Nelson 2015 Federal Courts Outline

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Federal Courts Fall 2015

? Advisory Opinions: about Adversity (GW) and Finality/Bindingness (Hayburn's) o GW 1793 Letter (p. 52) - Adversity & Separation of Powers
? FACTS: sent letter to SCOTUS asking to interpret US treaty relating to getting involved in the GB-France War
? (1) This is an extrajudicial function because there is no adversity/dispute and it thus falls outside the A3 judicial power of the US.
? (2) Propriety separation of powers concerns: would be improper for judiciary to provide president with advice (role of executive)
? Would weaken judicial independence and make judiciary seem political
? A2S2: "he may require the opinion, in writing, of the principal officer in each of the executive departments" (should be limited to executive departments since that's what it says)
? COUNTERARGUMENTS: (not our understanding today)
? Pfander and Burke: Tutun v. U.S. (1926) (p. 86) (Brandeis) held court ruling on uncontested petitions for naturalization satisfy case or controversy requirement. Brandeis did, however, attempt to make the US seem like an adverse party.
? John Marshall (1800) speech to congress: "A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. . . . To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by [the court's] process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit."
? Case: requires parties and binding decision. If there are no adverse parties then it cannot be disposed of.
? Civil or criminal
? Controversy: requires only parties
? Always civil o Hayburn's Case (1792) (p. 82) - Finality
? FACTS: Vets from rev war wanted to receive federal pensions if disabled from war. Court would certify to Sec. of War that applicant should receive pension.
? RULE: SCOTUS issued continuance
? NY Circuit Court: Under the constitution, executive & legislative branches may only assign judicial duties to the judiciary
? PA Circuit Court: Legislative oversight of opinions makes these judgments nonjudicial, and the courts cannot partake in nonjudicial functions
? NC Circuit Court: Congress' power to establish lower courts is bounded only by the Constitution, but it cannot establish a court that will be subject to legislative oversight.

1 ????UPSHOT: Congress cannot vest review of courts' decisions in the executive branch. If government wins in court, it can give up its right to enforce the court (see below) order, but if government loses, it can't vacate the judgment. Chicago & Southern Air Lines v. Waterman S.S. Corp. (1948) (p. 87): It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action." o Distinction from Presidential Pardon and Forfeiting Judgment Presidential Pardon: the ability of the POTUS to pardon following a judgment does not render that judgment an advisory opinion because POTUS is simply relinquishing his ability to enforce the judgment Legislative Forfeiture: a judgment requiring a private party to pay the government money can be forfeited by congress because
? (1) Congress could repeal the statute that supported the judgment, even retroactively
? (2) Each party must have a litigable interest that at risk of losing, and the decision would be binding if the other side wins: this does not say anything about what you have to do with the judgment
? Cases and Controversies (within the meaning of A3) o Two requires: Adverse parties with (1) litigable interests at stake who (2) are at risk of a binding judgment Note: discussed in reverse order o (2) Binding Judgment Finality: established by statute, what makes things binding (e.g. failure to timely appeal makes district court decision final and binding), and once final it is a vested right, and legislature cannot divest a vested right. Plaut v. Spendthrift Farm (1995): (p. 5 photocopied materials) - Congress can only adjust finality prospectively, not retrospectively
? BACKGROUND: Lampf v. Gilbertson (1999): Decided while Plaut pending; for certain implied COA under Sec. Exch. Act SOL changed from longer state SOL to new court defined uniform federal SOL.
? FACTS: case filed pre Lampf, so fed courts borrowed state SOLs, post Lampf courts set shorter one. This case was dismissed as time barred by the new courts set SOL. Congress then passed a statute adjusting SOL for cases brought preLampf saying to determine by state law. Asked to get reinstated.
? ISSUE: Congress's ability to overturn judicial finality (w/r/t preclusion)
? RULE: for actions still pending, congressional intervention is OK, but once a final judgment has been issued, Congress cannot force courts to reopen, even by setting a new rule
? Reasoning 1: Congress cannot perform judicial role to reopen case
? Reasoning 2: If they could do this, then it would transform all judgments into advisory opinions (not binding), subject to change via retroactive Congressional rulemaking
? EXCEPTION: if on appeal, law can be changed (if it's clear the law is retroactive and the time for appeal has not expired)
? POLICY: no retrospective changes in finality, can be prospective
? OUTCOME: could not get action reinstated
? See: implied cause of action Prospective vs. Retrospective Changes: under Plaut distinction (above)

2 Finality of money damages/preclusion can't be changed because that is retrospective
? Can change future effect of injunctions because that is prospective
? NELSON: at most, laws can alter present/future effect of past actions, so any law is prospective. Thus Prospective vs. Retrospective is semantic to some degree (though the court relies on it in e.g. Plaut) Money Damages vs. Injunctive Relief:
? Miller v. French (2000) (p. 92 item 4)
? RULE: congress can negate ongoing injunctive relief
? Reasoning: "The provision of prospective relief is subject to the continuing supervisory jurisdiction of the court, and therefore may be altered according to subsequent changes in the law"
? Why different?
? Legal Distinction: FRCP 60(b)(5): Allows courts to modify or vacate an injunction if Congress changes the underlying substantive law such that the injunction is no longer equitable
? Like Plout, finality that a court can pronounce is no more than what the law will permit, and because FRCP 60(b)(5) says that injunctions can be modified or vacated, they cannot be more final than that
? No such provision for altering money damage awards, so by law they are more final
? Miller v. French is not quite this, because here the statute congress passed didn't just create new law, but instead it said that it would explicitly said it would change the ongoing injunctive relief
? Constitutional Distinction:
? Could be built into the constitution or historical context, but NELSON thinks this is an incomplete answer and thus supports the broader Vested Private Rights theory
? Hinges on 19th century distinction between vested rights (e.g. $
damages) and nonvested rights (e.g. injunctive relief)
? Scalia did not fully endorse the distinction between vested and nonvested rights in Plaut, but this is consistent with it Vested Rights Theory: 19th Century Conception (Edward Corwin)
? Could once act retroactively w/r/t public rights (if you sued gov't and gov't and won, they could allow another private citizen to sue on the same claims)
? This is like Hayburn's Case (government can abandon its interest if it wins)
? Once certain types of private rights have become vested (e.g. through judicial finality), state and federal legislatures are barred from divesting that right (cast either as separation of powers, or due process deprivation of property)
? Faded in modern law - not as categorical rule
? Still firm for $ damages, but less form for injunction o (1) Adverse Parties US v. Windsor (2013) (p. 100 5(c)) Prudential Limits
? FACTS: Federal government levied the death tax on a lesbian widow b/c DOMA. Government loses at district court and appeals only because it wants SCOTUS precedent overturning DOMA.??

3 RULE: This only implicates "prudential limits" (that an appellate court normally won't hear when both sides agree) - the constitutionally required "concrete adverseness" is present
? TAKEAWAY: could moot the case by agreeing and paying back $, but can't moot the case by agreeing on the law alone
? Constitutional Adverseness: Adverse interests are required, not adverse arguments.
? Scalia DISSENT: there is no case because they agree (Nelson/Majority says in practice courts don't take these cases, but it's not a constitutional limit)
? Declaratory Judgments o Why is this a case/controversy and not an advisory opinion?
There are adverse interests, and the decision would be binding (i.e., litigable interest they would have res judicata effect in future). Aetna v. Haworth (1937, page 57): declaratory judgment appropriate when the exact same interests could be brought or raised in a suit for traditional relief. Did not constitute an AO because the dispute was "concrete" and not hypothetical, and the case would constitute "an adjudication of present right upon established facts." o Policy Points Prevents P from having to wait for actual damage to occur Allows D to initiate the lawsuit o History: Pre-1934: could only bring claims for injunction or damages 1934 Federal Declaratory Judgment Act: Allows district court to enter a declaratory judgment when:
? Case is of actual controversy (adversity + bindingness)
? Otherwise within the court's jurisdiction o See 1331 for special concerns W.R.T. SMJ
? Standing (part of SMJ) o Sources of Standing Doctrines Federal Law
? Constitutional
? Prudential (aka cause of action) State Law o Requirements Fletcher's 2 Step Process
? (1) Does the applicable substantive law give P a COA against this D in this court for this remedy?
? (2) Does P satisfy constitutional standing (1) Cause of Action - Prudential Aspect
? Allen v. Wright (1984): Prudential Standing Explained (see also constitutional aspect of the case below)
? FACTS: plaintiffs (parents of students), sued to require the courts to compel the IRS to better enforce the law by stripping private schools of tax exempt statuses that discriminate based on race
? Note: Congress didn't pass any legislation giving cause of action (so court did not separate constitutional from non-constitutional standing analysis)?????4

"Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as
? the general prohibition on a litigant's raising another person's legal rights,
? the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches,
? and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked"
? Possible Theories: (Nelson)
? The duty was owed to the public, not these specific individuals
? There is no private COA for citizens to question executive prerogatives like this, either in statute or in equity
? This is on top of the Constitutional aspects
? See Implied Cause of Action - similar considerations
? Linda RS v. Richard (1973): Direct Nexus between Interests and Laws
? FACTS: Texas state law crime to fail to support children. Courts generally applied to only legitimate children. p's baby daddy wouldn't support her kid. Private suit to compel government to enforce bc violation of EPC arguing discriminatory application.
? RULE: no "sufficient showing of a direct nexus between the vindication of her interests [in child support] and the state's criminal laws" so lack of standing. No interest in another's criminal prosecution or nonprosecution
? Frothingham (Taxpayer Standing) and Flast (exception thereto) COA/Prudential aspects better explains these because Frothingham lacked a COA, whereas Flast didn't
? Lexmark v. Static Control (2004): Scalia agrees that this is better thought of as a cause of action issue than a standing issue (2) Article III Standing - Constitutional Aspect
? RULE: Even if a statute gives a private COA, no litigant can proceed unless they personally have a concrete litigable interest within the meaning of A3
? Injury suffered by all when the government (or another) violates the law is generally insufficient to establish standing (prudential). However, when a statute creates a private COA, this sufficient to satisfy prudential standing (according to current precedent). The existence of a statutory private COA can also satisfy A3 standing because the statute creates a right and duty, the breach of which can be an injury in fact. However, no A3 standing if the plaintiff is neither actually harmed nor at imminent risk of harm.
? Scalia/Thomas/Nelson: A3 is separate from prudential standing, and must be satisfied as well, even if statutory private COA by congress.
? Requirements: injury in fact, causation, redressability
? Injury in Fact: real world harm to a concrete interest, that belongs to the plaintiff, that is the type of interest that can be provided relief in court
? Does NOT include abstract injuries suffered by all when government does wrong
? Causation: injury in fact must be fairly traceable to the [?]'s allegedly unlawful conduct?

5 Redressability: injury in fact must be one that the relief requested by p
and available from the court is something that the court would typically do something about or redress
? The remedy has to be linked to the prospect of alleviating the harm
? Must be a remedy that the court could plausibly grant
? E.g. compensation
? May be harder to satisfy for injunctive or declaratory relief, because relief must be able to sufficiently alleviate p's injury in fact Allen v. Wright (1984): constitutional aspect (see also prudential aspect of the case above)
? (1) Claim of stigmatization fails b/c not injury in fact: although the IRS unlawful behavior stigmatizing blacks when it broke its duty to enforce can sometimes support standing, the abstract injury suffered by black students when the government violated the law was not injury in fact (unless they are e.g. personally denied equal treatment/entry like in Brown)
? (2) Claim of diminished ability to receive good edu. (i.e. integrated) fails causation: less integration in public schools because discriminatory private schools receive tax subsidies; this is too attenuated (for any particular school) and not fairly traceable to the unlawful conduct.
? Note: there was injury in fact here
? (3) Separation of Powers element: when P's suit is less concerned with a concrete remedy for an injury and more concerned with changing how the executive branch governs, the courts will require more in the way of causation and redressability than otherwise.
? Redressability: the remedy sought---more aggressive IRS enforcement---was "too speculative" to actually bring about the outcome the plaintiffs sought.
? POLICY: class action is not a way around standing Legislator Standing
? Coleman v. Miller (1939) - Nullification of Legislative Votes
? FACTS: KS Senate tie vote on ratification (per A5) of a constitutional amendment (child labor amendment). Lt. Gov. cast a tiebreaking vote for the amendment. Legislators on the losing side sought writ of mandamus and argued that "ratification by the legislature" in A5 did not include the Lt. Gov's vote.
? RULE: legislators had litigable interest in not having their votes nullified (if they were to prevail on the merits)
? Raines v. Byrd (1997) - Distinguishes Coleman - Vote Dilution
? FACTS: legislators challenged line item veto because it deprived the legislature of some of their power
? RULE: this is an abstract dilution (not concrete removal) of power. One distinct vote with concrete outcome that hinged on the answer vs. dilution of power.?6

Political power argument less convincing in part because these legislators were not authorized by Congress/Senate as a whole to litigate the legislative branch's interests
? Hypo: if instead there was one identifiable legislator that broke a tie to have a provision included and then vetoed, they may have standing
? Arizona Legislature v. Arizona Redistricting Commission (2015)
? FACTS: AZ voters passed a ballot initiative amending the state constitution to divest the state legislature of its state and congressional redistricting power (granted to legislatures by the Federal Constitution). The amendment vested that power in a nonpartisan commission.
? RULE: Legislature has standing because (1) they sued as an institution, not as individual legislators; (2) a concrete power was taken away from the legislature; (3) prevailing on the merits would have reversed this strip of power.
? Harrison article
? Argues that there is no COA (not an issue in the case).
? NELSON: but legislature could have passed statute giving it COA Organizational Standing: A3
? Definition: suing on behalf of someone in your organization
? Different from third party standing, where you are making a claim for yourself based on someone else's legal rights
? Organization can establish A3 standing, but it still requires concrete litigable interest, and they normally fail under injury in fact
? Get relief for your own injuries based on another's legal rights
? See also third party standing below
? Lujan v. Defenders of Wildlife (1992) - Injury in Fact
? FACTS: The Endangered Species Act prohibited any federal action from harming any listed endangered species. Dept. of Interior issued a regulation stipulating that this rule applied domestically, but not abroad. DoW sued under Citizen Suit Provision of the law to force new regulation that also applies abroad.
? RULE: (Scalia, from Hunt v. Washington Apple (1977))
? 1) do any individual members have standing to sue in their own right? Consider all A3 issues.
? 2) are the interests germane to organization's purpose
? 3) "it must be likely," as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision'"
? HOLDING: fails on prong 3 for lack of imminent harm
? Inability to observe an animal species that you want to for aesthetic purposes can qualify as injury in fact
? No member could point to a concrete real world injury---
only speculated, threatened
? Future injuries?


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