46/  the Ninth Circuit acknowledged that, while “interference” with state proceedings is indeed a critical component of Younger’s comity concerns, “direct” interference is not necessarily a threshold element. Only a “federal court action that would enjoin the proceeding, or have the practical effect of doing so, would interfere in a way that Younger disapproves.”/47/ Other courts have adhered to the general principle of “interference” being a key component of the Younger analysis./48/ 

2.8.B. Pullman Abstention

When federal constitutional claims arise from unsettled issues of state law, federal courts have discretion to abstain from exercising jurisdiction. When they do so, the federal courts avoid predicting what state courts would decide and permit the state courts the first opportunity to interpret state law. Doing so may also dispose of the need of the federal court to decide the federal constitutional issue later.

2.8.B.1. The Pullman Doctrine

This aspect of abstention, known as Pullman abstention, was announced by the Supreme Court in Railroad Commission v. Pullman Co./49/ In Pullman, the railroad sued a state regulatory agency. The railroad challenged on Fourteenth Amendment grounds the requirement that all trains in Texas have a conductor in each sleeping car. Employment in the railroad industry was racially segregated; whites were employed as conductors, while African Americans performing similar work were employed as porters. Thus, the regulation had a discriminatory impact on African Americans.

The Court held that the authority of the regulatory agency to issue the challenged requirement was unclear under state law. Reasoning that resolution of the question could obviate the need to decide the constitutional issue, the Court ruled that the uncertain issue of state law should be resolved in state court before a federal court adjudicated the constitutional challenge. Thus, the Court in Pullman required the district court to abstain in order to enable the parties to litigate the unresolved question of state regulatory authority in state court.

Pullman abstention is, therefore, appropriate when (1) the federal court is presented with an ambiguous or uncertain provision of state law, and (2) state court interpretation of the state law issue may avoid the federal constitutional question./50/ Mere ambiguity in state law is insufficient—Pullman abstention also involves a “discretionary exercise of the court’s equity powers.”/51/ The Court has stated that “the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary.”/52/ Rather, the Court has “‘frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction.’”/53/ Thus, the ambiguity in state law must be of a type such that a clarifying construction could eliminate the need to reach the constitutional issue, or at least alter it substantially./54/

Because the purpose of Pullman abstention is to avoid the unnecessary decision of unsettled questions of constitutional law, its use is improper when “the unconstitutionality of the particular state action under challenge is clear.”/55/ For that same reason, many federal courts refuse to apply the doctrine in cases raising claims that clear state law is inconsistent with federal statutory law./56/ The Ninth Circuit has gone one step further, holding that preemption is not a constitutional issue justifying Pullman abstention. /57/ Since Pullman abstention necessarily results in delayed piecemeal adjudication, the Court is somewhat less inclined to sanction abstention in cases involving federal First Amendment challenges./58/ 

State constitutions frequently contain provisions similar to the substantive provisions of the United States Constitution. Those provisions could be an alternative basis under state law for enjoining challenged state conduct./59/ However, the Court has held that federal courts need not abstain to permit state courts to first address state constitutional provisions that are counterparts of federal provisions. The Court observed that a contrary rule “would convert abstention from the exception into the general rule.”/60/ In cases where states possess unique constitutional provisions with no federal counterpart, the Court has required abstention./61/

Advocates should be aware that the inclusion of supplemental state claims in a federal constitutional lawsuit increases the risk of Pullman abstention. If the supplemental claim offers an alternative basis for resolving the litigation and for obviating the need to construe the federal Constitution, its inclusion invites abstention./62 / Therefore, the increased risk of abstention should be taken into account before including a supplemental state law claim as an alternative basis for relief in constitutional litigation. Although the inclusion of supplemental claims can increase the risk of abstention, their omission does not eliminate the risk. If the state law that purportedly authorizes the challenged conduct is unclear, Pullman abstention remains a threat./63/ While a parallel state proceeding is not required for Pullman abstention, a pending state court action may in fact make it more likely that the federal court will abstain. In Ford Motor Company v. Meredith Motor Company, for example, the First Circuit found that the federal court plaintiff’s concurrently pending state court appeal of the underlying state agency decision constituted an additional factor justifying Pullman abstention. /64/ The court was persuaded by the state court of appeal’s potential to moot the federal issues and, consequently, stayed the federal action pending final review of the agency decision in the state court system./65/ 

2.8.B.2. England Reservations and Practice

 Once a federal court invokes Pullman abstention, it generally should not dismiss the action, but instead retain jurisdiction and stay proceedings regarding the federal constitutional issues while the plaintiff litigates the unclear question of state law through the state courts./66/ In the state court action, the plaintiff must not only present the state law question, but must also ask the state court to construe it in light of the federal issue, which must itself be expressly reserved for subsequent litigation in federal court. This is called an “England reservation.”/67/ Failure to inform the state court of the reservation of the federal issue precludes a later return to federal court for its resolution./68/ Thus, following an order of abstention, the state court action must describe the nature of the federal constitutional issue in some detail, but must expressly reserve its determination for the federal court./69/

An express England reservation has three elements: (1) explicit expression to the state tribunal of an intent to return to federal court in the wake of an adverse state determination, if any; (2) explicit notification to the state tribunal of the federal questions that would be reserved, and (3) an absence of voluntary litigation in the state court by the reserving party of the federal questions that would be preserved for federal trial./70 /

The Court’s decision in San Remo Hotel v. City and County of San Francisco emphasizes the critical nature of the third element of refraining from litigating the federal issues in the state tribunal./71/ The plaintiffs there had litigated their federal constitutional takings claims on remand to state court and had subsequently tried to avoid the preclusive effect of the state court judgment when they returned to federal court. The Supreme Court disallowed this, holding that “by broadening their state action” to include their federal claims, “petitioners effectively asked the state court to resolve the same federal issues they asked it to reserve. England does not support the exercise of any such right.”/72/ The Court held the plaintiffs to be subject to the full faith and credit statute, 28 U.S.C. § 1738, which barred them from re-litigating their federal claims in federal court./73/

2.8.B.3. State Certification as a Pullman Alternative

If the forum state has a procedure by which its highest court answers state law questions certified to it, a federal court can potentially obtain an authoritative ruling on ambiguous issues of applicable state law. Although certification procedures vary widely among the states, most states accept certified questions from the U.S. Supreme Court, any federal court of appeals, or any U.S. district court. Other states accept certified questions from specified federal courts./74/ Several states have no apparent procedure for the certification of questions of state law from the federal courts. State procedures to certify questions of state law to the state’s highest court can potentially shorten delays associated with Pullman abstention. In Arizonans for Official English v. Arizona, the Court discussed and endorsed the concept of state court certification of novel or unsettled questions of state law as a more suitable “cautious approach” which now covers territory once dominated by Pullman abstention. The Court found that this may also prove in practice to avoid the protracted, expensive litigation frequently associated with the doctrine./75/ Federal courts have exercised varying degrees of discretion to certify questions of state law to state courts./76/

 In a state with no available or adequate certification procedure, the delay associated with Pullman abstention requires a careful evaluation of whether the prospect of eventual return to district court is worth the wait. The alternative is to abandon the federal action and present both the state and federal issues to a state court for resolution in a single action. Although Pullman abstention can cause long delay, minimizing the impact of delay is possible in appropriate cases by seeking preliminary injunctive relief in the federal forum in the interim. Federal courts retain equitable power to issue preliminary relief to preserve the status quo while the parties seek clarification of state law in state court./77/

2.8.C. Burford Abstention

In Burford v. Sun Oil Company, the Supreme Court ordered the dismissal of a federal suit challenging the reasonableness under Texas law of a state commission’s decision to grant a permit to drill oil wells./78/ The Court created what has become known as Burford abstention to avoid the potentially disruptive impact that federal court intervention would have had on the state’s efforts to maintain a unique and complex administrative structure to regulate a vital state activity.

Defendants often attempt to rely on the language in Burford to assert a broader doctrine of abstention based simply on the existence of a complex state administrative or regulatory structure. Such an expansive reading of the Burford decision, however, ignores the many unique factors involved in Texas regulation of oil and gas, which the Court addressed in the decision. The reasonableness of the particular permit to drill oil wells at issue in Burford was not itself of “transcendent importance.”/79/ However, federal court review of reasonableness, under state law, “where the state had established its own elaborate review system for dealing with the geological complexities of oil and gas fields,” would have had “an impermissibly disruptive effect on state policy for the management of those fields.”/80/ Because the “exercise of equitable jurisdiction by comparatively unsophisticated Federal District Courts alongside state-court review had repeatedly led to ‘[d]elay, misunderstanding of local law, and needless federal conflict with the state policy,’” the Court in Burford held that abstention was warranted./81/

The Court in New Orleans Public Service Incorporated v. Council of New Orleans summarized the Burford abstention doctrine as follows:

Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”/82/

Burford does not require abstention, the Court emphasized, simply because a complex state administrative process exists. Nor does it mandate abstention in all situations where a federal ruling may potentially conflict with state regulatory law or policy./83/ Indeed, the Court in New Orleans Public Service concluded that Burford abstention was unwarranted in the case before it because federal adjudication of the plaintiff’s federal preemption claim relating to a city council rate decision and a related “pretext claim” would not result in undue interference with local regulatory policy concerns./84/ Even if injunctive relief was ordered against enforcement of the rate order, the Court noted, “‘there is ... no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.’”/85/

The Court in Quackenbush v. Allstate Insurance Company, narrowly construed Burford abstention and described it as balancing the interest in retaining federal jurisdiction against the competing concern for the “independence of state action,” which, it noted,” only rarely favors abstention.”/86/ The Court acknowledged that it had “revisited the [Burford] decision only infrequently in the intervening 50 years.”/87/ The Court noted several factors “unique to that case”—the difficulty of the state regulatory issues, the need for uniform regulation in the oil and gas area and the important state interests served by this system, and, “most important[],”the “detrimental impact of ongoing federal court review of the [state agency’s] ... orders, which review had already led to contradictory adjudications by the state and federal courts.”/88/

The Quackenbush Court considered whether Burford abstention supplied a proper basis for dismissal, as opposed to a stay, of federal actions presenting damages claims. Noting that prior abstention holdings did not supply a “formulaic test for determining when dismissal under Burford is appropriate,” the Court observed that the power to dismiss was based on discretionary doctrines of equity, comity, and federalism./89/ This had previously led the Court to allow “federal courts applying abstention principles in damages actions to enter a stay, but [the Court had] ... not permitted them to dismiss the action altogether[.]”/90/ The Court held that, while “Burford might support a federal court’s decision to postpone adjudication of a damages action pending the resolution by the state courts of a disputed question of state law,” federal courts “have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary.”/91/

 The class example of Burford abstention remains a challenge to a state utility regulatory system./92/ Burford abstention has also been upheld, however, in varied settings such as workers compensation, insurance, zoning, and related land use issues./93/ Burford abstention has been upheld in challenges involving Medicaid contract funding as well as food stamp eligibility,/94/ but other courts have refused to abstain in cases involving state agency curtailment of Medicaid services./95/ Defendants periodically attempt to rely on Burford in cases involving constitutional rights of individuals, but the courts are often reluctant to permit such an expanded use of Burford abstention./96/ The Second Circuit has stated: “Burford  abstention is not required even in cases where the state has a substantial interest if the state’s regulations violate the federal constitution.”/97/

The Supreme Court has indicated a potential application of Burford in the area of state domestic relations law. In Ankenbrandt v. Richards, the Court addressed a tort action brought by a mother on behalf of her daughters against their father./98/ The Court stated that, even though the action did not fall within the “domestic relations” exception to federal jurisdiction, Burford abstention “might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody.”/99/ Difficult state law questions bearing on substantial public policy problems could be implicated “if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree and the suit depended on a determination of the status of the parties.”/100/ Some federal courts have followed the suggestion of the Ankenbrandt Court by applying Burford abstention in the domestic relations area./101/

2.8.D. Colorado River Abstention

In Colorado River Water Conservation District v. United States, the Supreme Court established a fourth type of abstention applicable to situations when parallel state and federal litigation are pending./102/ Colorado River was a water rights case involving simultaneous state and federal court proceedings against the United States. Although the federal litigation did not fall within the Younger, Pullman, or Burford abstention doctrines, the Court held that, in a limited number of cases, federal courts should abstain because of the pendency of parallel and duplicative state court litigation. The Court observed that these cases are founded upon concerns of judicial administration, not the “weightier considerations” of comity and federalism that animate the other abstention doctrines./103/ Emphasizing “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” the Court nevertheless recognized that “exceptional” circumstances might permit a federal court to refrain from exercising jurisdiction “for reasons of wise judicial administration, in situations of concurrent state litigation.”/104/

Colorado River abstention is inapplicable unless there is parallel litigation./105/ The mere fact that the two lawsuits may involve different parties may not be enough to preclude abstention. For example, the Seventh Circuit noted that, “the requirement is of parallel suits, not identical suits” and treated a suit as parallel when “substantially the same parties are contemporaneously litigating substantially the same issue in another forum.”/106/ The Second Circuit, on the other hand, refused to apply Colorado River when the parties were not identical because the stay of the federal action would not necessarily avoid piecemeal litigation./107/ The Eighth Circuit has attempted to bring "more precision" to determining when state and federal proceedings are parallel, keeping in mind the limited reach of Colorado River abstention:

The pendency of a state claim based on the same general facts or subject matter as a federal claim and involving the same parties is not alone sufficient.  Rather, a substantial similarity must exist between the state and federal proceedings, which similarity occurs when there is a substantial likelihood that the state proceeding will fully dispose of the claims presented in the federal court. . . . Moreover, in keeping with the Supreme Court's charge to abstain in limited instances only, jurisdiction must be exercised if there is any doubt as to the parallel nature of the state and federal proceedings. /108/

The Colorado River decision identified four factors relevant to whether a federal court should abstain in favor of parallel state proceedings: (1) which court first assumes jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation, and (4) the order in which jurisdiction was obtained by the concurrent forums./109/ In Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, the Court identified the following additional factors that courts must also consider in applying Colorado River: (1) the source of the governing law; (2) the adequacy of the state court action to protect federal rights; (3) the relative progress of the state and federal proceedings; (4) the presence or absence of concurrent jurisdiction; (5) the availability of removal, and (6) the vexatious or contrived nature of the federal claims./110/ The Court noted that these constituted merely “some of the factors.”/111/ In Moses H. Cone the Court cautioned that

the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case./112/

Despite the potential for construing Colorado River abstention broadly, the Supreme Court has emphasized the narrowness of the doctrine. Federal courts have long permitted parallel litigation, using preclusion doctrines to limit re-litigation./113/ Moreover, in Moses H. Cone, the Court emphasized the limiting language in Colorado River and noted that pendency of a parallel state proceeding should not generally bar federal court proceedings./114/

However, the Supreme Court held in Wilton v. Seven Falls Company, a diversity action, that a standard of substantial discretion, rather than the Colorado River “exceptional circumstances” standard, governed a district court’s decision to stay a declaratory judgment action on grounds of a parallel state court proceeding./115/ This discretion is conferred upon the federal courts by the permissive language of the Declaratory Judgment Act./116/ The Court reaffirmed Brillhart v. Excess Insurance Company, which stated that district courts are “under no compulsion” to entertain claims of declaratory relief, since they possess discretion to exercise their jurisdiction under the Declaratory Judgment Act./117/ Thus, in contrast to Colorado River abstention, which allows a federal court to decline to exercise jurisdiction only under exceptional circumstances, the Brillhart doctrine, applicable to declaratory judgment actions, gives the district court broader discretion to determine “whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject-matter jurisdictional prerequisites.”/118/ The Wilton Court cautioned that its decision did not address the Brillhart doctrine’s “outer boundaries,” such as actions raising issues of federal law or cases without parallel state proceedings./119/

Simultaneously filing identical Section 1983 suits in state and federal courts potentially invites Colorado River abstention. More complicated issues arise when plaintiffs split their claims, seeking some relief in state court and other relief in federal court. The prohibition of such piecemeal litigation is one of the Colorado River factors, but, in an increasing number of cases, plaintiffs have no choice but to split claims if they wish to preserve access to federal court without abandoning meritorious state claims./120/

When plaintiffs must split their claims to avoid the Eleventh Amendment bar, they may lessen the likelihood of Colorado River abstention by delaying the filing of the state claim until substantial progress is made on the federal lawsuit. Delay in filing the state claim also minimizes the risk that the state case will be decided first and thereby acquire preclusive effect./121/ However, a plaintiff following this strategy must take care not to delay filing a state claim beyond the statute of limitations. For claims against the state, statutes of limitations are often short, but state tolling policies may extend these periods.

A less risky strategy may be to file both state and federal claims in federal court whenever there is an arguable basis for reading Pennhurst narrowly. Even if the federal court dismisses the state claim, the risk of a later, refiled state claim acquiring preclusive effect may be at least partially minimized.

2.8.E. The Rooker-Feldman Doctrine

Because lower federal courts do not have appellate jurisdiction over state courts, the Supreme Court refuses to permit losing state court litigants to invoke federal jurisdiction to attack state court judgments on the ground that the state court acted unconstitutionally./122/ This doctrine, often referred to as the Rooker-Feldman doctrine, originated in Rooker v. Fidelity Trust Co./123/ The Supreme Court reaffirmed the doctrine in District of Columbia Court of Appeals v. Feldman./124/

The Rooker-Feldman doctrine derives from 28 U.S.C. § 1257, which sets forth the exclusive means by which state court judgments are reviewable in federal court. The doctrine is also supported by the structure of the federal judicial system, in which only the Supreme Court of the United States has appellate jurisdiction over state court judgments. As a result, the doctrine bars “a party losing in state court ... from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federal rights.”/125/ District courts may not review state court decisions “even if those challenges allege that the state court’s action was unconstitutional.”/126/

In distinguishing between general challenges to the constitutionality of state bar rules and challenges to particular state court decisions that raised constitutional questions, the Court in Feldman held that a federal district court has jurisdiction to consider the former but not the latter. The Court determined that the district court had jurisdiction to consider the general attack on the constitutionality of a District of Columbia bar rule requiring graduation from an accredited law school, but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the District of Columbia Court of Appeals' decisions, in judicial proceedings, to deny the respondents' petitions.”/127/ 

Taking their cue from this language in the Feldman decision, courts expansively applied the doctrine where the assertion of district court jurisdiction was determined to be “inextricably intertwined” with the state court action. Courts held, for example, that a federal claim is inextricably intertwined with a state court judgment, and therefore barred by Rooker-Feldman, when the claim can succeed only upon a showing that the state court was wrong./128/

In its first significant application of Rooker-Feldman, apart from the two cases giving the doctrine its name, the Court sought to reemphasize and clarify its limited reach and original purpose. In Exxon Mobil Corporation v. Saudi Basic Industries Corporation, the Court held that the doctrine does not supplant preclusion or abstention principles. Instead, it “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”/129/ Emphasizing the comparatively narrow reach of the doctrine, the Court held that Rooker-Feldman only applies when a party complains of injury caused by a state court judgment and seeks to overturn it in federal court./130/ The Court further underscored the limits on the scope of the Rooker-Feldman doctrine by subsequently holding that it cannot be invoked against federal plaintiffs who were not parties in a state court proceeding, even if preclusion law would regard them as in privity with such parties./131/

Post-Exxon Mobil, the lower courts are now interpreting the Rooker-Feldman threshold standards more restrictively. The Second Circuit has stated that the "inextricably intertwined" phrase "has no independent content" and is just a "descriptive label attached to claims that meet the requirements outlined in Exxon Mobil."/132/ Observing that much of its prior case law was abrogated by the Supreme Court's holding, the Second Circuit has drawn from the decision in Exxon Mobil four "requirements" that must be met before the doctrine applies:  (1) the plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state court judgment; (3) the plaintiff must invite federal district court review and rejection of that state court judgment; and (4) the state court judgment must have been rendered before the commencement of the federal district court proceedings./133/  The Sixth Circuit focuses the inquiry on the "source of the injury" suffered by the plaintiff. If the source is the state court decision, the Rooker-Feldman bar is raised. If instead there is some other source, such as the actions of a third party, the plaintiff has asserted an independent claim that the federal court can hear./134/ The Eleventh Circuit has declined to adopt a multi-factor test, choosing instead to simply apply the language of Exxon Mobil "as is."/135/

The Court in Exxon Mobil emphasized that in both Rooker and Feldman, "the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment."/136/ One question left open by the Court is whether the Rooker-Feldman doctrine precludes the federal action by conferring the status of "state court loser" upon the plaintiff while the state case is still pending on appeal. Several courts have reached conflicting results on this issue./137/

The Rooker-Feldman doctrine does not apply to parallel state and federal court litigation./138/ It has "no application to judicial review of executive action, including determinations made by a state administrative agency."/139/   

____________________________________________________________________________________

1. Colorado  River Water Conservation District v. United States, 424 U.S. 800, 813 (1976). See also Railroad Commission v. Pullman Company, 312 U.S. 496 (1941).

2. The Supreme Court has “often acknowledged that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Insurance Company, 517 U.S. 706, 716 (1996) (citations omitted). Nevertheless, the Court went on to observe: “This duty is not, however, absolute . . . . Indeed, we have held that federal courts may decline to exercise their jurisdiction, in otherwise exceptional circumstances, where denying a federal forum would clearly serve an important countervailing interest, for example, where abstention is warranted by considerations of proper constitutional adjudication, regard for federal-state relations, or wise judicial administration . . . .” Id. (citations and internal quotation marks omitted). To this end, the Court has observed, "Indeed, it would appear that abstention may be raised by the court sua sponte." Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976) (citations omitted). The Court recognized, however, that abstention from the exercise of federal jurisdiction was the exception, not the rule, and it should rarely be invoked. Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992).

3. Pennzoil Company v. Texaco Incorporated, 481 U.S. 1, 11 n.9 (1987).

4. Younger v. Harris, 401 U.S. 37 (1971).

5. See id. at 48-49; Perez v. Ledesma, 401 U.S. 82, 85 (1971). This inquiry largely hinges, the lower federal courts have since emphasized, upon a showing of the subjective motivation of the state authority in bringing the proceeding. This has proven to be a difficult task for plaintiffs. E.g., Phelps v. Hamilton59 F.3d 1058, 1064-65 (10th Cir. 1995) (factors for determining whether prosecution was brought in bad faith or to harass include: (1) whether it was frivolous or undertaken with no objective hope of success; (2) whether it was motivated by the defendant’s suspect class, or in retaliation for the exercise of constitutional rights; and (3) whether it was conducted in a manner to harass or to constitute an abuse of prosecutorial discretion, typically through unjustified and oppressive use of multiple prosecutions). But see Kern v. Clark, 331 F.3d 9, 12-13 (2d Cir. 2003) (district court committed error in resolving factual disputes regarding bad faith exception to Younger without conducting an evidentiary hearing).

6. Younger, 401 U.S. at 53. See Kugler v. Helfant, 421 U.S. 117, 124–25 (1975) (such circumstances would involve the state court or agency being “incapable of fairly and fully adjudicating the federal issues before it.”). Bias might be one such circumstance, see Gibson v. Berryhill, 411 U.S. 564 (1973), but plaintiffs have otherwise faced uphill challenges in invoking this second exception to abstention. See Diamond “D” Construction Corporation v. McGowen, 282 F.3d 191, 201–02 (2d Cir. 2002) (“extraordinary circumstances” exception did not apply where plaintiff could pursue state mandamus relief for state agency’s alleged delay in conducting administrative proceedings); Lawson v. City of Buffalo, 52 F. App’x. 562 (2d Cir. 2002) (“irreparable harm” exception to Younger inapplicable in due process contest of state criminal court order of demolition of plaintiffs’ homes where no demolition order was currently in effect and any future order could be appealed in state court); Employers Resource Management Company v. Shannon, 65 F.3d 1126 (4th Cir. 1995), cert. denied, 516 U.S. 1094 (1996) (refusing to find “extraordinary circumstances” to Younger abstention in federal action since there was no showing that state commission was incapable of reviewing ERISA (Employee Retirement Income Security Act) federal preemption claim in context of state administrative proceeding).  In Esso Standard Oil Company v. Cotto, 389 F.3d 212, 216 (1st Cir. 2004) ("Esso I"), the court determined that Younger abstention should be upheld despite a significant showing of actual bias in an agency adjudicative hearing process, because the plaintiff could potentially use state interlocutory review procedures to address the bias claim. Following an unsuccessful attempt to seek interlocutory relief through the Puerto Rican court system however, plaintiff returned to the federal court, which declined to abstain further and proceeded to address the claims of bias in the administrative process. Esso Standard Oil Company v. Lopez-Freytes, 522 F.3d 136 (1st Cir. 2008) ("Esso II").

7. Younger, 401 U.S. at 53–54 (quoting Watson v. Buck, 313 U.S. 387, 402 (1941)). The Court used the “patently violative” exception as an illustration of “extraordinary circumstances” in which an exception might be justified. The Court, however, never further defined this exception or indicated what other “extraordinary circumstances,” if any, would fit into it. The “possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good faith attempts to enforce it,” especially absent “any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Id. at 54.

8. See Samuels v. Mackell, 401 U.S. 66 (1971).

9. Huffman v. Pursue Limited, 420 U.S. 592 (1975).

10. See, e.g., Pennzoil, 481 U.S. at 14 n.12; Moore v. Sims, 442 U.S. 415, 423 n.8 (1979).

11. See Trainor v. Hernandez , 431 U.S. 434, 444 (1977) (action to recover fraudulently obtained public assistance payments). See also Moore v. Sims, 442 U.S. 415, 423 (1979) (state child neglect proceedings).

12. See, e.g., Pennzoil, 481 U.S. at 11 (proceeding to enforce judgment on tortuous inducement of breach of contract); Juidice v. Vail, 430 U.S. 327, 328 (1977) (contempt of court proceedings).

13. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982)

14. Ohio Civil Rights Commission v. Dayton Christian Schools, Incorporated, 477 U.S. 619 (1986).

15. See Brown v. Day,  555 F.3d 882, 888 n.5 (10th Cir. 2009) (abstention was not warranted where plaintiff had requested state administrative hearing contesting termination of her Medicaid benefits and had received final adverse agency decision prior to commencing federal action); see also Casiano-Montanez v. State Insurance Fund Corporation, 707 F.3d 124, 128 (1st Cir. 2013) (Younger abstention inappropriate where plaintiffs voluntarily initiated state administrative personnel proceedings that were remedial in nature, not coercive); Devlin v. Kalm, 594 F.3d 893 (6th Cir. 2010) (applying coercive-remedial distinction to decline to abstain under Younger, where plaintiff was identical in state and federal actions and did not seek to enjoin state proceeding or shield himself from state enforcement efforts).

16. Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 593 n.6 (2013).

17. New Orleans Public Service, Incorporated v. Council of City of New Orleans  , 491 U.S. 350, 368 (1989).

18. Id. (citations omitted).

19. Id. at 372.

20. 134 S. Ct. 584 (2013).

21. Id. at 588 (quoting NOPSI, 491 U.S. at 367-68).

22. Id. at 592.

23. Id.

24. E.g., M&A Gabaee v. Community Redevelopment Agency, 419 F.3d 1036, 1039 (9th Cir. 2005); Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005); Joseph A. v. Ingram, 275 F.3d 1253, 1267 (10th Cir. 2002); Diamond “D” Construction Corporation v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002); Wightman v. Texas Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996), cert. denied, 519 U.S. 1080 (1997); Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 638 (1st Cir. 1996); Fieger v. Thomas, 74 F.3d 740, 743–44 (6th Cir. 1996).

25. Middlesex County Ethics Committee, 457 U.S. at 432.

26. Sprint Communications, Inc., 134 S. Ct. at 593; see Gonzalez v. Waterfront Commission of the New York Harbor, 755 F.3d 176, 181 (3d Cir. 2014); Mulholland v. Marion County Election Board, 746 F.3d 811, 816 (7th Cir. 2014). For a somewhat different formulation, see ReadyLink Healthcare, Inc. v. State Compensation Insurance Fund, 754 F.3d 754, 759 (9th Cir. 2014).

27. “This doctrine of federal abstention rests foursquare on the notion that, in the ordinary course, 'a state proceeding provides an adequate forum for the vindication of federal constitutional rights.'” Diamond “D” Construction Corporation, 282 F.3d at 198 (quoting Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir.), cert. denied sub nom. Tuxedo Union Free School District Dist. v. Cullen, 513 U.S. 985 (1994)) (citing Kugler v. Helfant, 421 U.S. 117, 124 (1975)).

28. The Supreme Court in Juidice v. Vail, 430 U.S. 327, 337 (1977), emphasized: “[Plaintiffs] need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings, and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.” (citations and footnotes omitted). Younger abstention “naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973). See also Pennzoil Co. v. Texaco Incorporated, 481 U.S. 1, 14 (1987) (quoting Moore, 442 U.S. at 432) (holding that “the burden on this point rests on the federal plaintiff to show ‘that state procedural law barred presentation of [its] claims.’”).

29. Ohio Civil Rights Commission v. Dayton Christian Schools, Incorporated, 477 U.S. 619, 619 (1986).

30. Id. at 629 (“[I]t is sufficient under Middlesex . . . that constitutional claims may be raised in state-court judicial review of the administrative proceeding.”). Similarly, in Huffman v. Pursue Ltd., 420 U.S. 592, 608 (1975), the Supreme Court concluded that, where the plaintiff had not exhausted state court appeals, abstention was appropriate. The Dayton Christian Schools and Huffman decisions should not be confused with either Patsy v. Board of Regents, 457 U.S. 496 (1982), or Monroe v. Pape, 365 U.S. 167 (1961). The Court in Patsy held that exhaustion of administrative remedies was not required under Section 1983. In Monroe, the Court held that exhaustion of state judicial remedies was not a prerequisite to litigation under Section 1983. The Dayton and Huffman holdings do not undermine either rule; rather they prohibit injunctive relief against ongoing administrative or judicial proceedings.

31. Hirsh v. Justices of the Supreme Court of California, 67 F.3d 708 (9th Cir. 1995).

32. Id. at 747-48; see also Dayton Christian Schools, 477 U.S. at 629 (noting that a holding that the state agency could not interpret its own statutory mandate in light of federal constitutional principles would be an “unusual doctrine”).

33. Hirsh, 67 F.3d at 713. See also Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 639 (1st Cir. 1996) (abstention upheld in challenge to enforcement of confidentiality of attorney disciplinary proceedings rule, where state court appeal, despite its being closed to the public, still presented adequate opportunity to litigate federal claims); Doe v. Connecticut, 75 F.3d 81, 85 (2d Cir. 1996) (abstention invoked in doctor’s Americans with Disabilities Act federal court challenge to state’s administrative disciplinary action seeking revocation of his license since state proceedings implicated important state interests and plaintiff could assert federal statutory claims in context of eventual court appeal); Wightman v. Texas Supreme Court, 84 F.3d 188, 190 (5th Cir. 1996), cert. denied, 519 U.S. 1080 (1997) (constitutional objections could be raised at multiple stages of attorney discipline administrative proceedings and on appeal, thus satisfying Younger abstention). But cf. Meredith v. Oregon, 312 F.3d 807, 818-20 (9th Cir. 2003) (affirming denial of abstention where plaintiff did not have adequate or timely opportunity to raise constitutional challenge to administrative enforcement action for erecting a sign on vacant property without a permit).

34. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 107 n.9 (1975) (Younger distinguished by Supreme Court in challenge to state court procedures of pretrial detention of persons without judicial finding of probable cause since issue raised by plaintiffs “could not be raised in defense of the criminal prosecution,” the federal injunctive order to hold preliminary hearings was not directed at the state prosecutions, and the order “could not prejudice the conduct of the trial on the merits”); LaShawn A. v. Kelly, 990 F.3d 1319, 1323 (D.C. Cir. 1993), cert. denied sub nom. Kelly v. LaShawn A. by Moore, 510 U.S. 1044 (1994) (abstention rejected in child welfare system challenge brought by foster care children, where state Family Division case law precedent indicated that those proceedings were a “questionable vehicle” for raising plaintiffs’ “multifaceted request for broad-based injunctive relief based on the Constitution and on federal and local statutory law.”). But see Hansel v. Town Court, 56 F.3d 391, 393-94 (2d Cir.), cert. denied, 516 U.S. 1012 (1995) (abstention applied in challenge to constitutionality of use of nonlawyer judges in town criminal court system, where, even though state’s highest court had already declared this type of system constitutional, federal court still determined that plaintiff could raise federal claims in state court); Joseph A. v. Ingram, 275 F.3d 1253, 1273-74 (10th Cir. 2002) (abstention affirmed in consent decree enforcement action brought by state wards who experienced abuse or neglect and alleged lack of meaningful access to adoption services, where, although individual children’s court proceedings may not be authorized to hear class actions, they possessed the power to consider federal claims, including plaintiffs’ claimed due process violations); J.B. v. Valdez, 186 F.3d 1280, 1292-93 (10th Cir. 1999) (abstention warranted in challenge to lack of therapeutic services for disabled children in child welfare system, where plaintiffs failed to show that state children’s court could not adjudicate federal claims during periodic review proceedings); Pompey v. Broward County, 95 F.3d 1543, 1551 (11th Cir. 1996) (procedural bar to raising constitutional claims in state courts, not whether claims will be successful on the merits, is pertinent inquiry in ordering that abstention precluded federal court from issuing injunctive relief on behalf of individuals alleging incarceration for failure to make child support payments following contempt hearings devoid of due process protections); Connor B. v. Patrick, 2011 U.S. Dist. LEXIS 401, at . Dist. LEXIS 401, at *24-27 (D. Mass. Jan. 4, 2011) (requests for wide-ranging injunctive relief of foster care system are not cognizable in juvenile court system); E.T. v. George, 681 F. Supp. 1151 (2010) (Younger abstention applicable in constitutional challenge to overburdened caseloads in dependency court system).

35. Harper v. Public Service Commission, 396 F.3d 348 (4th Cir. 2005)

36. Id. at 348. See also Potrero Hills Landfill, Incorporated v. County of Solano, 657 F.3d 876 (9th Cir. 2011) (declining to exercise Younger abstention in challenge to county ordinance restricting importation of solid waste, where no executive, legislative, or judicial interests vital to operation of state government were identified); Addiction Specialists, Incorporated v. Township of Hampton, 411 F.3d 399, 410-11 (3d Cir. 2005) (abstention not warranted on discrimination claims that did not implicate declared state interests in zoning and land use).

37. McCartney v. Cansler, 608 F. Supp.2d 694, 703-04 (E.D.N.C. 2009). But see Columbus Rehabilitation and Subacute Institute v. Franklin County Department of Job and Family Services, No. 2:08-cv-103, 2008 U.S. Dist. LEXIS 102093; 2008 WL 5273924, at *4 (S.D. Ohio Dec. 17, 2008) (Younger abstention applicable where "the State of Ohio has a significant interest in decisions regarding the Medicaid eligibility process").

38. See Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705 (1977). In Wooley the Supreme Court found Younger abstention to be improper where the federal plaintiff, having previously been criminally convicted for his practice of covering the “live free or die” motto on the New Hampshire license plates that he was required to purchase in order to drive his automobile, sought relief that was “wholly prospective, to preclude further prosecution under a statute alleged to violate appellees’ constitutional rights . . . Younger does not bar federal jurisdiction.” Id. at 711.

39. Ankenbrandt, 504 U.S. at 689.

40. Id. at 705.

41. In institutional reform cases, federal courts may encounter states' use of the Court's admonition in O'Shea v. Littleton, 414 U.S. 488, 500 (1974), that federal courts should not countenance "an ongoing federal audit" of state proceedings "which would indirectly accomplish the kind of interference that Younger v. Harris . . . and related cases sought to prevent." In these types of cases, federal courts may invoke abstention even where the relief sought does not target a specific state court proceeding. In Joseph A., 275 F.3d at 1253, the Tenth Circuit abstained from enforcing a consent decree mandating access to child adoption services even though plaintiffs did not seek to enjoin any specific state proceeding. The court ruled that Younger applied because enforcement of at least some of the consent decree provisions would require “interference with the operations of the Children’s Court in an insidious way in that the [decree]…expressly prevents the Department’s employees from recommending a range of planning options for children who are in the Department’s custody.” The court viewed this as having the parallel effect of an injunction or declaratory judgment, which essentially precluded the state court from considering those options. Id. at 1268-69. See also E.T. v. Cantil-Sakauye, 682 F.3d 1121 (9th Cir. 2011), cert. denied, 133 S. Ct. 476 (2012) (abstention affirmed in challenge to excessive case loads of county dependency courts and court-appointed attorneys); Anthony v. Council, 316 F.3d 412, 419-21 (3d Cir. 2003) (abstention upheld in litigation brought by persons who had been seeking right to counsel and had been held in civil contempt for failure to comply with child support orders; retroactive relief would implicate past contempt proceedings and prospective relief regarding plaintiffs; open cases would implicate a “comprehensive and fluid system,” which must be “viewed as a whole” for abstention purposes);  J.B., 186 F.3d at 1291 (abstention applied to child welfare litigation continuing jurisdiction of state court to modify child’s disposition, coupled with mandatory periodic review hearings, constituted ongoing state judicial proceedings); Luckey v. Miller, 976 F.2d 673, 677-78 (11th Cir. 1992) (abstention affirmed in constitutional challenge to adequacy of state indigent criminal defense system, where, although plaintiffs did not seek to restrain any single criminal prosecution or contest any conviction, this “only functions to set up an empty syllogism by which plaintiffs may argue that their intent is not to interfere with pending prosecutions”). Cf. Meachem v. Wing, 77 F. Supp. 2d 431, 442-43 (S.D.N.Y. 1999) (court declined to abstain in challenge to public assistance fair hearing procedures where “Article 78” state court proceedings could be filed to contest the administrative decisions terminating benefits; these did not constitute ongoing state appellate proceedings); Marisol A. v. Giuliani, 929 F. Supp. 662, 688-89 (S.D.N.Y. 1996), aff’d on other grounds, 126 F.3d 372 (2d Cir. 1997) (abstention inappropriate in child welfare systemic litigation where state defendants could not point to any state court proceeding being improperly challenged).

42. See, e.g., Canatella v. California, 304 F.3d 843, 850–52 (9th Cir. 2002) (analysis of when state bar disciplinary action commences leads court to find abstention unwarranted, as no state proceeding was ongoing); Zaharia v. Cross, 216 F.3d 1089 (10th Cir. 2000) (state criminal proceeding was ongoing and abstention was appropriate where plaintiff could apply to state court to modify or dismiss contested restraining order or could otherwise appeal it to state district court and raise federal claims).

43. Hicks v. Miranda, 422 U.S. 332, 349 (1975); see Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (application of Hicks ruling to civil proceedings); Aaron v. Target Corporation, 357 F.3d 768, 776-77 (8th Cir. 2004) (federal court preliminary injunction proceedings not sufficiently advanced proceedings of substance on the merits to prevent Younger abstention). See also M&A Gabaee v. Community Redevelopment Agency, 419 F.3d 1036, 1041-42 (9th Cir. 2005) (Younger abstention applied to federal proceedings filed before and after state actions).

44. New Orleans Public Service, Incorporated v. Council of City of New Orleans, 491 U.S. 350, 359 (1989) (citing Younger, 401 U.S. at 45) (emphasis added).

45. Wexler v. Lepore, 385 F.3d 1336, 1341 (11th Cir. 2004); see Rio Grande Community Health Center, Incorporated v. Rullan, 397 F.3d 56, 70-71 (1st Cir. 2005) (abstention improper where federal court injunction directed state Medicaid agency to conform to federal law and did not prohibit state court from independently proceeding against agency).

46. Green v. City of Tucson, 255 F.3d 1086 (9th Cir.), cert. dismissed, 533 U.S. 966 (2001), overruled in part, Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004). The Green court concluded that abstention was not called for in a federal action contesting the constitutionality of a state statute making incorporation of a territory contingent upon the consent of the neighboring city or town despite parallel state court proceedings involving similar issues.

47. Gilbertson v. Albright, 381 F.3d 965, 978 (9th Cir. 2004).

48Joseph A., 275 F.3d at 1272 (“Younger governs whenever the requested relief would interfere with the state court’s ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly.”);  J.B., 186 F.3d at 1291–92 (placing federal court “in the role of making dispositional decisions such as whether to return the child to his parents” would prevent state court from carrying out its functions, thus requiring abstention in child welfare action). Broad-based institutional challenges continue in general to confront Younger abstention obstacles. See, e.g., E.T. v. George, 681 F. Supp. 1151 (E.D. Cal. 2010) (Younger abstention applicable in constitutional challenge to overburdened caseloads in dependency court system).

49.  Railroad Commission v. Pullman Company, 312 U.S. 496 (1941). Justice Scalia underscored the distinctive nature of this brand of “abstention” by noting: “To bring out more clearly . . . the distinction between those circumstances that require dismissal of a suit and those that require postponing consideration of its merits, it would be preferable to speak of Pullman ‘deferral.’ Pullman deferral recognizes that federal courts should not prematurely resolve the constitutionality of a state statute . . . .” Growe v. Emison, 507 U.S. 25, 32 n.1 (1993).

50. Circuit courts have articulated the Pullman factors in slightly different ways. See Fireman’s Fund Insurance Company v. City of Lodi, 302 F.3d 928, 939–40 (9th Cir. 2002), cert. denied, 538 U.S. 961 (2003); Ford Motor Company v. Meredith Motor Company, 257 F.3d 67, 71 (1st Cir. 2001);  Planned Parenthood v. Farmer, 220 F.3d 127, 149–50 (3d Cir. 2000); Beavers v. Arkansas State Board of Dental Examiners, 151 F.3d 838, 841 (8th Cir. 1998); Williams v. Lambert, 46 F.3d 1275, 1281 (2d Cir. 1995).

51. Baggett v. Bullitt, 377 U.S. 360, 375 (1964); see Batterman v. Leahy, 544 F.3d 370, 374 (1st Cir. 2008) (abstention disallowed, partly due to lack of any ambiguity in state law requiring clarification).

52. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 237 (1984).

53. Id. (quoting Zwickler v. Koota, 389 U.S. 241, 251 n.14 (1967)).

54. See, e.g., Carey v. Sugar, 425 U.S. 73, 78–79 (1976) (abstention appropriate in due process challenge to state pre-judgment attachment statute).

55. Thornburgh v. American College of Obstetricians, 476 U.S. 747, 756 (1986), overruled in part on other grounds by Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992).

56. See Fleet Bank v. Burke, 160 F.3d 883, 890-93 (2d Cir. 1998), cert. denied, 527 U.S. 1004 (1999).

57. See Fireman’s Fund Insurance Company, 302 F.3d at 939 n.12 (noting prior holdings, with one decision to the contrary, that preemption is not a “constitutional issue” justifying Pullman abstention). But see Qwest Communications Corporation v. Nebraska Public Service Commission, No. 8: 05CV182 2005 U.S. Dist. LEXIS 23620, at *23-24 (D. Neb. Oct. 7, 2005 ) (approving abstention). Cases allowing federal courts to abstain on the basis of preemption have been criticized as raising no substantive constitutional issue under the Supremacy Clause that justifies Pullman abstention since “the claim that a federal statute controls is essentially an exercise in construing the federal statute.” 17A Charles Alan Wright el al., Federal Practice & Procedure § 4242 (3d ed.) (2007).

58. See City of Houston v. Hill, 482 U.S. 451, 467–68 (1987); see also Harman v. Forsennius, 380 U.S. 528, 535 (1965); Mangual v. Rotger-Sabat, 317 F.3d 45, 63–64 (1st Cir. 2003) (court refused to abstain in challenge to unambiguous criminal libel statute and noted that delay involved in abstention was problematic where First Amendment rights were implicated).

59. See Louisiana Debating and Literary Association v. City of New Orleans, 42 F.3d 1483, 1493 (5th Cir.), cert. denied, 515 U.S. 1145 (1995) (if state or local statute or ordinance is subject of challenge, any asserted state constitutional claims should be “so interrelated” as to render state law ambiguous for Pullman abstention purposes).

60. Examining Board of Engineers, Architects and Surveyors v. Otero, 426 U.S. 572, 598 (1976). See also Wisconsin v. Constantineau, 400 U.S. 433 (1971). 

61. Reetz v. Bozanich, 397 U.S. 82 (1970) (requiring Pullman abstention to enable Alaska courts to construe unique and previously unconstrued provision of Alaska Constitution regarding the privilege of fishing). See also Harris County Commissioners Court v. Moore, 420 U.S. 77, 85 n.8 (1975) (requiring abstention to enable Texas courts to construe state constitution because challenged statute was part of “an integrated scheme of related constitutional provisions, statutes, and regulations”); Columbia Basin Apartment Association v. City of Pasco, 268 F.3d 791, 806 (9th Cir. 2001) (abstention justified where detailed analysis of state constitutional counterpart of Fourth Amendment revealed significant differences).

62. In Bad Frog Brewery, Incorporated v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), the Second Circuit declined to apply Pullman abstention due to the presence of a First Amendment challenge based on specific prohibition of speech even though the interpretations of related state regulations were unclear. The court, however, dismissed plaintiff’s state damage claims and declined to exercise supplemental jurisdiction because they presented novel or complex issues of state law.

63. In Pustell v. Lynn Public Schools, 18 F.3d 50, 53 n.5 (1st Cir. 1994), the First Circuit observed that the plaintiffs could not “avoid [ Pullman ] abstention by excluding crucial state law issues from their pleadings.” The unsettled nature of state home schooling statutes and regulations, coupled with the particularly local nature of educational policy, led the court to uphold abstention.

64. Ford Motor Company v. Meredith Motor Company, 257 F.3d 67 (1st Cir. 2001).

65. Id. at 72–73. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 78 (1997) (noting that pending state supreme court appeal concerning interpretation of state constitutional amendment may greatly simplify adjudication of federal constitutional issues).

66. See Charles Alan Wright et al., Federal Practice & Procedure § 4243 (3d ed.) (2007); see also Harrison v. NAACP, 360 U.S. 167, 177 (1959) ("This [Pullman] principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjudication.") (footnote omitted). 

67. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964).

68. Id. at 421-22.

69. The Supreme Court reaffirmed the England reservation rule in Allen v. McCurry, 449 U.S. 90, 101 n.17 (1980) and in Migra v. Warren City School District, 465 U.S. 75, 85 n.7 (1984).

70. An England reservation must be used carefully. See, e.g., Sheptock v. Fenty, 707 F.3d 326 (D.C. Cir. 2013) (action barred by res judicata where plaintiffs unsuccessfully attempted to make England reservation in state court, through motion and briefing that lacked clarity); Bernardsville Quarry v. Borough of Bernardsville, 929 F.2d 927, 929 n.1 (3d Cir.), cert. denied, 502 U.S. 861 (1991) (federal litigants must be careful to make the reservation to the state court, not the federal court); Temple of the Lost Sheep Incorporated v. Abrams, 930 F.2d 178 (2d Cir.), cert. denied, 502 U.S. 866 (1991) (court disallowed attempted England reservation and dismissed plaintiffs’ Section 1983 claims on basis of collateral estoppel, where concurrent federal action had been dismissed on Younger abstention grounds); see also Hickerson v. City of New York, 146 F.3d 99, 110–11 (2d Cir. 1998), cert. denied, 525 U.S. 1067 (1999) (England reservation available only to those litigants who initially choose to proceed in the federal forum, not in state court). But see Los Altos El Granada Investors v. City of Capitola, 583 F.3d 674, 685 (9th Cir. 2009) ("overly constrained approach to England" rejected in favor of allowing reservation where plaintiff initially files in state court and has opportunity to raise all claims in that forum.).

71. San Remo Hotel v. City and County of San Francisco545 U.S. 323 (2005).

72. Id. at 341.

73. Id. at 346-48.

74. See 17A Charles Alan Wright et al., Federal Practice  & Procedure § 4248 n. 30 (3d ed.) (2007) (state-by-state listing of certification statutes).

75. Arizonans for Official English, 520 U.S. at 76–80. See, e.g., Osterweil v. Bartlett, 706 F.3d 139, 145 (2d Cir. 2013( (in case that "falls within the heartland of Pullman abstention," court certified question of residence in challenge to state handgun licensing statute, where "certification is far faster and more convenient for all involved"). See also 17A Charles Alan Wright et al., Federal Practice & Procedure § 4248 (3d ed.) (2007) ("Thus, the Court has made it clear that in marginal cases of Pullman-type abstention, where delay and expense might otherwise tip the scales against abstention of the traditional kind, it would be appropriate to use certification if that is available.") (footnote omitted).

76See generally 17A Charles Alan Wright et al., Federal Practice  & Procedure § 4248 (3d ed.) (2007). 

77. See Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 309 n.18 (1979); Reproductive Health Services of Planned Parenthood v. Nixon, 428 F.3d 1139, 1142 (8th Cir. 2005) (“the Supreme Court has recognized that an abstaining federal court may grant a preliminary injunction while state courts construe the challenged statute.”) (citations omitted).

78. Burford v. Sun Oil Company, 319 U.S. 315 (1943).

79. Colorado River Water Conservation District v. United States, 424 U.S. 800, 815 (1976).

80. Id.

81. New Orleans Public Service, Incorporated v. Council of City of New Orleans, 491 U.S. 350, 360 (1989 (quoting Burford, 319 U.S. at 327).

82. Id. at 361 (quoting Colorado  River, 424 U.S. at 814). See also Hachamovitch v. DeBuono, 159 F.3d 687, 697 (2d Cir. 1998); Tucker v. First Maryland Savings and Loan, Incorporated, 942 F.2d 1401, 1405 (9th Cir. 1991).

83. New Orleans Public Service, 491 U.S. at 362; Hawthorne Savings v. Reliance Insurance Company of Illinois, 421 F.3d 835, 845 (9th Cir. 2005).

84. New Orleans Public Service, 491 U.S. at 362–63.

85. Id. at 363 (quoting Zablocki v. Redhail, 434 U.S. 374, 380 n.5 (1978)). “[D]ifficult state law questions alone are not enough for Burford abstention . . . Burford’s concern is interference with the state regulatory process.” Sevigny v. Employers Insurance of Wausau, 411 F.3d 24, 29 (1st Cir. 2005) (citing New Orleans Public Service, 491 U.S. at 361).

86. Quackenbush v. Allstate Insurance Company, 517 U.S. 706, 728 (1996) (quoting Burford, 319 U.S. at 334).

87. Id. at 726 (citation omitted).

88. Id. at 725 (citing Burford, 319 U.S. at 327–28) (further citations omitted).

89. Id. at 727–28.

90. Id. at 730 (citation omitted).

91. Id. at 730-31; see King v. Jeffries, 402 F. Supp. 2d 624 , 635 (M.D.N.C. 2005). Courts have, however, allowed a stay of federal proceedings on damages claims under the auspices of Younger abstention. See, e.g., D.L. v. Unified School District Number 497, 392 F.3d 1223, 1228 (10th Cir. 2004), cert. denied, 544 U.S. 1050 (2005); Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir. 2004). But see Diamond “D” Construction Corporation v. McGowen, 282 F.3d 191, 196 n.2 (2d Cir. 2002) (“Younger abstention is inappropriate on a claim for money damages”). See generally Kenneth M. Lesch, Recent Decision of the United States Court of Appeals for the District of Columbia Circuit: Civil Procedure, 65 Geo. Wash. L. Rev. 645 (1997).

92. E.g., Adrian Energy Associates v. Michigan Public Service Commission, 481 F.3d 414 (6th Cir. 2007) (power purchasing agreements for electricity generation).

93. See, e.g., Liberty Mutual Insurance Company v. Hurlbut, 585 F.3d 639 (2d Cir. 2009) (workers compensation); MacDonald v. Village of Northport, 164 F.3d 964 (6th Cir. 1999) (land use); Palumbo v. Waste Technologies Industries, 989 F.2d 156, 159–60 (4th Cir. 1993) (hazardous waste permitting); Law Enforcement Insurance Company v. Corcoran, 807 F.2d 38 (2d Cir. 1986), cert. denied, 481 U.S. 1017 (1987) (insurance); Browning Ferris Incorporated v. Baltimore County, 774 F.2d 77 (4th Cir. 1985) (permits for sanitary landfills). See also Johnson v. Collins Entertainment Company, 199 F.3d 710 (4th Cir. 1999) (gaming industry). But see Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988) (mere existence of land-use regulation does not justify Burford abstention.

94. Bethpage Lutheran Service Incorporated v Weicker, 965 F.2d 1239 (2d Cir. 1992); Kilroy v. Mayhew, 841 F. Supp. 2d 414 (D. Me. 2012) (applying Burford absention in food stamps eligibility challenge but denying Younger abstention based on remedial nature of state proceeding).

95Parents League for Effective Autism Services v. Jones-Kelley, 565 F. Supp.2d 905, 914 (S.D. Ohio 2008) (abstention declined despite impact on state budget, where Medicaid involves federal concerns); Moore v. Medows, No. 1:07-CV-631-TWT, 2007 U.S. Dist. LEXIS 47087, 2007 WL 1876017, at *3 (N.D. Ga. June 28, 2007) (abstention declined since plaintiff's claims "implicate not a complex state regulatory scheme, but an important federal interest embodied in the Medicaid Act") (citation omitted)).

96. See, e.g., Neufeld v. Baltimore, 964 F.2d 347 (4th Cir. 1992) (reversing the trial court’s decision to abstain from deciding plaintiff’s claim that a zoning ordinance violated his constitutional rights); Association for Retarded Citizens of North Dakota v. Olson, 713 F.2d 1384 (8th Cir. 1983) (conditions in facility for mentally retarded citizens and their treatment); Moe v. Brookings County, 659 F.2d 880 (8th Cir. 1981) (administration of county poor relief program); Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980) (challenge to the conditions of confinement of the county juvenile detention home), cert. denied, 450 U.S. 919 (1981); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) (prison conditions suit), cert. denied, 450 U.S.1041 (1981).

97. Hachamovitch, 159 F.3d at 698 (2d Cir. 1998) (due process challenge to suspension of physician license) (citations omitted).

98. Ankenbrandt v. Richards, 504 U.S. 689 (1992).

99. Id. at 705.

100. Id. at 705–06. The Supreme Court held Burford to be inapplicable in the case before it since the status of the domestic relationship had been determined in state court and it had no bearing on the torts alleged. Id. at 706.

101. See, e.g., Dunn v. Cometa, 238 F.3d 38 (1st Cir. 2001) (tort claims regarding former wife’s management of former husband’s care); Minot v. Eckardt-Minot, 13 F.3d 590 (2d Cir. 1994) (custodial interference tort action).

102.  Colorado  River Water Conservation District v. United States, 424 U.S. 800, 800 (1976).

103. Id. at 817-18.

104. Id. at 818. In disallowing abstention in favor of a state court insurance liquidation action, the First Circuit observed that “Colorado River is scarcely a formal ‘doctrine’ at all.” Sevigny v. Employers Insurance of Wausau, 411 F.3d 24, 29 (1st Cir. 2005).

105. See Chase Brexton Health Services, Incorporated v. Maryland, 411 F.3d 457, 463 (4th Cir. 2005) (the parallel state litigation may be an administrative proceeding if adjudicative in nature).

106. Interstate Material Corporation v. City of Chicago, 847 F.2d 1285, 1288 (7th Cir. 1988). Accord Ingalls v. AES Corporation, 311 F. App'x 911, 914 (7th Cir. 2008) (determining whether state and federal proceedings are parallel involves assessing whether they arise out of same facts and involve similar factual and legal issues).  See also Gannett Company v. Clark Construction Group, Incorporated, 286 F.3d 737, 742 (4th Cir. 2002); Fox v. Maulding, 16 F.3d 1079, 1081–82 (10th Cir. 1994). But see McLaughlin v. United Virginia Bank, 955 F.2d 930, 935 (4th Cir. 1992) (although the two actions involved similar claims and certain common facts, they were not parallel because neither the parties nor the legal theories were the same).

107. See Zemsky v. City of New York, 821 F.2d 148 (2d Cir.), cert. denied, 484 U.S. 965 (1987).

108. Fru-Con Construction Corporation v. Controlled Air, Incorporated, 574 F.3d 527, 535 (8th Cir. 2009) (emphasis added).

109.  Colorado River,  424 U.S. at 818.

110. Moses H. Cone Memorial Hospital v. Mercury Construction Corporation 460 U.S. 1 (1983).

111. Id. at 15; see KPS & Associates, Incorporated v. Designs by FMC Incorporated, 318 F.3d 1, 10 (1st Cir. 2003) (Colorado River list “is by no means exhaustive”) (citation omitted).

112. Moses H. Cone, 460 U.S. at 16. The Second Circuit held that, although Colorado River abstention did not employ a “mechanical checklist,” the district court must actually balance the relevant factors in reaching its determination. Village of Westfield v. Welch’s, 170 F.3d 116, 121 (2d Cir. 1999).

113. See Kline v. Burke Construction Company, 260 U.S. 226 (1922); McClellan v. Carland, 217 U.S. 268, 281–82 (1910).

114. Moses H. Cone, 460 U.S. at 14. The Court went on to “emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River to justify the surrender of that jurisdiction.” Id. at 25-26. See Jimenez v. Rodriguez-Pagan, 597 F.3d 18, 27 (1st Cir. 2010) ("The crevice in federal jurisdiction that Colorado River carved is a narrow one. Of all the abstention doctrines, it is to be approached with the most caution...."). See also Gregory v. Daly, 243 F.3d 687, 701–02 (2d Cir. 2001) (disallowing, without showing of exceptional circumstances, defendant’s claim that federal court should abstain under Colorado River in Title VII employment discrimination action “on the bare fact that allowing this case to proceed will result in the maintenance of duplicative proceedings”).

115 Wilton v. Seven Falls Company, 515 U.S. 277 (1995).

11628 U.S.C. § 2201(a); see Wilton, 515 U.S. at 286–87.

117See Brillhart v. Excess Insurance Company of America, 316 U.S. 491, 494–95 (1942).

118Wilton, 515 U.S. at 282. But see Chase Brexton Health Services, Incorporated v. Maryland, 411 F.3d 457, 463, 466–67 (4th Cir. 2005) (claims for declaratory and injunctive relief “are so closely intertwined that judicial economy counsels against dismissing the claims for declaratory judgment relief while adjudicating the claims for injunctive relief”).

119Wilton, 515 U.S. at 290; see United States v. City of Las Cruces, 289 F.3d 1170, 1179–84 (10th Cir. 2002) (citing applications of Brillhart in cases founded on jurisdictional grounds other than diversity).

120. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), applied the Eleventh Amendment to bar supplemental claims seeking injunctive relief to compel state officials to comply with state law.

121. See generally the discussion of claim and issue preclusion in Chapter 3.4 of this MANUAL. 

122. The only exception is for habeas corpus petitions.

123. Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923).

124District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

125. Johnson v. DeGrandy, 512 U.S. 997, 1005–06 (1994) (citation omitted).

126 Feldman, 460 U.S. at 486.

127. Id. at  486-87.

128. Lemonds v. St. Louis County, 222 F.3d 488, 493 (8th Cir. 2000), cert. denied sub nom. Halbman v. St. Louis County, 531 U.S. 1183 (2001); Marks v. Stinson , 19 F.3d 873, 886 n.11 (3rd Cir. 1994).  

129 Exxon Mobil Corporation v. Saudi Basic Industries Corporation 544 U.S. 280, 284 (2005).

130. Id. at 291-92. See Skinner v. Switzer, 131 S. Ct. 1289 (2011) (federal jurisdiction over Section 1983 claims challenging state statutes previously interpreted by state criminal courts of appeals are not barred by Rooker-Feldman doctrine).

131. Lance v. Dennis546 U.S. 459 (2006). The Court did note, however, that it had not held that the doctrine could never be used against a non-party to a state court proceeding.

132. Hoblock v. Albany County Board of Elections, 422 F.3d 77, 86-87 (2d Cir. 2005) (acknowledging that the Circuit had applied Rooker-Feldman too expansively to be coextensive with preclusion principles and that Exxon Mobil significantly pared back the doctrine); see also Pittman v. Cuyahoga County Department of Children and Family Services, 241 F. App'x 285, 287 (6th Cir. 2007) ("In the wake of Exxon, this circuit has tightened the scope of Rooker-Feldman.") (citation omitted).

133. Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (citing Hoblock, 422 F.3d at 85).

134. See McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006), cert. denied, 552 U.S. 828 (2007).  For example, a biological father's constitutional claims in federal court against the actions of a child welfare agency which allegedly led to loss of custody in juvenile court proceedings were held not to be subject to Rooker-Feldman, since the challenge was against a third party's conduct, not the state court judgment itself. Pittman, 241 F. App'x at 288.

135. Nicholson v. Shafe, 558 F.3d 1266, 1274 n.8 (11th Cir. 2009).

136. Exxon Mobil, 544 U.S. at 291 (emphasis added).

137. See, e.g., D.A. Osguthorpe Family Partnership v. ASC Utah, Incorporated, 705 F.3d 1223, 1232 (10th Cir. 2013) (Rooker-Feldman did not bar federal action because state court proceedings not final while appeal pending); Shafizadeh v. Bowles, 476 F. App'x 71, 72 (6th Cir. 2012) (question remains open); Marciano v. White, 431 F. App'x 611, 613 (9th Cir. 2011) (Rooker-Feldman precluded federal action, even though state court appeals pending).

138. Exxon Mobil, 544 U.S. at 292.

139. Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 644 n.3 (2002).

Updated 2013 by Gregory Bass, 2015 by Jeffrey S. Gutman

2.9 State Court Jurisdiction over Federal Claims

Updated 2013 by Jeffrey S. Gutman

In determining whether state courts are allowed to entertain jurisdiction over federally created causes of action, the Supreme Court has applied a presumption of concurrency./1/ Under this presumption, state courts may exercise jurisdiction over federally created causes of action as long as Congress has not explicitly or implicitly made federal court jurisdiction exclusive./2/ An implied exclusivity can result from an “unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interest.”/3/ In considering whether a federal claim is incompatible with state court jurisdiction, the Court looks to “the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims.”/4/ Under this framework, federal courts have exclusive jurisdiction over admiralty, bankruptcy, patent, trademark, and copyright claims because the relevant jurisdictional statutes expressly provide so./5/ In other areas, such as antitrust, the federal statutes do not make federal court jurisdiction exclusive, but courts found an implied exclusivity./6/

State courts may exercise jurisdiction over claims brought under 42 U.S.C. § 1983./7/ Although the Court has not expressly addressed state court jurisdiction over the other Reconstruction-era civil rights actions, it reviewed a 42 U.S.C. § 1982 action arising in the state courts without any apparent doubt about the permissibility of state courts to entertain such actions./8/ Moreover, state courts addressing issues involving 42 U.S.C. §§ 1981 and 42 U.S.C. § 1982, both having their origins in Section 1 of the Civil Rights Act of 1866 and its 1870 reenactment, concluded that they were allowed to entertain such actions./9/

A state court may decline to entertain a federal claim if it adhere to a neutral rule of judicial administration. That rule must not violate the Supremacy Clause by treating the federal claim less favorably than a parallel state claim.  In Howlett v. Rose the Court was asked to decide whether common-law sovereign immunity was available to a state school board to preclude a claim under 42 U.S.C. § 1983 even though such a defense would be unavailable in federal court./10/ The state court had dismissed the lawsuit on grounds that the school board, as an arm of the state, had not waived its sovereign immunity in Section 1983 cases. The Howlett Court stated that state common-law immunity was eliminated by acts of Congress in which Congress expressly made the states liable./11/ The Court held that the state court’s refusal to entertain a Section 1983 claim against the school district, when state courts entertained similar state-law actions against state defendants, violated the Supremacy Clause./12/

More recently, the Supreme Court struck down a New York statute that divested its state courts from entertaining Section 1983 or state law claims for damages by prisoners against state correctional employees./13/ The state legislature determined that these kinds of lawsuits were frequently frivolous and channeled them into the state court of claims, which offered more limited remedies and more stringent procedural requirements.  The Supreme Court held that the state law violated the Supremacy Clause because it reflected a policy contrary to Congress' view that state actors are liable for money damages when they violate federal constitutional rights under color of state law./14/ The Court further determined that merely because the state treated Section 1983 and parallel state law claims equally did not mean that the law was a neutral rule of judicial administration and therefore a valid excuse for barring the federal claim from being heard in state court: "[a]lthough the absence of discrimination is necessary to our finding a state law neutral, it is not sufficient. A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it may appear."/15/


_______________________________________________________________________________________________

1. See, e.g., Robb v. Connolly, 111 U.S. 624 (1884); Claflin v. Houseman, 93 U.S.130, 136 (1876); see generally Martin H. Redish & John Muench, Adjudication of Federal Causes of Action in State Court, 75 Mich. L. Rev. 311 (1976).

2. Yellow Freight System, Incorporated v. Donnelly, 494 U.S. 820, 822 (1990). Congress may, of course, expressly permit state courts to entertain certain federal claims.  State courts are authorized to hear claims arising under the Fair Labor Standards Act, 29 U.S.C. § 216(b), the Equal Pay Act, 29 U.S.C. § 206, the Age Discrimination in Employment Act, 29 U.S.C. § 626(c)(1), and Title VIII actions involving housing discrimination, 42 U.S.C. § 3613(a).  State courts have concurrent jurisdiction over Title VII claims. Yellow Freight System, Incorporated, 494 U.S. at 820.

3. Gulf Offshore Company v. Mobil Oil Corporation, 453 U.S. 473, 477–78 (1981). Closely related to this concept is a federal statute's complete preemption of state law causes of action, thereby effectively vesting the federal court with exclusive jurisdiction over the claim.  See, e.g.Aetna Health Incorporated v. Davila, 542 U.S. 200, 209 (2004) (discussing "pre-emptive force" of ERISA and the Labor Management Relations Act).

4. Gulf Offshore Company, 453 U.S. at 483–84. See also Hathorn v. Lovorn, 457 U.S. 255, 271 (1982) (Rehnquist, J., dissenting) (discussing considerations of uniformity, federal expertise, and federal hospitality to federal claims).

5. See 28 U.S.C. §§ 1333-1334, 1338.  Congress may also vest exclusive federal jurisdiction over federal claims in the statute creating the claim.  See, e.g., 15 U.S.C. § 78aa (federal securities law).

6. See, e.g., General Investment Company v. Lake Shore and Michigan Southern Railway Company, 260 U.S. 261, 286-88 (1922).  

7. See Haywood v. Drown, 556 U.S. 729, 731 (2009)Patsy v. Board of Regents of Florida, 457 U.S. 496, 506-07 (1982); Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980).

8. Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).

9. See, e.g., Miles v. FERM Enterprises, Incorporated, 627 P.2d 56429 Wash. App. 61 (1981); see also DeHorney v. Bank of America National Trust and Savings Association, 879 F.2d 459, 463 (9th Cir. 1989) (state courts have concurrent jurisdiction over Section 1981 suits); Blount v. Stroud, 904 N.E2d. 1, 232 Ill. 2d 302, 328 (2009) (holding that state circuit courts have jurisdiction to hear 1981 claims); People ex rel. Department of Transportation v. Cook Development Company, 274 Ill. App. 3d 175, 185 (Ill App. Ct. 1st Dist. 1995) (concluding Section 1982 actions may be brought against the state); Barber v. Rancho Mortgage & Investment Corporation, 26 Cal. App. 4th 1819, 1833 (Cal. App. 2d Dist. 1994) (entertaining Section 1982 claim in state court for housing discrimination). Cf. Filipino Accountants Association Incorporated v. State Board of Accountancy, 204 Cal. Rptr. 913, 915 n.4 (Cal. Ct. App. 1984) (assuming state court jurisdiction over Section 1981 actions); State v. Sebastian, 243 Conn. 115, 160 (Conn. 1997) (suggesting state court's failure to exercise jurisdiction would be a violation of Indians' rights under Section 1981); Collins v. Department of Transportation, 208 Ga. App. 53, 56 n.2 (Ga. Ct. App. 1993) (citing Section 1981 as an example of state court subject matter jurisdiction over federal law actions). State courts also consistently exercised jurisdiction over actions brought under 42 U.S.C. § 1985(3) and alleging conspiracies to deprive individuals of equal protection of the laws, a result which is not surprising considering the common origin of Section 1985 and Section 1983 in the Civil Rights Act of 1871. See, e.g., Rajneesh Foundation International v. McGreer, 734 P.2d 871 (Or. 1987) (allowing Section 1985(3) counterclaim). State courts also assumed the availability of state court jurisdiction over Section 1985(2) claims involving the administration of justice in state courts. See Rutledge v. Arizona Board of Regents, 711 P.2d 1207 (Ariz. 1985). 

10. Howlett v. Rose, 496 U.S. 356 (1990).

11. Id. at 376.

12. But see National Private Truck Council, Incorporated v. Oklahoma Tax Commission, 515 U.S. 582, 587 n.4 (1995) (“We have never held that state courts must entertain § 1983 suits”) (citations omitted).

13. Haywood v. Drown, 556 U.S. 729 (2009)See also Felder v. Casey, 487 U.S. 131 (1988) (striking down Wisconsin's notice of claim requirements as applied to Section 1983 claims filed in state court).

14. Haywood, 556 U.S. at 736-37.

15Id. at 739.

Updated 2013 by Jeffrey S. Gutman

Chapter 3: The Case or Controversy Requirement and Other Preliminary Hurdles

Updated 2013

This chapter discusses several constitutionally or prudentially imposed limitations on the pursuit of federal litigation. First, the chapter surveys the doctrine of standing and discusses constitutional and prudential requirements as well as associational and third-party standing. Second, the chapter covers ripeness and mootness, including mootness in the context of class action litigation. Questions of mootness may arise at any time in litigation and, as suggested in Chapter 9 of this Manual, the doctrine of mootness has emerged as an important issue in the recovery of attorney's fees. Third, the chapter examines a significant prerequisite to pursuit of federal litigation in some types of cases: exhaustion of mandatory or voluntary administrative remedies, and the preclusive effects that availability of or utilization of administrative agency and/or state court adjudication have on subsequent federal court litigation.

Updated 2013

3.1 Standing

Updated 2015 by Jeffrey S. Gutman

Attorneys need to understand the law of standing in order to minimize the likelihood of having to litigate the issue. Avoiding a standing defense requires a careful selection of plaintiffs, thoughtful choice of claims and relief sought, and specific allegation of facts in the complaint. Skillful pleading, therefore, should focus not only on the merits of the claims but also on the standing of the plaintiffs to advance them. Failure to do so may result in delay of the case at best, and dismissal of the case at worst.

3.1.A. Overview

The law of standing has its roots in Article III’s case and controversy requirement./1/ The U.S. Supreme Court has established a three-part test for standing. The “irreducible constitutional minimum of standing” requires the plaintiff to establish:

First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”/2/

While the standing test is easily stated, it can be difficult to apply. The Supreme Court has observed that “[g]eneralizations about standing to sue are largely worthless as such.”/3/

The Supreme Court also imposes “prudential” limitations on standing to ensure sufficient "concrete adverseness."/4/ These include limitations on the right of a litigant to raise another person’s legal rights, a rule barring adjudication of generalized grievances more appropriately addressed legislatively, and the requirement that a plaintiff’s complaint must fall within the zone of interests protected by the statute at issue./5/

The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff./6/ At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden./7/ Standing must exist on the date the complaint is filed and throughout the litigation./8/ Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte./9/ Finally, plaintiffs must demonstrate standing for each claim and each request for relief./10/ There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts./11/

In this Chapter, we canvass the important Supreme Court cases on standing and attempt to extract useful generalizations to employ in practice. A brief caveat is in order. Standing cases are very fact specific. While the general discussion here may assist you in understanding the outlines of the standing inquiry, you will need to do specialized research in the area in which your case arises. Just as important, you must carefully interview your clients and perform other necessary factual investigation to assess precisely how your client has or will be injured by the action or policy you contemplate challenging.

3.1.B. The Constitutional and Prudential Requirements of Standing

Inherent in the constitutional limitation of judicial power on cases and controversies is the requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public interest law litigation involving claims of non-economic loss has forced the Supreme Court to craft an analytical framework for determining whether the requisite adversity is present. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests. By establishing that they personally suffered injury, plaintiffs demonstrate that they are sufficiently associated with the controversy to be permitted to litigate it. The question of injury raises two questions – (1) what kinds of injuries count for purposes of standing and (2) how certain the injury must be if it has not yet occurred.

3.1.B.1. Injury in Fact

 The following section discusses several types of injuries considered by the Supreme Court in the standing analysis.

3.1.B.1.a. Economic Interests

The Supreme Court has had no difficultly determining that economic interests are legally protected interests./12/ More difficult is determining when economic injury that has yet to occur is sufficiently imminent and likely to confer standing. The Court has been relatively forgiving in this regard. Economic injury need not have already occurred but can result from policies that, for example, are likely to deprive the plaintiff of a competitive advantage or a bargaining chip./13/ In Clinton v. New York, for instance, the Court held that New York had standing to challenge the veto of legislation permitting the state to keep disputed Medicaid funds./14/ The veto left the state’s ability to retain the funds uncertain, subject to the outcome of a request for a waiver. Despite this uncertainty, the Court regarded the “revival of a substantial contingent liability” sufficient to confer standing./15/

Noting that states are to be given “special solicitude” in the standing analysis because of their stake in protecting their “quasi-sovereign” interests, the Supreme Court held that Massachusetts had demonstrated an economic injury in the recent “global warming” case./16/ Massachusetts, other states, cities and private organizations petitioned the Environmental Protection Agency to regulate greenhouse gas emissions under the Clean Air Act. The plaintiffs challenged the Environmental Protection Agency's subsequent decision not to do so on the ground that it lacked statutory authority and if it did, that setting emissions standards at that time was unwise. Relying on declarations by scientists, the Court held that Massachusetts faced “climate change risks” associated with rising sea levels which threatened state-owned coastal lands./17/ The Court noted that remediation would cost hundreds of millions of dollars./18/ As explained below, the Court found these risks to be sufficiently certain and imminent to support standing. 

3.1.B.1.b. Non-economic Interests

Non-economic interests have proven more difficult for the Supreme Court to analyze. Most of the important cases have arisen in the environmental law context.  The Court has recognized that environmental, recreational, and aesthetic injuries are legally cognizable for standing, but has had difficulty in defining the circumstances in which such injuries are sufficiently concrete and imminent to confer standing. Sierra Club v. Morton, for example, arose from a challenge to a decision by the U.S. Department of the Interior to license the construction of a ski resort./19/ The Sierra Club claimed that the license agreement was illegal and asserted standing based upon its long-standing interest in, and concern for, the protection of the environment and its experience in environmental litigation. The Sierra Club did not plead that it or its members would suffer any adverse consequence by virtue of the license. Acknowledging that loss of recreational opportunities or aesthetic enjoyment may be cognizable injuries, the Court held that the Sierra Club failed to plead a particular cognizable injury associated with the license, and it therefore lacked standing to sue. On remand to the district court, the Sierra Club amended the complaint to allege that its members would suffer such injuries and ultimately succeeded in blocking the development./20/

Sierra Club is significant both for what it permits and what it prohibits. By recognizing that non-economic injury suffices for injury in fact, Sierra Club loosened the requirement of injury in fact. By holding that a specialized interest in a particular issue may not give rise to injury sufficient to challenge unlawful conduct, Sierra Club precluded citizen suits to enforce the law. Subsequent cases expanded these principles.

United States v. Students Challenging Regulatory Agency Procedures (SCRAP) represents the high watermark of environmental standing./21/ In SCRAP, the Supreme Court held that a student organization assembled for the purpose of litigation had standing to challenge the Interstate Commerce Commission’s approval of increased rail freight rates that would increase the cost of recycling scrap metal. The students claimed to suffer aesthetic injury when using parks and to suffer injury when breathing polluted air as a result of reduced recycling. Even though the injuries would generally be suffered by virtually everyone and the connection between the challenged policy and the claimed injuries was highly attenuated, the Court found standing. The Court, however, has made it subsequently clear that SCRAP lies at the very margin of standing doctrine, if not beyond./22/

The Supreme Court recognized the role of carefully pleading injury in Duke Power Company v. Carolina Environmental Study Group./23/ Organizations and individuals who lived close to a planned nuclear power plant challenged the constitutionality of federal legislation capping the potential liability of a plant operator for a nuclear disaster. Plaintiffs alleged that, absent the liability cap, the plant could not profitably be built, thereby tying the harm that would result from construction of the plant to the liability cap. Plaintiffs claimed that use of two local lakes to produce steam and to cool the reactor would release small amounts of non-natural radiation and would cause a “sharp increase” in water temperature, which in turn would harm their interest in the recreational use of the lakes./24/ Relying upon Sierra Club and SCRAP, the Court held that the injuries were sufficient to confer standing. The Court also held that the plaintiffs satisfied the causation and redressability requirements for standing, discussed below.

Since Duke Power, the Court has been less receptive to claims of environmental standing. In Lujan v. National Wildlife Federation, for example, the plaintiffs challenged the Interior Department’s efforts to review and classify hundreds of parcels of public lands in a manner that might have resulted in their use for mining./25/ Relying on affidavits, plaintiffs claimed injury to their recreational and aesthetic enjoyment of lands in the vicinity of public lands that had been opened to mining and oil and gas leasing claims. The Court rejected standing. The public lands at issue were massive tracts of land, only a small portion of which were subject to the challenged decisions. The Court held that an interest in lands that simply lay in the vicinity of areas subject to development was inadequate to confer standing.

Similarly, Lujan v. Defenders of Wildlife involved a provision in the Endangered Species Act that required federal agencies to consult with the Interior Department to make sure that any programs authorized or funded by the agency do not adversely affect endangered species./26/ In Defenders of Wildlife, plaintiff organizations and individuals challenged an Interior Department regulation that had the effect of limiting the consultative scope of the Act only to projects undertaken within the United States rather than abroad as well. Plaintiffs alleged that reducing this consultative arrangement would increase the rate of extinction of endangered species overseas. Again, the Supreme Court recognized that a desire to observe animals was a cognizable interest, but held that plaintiffs failed to demonstrate that they “would thereby be ‘directly’ affected apart from their ‘special interest’ in th[e] subject.”/27/ Affiants claimed only that they had visited the habitats of endangered species abroad and intended to revisit them. The Court observed that “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.’”/28/

The Supreme Court’s more recent decision in Friends of the Earth v. Laidlaw Environmental Services involved standing under the citizen-suit provision of the Clean Water Act./29/ That provision authorizes the federal courts to hear actions for injunctive relief and civil penalties by “a person or persons having an interest which is or may be adversely affected.”/30/ Laidlaw received a permit to discharge certain pollutants into a river but repeatedly exceeded those limits. South Carolina sued Laidlaw and quickly settled for $100,000 in civil penalties and a promise to comply with the permit. Friends of the Earth subsequently filed suit, seeking additional civil penalties and injunctive relief. The issue before the Court was whether plaintiffs had standing to seek civil penalties after Laidlaw had complied with the discharge permit.

The Court held that plaintiffs had established injury in fact, Through affidavits and deposition testimony they detailed their desire to recreate on the nearby river and to enjoy its aesthetic beauty, but explained their hesitance to do so because of the pollution./31/ Distinguishing National Wildlife Federation and Defenders of Wildlife, the Court held that the affidavits and testimony presented by Friends of the Earth members asserted that Laidlaw's  discharges, and the affiants' reasonable concerns about the effects of those discharges, directly affected those affiants' recreational, aesthetic, and economic interests. The court stated that the submissions presented more than the mere "general averments" and "conclusory allegations" found inadequate in National Wildlife Federation. The Court further found that the affiants' conditional statements -- that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging pollutants into it -- were not like the speculative "'some day" intentions to visit endangered species halfway around the world that we held insufficient to show injury in fact in Defenders of Wildlife."/32/

Friends of the Earth offers useful guidance to advocates who need to identify potential plaintiffs and plead their injuries in the complaint or in affidavits.  Unlike plaintiffs in National Wildlife Federation, the Friends of the Earth plaintiffs alleged direct injury from the pollutants in question to the particular area in which they wished to recreate./33/ Unlike plaintiffs in Defenders of Wildlife, the plaintiffs in Friends of the Earth alleged that they would use the river without the discharges, not that they might someday do so./34/ Notwithstanding the Court's opinion in Earth Island Institute, discussed below, Friends of the Earth suggests that the Court remains receptive to finding injury in fact in environmental cases where plaintiffs are able to allege a clear wish to avail themselves of recreational or aesthetic opportunities in a particular, proximate area, but assert that they had not done so because of reasonable concern of harm.

3.1.B.1.c. Injuries to Statutory Rights

Statutory rights can create the cognizable legal interest required for standing, but Defenders of Wildlife seemed to place limits on this general principle. A majority of the Court found the “citizen suit” provision of the Endangered Species Act unconstitutional./35/ The Act permitted “any person” to obtain judicial review of agency action that is alleged to violate the Act. The plurality opinion, authored by Justice Scalia, recognized that the Court had frequently held that “[t]he ... injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”/36/ However, relying on the line of “generalized grievance” cases, Justice Scalia stated that Congress could recognize cognizable injuries by statute but could not dispense with the concrete-injury requirement. Justices Kennedy and Souter joined this holding, forming a majority, on slightly narrower grounds. They noted that “Congress must, at the very least, identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.”/37/ That was something the citizen-suit provision of the Act failed to do./38/

In so holding, the Supreme Court did not purport to overturn a line of cases arising under the Fair Housing Act of 1968./39/ In those cases, the Court held that Congress may create by statute a right, the deprivation of which constitutes the injury in fact necessary for standing, even when the plaintiff would have suffered no judicially cognizable injury without the statute. In Trafficante v. Metropolitan Life Insurance Company, cited with apparent approval in Defenders of Wildlife, the Court held that Congress created a right to be free from the effects of racially discriminatory housing practices directed at others./40/ Thus, white residents of an apartment complex had standing to challenge the exclusion of black rental applicants because they suffered the loss of the benefits of life in an integrated community./41/ Defenders of Wildlife would suggest that such antidiscrimination laws can create new cognizable injuries, but that such statutes can permit only those particularly and concretely suffering such injuries to enforce these laws./42/ Indeed, acknowledging contrary authority under the Fair Housing Act, the Supreme Court recently held that the "person aggrieved" right to sue provisions in Title VII is narrower than Article III standing./43/  Instead, the Court equated the "person aggrieved" language with the "zone of interest" test found in APA standing jurisprudence./44/

3.1.B.1.d. Procedural Injury

The Supreme Court has addressed an additional form of injury—other than economic, recreational, and aesthetic injury—of potential value to legal aid attorneys. In Defenders of Wildlife, plaintiffs sought standing on the ground that the Act in question created a procedural right in the form of interagency consultation that was allegedly violated. The Court rejected the view that anyone could have standing to assert this abstract “procedural right.”/45/ The Court did, however, note that “‘procedural rights’ are special: the person who has been accorded a procedural right to protect his concrete interest can assert that right without meeting all the normal standards for redressability and immediacy.”/46/ Plaintiffs have, in short, standing to challenge the alleged violation of procedures so long as the procedures are designed to protect some concrete substantive interest of the plaintiff and that it is "substantively probable" that breach of those procedures will injure those interests./47/ Otherwise, the claim of standing is regarded as nothing more than a generalized interest in the government’s compliance with laws./48/

The Supreme Court's decision in Massachusetts v. Environmental Protection Agency clearly reinforces, if not expands, this form of standing./49/ In that case, Massachusetts challenged the Environmental Protection Agency’s decision not to regulate greenhouse gases pursuant to the Clean Air Act, which expressly authorizes challenges for actions unlawfully withheld. Holding that Massachusetts could advance this challenge without meeting the ordinary standards for redressability and immediacy, the Court held that "when a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant."/50/ 

3.1.B.2. Actual and Imminent Injury

Once a cognizable injury has been asserted, the Supreme Court has long cautioned that the injury in fact be "actual and imminent, not conjectural or hypothetical."/51/ Our discussion of non-economic injuries above describes the Court's approach to this requirement of standing in several of the earlier cases. A more recent case, Summers v. Earth Island Institute, a closely divided environmental standing decision, follows the logic of Defenders of Wildlife./52/ In Earth Island, a number of environmental organizations challenged Forest Service regulations which exempted small timber salvage sale projects from notice, comment and appeal processes set forth in a federal statute. The challenge occurred in the context of one particular sale.  After that specific controversy settled, the challenge proceeded generally against the regulations, but the absence of a particular factual context in which the regulation was applied to a specific timber sale doomed standing. The affiant asserted plans to visit national forests in the future, but he failed to allege an intent to visit a particular tract subject to a sale covered by the regulation. The dissent pointed out that there was a "realistic likelihood" that a member of one of the plaintiff organizations would visit an affected tract because the Forest Service conceded that it would engage in thousands of projects exempt from the regulation in the future. The Court, however, rejected reliance on "probabilistic standing" based on a realistic threat of harm. Instead, it insisted that organizational plaintiffs use member affidavits to show that they will imminently use specific tracts./53Earth Island presents particular challenges in situations in which there is a settlement in an action filed by a plaintiff to challenge application of a legal rule in a particular context as part of a broader effort to overturn the rule generally.

Although the analysis might well have been more forgiving because of its focus on the standing of state,/54/ the question of "actual and imminent" harm was squarely presented in Massachusetts v. Environmental Protection Agency./55/ In Massachusetts, the state alleged injury to its coastline from Environmental Protection Agency's failure to regulate the greenhouse gasses that contribute to global warming. Based on scientific evidence presented, the Court found support in the plaintiffs' allegations linking greenhouse gasses to global warming, chiding the dissent as being among the only naysayers on this point./56/ It also credited an affidavit from a scientist explaining that rising seas had already encroached on the Massachusetts coastline./57/A useful lesson from Massachusetts, made even more clear in Earth Island, is to be prepared for an anticipated motion to dismiss on standing grounds with credible and detailed affidavits that (1) demonstrate the affiant's clear intention to engage in activities, consistent with past practices, that (2) will, if taken, cause the affiant direct and highly probable injury.

A recent example is Monsanto v. Geertson Seed Farms in which conventional alfalfa seed farms and farmers challenged the Department of Agriculture's decision to deregulate a form of genetically modified alfalfa./58/ The Court accepted the trial court's conclusion that the decision gave rise to a "significant risk" of contamination to conventional alfalfa crops./59/ Citing a declaration of a farmer who stated that he would in the future test his crops to ensure that they were free of genetically modified alfalfa, which imposed costs on his business, the Court held that the farmers' injuries were sufficiently concrete to afford them standing./60/

In seeming tension with Monsanto, Clapper v. Amnesty International, squarely addressed the question of future injury and exposed the deep rift in the Court on how to define the degree of certainty required of plaintiffs to establish standing when asserting future injury./61/ In Clapper, a group of journalists, attorneys and others challenged as unconstitutional a provision in the amended Foreign Surveillance Intelligence Act which authorized the government to engage in electronic surveillance of their sources and clients overseas. The plaintiffs contended that their sources and clients are the kinds of people likely to be subject to such surveillance and, fearing future surveillance, they had undertaken costly measures, such as foreign travel instead of phone calls or e-mail, to communicate with these individuals, or had limited their electronic contacts to maintain their confidentiality. 

In a 5-4 decision, the majority initially observed that the standing requirement is particularly exacting when the case challenges the constitutionality of actions taken by another branch of the federal government and when the issue relates to intelligence gathering and foreign affairs./62/ However, relying on cases outside that context, the Court held that the threatened injury must be "certainly impending."/63/ It found that plaintiff had not satisfied that formidable standard. The Court regarded the plaintiffs' fear that the government will target their contacts or clients as speculative, citing affidavits that expressly stated that the affiant assumed their communications would be monitored. In context, an allegation of certain surveillance was not possible. Even if the government targeted the communications of those connected to the plaintiffs, the request to do so required review of the Foreign Intelligence Surveillance Court and the Court announced its reluctance "to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment."/64/ The plaintiffs further contended that their fear of surveillance caused them present injuries when they took measures, including foreign travel, to avoid being overheard. The majority rejected that assertion as nothing more than an effort to "manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending."/65/ The dissent observed that there was, in reality, a "very high likelihood" that the government would intercept the communications involving the plaintiffs because their clients and contacts were the kinds of people of great concern to the government, the content of the communications would be of interest to the government, they had been previously targeted for surveillance, and the government has the capacity to conduct surveillance of these communications./66/ The dissent further challenged the notion that the "certainly impending" standard was the required threshold for standing, citing many cases, including Monsanto, applying a less rigorous probabilistic standard./67/

 In a footnote that hedged the standard, the majority acknowledged that “we have found standing based on a ‘substantial risk’ that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm,” but held that, if the “certainly impending” and “substantial risk” standards are different, the plaintiffs did not satisfy the more forgiving “substantial risk” requirement either./68/

The Supreme Court’s more recent standing decision in Susan B. Anthony List v. Dreihaus,/69/ sheds further light on the applicable standard. Susan B. Anthony was a pre-enforcement challenge to an Ohio statute that prohibited “false statements” concerning candidates or public officials during political campaigns for nomination or election. Any person can file a complaint about such statements with a state commission that, in turn, must refer the matter to a county prosecutor if the commission determines by clear and convincing evidence that the false-statement law was violated.

Of relevance here, the Court cited Clapper and held that “[a]n allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.”/70/  A showing of either standard may therefore be sufficient. In the pre-enforcement context, that standard may be satisfied when the plaintiff expresses an intent to engage in arguably unlawful speech and there is a “credible threat” of enforcement./71/  The Court held that standard was satisfied by the combination of burdensome administrative proceedings before the commission combined with the subsequent threat of criminal prosecution because prior speech, likely to be repeated, had previously been found unlawful in a proceeding before the commission mooted by the withdrawal of the claim. 

At least in the context of a pre-enforcement challenge, the Court in Susan B. Anthony appeared to temper  Clapper's "certainly impending" language and leave opportunities to continue to argue the viability of the alternative “substantial risk” formulation.

3.1.B.3. Distinct and Palpable Injury

One of the goals of public law litigation is to force the government to comply with the Constitution and federal statutes. In the absence of more specific injuries, plaintiffs have claimed that the Constitution confers upon all citizens the right to a lawful government and upon all federal taxpayers the right not to be taxed to support unlawful governmental activity. In a largely unbroken line of cases, the Supreme Court has refused to permit litigation of these so-called citizen or taxpayer suits./72/

In United States v. Richardson/73 / and Schlesinger v. Reservists Committee to Stop the War/74/, the Court held that injury resulting from the allegedly unlawful expenditure of tax monies did not confer standing because of the “‘comparatively minute, remote, fluctuating and uncertain’ impact on the taxpayer.”/75/ With respect to the interest of citizens in lawful government, the Court repeatedly characterized the injury to plaintiffs as citizens as “remote,” “abstract,” “generalized,” and “undifferentiated,” rather than “concrete.” Because of this, the Court has held that this “motivation [to enforce the Constitution] is not a substitute for the actual injury” required for standing./76/ Clapper reiterated the Court's long-standing rejection of the notion that standing doctrine should be applied to permit some plaintiff standing for fear that the law or practice could go otherwise unchallenged./77/

The Court expounded on these principles in Warth v. Seldin, where the Court coined the phrase “distinct and palpable injury” to capture the requirement that plaintiffs must plead more than a generalized or undifferentiated grievance against the government./78/ “Distinct” generally means that the challenged act or policy affects the plaintiff differently from citizens at large. “Palpable” means that the resulting injury is concrete and not abstract or hypothetical. The Court explained in Warth that the prohibition against citizen standing and taxpayer standing did not derive from Article III. Rather, the requirements that a plaintiff suffer a distinct and palpable injury are “essentially matters of judicial self-governance.”/79/ Thus, while the requirement of injury in fact is rooted in Article III, the requirement that the injury be distinct and palpable is a prudential limitation on standing created to effectuate the separation of powers. Because the requirement is prudential, Congress can dispense with it./80/

Allen v. Wright culminated the demise of both citizen standing and taxpayer standing./81/ Parents of African American public school children, residing in school districts undergoing desegregation, challenged the Internal Revenue Service’s failure to deny tax-exempt status to discriminatory private schools in their respective districts. Plaintiffs did not allege that their children wished to attend these private schools. Rather, the parents alleged that governmental financial assistance to discriminatory schools both harmed them and impaired their ability to have the public schools desegregated. Treating the claim as an abstract allegation that the government stigmatized African American citizens by subsidizing race discrimination, the Court held that the claim did not state a distinct and palpable injury./82/ The Court found that stigmatic injury “accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.”/83/

The Supreme Court returned to the topic of generalized grievances in Hollingsworth v. Perry, the case challenging California's Proposition 8 banning gay marriage on due process and equal protection grounds./84/ In Hollingsworth, the state defendants refused to defend the constitutionality of Proposition 8, and the official sponsors of the successful voter initiative sought to intervene to defend it. The Supreme Court held that they lacked standing to do so because they had no direct stake in the outcome of the case. Once the initiative passed, the Court reasoned, the proponents had the same generalized interest in its legality as any other citizen of California./85/

Nonetheless, the Court has sometimes found standing based upon claims of injury that can be described only as generalized or abstract. In Federal Election Commission v. Akins, for example, voters challenged a decision by the Federal Election Commission that a particular organization was not a “political committee.”/86/ Political committees must make certain disclosures to the Commission; those disclosures, in turn, may be made public. The Court found that plaintiff voters had standing because the voters were not afforded access to information that might assist them in casting their vote, even though all voters could have claimed the same thing./87/ Akins might be justified on the grounds that the right of information at issue was statutorily created and that a statute gave “aggrieved” parties a right to challenge the FEC decision. That would put Akins closer to Trafficante than Defenders of Wildlife, discussed above.

3.1.B.4. Injury Fairly Traceable to the Challenged Conduct

In addition to alleging injury in fact, the plaintiff must demonstrate that the injury is fairly traceable to the defendant’s unlawful conduct. In cases in which the government acts against the plaintiff, causation is simple. When, however, governmental action or inaction relates to third parties or only indirectly affects the plaintiff, the question becomes whether the causal connection between action and injury is sufficient to confer standing. The Supreme Court has found standing in some cases notwithstanding an attenuated or uncertain chain of causation./88 / At the same time, the Court has denied standing in cases in which the chain seemed both shorter and more certain./89/ The Court’s standing causation jurisprudence has been markedly inconsistent and offers few lessons for general application.

The Court first articulated the requirements of causation and redressability in Linda R.S. v. Richard D./90/ Plaintiff, an unmarried mother, sued to compel a local prosecutor to enforce the state’s criminal nonsupport statute against the father of her child. She asserted that her injury was the refusal of the child’s father to provide support and claimed that the state’s refusal to enforce the statute against unmarried fathers violated the Equal Protection Clause. The Court held that the mother lacked standing because she did not show that enforcement or threat of enforcement of the statute would cause the father to make child support payments.”/91/ There was, in short, an insufficient showing that the state’s enforcement policy was the cause of her injury: the non-receipt of child support.

In Warth, low-income plaintiffs who wished to reside in Penfield, New York, challenged zoning restrictions that effectively precluded the construction of low and moderate-income housing within the city. The Court held that the individual plaintiffs lacked standing because they failed to “allege facts from which it reasonably could be inferred that, absent the [city’s] restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield.”/92/ The ability to purchase a home in Penfield turned on both the willingness of the developer to build homes there without the restrictions and the plaintiffs’ financial capability to do so. Both were regarded as too speculative. Because the plaintiffs failed to establish that city zoning practices caused their injury, they were not allowed to challenge those practices.

By contrast, the Court later held in Village of Arlington Heights v. Metropolitan Housing Development Corporation that a developer of low-income housing and one of its putative tenants had standing to challenge exclusionary zoning practices./93/ The developer had contracted to buy property contingent upon its rezoning for multiple family use and filed a properly documented application. When the city denied the application, the developer sued. Although financing for the project was uncertain, the Court held that the developer had standing to challenge the city’s action because an injunction would remove a barrier to development./94/ The individual plaintiff alleged that he would seek and qualify for housing in the proposed development in order to move closer to his job. Finding that the city’s action frustrated the individual plaintiff’s specific plan and that an injunction would create at least a “substantial probability” of development, the Court concluded that he too had standing./95/

Plaintiffs in Arlington Heights overcame standing problems by paying attention to detail. Rather than mount an abstract challenge to exclusionary zoning practices on behalf of developers who hoped to develop at some future time and tenants who hoped to rent somewhere, they identified a developer and an individual with specific injuries more closely traceable to city action. Because they pled a commitment to act if relief were granted, these plaintiffs also established a greater likelihood of redressability. By recognizing from the outset the importance of establishing that exclusionary zoning caused the inability to develop or to rent, they overcame the Warth obstacle. Arlington Heights represents a wise response to Warth: to identify with precision the injury and to demonstrate the link between the injury and official action./96/

Simon v. Eastern Kentucky Welfare Rights Organization, in contrast, demonstrates the hazards of filing a suit without giving due regard to standing./97 / In that case, various individuals and organizations challenged an Internal Revenue Ruling which permitted some hospitals to deny admission to non-emergency indigent patients without jeopardizing their tax-exempt status. Plaintiffs each claimed to have been denied hospital treatment because of their indigence and asserted that the revised revenue ruling “encouraged” and “was encouraging” the continued denial of treatment. Plaintiffs pled that each of the hospitals was tax-exempt and received substantial private contributions.

The Court held that the plaintiffs failed to establish that the denial of treatment was fairly traceable to the revised revenue ruling. The Court reasoned that, in the absence of such evidence, “[i]t is purely speculative whether the denials of service . . . fairly can be traced to [Internal Revenue Service's] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.”/98/ Eastern Kentucky Welfare Rights Organization presented a particular challenge to the plaintiffs because they needed establish a causal relationship between a policy and the actions of a third party. Causation is much easier to show when it turns on the plaintiffs' own actions or decisions not to act. Friends of the Earth is a good example. The Court did not require the plaintiffs to demonstrate that particular discharges into a river had caused them injury or increased their risk of injury. Rather, the Court found it sufficient that the discharges generally created “reasonable concerns” about their effects and that these concerns directly and reasonably affected plaintiffs’ recreational and aesthetic interests when plaintiffs chose not to use the river./99

The Court's recent decision  in Massachusetts v. Environmental Protection Agency involved a somewhat different concept of causation./100/ There, the Environmental Protection Agency conceded a causal link between greenhouse gasses and global warning, but argued that Environmental Protection Agency’s failure to regulate new car emissions contributed very little to the asserted injuries and that regulation would not help global warming because of greenhouse gas emissions from other countries.  The Court held that causation is present even if there is a tentative or incremental link between the challenged action (or inaction) and asserted injury./101/ The earlier cases measured causation in terms of the degree to which the link between conduct and injury was clear or certain.  In a sense, causation was clear and certain in Massachusetts; the issue was, instead, the extent to which the link must be quantitatively significant.  On that point, the Court was rather forgiving, although it suggested that a more relaxed standard was in order when a state is the plaintiff.

 

3.1.B.5. Relief  Sought to Redress Injury


A corollary to the Supreme Court’s requirement for standing that the injury alleged be fairly traceable to the challenged conduct is the separate requirement that the relief sought must redress the injury. In the great majority of cases the inquiry into causation and redressability are indistinguishable. Thus, in Warth the Court held that there was no reason to suppose that the elimination of exclusionary zoning would enable the plaintiffs to obtain housing in Penfield. In Eastern Kentucky Welfare Rights Organization, the Court held that there was no reason to think that revoking the IRS Revenue Ruling at issue would assure that the next ill or injured poor person would be admitted to a hospital. Furthermore, in Allen, the Court held it was entirely speculative that revoking tax-exempt status for allegedly discriminatory private schools would serve to foster public school integration. What is peculiar about the Court’s concern for redressability is the elevation of the question of remedial efficacy to constitutional status.

While the scope of equitable relief to redress unlawful governmental action has long been a matter of controversy, not until City of Los Angeles v. Lyons did the Court clearly articulate the requirement of remedial efficacy as a constitutional component of standing./102/ The plaintiff in Lyons sought damages and injunctive relief after being choked by city police officers. He alleged that the city permitted the police department to use unnecessary choke holds indiscriminately. The Court conceded that Lyons had standing to sue for damages./103/ However, the Court held that he lacked standing to seek injunctive relief. An injunction would not redress his injury because it was unlikely that he would be arrested and choked again. 

Lyons differs dramatically from Warth and Eastern Kentucky Welfare Rights Organization. In the earlier cases, the Court’s concern for remedial efficacy was a corollary to the requirement that the plaintiff establish that the injury was fairly traceable to defendant’s unlawful conduct. If the causal link between the defendant’s conduct and the plaintiff’s injury was tenuous, then it followed that injunctive relief against that conduct was unlikely to remedy the injury. Thus, the requirement of remedial efficacy grew out of the focus upon causation; whenever causation was in doubt, so too was remedial efficacy.

The notion of uncertainty in redressability arose in a different context in Defenders of Wildlife. In that case, plaintiffs challenged a regulation that did not require funding agencies to consult with the government before granting funds to projects that might harm endangered species. The Court found that plaintiffs had not demonstrated redressability because the funding agencies were not otherwise bound by any consultation requirement and because the funding agencies supplied only a small percentage of the financing for certain projects./104 / Even if those funds were withdrawn, the plaintiffs did not show that the project would be suspended or cause less harm to the endangered species, a showing that would be formidable, if not impossible.

The ability of prospective injunctive relief to remedy past wrongs dealt with in Lyons has echoes in Steel Company v. Citizens for a Better Environment./105/ In Steel Company, plaintiff sued a manufacturing firm for past violations of a federal statute requiring users of certain toxic and hazardous chemicals to file forms with the Environmental Protection Agency that detail the name, quantity, and disposal methods of various chemicals. The Environmental Protection Agency alerted the firm that it had failed to file the forms for several years. The firm then did so. Suing the firm for violating the statute, the plaintiff asserted that the company’s failure to file these forms precluded the plaintiff from learning about its operations. The plaintiff sought declaratory and injunctive relief and civil penalties.

The Court found that the plaintiff failed the redressability prong of the standing test. With respect to injunctive relief, the plaintiff sought an order permitting it to inspect the firm’s facilities and records and requiring the firm to submit future forms to the Environmental Protection Agency. The Court held that such relief would not redress the injury previously caused when the firm failed to file the forms. The plaintiff did not allege that such a violation was going to happen again, and, without it, there was no basis for prospective injunctive relief.

In contrast, the Court’s approach to redressability in Massachusetts v. Environmental Protection Agency was somewhat more forgiving./106/ There, the Court emphasized that the relief requested need not remedy the entire injury suffered by the plaintiff; regulation of greenhouse gas emissions from new cars will not solve the global warming problem./107/ The Court, though, seized on Environmental Protection Agency statements underscoring the need to address the problem, including voluntary measures. These statements suggested Environmental Protection Agency’s recognition that some regulation must offer some prospect for at least slowing global warming. Holding that the redressability prong can be satisfied even if relief only promises modest reductions in remote risk, the Court held that:

In sum —at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek./108/

The clear message of Lyons and Steel Company is to choose plaintiffs with care and, whenever possible, to choose plaintiffs who have suffered recurrent application of the practice or policy at issue. In preparing a claim seeking injunctive relief based upon past conduct, the attorney must therefore articulate in the complaint the reasons why the risk of recurrence is more than speculative.  When the acts or omissions promise to continue into the future, the less demanding perspective of Massachusetts offers potentially valuable support for creative redressability arguments./109

R econciling these standing cases is not realistically possible. However, the Court seems far more likely to find standing in cases brought pursuant to a specific federal statute which reflected Congress' intent and desire for judicial intervention./110/ Such statutes evidence a legislative judgment that certain classes of plaintiffs suffer injury in fact when the statute is violated, that the violation causes the injury, and that such injury is redressable by the statutory remedies provided. These statutes also explicitly reflect Congress’ desire that courts intervene to resolve disputes arising from the statutes. As the Court recently put it, “Congress [can] define new legal rights, which in turn will confer standing to vindicate an injury caused to the claimant.”/111/ With the exception of Defenders of Wildlife, the Court found standing in each case arising from such statutes. When, however, the action does not arise from such statutes and there is no explicit legislative mandate for intervention, the Court takes a much narrower view of standing. This is particularly true in cases, often involving constitutional questions, that pose challenges to the judicial function when standards of decision are not readily available or discernible/112 / and when separation of powers issues are present./113/

3.1.C. Associational Standing

Groups may have standing in a representative capacity, in an individual capacity, or in both. A group has standing in a representative capacity when it represents the rights of its members. Such standing is an exception to the general prohibition on third-party standing. An association has standing in an individual capacity (or qua group) when it asserts its own rights as an organization.

3.1.C.1. Representative Capacity

The leading case articulating the standing requirements for groups that sue in a representative capacity is Hunt v. Washington Apple Advertising Commission./114/ The Court stated in Hunt:

Thus we have recognized that an association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit./115/

The first prong of the Hunt test establishes a traditional standing inquiry grounded in Article III’s case or controversy requirement. The second prong is also constitutionally based and is designed to ensure that the association has both a concrete stake in the outcome of the litigation and will approach it with adversarial vigor. In contrast, the Supreme Court has ruled that the third prong is a prudential limitation in the same sense as third-party standing discussed below./116/

With respect to the first element, when an organization asserts standing in a representative capacity, Hunt does not require the organization to allege that it has suffered any injury. Rather, the organization must establish that those whom it represents have suffered an injury sufficient to confer standing./117/ The organization need not establish that a substantial number of its members have suffered injury. Injury to a single member will do./118/ However, that member must be specifically identified.  In Earth Island Institute, the Supreme Court rejected the sufficiency for standing purposes of an assertion that some members of a large membership organization probably will experience harm./119/ Instead, submit affidavits from specific members directly affected by the challenged conduct.

An issue commonly litigated relating to the first prong is whether the plaintiff is the sort of association entitled to avail itself of associational standing. Voluntary membership organizations, such as trade organizations, plainly qualify./120/ Organizations whose members are compelled to join, such as some trade unions and bar associations, may qualify as well./121/ Matters become more difficult when the association is not a traditional membership organization. The association may have standing if the association is “the functional equivalent of a traditional membership organization.”/122/ That is, if the individuals in the organization select its leaders, guide its activities, and finance its efforts, the association may have standing./123/ If not, the association lacks standing./124/

Second, Hunt also requires some community of interest between the group and the injured member. By requiring the interests that the suit seeks to protect to be germane to the organization’s purpose, Hunt limits the capacity of groups to define their purpose in terms sufficiently broad to permit the group to represent whoever’s interests happen to suit it at a given moment./125/ This requirement has been described as “undemanding.”/126/

Third, Hunt permits representative standing only when neither the claim nor the relief sought require the participation of an injured individual. This element is typically satisfied when the plaintiff association seeks injunctive or declaratory relief generally benefiting the association and its members,/127/ even when there is a need for some limited participation of association members in fact discovery or at trial./128/ The application of the third prong in cases with a conflict among an association’s membership resulted in an interesting split in the circuits./129/ Unless Congress eliminates the third element of the Hunt test by statutorily authorizing suit for damages,/130/ associational claims for damages run afoul of this third prong because the claims require individualized proof of damage and representative standing is therefore inappropriate./131/ Because Hunt vests trial courts with some discretion in resolving claims of associational standing, the better practice when group standing appears tenuous is to join at least one named individual as plaintiff in litigation brought by a group asserting associational standing. The presence of an individual with standing should discourage the court—and opposing counsel—from delving deeply into the question of the group’s associational standing.

3.1.C.2. Advantages and Disadvantages of Associational Standing

Given that a group asserting representative standing will fare no better than its individual members in establishing the requisite injury, one can fairly ask why associational standing is worth pursuing. The principal advantage of group standing lies in its use to obtain the benefits of a class action without the bother of class certification. Those benefits include the opportunity to obtain a judgment in favor of everyone adversely affected and to avoid mootness.

Including a representative organization as a plaintiff may justify broader relief than would otherwise be available in a single plaintiff action. It also may avoid mootness of questions tied to the passing stake in the controversy of individual members. Representative claims thereby effectively shift the case and controversy focus from whether a particular individual has a live claim to whether any group member has a live claim. In this sense, representative standing resembles a class action without the problems posed by the requirement of class certification.

Indeed, the Supreme Court recognized the propriety of representative group standing as an appropriate alternative to class action litigation for injunctive relief in International Union, United Automobile, Aerospace and Agricultural Implement Workers./132/ In that case, the government argued that the Court should modify Hunt to require representative groups to proceed under Rule 23. Rejecting that argument, the Court reaffirmed Hunt. Representative groups, the Court held, may be superior to an “ad hoc union of injured plaintiffs” proceeding as a class action./133/ Because associations are often borne of a desire to vindicate common interests, they are likely to be adequate representatives of their members and “can draw upon a preexisting reservoir of expertise and capital.”/134/ The Court’s reaffirmation of associational standing suggests the potential value of such standing as an alternative to the vagaries of class certification.

Representative group standing also may enable an individual member who does not wish to appear as a named plaintiff, or does not have the resources to do so, to avoid direct participation in the lawsuit. For a variety of reasons, some individuals are reluctant to sue in their own name. However, their membership in a group can confer representative standing on the group. On the other hand, damages are not available in cases involving associational standing.

An organization may also see representative group standing as a device to strengthen the organization within a community./135/ By appearing as the lead plaintiff in a major lawsuit, the group acquires visibility; when it wins, it acquires clout. While these considerations may appear irrelevant to the development of a successful lawsuit, they may matter greatly to a fledgling organization.

3.1.C.3. Organizational Standing

An organization that suffers injury in its own right—rather than, or in addition to, an injury to the rights of its members—has individual standing as a group./136/ When the group asserts an injury to its own interests, the group has standing qua group, irrespective of any injury to members./137/ Thus, a group that suffers or will suffer economic harm,/138/ or diminution in membership attributable to unlawful conduct, has an individual injury sufficient to confer standing./139/ So would an organization claiming that an agency violated its statutory right to information./140/ However, the facts relating to this harm are subject to discovery./141/ Prior to litigation, prospective organizational plaintiffs should be advised to keep careful records of membership loss or diversion of resources./142/

Only in limited circumstances, absent economic harm or diminution in membership, do courts uphold the assertion of standing for groups that suffer an injury to their organizational goals./143/ While Havens Realty and Arlington Heights, discussed above, expand marginally the opportunity for an organization to establish individual standing based upon injury to its non-economic agenda, they do not undermine Sierra Club, Schlesinger and Allen v. Wright, all of which prohibit standing based upon a general injury to a group’s ideological interests./144/ Thus, group standing deriving from injury to the group’s non-economic interests offers only limited possibilities for litigation.

In structuring a claim by a group suing qua group, every effort should be made to identify and plead some kind of economic harm, frustration of a core interest, or membership loss flowing from the challenged conduct. Because combining individual group standing with associational group standing increases the likelihood of success in establishing standing, a group asserting injury to its own interests should, whenever possible, also plead representative standing.

3.1.D. Prudential Limitations on Standing

As a matter of judicial self-governance, the Court has also held that prudential considerations counsel against standing even in cases in which the Article III case or controversy requirement has been satisfied. These considerations are motivated by the Court’s reluctance to decide matters of national significance that it regards as being more appropriately resolved by other branches of government and unlikely to protect the interests presented./145/ The Court has identified three prudential doctrines: (1) the limitation on taxpayer or generalized grievance standing, discussed above, (2) the zone of interests test and (3) limitations on third-party standing.

3.1.D.1. The Zone-of-Interests Test

Beginning in Association of Data Processing Service Organizations Incorporated v. Camp/146/, the Court has required that plaintiffs establish that their grievance “must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.”/147/ This prudential limitation on standing is “founded in concern about the proper—and properly limited—role of the courts in a democratic society.”/148/ The limitation may be set aside by Congress./149/ The zone-of-interests test originally arose from an interpretation of the standing provision in the Administrative Procedure Act./150/ The Court, however, has expanded it to apply to any provision of law./151/

In Block v. Community Nutrition Institute, the Court suggested a liberal standard for applying the zone-of-interests test./152/ A plaintiff fails the test when there is express legislative intent to preclude review./153/ The presumption is in favor of judicial review, which may be overcome only by clear and convincing evidence found in the legislative scheme./154/ Subsequently, the Court expressly stated that the zone-of-interest test “is not meant to be especially demanding,” precluding standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be assumed that Congress intended to permit the suit.”/155/

The Court has more recently continued to adhere to a relaxed interpretation of the zone-of-interests test. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchuk, the Court found that a neighboring property owner, concerned about the use of land purchased by the government for a tribe which intended it for gaming purposes, fell within the zone of interests of the statute authorizing the purchase because the eventual use of the land is to be considered in making the purchase./156/ In National Credit Union Administration v. First National Bank and Trust Company, the Court allowed a competing bank to challenge an order which was issued by the National Credit Union Administration and enlarged the charter of a credit union./157/ The Court reasoned that the underlying Act’s purpose was to limit the scope of memberships in credit unions—an interest shared by competing banks. Nonetheless, the Court has applied the test to deny standing. In Air Courier Conference v. American Postal Workers Union, the Court held that the postal worker’s union did not have standing to challenge the suspension of the monopoly over extremely urgent letters under the Postal Express Statutes, noting that those statutes were not intended to protect jobs./158/

3.1.D.2. Third Party Standing

Third-party standing issues arise when a party seeks relief by asserting the rights of third parties not before the court. Generally, parties may seek only to vindicate their own legal rights rather than those of others./159/ The presumption against third-party or jus tertii standing rests on prudential principles rather than an application of Article III limitations on standing./160/ Those prudential limitations, in turn, are grounded upon concerns that third parties may not wish to have their rights asserted, that parties are less likely to advocate vigorously the rights of others, and that the quality of judicial decision making may suffer when concrete evidence of harm is not presented by those suffering it./161/ The Supreme Court has generally permitted third-party standing in cases when enforcement of the challenged law or conduct affects third parties indirectly, but has been somewhat less willing to sanction use of third-party standing in other contexts./162/

The Court developed a three-part test, each prong of which must be satisfied in order to bring third-party claims: “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relationship to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests.”/163/ As this test has been applied, however, the Court has found standing even in cases in which the second or third prong has not been clearly established.

The first prong of the test has been rigorously enforced. The plaintiff must satisfy traditional constitutional standing requirements; the challenged law or conduct must injure the party in order for that party to assert the rights or interests of third parties. These requirements have been found to be satisfied when, for example, the plaintiff challenges laws that cause it economic harm,/164/ or a criminal defendant challenges jury selection procedures./165/

With respect to the second prong, the Supreme Court has not articulated specific standards for the degree of the closeness of the relationship between the plaintiff and the third party whose rights are asserted, or the nature of the relationship which satisfies this criterion. Nonetheless, a number of cases offer significant guidance.

In Singleton v. Wulff, a leading case in this area, the Supreme Court held that a physician had standing to assert the rights of patients in challenging a state statute limiting Medicaid-covered abortions. The Court noted the close relationship between doctor and patient and stated that the relationship was directly implicated by the law challenged. Similarly, the Court permitted an attorney to challenge a statute limiting the ability to recover attorney fees in black lung benefit cases on the ground that the statute violated his client’s due process right to legal representation./166/ In so doing, the Court observed that third-party standing was appropriate in cases in which the limitation or restriction challenged by the plaintiff prevented the third party from establishing a lawful relationship with the plaintiff./167/

This notion explains a number of cases in which the Court held that suppliers of products may challenge restrictions on sales by asserting the rights of customers to obtain the product. In Craig v. Boren, for example, a seller of beer was permitted to challenge on equal protection grounds an Oklahoma law that prohibited sales of 3.2 percent beer to men under 21, while allowing the sale to women aged 18 to 21./168/ While the relationship between a tavern and customers seems more tenuous than that between a doctor and patient or an attorney and client, the Court justified its holding on the ground that the seller “is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.”/169/ Similarly, the Court has permitted booksellers to assert the First Amendment rights of book buyers/170/ and sellers of contraceptives to assert the privacy rights of customers./171/

With respect to the third prong of the test, the Supreme Court frequently permits third-party standing when the third party is unlikely to assert its own interests. Most recently, the Court permitted third-party standing in jury selection cases. In Powers v. Ohio, a white criminal defendant appealed his conviction on the ground that the prosecutor’s use of peremptory challenges violated the equal protection rights of prospective African American jurors./172/ The Court first found that discriminatory use of peremptory challenges caused the defendant injury in fact, regardless of race, because such use called into question the fairness of the trial./173/ Second, the Court held that the connection between the defendant and excluded jurors was “as close as, if not closer than” those in cases such as Triplett because “[v]oir dire permits a party to establish a relation, if not a bond of trust, with the jurors.”/174/ Somewhat more convincingly, the Court further noted that the defendant was likely to advocate vigorously on behalf of the excluded jurors in order to secure a reversal of his conviction./175/ The Court held that excluded jurors were unlikely to challenge their exclusion since the costs were high and potential benefits low, but that, even if they did, they would be unable to obtain declaratory or injunctive relief./176/ The Powers rationale has been extended to civil cases/177/ and challenges to the selection of grand jurors./178/

The question of barriers to third parties enforcing their own rights has also featured prominently in cases involving unlawful racial covenants and the distribution of contraceptives. In Barrows v. Jackson, for example, whites who sued for violating racially restrictive covenants in their deeds were permitted to assert the equal protection rights of African Americans, who could not sue as they were not parties to the covenant./179/ In Eisenstadt v. Baird, a doctor who was prosecuted for distributing contraceptives to unmarried persons was permitted to assert the rights of such persons./180/ Such persons were not subject to prosecution and were thereby “denied a forum in which to assert their own rights.”/181/

At the same time, one can imagine scenarios in which young males interested in buying 3.2 percent beer, Medicaid beneficiaries, individuals wishing to obtain contraceptives, and African Americans seeking to purchase property encumbered by a racially restrictive covenant could assert their rights in litigation that they would initiate. This suggests a reasonably relaxed approach to the third prong of the test. However, this may be more reflective of the Court’s more generally forgiving approach to standing in the 1970s. The more recent cases in the jury selection area did not raise significant third-prong problems. However, the Court’s most recent third-party standing case struck a more cautionary note, focusing more on legal barriers to third-parties bringing claims than their likelihood of success in doing so. In Kowalski v. Tesmer, the Court held that pro se criminal defendants who plead guilty were not hindered in challenging a state statute forbidding the appointment of appellate counsel./182/

At least two justices have suggested that the Supreme Court revisit and clarify the law of third-party standing. In Miller v. Albright, a woman born abroad and out of wedlock to an American father and a foreign mother challenged, along with her father, a provision in the Immigration and Nationality Act that created different citizenship requirements for those born abroad of an alien father and American mother as opposed to those born abroad to an alien mother and American father./183/ The lawsuit asserted that the father’s equal protection rights were violated. Nonetheless, the district court dismissed the father’s claim for lack of standing. The father did not appeal.

Citing only Craig, the plurality opinion written by Justice Stevens and joined by Chief Justice Rehnquist held that third-party standing was appropriate. Addressing the issue in more detail, Justice Breyer, on behalf of Justices Souter and Ginsburg, who dissented on other grounds, agreed. Justice O’Connor, joined by Justice Kennedy, would have denied third-party standing on the ground that the father did not face sufficient barriers to asserting his own rights. Justices Scalia and Thomas expressed agreement with Justice O’Connor but cited Craig to suggest that the third prong of the test was not especially demanding. Justice Scalia concluded that “[o]ur law on this subject is in need of what may charitably be called clarification.”/184/

The most sensible approach to litigation in the face of uncertainty is to avoid third-party standing problems by joining appropriate additional plaintiffs. Creating a complex and unnecessary obstacle to the assertion of a claim by attempting to have one plaintiff assert the rights of others makes no sense. Simply join representative individuals whose rights are at issue as named plaintiffs.

Third-party standing rules are more clearly developed in the context of overbreadth claims. The prototypical overbreadth claim arises when regulation of activity protected by the First Amendment is challenged on the ground that the regulation sweeps substantial protected as well as unprotected conduct or expression within its prohibition. When plaintiff is engaging in expression clearly subject to permissible regulation under a properly drawn restraint, the overbreadth challenge raises third-party standing issues.

The leading case is Secretary of State of Maryland v. Joseph H. Munson Company/185/ The Court held that a plaintiff invoking third-party standing in an overbreadth case must establish only that he had suffered injury in fact and that he would adequately frame the issues./186/ To demonstrate injury in fact in an overbreadth case, the plaintiff must demonstrate “a genuine threat of enforcement” of the statute against his future activities./187/ Underlying the special third-party standing rule for overbreadth cases is the risk that the absent party whose rights are at issue may refrain from the protected activity rather than sue to vindicate First Amendment rights. Should that happen, society loses the views of those who are silenced.

_________________________________________________________________________________


1.   Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009); DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 340-41 (2006).

2. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers, 555 U.S. at 493. 

3. Association of Data Processing Service Organizations Incorporated v. Camp, 397 U.S. 150, 151 (1970).

4. United States v. Windsor, 133 S. Ct. 2675, 2687 (2013) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). See, e.g., Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (relying on principles of prudential standing to deny standing to student’s father who sought to challenge requirement that his daughter recite Pledge of Allegiance, when father’s right to act on his daughter’s behalf was founded on disputed issues of state family law).

5. The Supreme Court examined the distinction between Article III and prudential limitations on standing in the unusual context presented in Windsor, the recent case that invalidated the Defense of Marriage Act. There, the Supreme Court held that the United States had standing to appeal a trial court’s decision to require it to pay a tax refund although it refused to defend the statute on which it had denied and continued to deny the request for refund. The Court further held that the importance of the issues, the prospect of time-consuming and costly litigation over DOMA were the appeal dismissed, and the presentation by a Congressional group that intervened to support the constitutionality of DOMA counseled against dismissing the appeal on prudential  grounds. Windsor, 133 S. Ct. at 2684–89.

6. DaimlerChrysler, 547 U.S. at 342, n.3; FW/PBS Incorporated v. Dallas, 493 U.S. 215, 231 (1990).

7. Defenders of Wildlife, 504 U.S. at 561.

8. Davis v. Federal Election Commission, 554 U.S. 724, 734 (2008).

9. While the Supreme Court reviews standing sua sponte “where [it] [has been erroneously assumed below,” it does not examine standing “simply to reach an issue for which standing has been denied below,” a conclusion not challenged in the appellant’s petition for certiorari.  Adarand Constructors Incorporated v. Mineta, 534 U.S. 103, 110 (2001). By contrast, courts of appeal are obliged to examine standing under all circumstances. See, e.g., Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 47 (D.C. Cir. 1999).

10. Monsanto Company v. Geerston Seed Farms, 130 S. Ct. 2743, 2754 (2010) (plaintiffs must demonstrate standing to pursue each form of relief sought); Davis, 554 U.S. at 734; City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).

11. DaimlerChrysler, 547 U.S. at 353.

12. Clinton v. New York, 524 U.S. 417, 432 (1998). See also United States v. Windsor, 133 S. Ct. 2675 (2013) (government had standing to appeal order to pay tax refund despite its refusal to defend basis for that refusal); Vermont Agency of Natural Resources v. United States, 529 U.S. 765 (2000) (relator in qui tam action has standing to challenge injury suffered by government because Congress assigned relator an entitlement to a percentage of any monetary recovery).

13. Clinton, 524 U.S. at 432-34 (finding cooperative has standing to challenge veto of tax benefit enacted to foster ability to purchase processing plants); Association of Data Processing Service Organizations Incorporated v. Camp , 397 U.S. 150, 154-56 (1970) (data processing service providers have standing to challenge decision to permit banks to provide such services to other banks)

14. Clinton, 524 U.S. at 432-33.

15. Id. at 431.

16. Massachusetts v. Environmental Protection Agency549 U.S. 497, 520 (2007).

17. Id. at 522.

18. Id. at 523.

19 Sierra Club v. Morton, 405 U.S. 727 (1972).

20. See Sierra Club v. Morton, 348 F. Supp. 219 (N.D. Cal. 1972).

21. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).

22. Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990).

23. Duke Power Company v. Carolina Environmental Study Group, 438 U.S. 59 (1978).

24. Id. at 73. The Supreme Court suggested that the threat of a core meltdown and the present consequences in terms of personal anxiety and decreased property values of that threat were too speculative to confer standing.

25. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

26. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 

27. Id. at 563 (citations omitted).

28. Id. at 564. The Supreme Court also disposed of alternative theories asserting standing by those who use any part of a “contiguous ecosystem,” by those interested in seeing endangered animals, and by those with a professional interest in animals. Id. at 565-66.

29. Friends of the Earth v. Laidlaw Environmental Services528 U.S. 167 (2000).  

30. Friends of the Earth, 528 U.S. at 174, quoting Clean Water Act, 33 U.S.C.  §§ 1365(a), (g). Even the dissent declined to conclude that this statute was unconstitutional in the sense that the citizen-suit provision in the Endangered Species Act was in Defenders of Wildlife.

31.Friends of the Earth, 528 U.S. at 183.

32. Id. at 184 (citing Defenders of Wildlife, 504 U.S. at 564).

33. Id. at 183-184.

34. Id. at 184.

35. Defenders of Wildlife, 504 U.S. at 576-78.

36. Id. at 578 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).

37. Id. at 580.

38. The Supreme Court granted certiorari in First American Financial Corporation v. Edwards, 610 F.3d 514 (9th Cir. 2010), which presented a question whether a plaintiff has standing to challenge a violation of the Real Estate Settlement Procedures Act in the absence of an allegation that the alleged violation resulted in an overcharge, but later dismissed it as improvidently granted. First American Financial Corporation v. Edwards, 132 S. Ct. 2536 (2012).

39. Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3612 .

40Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1972).

41. Id. at 208. Following Trafficante, the Supreme Court later held that cities and homeowners had standing to challenge racial steering practices, Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109-15 (1979) and that “testers,” individuals posing as prospective buyers or renters, had standing to sue for racially motivated misrepresentations that housing was unavailable. Havens Realty Corporation v. Coleman, 455 U.S. 363, 372-75 (1982).

42. Cf. Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 773 (2000) (concluding that realtor has standing under False Claims Act as the Act may be regarded as partially assigning the United States’ damage claims to third parties). For an interesting recent case holding that emotional injury is not cognizable for standing, over a spirited dissent, see Chaplaincy of Full Gospel Churches v. U.S. Navy, 534 F.3d 756 (D.C. Cir. 2008).

43. Thompson v. North American Stainless, 131 S. Ct. 863, 869-70 (2011).

44. Id. at 870 (employee fired after his fiancee filed an Equal Employment Opportunity claim can sue for retaliation under Title VII).

45. Lujan v. Defenders of Wildlife, 504 U.S. 555 , 572 (1992).

46. Id. at 573 n.7. The example used by the Supreme Court involved one who was living next to a proposed dam and had standing to challenge the failure to prepare an environmental impact statement even though there was no guarantee that such a statement would result in the dam not being built. See also Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009).

47Defenders of Wildlife, 504 U.S. at 573 n.8; Earth Island Institute, 555 U.S. at 496-97. Compare Center for Biological Diversity v. U.S. Department of Interior563 F.3d 466, 479 (D.C. Cir. 2009) (finding standing) with New York Regional Interconnect Incorporated v. Federal Energy Regulatory Commission, 634 F.3d 581, 587 (D.C. Cir. 2011) (finding standing) and Center for Law and Education v. U.S. Department of Education, 396 F.3d 1152 (D.C. Cir. 2005) (rejecting standing). Courts of appeal decisions applying “procedural rights” standing include Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 51 (D.C. Cir. 1999) (holding that plaintiff may sue for the denial of procedural rights in the Forest Service’s grant of authority to drill on federal lands even though there was “no certainty” that the drilling would take place), and Moreau v. Federal Energy Regulatory Commission, 982 F.2d 556, 564 (D.C. Cir. 1993) (plaintiffs had standing to contest the agency’s failure to give them notice of proceedings and to hold an evidentiary hearing regarding the construction of a natural gas pipeline notwithstanding the plaintiffs’ failure to show that such pre-deprivation safeguards would have changed the outcome). See also Salmon Spawning and Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008); Defenders of Wildlife v. Environmental Protection Agency, 420 F.3d 946, 957-58 (9th Cir. 2005); Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 446-47 (9th Cir. 1994); Florida Audubon Society v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996); Banks v. Secretary of the Indiana Family and Social Services Administration, 997 F.2d 231, 238-39 (7th Cir. 1993) (plaintiffs eligible for Medicaid have standing to challenge Medicaid agency’s failure to give notice and hearing before denying reimbursement claims).

48. See, e.g. Bensman v. U.S. Forest Service, 408 F.3d 945 (7th Cir. 2005) (rejecting, in Appeals Reform Act case, informational injury as a sufficient substantive interest to warrant procedural injury standing); but see WildEarth Guardians v. Salazar, 859 F. Supp. 2d 83, 92 (D.D.C. 2012) ("To establish informational standing, a plaintiff must (1) identify a statute that, on plaintiff's reading, directly requires the defendant to disclose information that the plaintiff has a right to obtain, (2) show that it has been denied the information to which it is entitled, and (3) provide a credible claim that the information would be helpful to it.") (citing FEC v. Akins, 524 U.S. 11, 21 (1998)).

49. Massachusetts v. Environmental Protection Agency549 U.S. 497 (2007).

50. Id. at 517-18. In this context the Court cited Sugar Cane Growers Cooperative of Florida v. Veneman, 289 F.3d 89, 94-95 (D.C. 2002) ("A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.")

51. Earth Island Institute, 555 U.S. at 493.

52. Id. at 488. 

53. Id. at 499-500.

54. See Center for Biological Diversity v. U. S. Department of Interior, 563 F.3d 466, 476-77 (D.C. Cir. 2009) (rejecting traditional standing in challenge to approval of offshore oil and gas leasing for failure to account to climate change on Outer Continental Shelf areas). 

55. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

56. Id. at 523 n.21.

57. Id. at 522.

58. Monsanto Company, 130 S. Ct. 2743.

59. Id. at 2755.

60. Id.

61. Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).

62. Id.

63. Id. at 1143.

64. Id. at 1150.

65. Id. at 1151.

66. Id. at 1157.

67. Id. at 1160-61.

68. Clapper, 133 S. Ct. at 1150 n.5.

69. Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

70Id. at 2341.

 71 . Id. at 2342-43.

72 The most recent Supreme Court case on this point is DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 341-46 (2006), in which the Court rejected state and municipal taxpayer standing for the same reasons that it had done so in prior federal taxpayer standing cases. The only area in which the Supreme Court has approved of taxpayer standing is in certain suits challenging spending on grounds that it violates the Establishment Clause. Flast v. Cohen, 392 U.S. 83 (1968), which established this exception has between frequently distinguished and narrowed.  See Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011) (Arizona taxpayers have no standing to challenge law permitting tax credits for contributions to organizations which provide scholarships to students attending private and parochial schools, distinguishing tax credits from government expenditures); Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007) (finding taxpayers have no standing to challenge conferences sponsored by the President's Faith-Based and Community Initiatives Centers because those offices were funded from general Executive Branch appropriations, distinguishing Flast v. Cohen, 392 U.S. 83 (1968), in which plaintiffs challenged the distribution of funds to religious schools pursuant to Congressional spending power legislation); Bowen v. Kendrick, 487 U.S. 589 (1988); Grand Rapids School District v. Ball, 473 U.S. 373 (1985), overruled in part on other grounds by Agostini v. Felton, 521 U.S. 203 (1997); Flast v. Cohen, 392 U.S. 83 (1968).  In DaimlerChrysler, the Court expressly refused to expand this exception to Commerce Clause challenges to state tax or spending decisions.  DaimlerChrysler, 547 U.S. at 347-48.

73. United States v. Richardson, 418 U.S. 166 (1974).

74. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).

75. Richardson, 418 U.S. at 172.

76. Schlesinger, 418 U.S. at 226.

77. Clapper, 133 S. Ct. 1138.

78. Warth v. Seldin, 422 U.S. 490 (1975).

79. Id. at 500.

80. See, e.g., Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997).

81.  Allen v. Wright, 468 U.S. 737 (1984).

82. Id. at 753-59. The Supreme Court found that the latter claim stated a cognizable injury – a reduced ability to receive an integrated education. However, the Court held that the plaintiffs failed to show that revocation of tax exemption of discriminatory private schools would enhance the cause of integration. Such a showing required several layers of speculation: how many schools actually received favorable tax treatment, the extent to which they discriminated, whether they would change any policies if their tax exempt status were revoked, whether white parents would leave the school if the school changed its policies, and whether sufficient numbers of white students would leave and attend public schools to meaningfully alter the racial balance. 

83. Id. at 755.

84. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

85. Id. at 2662-63. In Lance v. Coffman, the Supreme Court similarly found that four Colorado voters lacked standing to challenge a provision of the Colorado Constitution interpreted to permit a redistricting plan on the grounds that it violated the Elections Clause in the Federal Constitution. The Court viewed the complaint as only asserting an injury that the government was not following the law. Lance v. Coffman, 549 U.S. 437 (2007) (per curiam).

86.  Federal Election Commission v. Akins, 524 U.S. 11 (1998).

87. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) presented a similar issue: everyone is affected by global warming. The Court, however, held that just because climate risks are "widely shared" does not minimize Massachusetts' interest in the litigation.  Massachusetts, 549 U.S. at 522 (citing Akins). For similar cases, see Heckler v. Mathews, 465 U.S. 728, 739 (1984) (men have standing to challenge constitutionality of social security statute that treated men and women differently even though prevailing could not possibly help them); Havens Realty Corporation. v. Coleman, 455 U.S. 363, 373-74 (1982) (tester has standing to challenge discrimination). For an explanation why the Supreme Court finds standing in some cases presenting generalized grievances and not others, see Richard Pierce, Administrative Law Treatise § 16.4 at 1152-53 (5th ed. 2010).

88. Duke Power Company v. Carolina Study Group, 438 U.S. 59 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973); see also Bryant v. Yellen, 447 U.S. 352 (1980).

89. Professor Pierce opines that these cases reflect the Supreme Court’s use of causation to preclude review of cases that pose difficult justiciability issues on other grounds. Pierce, supra note 73 , § 16.5 at 1165-66.

90. Linda R.S. v. Richard D., 410 U.S. 614 (1973).

91. Id. at 618.

92. Warth, 422 U.S. at 504.

93. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977).

94. Id. at 261-62.

95.  Id. at 264.

96. Environmental litigants in Duke Power Company v. Carolina Study Group, 438 U.S. 59 (1978) also overcame Warth’s stringent causation requirement. By introducing the testimony of industry representatives before congressional committees expressing their unwillingness to develop nuclear power without a liability cap, plaintiffs established that, but for the cap, the plants would likely not be built. When the utility company asserted it could proceed without the cap, plaintiffs introduced the company’s letter to Congress, which said that its suppliers and contractors would not proceed without the cap. Thus, plaintiffs demonstrated that the cap caused the aesthetic injuries of which they complained.

97. Simon v. Eastern Kentucky Welfare Organization, 426 U.S. 26 (1976).

98. Id. at 42-43.

99. Friends of the Earth, 528 U.S. at 183 (2000). In an interesting American with Disabilities Act case, the Ninth Circuit held that a plaintiff who resided several hundred miles from a convenience store, but who intended to return to the store when it became accessible had standing. Doran v. 7-Eleven, Incorporated, 524 F.3d 1034, 1041 (9th Cir. 2008).

100. Massachusetts v. Environmental Protection Agency549 U.S. 497 (2007).

101Id. at 523.

102. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

103. While Lyons and its progeny do not bar damage claims, those claims frequently are of only uncertain value. Individual defendants assert the defense of qualified immunity, state agencies assert immunity under the Eleventh Amendment, and local governmental bodies assert that the challenged action is not attributable to the governmental body. See generally the discussion of immunities and municipal liability in Chapter 8 of this MANUAL.

104. Lujan v. Defenders of Wildlife, 504 U.S. 555, 568-71  (1992).

105. Steel Company v. Citizens for a Better Environment, 523 U.S. 83 (1998).

106. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Again, caution is warranted because the apparently unique standing analysis applicable when states are plaintiffs.

107. Id. at 546.

108. Id.

109. With regard to redressability, the Court rejected the notion that plaintiffs lacked standing to seek a civil money penalty simply because the penalty was to be paid to the government rather than to them. The Court deferred to Congress’ judgment that civil penalties deter unlawful conduct. Because civil penalties were seen as "likely" to discourage violators from continuing their misconduct and deter future violations, plaintiffs would achieve redress even though they would not pocket the money.

110. Pierce, supra note 73, §16.7; see also Federal Election Commission v. Akins, 524 U.S. 11 (1998); Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982); and Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1975) discussed infra.

111. Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 773 (2000).

112. Pierce, supra note 82, §16.7.  This may explain cases like Warth v. Seldin, 422 U.S. 490 (1975), Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976); Linda R.S. v. Richard D., 410 U.S. 614 (1973), and certain taxpayer standing cases.

113. Clapper, 133 S. Ct. 1138.

114. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977).

115. Id. at 343; see also Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 181 (2000) (association successfully demonstrates standing of members through declarations).

116. United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 556-57 (1996) (holding that the prong “may guard against the hazard of litigating a case to the damages stage only to find plaintiff lacking detailed records or the evidence necessary to show the harm with sufficient specificity. And it may hedge against any risk that the damages recovered by the association will fail to find their way into the pockets of the members on whose behalf injury is claimed”).

117. See, e.g., Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993) (injury-in-fact requirement in equal protection case does not require plaintiff to prove that she would have obtained benefit in absence of challenged barrier).

118. United Food and Commercial Workers, 517 U.S. at 555; ACLU of Ohio Foundation v. Ashbrook, 375 F.3d 484, 489-90 (6th Cir. 2004) (identifying single member who appeared in a courthouse to challenge display there on Establishment Clause grounds); Consumer Federation of America v. Federal Communications Commission, 348 F.3d 1009, 1011-12 (D.C. Cir. 2003). Examples of a case in which a plaintiff could have identified an injured member, but failed to so are Disability Rights Wisconsin v. Walworth County Board of Supervisors, 522 F.3d 796, 802-03 (7th Cir. 2008) and National Alliance for the Mentally Ill v. Board of County Commissioners, 376 F.3d 1292, 1296 (11th Cir. 2004).

119. Earth Island Institute, 555 U.S. at 497-98.

120. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 342 (1977).

121. Id. at 345.

122. Gettman v. Drug Enforcement Administration, 290 F.3d 430, 435 (D.C. Cir. 2002); Fund Democracy, LLC v. S.E.C., 278 F.3d 21, 26 (D.C. Cir. 2002).

123. In Hunt, a state agency whose members were voted on by apple growers was found to have standing. Hunt, 432 U.S. at 344. Even though not a membership entity, the agency served the interests of a definable group of people, possessed “indicia” of membership organizations, and had a financial nexus with its constituents. See also Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2003) (federally authorized protection and advocacy organization would have standing to sue on behalf of disabled constituents as an association, despite not having membership, if one constituent had standing); Doe v. Stincer, 175 F.3d 879, 885 (11th Cir. 1999) (same).

124. Gettman, 290 F.3d at 435 (magazine with readership lacks associational standing); Fund Democracy, 278 F.3d  at 26 (one-person business that represents an informal consortium of groups lacks standing); Association for Retarded Citizens of Dallas v. Dallas County Mental Health and Mental Retardation Board of Trustees, 19 F.3d 241 (5th Cir. 1994) (public interest advocacy group lacks standing based solely on resources directed toward representing disabled persons in response to actions of another party).

125. See, e.g., Ranchers Cattlemen Action Legal Fund v. U.S. Department of Agriculture, 415 F.3d 1078, 1103-1104 (9th Cir. 2005) (nonprofit association representing cattle producers on international trade and market issues does not have standing to bring National Environmental Policy Act claims).

126. Humane Society of the United States v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). See Building and Construction Trades Council of Buffalo v. Downtown Development, Incorporated, 448 F.3d 138, 146-49 (2d Cir. 2006).

127. Pennell v. City of San Jose, 485 U.S. 1, 7 (1988); International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Brock, 477 U.S. 274 (1986); Hospital Council of Western Pennsylvania  v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991).

128. Borrero v. United HealthCare of New York, Incorporated, 610 F.3d 1296, 1306 (11th Cir. 2010); Pharmaceutical Care Management Association v. Rowe, 429 F.3d 294, 310-311 (1st Cir. 2005); Pennsylvania Psychiatric Society v. Green Spring Health Services, Incorporated, 280 F.3d 278, 283-87 (3d Cir.), cert. denied, 537 U.S. 881 (2002); Retired Chicago Police Association v. City of Chicago, 7 F.3d. 584, 603 (7th Cir. 1993); Hospital Council, 949 F.2d at 89.

129. Retired Chicago Police Association, 7 F.3d at 603-07 (surveying circuit split); see also National B. Edmonds, Comment, Associational Standing for Organizations with Internal Conflicts of Interest, 69 U. CHI. L. REV. 351 (2002).

130. United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 554-59 (1996).

131. See Warth v. Seldin, 422 U.S. 490, 515 (1975); Bano v. Union Carbide Corporation, 361 F.3d 696, 714 (2d Cir. 2004) (noting that no Supreme Court or circuit court case has approved of representational standing in cases seeking monetary relief, Indian organizations lack standing to bring damage claims for Bhopal-related injuries on behalf of members).

132. International Union, United Automobile, Aerospace, and Agricultural Implement Workers, 477 U.S. at 274.

133. Id. at 289.

134. Id.

135. Legal Services Corporation (LSC) restrictions permit the representation of groups, corporations, and associations which meet financial eligibility requirements.  45 C.F.R. § 1611.6(a) .

136. That injury can be one defined by Congress. For example, in Addiction Specialists v. Township of Hampton, 411 F.3d 399, 405-07 (3d Cir. 2005), a methadone clinic had standing to pursue American with Disabilities Act and Rehabilitation Act claims for injunctive and compensatory relief based on its association with its clients. See also Innovative Health Systems, Incorporated v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997).

137. Representative and organizational standing must be distinguished. See Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 639, 649 (2d Cir. 1998) (group had standing because of economic harm to the organization, but organization did not have representative standing to seek damages for individual members).

138. This economic harm may take the form of expenditures that would not be required but for the challenged action. See Fair Housing Council v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012); Mid-Hudson Catskill Rural Migrant Ministry, Incorporated v. Fine Host Corporation, 418 F.3d 168, 174-75 (2d Cir. 2005); Smith v. Pacific Properties and Development Corporation, 358 F.3d 1097, 1105-06 (9th Cir. 2004) (reversing dismissal of complaint by advocacy group for the disabled which alleged that it diverted resources to monitor and publicize alleged discrimination), cert. denied, 543 U.S. 869 (2004).

139. See, e.g., NAACP v. Alabama, 357 U.S. 449, 459-60 (1958); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 157-59 (1951) (Frankfurter, J., Douglas, J., and Burton, J., concurring); M.O.C.H.A. Society v. City of Buffalo, 199 F. Supp. 2d 40, 46 (W.D.N.Y. 2002) (finding associational standing based on loss of membership); Wyoming Timber Industry Association v. U.S. Forest Service, 80 F. Supp. 2d 1245, 1253 (D. Wyo. 2000) (validating organizational standing based on economic harm to a trade association); but see Minnesota Federation of Teachers v. Randall, 891 F.2d 1354, 1359 (8th Cir. 1989) (holding that fear of potential loss of union membership is insufficient to confer organizational standing).

140. See Friends of Animals v. Salazar, 626 F.Supp.2d 102, 111-13 (D.D.C. 2009).

141. Membership rolls, for example, may be discoverable depending on whether “good cause” exists for a protective order pursuant to Federal Rule of Civil Procedure 26(c). See generally Courier-Journal v. Marshall, 828 F.2d 361, 364-67 (6th Cir. 1987) (affirming the district court’s use of discretion in fashioning a protective order that recognizes the associational rights of nonparty members of the Ku Klux Klan).

142. Failure to cite to such record evidence in the district court waives the assertion of organizational standing on appeal. National Alliance for the Mentally Ill v. Board of County Commissioners, 376 F.3d 12192, 1295-96 (2004).

143. But see American Canoe Association v. City of Louisa Water and Sewer Commission, 389 F.3d 536 (6th Cir. 2004) (organizations have standing to challenge failure to comply with the reporting and monitoring that the Clean Water Act requires because lack of such information impaired organizations’ missions to monitor and report on environmental issues).

144. See Havens Realty Corporation v. Coleman, 455 U.S. 363, 372-80 (1982) (organization dedicated to open housing has standing to challenge realty company’s discriminatory practices because they injured the group’s ability to advance its purposes and caused a diversion of resources responding to complaints about the company).

145. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 11-12 (2004) (invoking principles of prudential limitations to reject standing of father to challenge constitutionality of the Pledge of Allegiance on behalf of his daughter when his right to do so was clouded by unsettled issues of state family law). Compare Windsor, 133 S. Ct. at 2686-89 (holding that prudential considerations did not persuade Court's consideration of constitutionality of DOMA when intervenor presented adversarial argument and interests of thousands of people were at issue).

146. Association of Data Processing Service Organizations, Incorporated v. Camp, 397 U.S. 150 (1970).

147Bennett v. Spear, 520 U.S. 154, 162 (1997).

148. Warth v. Seldin, 422 U.S. 490, 498 (1975).

149. Congress must do so explicitly, such as through enactment of a citizen-suit provision. See, e.g., Bennett, 520 U.S. at 164 n.2.

150. Administrative Procedure Act, 5 U.S.C. § 702.

151.  Bennett, 520 U.S. at 163. See, e.g. Thinket Ink Information Resources, Incorporated v. Sun Microsystems, Incorporated, 368 F.3d 1053 (9th Cir. 2004) (minority-owned business falls within zone of interests of 42 U.S.C. § 1981 if it suffers racial discrimination or has an imputed racial identity).

152. Block v. Community Nutrition Institute, 467 U.S. 340 (1984).

153. The Block Court unanimously held that consumers of milk lacked standing to challenge milk marketing orders because there was evidence of congressional intent to deny consumers a right to obtain judicial review of such orders. Id. at 347-48.

154. Id. at 351.

155. Clarke v. Security Industry Association, 479 U.S. 388, 399-400 (1987).

156. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchuk, 132 S. Ct. 2199, 2210-12 (2012).

157. National Credit Union Administration v. First National Bank and Trust Company, 522 U.S. 479 (1998).

158.  Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 524-25 (1991).

159. The Supreme Court recently distinguished third-party standing cases from cases in which an assignee of a legal claim files suit. In such actions, the assignee asserts their own legal rights, not those of another, even when the assignee has promised to repay the assignor money recovered in the litigation. Sprint Communications v. APCC Services, 128 S. Ct. 2531 (2008).

160. See United Food and Commercial Workers Union v. Brown Group, 517 U.S. 544, 557 (1996).

161. See Singleton v. Wulff, 428 U.S. 106, 114-15 (1976); Erwin Chemerinsky, Federal Jurisdiction 84-91 (5th ed. 2007).

162. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (attorneys lack standing to challenge state process for appointing appellate counsel for indigent defendants who plead guilty).

163. Powers v. Ohio, 499 U.S. 400, 411 (1991) (citations omitted); see Kowalski, 125 S. Ct. at 567.

164.  See Singleton, 428 U.S. at 119 (doctor suffers loss of Medicaid reimbursement income).

165.  See Powers, 499 U.S. at 411 (discriminatory use of peremptory challenges harms criminal defendant).

166. U.S. Department of Labor v. Triplett, 494 U.S. 715, 720-21 (1990). In its most recent third-party standing case, the Supreme Court held that criminal defense attorneys did not have third-party standing to assert claims of future clients. Kowalski, 543 U.S. at 130-31.  

167. Triplett, 494 U.S. at 720. This principle might have been applied in Kowalski, but was not.

168. Craig v. Boren, 429 U.S. 190 (1976).

169. Id. at 195. Craig’s sweep is potentially quite broad. The articulated justification for the decision admits of no logical limit, and how the third prong, discussed infra, was satisfied is difficult to see. The Supreme Court observed that the law banned the sale, not the consumption, of 3.2 percent beer, but this hardly seems a substantial barrier blocking young men from challenging the statute.

170. Virginia v. American Booksellers Association, 484 U.S. 383, 392 (1988).

171. Carey v. Population Services International, 431 U.S. 678, 682-83 (1977); Eisenstadt v. Baird, 405 U.S. 438, 443 (1972); but see Tileston v. Ullman, 318 U.S. 44, 45-46 (1943) (denying standing of doctor to challenge laws prohibiting use of contraceptives on behalf of patients).

172. Powers v. Ohio, 499 U.S. 400 (1991).

173. Id. at 411-12.

174. Id. at 413.

175. Id. at 413-14.

176. Id. at 415.

177. Edmonson v. Leesville Concrete Company, 500 U.S. 614, 629 (1991).

178. Campbell v. Louisiana, 523 U.S. 392, 397-98 (1998).

179. Barrows v. Jackson, 346 U.S. 249 (1953).

180. Eisenstadt v. Baird, 405 U.S. 438 (1972).

181. Id. at 446.

182. Kowalski v. Tesmer, 543 U.S. 125, 131-32 (2004). Such a defendant subsequently did so successfully. Halbert v. Michigan, 545 U.S. 605 (2005) (due process and equal protection clauses require appointment of counsel for defendants convicted on guilty pleas in applying for leave to appeal in intermediate court).

183. Miller v Albright, 523 U.S. 420 (1998).

184. Id. at 451 n.1; see also Kowalski, 543 U.S. at 134-36 (Thomas, J., concurring).

185. Secretary of State v. Joseph H. Munson Company , 467 U.S. 947 (1984).

186. Anyone who has suffered injury is unlikely to be unable to frame the issues adequately. Thus, the only real requirement is the irreducible minimum requirement of injury in fact.

187. City of Houston v. Hill, 482 U.S. 451, 459 (1987) (quoting Steffel v. Thompson, 415 U.S. 452, 475 (1974)). Thus, in Hill, an individual who had been arrested four times but never convicted under an ordinance prohibiting interference with a police officer had standing to seek to enjoin future enforcement on the ground of overbreadth.

Updated 2015 by Jeffrey S. Gutman

3.2 Ripeness

Updated 2012 by Jeffrey S. Gutman

The doctrine of standing determines who may properly sue in federal court while the doctrines of ripeness and mootness deal with when such a suit is appropriate. Ripeness doctrine intersects with several related doctrines. In cases involving a challenge to government action, ripeness is closely related to exhaustion of administrative remedies and the Administrative Procedure Act requirement of a final agency action. In these and other contexts, aspects of the "injury in fact" prong of standing analysis overlap with the ripeness inquiry. Both essentially turn on whether the plaintiff’s injury, which is threatened but has not yet occurred, is sufficiently likely, concrete, and imminent to be regarded as a “case or controversy./1/ As a result, such cases may be decided either on standing or ripeness grounds./2/ The underlying concern is whether the potential injury is too speculative, thereby offering the court an inadequate factual record for review and raising the possibility that the court would, in essence, be doing nothing more than issuing an advisory opinion./3/ So understood, it is easy to explain why many ripeness cases deal with pre-enforcement review of civil or criminal statutes or regulations./4/

Ripeness doctrine involves both constitutional and prudential limitations./5/ The Second Circuit explained the distinction as follows:

Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. But when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. It does not mean that the case is not a real or concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III. . . .  But that, and its degree, is just one - albeit important - factor the court must consider. Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial./6/

In general, the Supreme Court has held that ripeness requires a two-part inquiry. First, in cases involving pre-enforcement review of agency regulations, the Court initially employed a presumption in favor of review which would be overcome by clear and convincing legislative intent to preclude it./7/ Second, in the absence of such preclusion and in cases that do not involve challenges to government action, ripeness turns on two considerations: the fitness of the issues for determination and the hardship to the parties if the court withholds review./8/ The Second Circuit has held that each consideration is relevant to both the constitutional and prudential aspects of ripeness./9/ In contrast, the First Circuit has held that the first consideration is grounded in constitutional and prudential limitations, while the second is solely prudential in nature./10/ There is support for the notion that the factors should be considered on a sliding scale, a strong showing with respect to one can compensate for a weak showing on the other./11/

The Supreme Court’s most recent case on ripeness, National Park Hospitality Association v. Department of the Interior, illustrates an application of both inquiries./12/ In that case, a trade association representing concessioners in national parks challenged a federal regulation announcing the Department’s view that national park concession contracts were not subject to the Contract Disputes Act. The Court found the claim unripe. First, it held that the Department’s legal position on the applicability of the Contract Disputes Act did not impose any duties or obligations on the concessioners, cause any change in their behavior or even prohibit them from resorting to the Contract Disputes Act./13/ The uncertainty over the applicability of the Contract Disputes Act, which affected the concessioners' willingness to bid on contracts, was not sufficient hardship./14/ Second, the Court held that, although the issue was purely a legal one, the applicability of the Contract Disputes Act may depend on the type of contract at issue, suggesting that review should wait until there was a concrete dispute over a specific contract./15/

3.2.A. Fitness of Record for Review

If the issue presented involves purely a question of law or a concrete factual context that would not be enhanced by further factual development, there is a greater chance of finding the claim to be ripe./16/ In contrast, ripeness is less likely when the factual record does not permit necessary interest balancing or a necessary assessment of the effect of the challenged law on the plaintiff’s conduct. For example, in Socialist Labor Party v. Gilligan, the Court found unripe a challenge to a law alleged to have made it more difficult to place the name of a candidate on the ballot for election./17/ The Court noted that the record was “extraordinarily skimpy” and offered insufficient evidence of the effect of the law on plaintiff’s efforts./18/ In these cases, it is wise to develop in advance of filing as detailed a factual record as possible so that declarations can be offered in response to a motion to dismiss on ripeness grounds.

3.2.B. Hardship from Denying Review

In general, the greater the potential hardship from denying review, the greater the chance the case is ripe. Significant hardship is often found in cases in which the plaintiff faces a decision whether to comply with a statute or regulation at significant financial cost or not to comply and face potential criminal or civil penalties./19/ In such cases, the plaintiff need not wait until a prosecution for challenging the law as a defense. The Court has found there to be hardship warranting review where a plaintiff is faced with foregoing arguably constitutional conduct or facing prosecution./20/ The question in these pre-enforcement review cases generally turns on the degree of certainty that the affected party intends to act imminently to violate a challenged law and the certainty of prosecution if it does./21/ The certainty of enforcement is informed by whether prosecuting authorities have warned of enforcement, disclaimed enforcement or have a history of enforcement.  Consequently, in cases raising potential ripeness issues, an advocate is advised to detail the potential costs of compliance and non-compliance and the historical record of enforcement.

3.2.C. Final Considerations

Two more recent developments in the law of ripeness may be of particular interest to legal services attorneys. First, the Court made it somewhat more difficult to challenge government benefit rules prior to application for those benefits. In Reno v. Catholic Social Services, the Court distinguished between rules that regulate behavior and rules that govern the potential receipt of benefits, holding that challenges to benefit rules are generally not ripe until the agency receives and denies the application, even though those rules may have deterred applications./22/ Second, in Thunder Basin Coal Company v. Reich, the Court held that Congress impliedly precludes pre-enforcement review of rules when it provides for some other means of review in the relevant statute./23/

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1. Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009); Airline Professionals Association of the Brotherhood of Teamsters v. Airborne, 332 F.3d 983, 987 (6th Cir. 2003). The Court has held that "[a] claim is not ripe for adjudication if it rests upon contingent future events that may no