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Federal Jurisdiction
University of Mississippi School of Law
Cochran, George C.

Federal Jurisdiction
Cochran Fall 2004

A) Standing
1) Constitutional Requirements
(a) Congress cannot override by statute
(b) p must allege that
(i) he/she has suffered or imminently will suffer an injury
(ii) the injury is fairly traceable to D’s conduct
(iii) a favorable fed’l court decision is likely to redress the injury
2) Injury Requirement
(a) injuries to common law, constitutional and statutory rights are sufficient
(b) a mere interest in a problem is not sufficient for standing(Sierra Club v. Morton, 1972)
(c) aesthetic and environmental injuries are sufficient so long as p claims to suffer the harm personally(U.S. v. SCRAP, 1973)
(d) a p seeking injunctive or declaratory relief must allege a substantial likelihood that he/she will be subject to the same harm in the future(City of Los Angeles v. Lyons, 1983)
(e) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
(i) descriptions of trips to the endangered areas and hopes to return “someday” proves nothing w/o indication of concrete plans
(ii) However, Ct says desire to observe an animal species, even for purely aesthetic purposes, is a cognizable interest sufficient for standing.
(iii) Ct says “injury in fact” means “an invasion of a legally protected interest which is (a) concrete and particularized, …and (b) actual or imminent, not conjectural or hypothetical.”
(f) p’s allegation that he faced an increased risk of contracting a food-borne illness from eating downed livestock is a judicially cognizable injury(Baur v. Veneman, 2003)
3) What may Congress do re: standing?
(a) Congress may not create standing by providing in the statute that “any person may commence a civil suit to enjoin a violation of [the statute].” (Lujan)
(b) However, “Congress may create a statutory right or entitlement, the alleged deprivation of which can confer standing to sue even where the person would have suffered no cognizable injury in absence of the statute.” (Warth v. Seldin, 422 U.S. 490 (1975))
(c) Congress, by statute, may create a right to information and that the denial of such information was an injury sufficient for standing. (FEC v. Akins, 524 U.S. 11 (1998))
4) Causation and Redressability
(a) cases suggest you need both but-for and proximate cause
(b) Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978)
(i) ps challenged as unconst’l the Price-Anderson Act, which limited the liability of utility companies in the event of a nuclear reactor accident
(ii) Ct said ps had standing
* the construction of a nuclear reactor in ps’ area subjected them to many injuries (e.g. exposure to radiation, thermal pollution, fear of a nuclear accident)
* but for the Price-Anderson Act, the reactor would not have been built and the ps would not have suffered these harms
(c) N.E. FL Associated Gen’l Contractors v. Jacksonville (1993): when a gov’t program makes it more difficult for one group to obtain a benefit than another group, members of the first group who challenge the program don’t have to show but-for causation for standing
(d) Simon v. Eastern Kentucky Welfare Rights Org.,(1976): to show causation, complaint needs to suggest a subst’l likelihood that victory in the suit would result in ps getting what they want
(e) Allen v. Wright, 468 U.S. 737 (1984)
(i) Claim one: ps and their children were stigmatized by gov’t financial aid to discriminatory schools; Ct said no standing b/c the injury was too abstract; it would extend nationwide to all members of a racial group, not just the ones being denied equal treatment
(ii) Claim two: children’s chances to receive an integrated education were diminished by the continued tax breaks for discriminatory schools; Ct said no standing
* although there was a cognizable injury, it was not fairly traceable to the IRS conduct
– highly indirect to IRS action
– results from the independent action of some third party not before the court
* Ct said even though a change in IRS policy might redress the injury, that is insufficient for standing b/c the IRS did not cause the segregation
(iii) must have both causation and redressablity
5) Prudential Requirements (Congress may override by statute)
(a) a party generally may assert only his own rights and cannot raise the claims of third parties not before the court (no third-party standing)
(b) a p may not sue as a taxpayer who shares a grievance in common with all other taxpayers
(c) a party must raise a claim w/in the zone of interests protected by the statute in question
6) The prohibition against third-party standing
(a) Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301 (2004)
(i) p lacks prudential standing b/c of the gen’l prohibition against a litigant’s raising another person’s legal rights;
(ii) p’s parental status, which determines his potential to have standing to raise his daughter’s rights, is defined by California law
(iii) state family law appears to have deprived him of “next friend” status, and the S. Ct. generally declines to intervene in matters of domestic relations
(b) Three major exceptions
(i) 3d party unlikely to be able to sue: must be
* substantial obstacles to the 3d party asserting his or her own rights and
* reason to believe that the advocate will effectively represent the interests of the 3d party
(ii) Close relationship btwn p and 3d party
* usually permitted in cases where the individual seeking standing is part of the 3d party’s constitutionally protected activity
(iii) The overbreadth doctrine
* permits a D to challenge a statute on the ground that it substantially abridges the 1st Amd’t rights of 3d parties not before the ct, even though the law is constitutional as applied to D
* appears to be ltd to 1st Amd’t cases
7) The prohibition against generalized grievances
(a) prevents individuals from suing if their only injury is a “generalized grievance shared in substantially equal measure by all or a large class of citizens,” (Warth v. Seldin)
(b) not determined by no. of ppl affected, but rather by whether ps sue solely as
(i) citizens concerned with having the gov’t follow the law or as
(ii) taxpayers interested in restraining allegedly illegal gov’t expenditures
(c) to have standing, p must allege a direct injury and “not merely that he suffers in some indefinite way in common w/ ppl generally” (Frothingham v. Mellon, 1923)
(d) a person cannot gain standing as a citizen claiming a right to have the gov’t follow the law(Ex parte Levitt, 1937)
(e) Flast v. Cohen, 392 U.S. 83 (1968)
(i) p, suing as taxpayer, challenged fed’l subsidies for parochial schools on the grounds that they violated the Establishment clause; S. Ct. allowed standing
(ii) p’s ability to sue as a taxpayer depends on whether there is a logical nexus btwn the status asserted and the claim sought to be adjudicated
(iii) To establish that nexus, p needs to establish two factors:
* a logical link btwn that status and the type of legislative enactment attacked (taxpayer could challenge only expenditure of funds under the taxing and spending clause of the Constitution, not some incidental expenditure of tax funds in the administration of some regulatory statute)
* a nexus btwn that status and the precise nature of the constitutional infringement alleged (taxpayer must argue that Congress is violating a particular const’l provision w/ the expenditure and not just that Congress is exceeding the scope of its power under the Constitution)
(f) U.S. v. Richardson (1974): Ct dismissed p’s claim that if he couldn’t sue no one could: “the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process.”
(g) Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)
(i) Ct said no standing; generalized grievance b/c p alleged injury only as a citizen w/ an interest in having the gov’t follow the law, not a violation of a specific constitutional right
(ii) Flast seems to be ltd to its facts
(h) Valley Forge Christian College, 454 U.S. 464 (1982)
(i) ps sued to enjoin U.S, gov’t from giving VFCC a $500M tract of land, claiming the transfer violated the Establishment clause; Ct said no standing; ps sued solely as taxpayers interested in having the gov’t follow the law
(ii) Ct distinguished Flast, saying that Flast dealt w/ a congressional statute and a spending program, while VFCC dealt w/ a decision by a dep’t. to transfer ppty and gov’t action pursuant to Congress’s power over gov’t ppty
(i) Covington v. Jefferson County (2004): provided they have met constitutional requirements, ps do not have to meet prudential standing requirements if Congress specifically authorized citizen suits for violation of the fed’l laws sued under
8) The “Zone of Interests” requirement: if p is suing pursuant to a statutory provision, in order to have standing p must be part of the group intended to benefit from the law
9) Standing for organizations
(a) An association or organization can sue based on injuries to itself or based on injuries to its members. (United Food Workers)
(b) Hunt v. Washington State Apple Advertising Comm’n (1977): Ct articulated 3-part test to determine when an org. may sue on behalf of its members – association has standing when:
(i) its members would otherwise have standing to sue in their own right
(ii) the interests it seeks to protect are germane to the organization’s purpose, and
(iii) neither the claim nor the relief requested requires the participation in the lawsuit of the individual members
(c) United Food and Commercial Workers (1996): Ct reaffirmed Hunt test and clarified that the 3d prong is prudential and not const’l; therefore, Congress could override it by allowing the ass’n to sue for dmgs on behalf of its members
10) Raines v. Byrd, 521 U.S. 812 (1997): A legislator has standing to sue on the basis of injuries to his or her ability to perform as a representative only if he/she alleges that he/she has been singled out for specially unfavorable treatment as opposed to other members of his or her body or that his/her vote has been denied or nullified
11) Suits by gov’t entities
(a) A gov’t can sue to protect its own interests
(b) A gov’t may also sue on behalf of the interests of its citizens
(i) it must allege both a harm to its citizens and that the matter involved is the type that the state is likely to address through its lawmaking process
(ii) state and local gov’ts may not sue the fed’l gov’t in this capacity, though they may sue the fed’l gov’t to protect their own sovereign or proprietary interests
B) Ripeness
1) Ripeness doctrine involves the question of when a party may seek pre-enforcement review of a statute or regulation
2) two considerations when deciding ripeness:
(a) the hardship to the parties of withholding court consideration
(i) the fitness of the issues for judicial decision (the more a question is a purely legal issue, and not dependent on concrete fact pattern, the more fit it is)
3) There must be both hardship and fitness to establish ripeness
C) Mootness
1) Mootness doctrine involves

may be defeated by one construction of the Const. [and] sustained by the opposite construction.”
(b) FQJ after Osborn (in sum): The Const. permits Congress to create fed’l jdn whenever fed’l law is a potential ingredient of a case. Not only does fed’l jdn extend beyond situations where there are fed’l causes of action, but it also includes all instances where the case might turn on a question of fed’l law, no matter how unlikely it is that fed’l law will be an actual basis for the decision.
(c) Verlinden B.V. v. Central Bank of Nigeria (1983): so long as the fed’l law to be applied does more than merely create jdn, it is a basis for fed’l ct jdn if it is potentially important in the outcome of the litigation
(d) Protective Jurisdiction
(i) Theory of “protective jdn”: Where there is an articulated and active fed’l policy regulating an area, the “arising under” clause apparently permits Congress to grant fed’l jdn
* in all cases in that area, including those substantively governed by state law
* where it believes that fed’l ct availability is necessary to protect important fed’l interests
* for ps who need the “protection” of a fed’l forum in the absence of diversity or a substantive fed’l claim
(ii) Osborn allegedly created/authorized protective jdn: it allowed Congress to create fed’l jdn, even as to state law claims litigated by the Bank of the U.S., to protect the Bank from potential state ct hostility
(iii) Textile Workers Union v. Lincoln Mills (1957)
* p sued in fed’l ct under § 301 of the Taft-Hartley Act (a.k.a the Labor Management Relations Act of 1947); LMRA authorizes fed’l jdn but does not create substantive law
* Ct says fed’l jdn is appropriate: Congress intended for fed’l cts to create a fed’l common law of labor-mgmt contracts; as such, cases under LRMA arise under fed’l common law and thus jdn is permissible under Art. III
3) The Meaning of “Arising Under” For Purposes of § 1331
(a) The gen’l principle has three major parts; to get fed’l jdn, p must satisfy the first and either the second or third
(i) well-pleaded complaint rule
(ii) COA based on fed’l law
(iii) fed’l law (must create a COA) an essential component
(b) Well-pleaded complaint rule
(i) p can’t file suit in fed’l ct, nor may D remove, unless it is clear from the face of p’s complaint that there is a fed’l question
(ii) fed’l jdn cannot be based on a fed’l law defense or on p’s anticipation of a fed’l law defense, or on p’s anticipation of a fed’l law rebuttal to a defense (Louisville & Nashville Railroad v. Mottley, 211 U.S. 149 (1908))
(iii) if p chooses not to present a fed’l claim, even though one is potentially available, D may not remove
(iv) a p may not defeat removal by omitting to plead necessary fed’l questions in a complaint (Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983))
(v) a p may not circumvent this rule by seeking a declaratory jmt that the fed’l law is unconst’l or inapplicable if the complaint in a lawsuit for redress would not state a fed’l question (Skelly Oil v. Phillips Petroleum, 339 U.S. 667 (1950))
(c) Federal questions in suits based on state COAs
(i) Smith v. Kansas City Title & Trust (1921): FQJ when it appears from complaint that
* right to relief depends on construction or application of fed’l law, and
* such fed’l claim rests upon a r’ble foundation
(ii) Moore v. Chesapeake & Ohio Railway (1934): a suit brought under a state law COA that brings w/in the purview of the state statute a breach of fed’l duty should not be regarded as a suit arising under fed’l law
(iii) Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804 (1986)
* Ct said the difference btwn Smith and Moorewas in the nature of the fed’l interest:
– Smith dealt w/constitutionality of a fed’l statute
– in Moore, violation of a fed’l rule as an element of a state tort did not fundamentally change the state tort nature of the action
* It is not enough for a fed’l law to be an essential component of a state law COA; FQJ exists only if the fed’l law itself creates a COA, albeit not one relied on by p
B) Removal
1) Primary removal statute: 28 U.S.C. § 1441
(a) § 1441(a): D may remove any civil action brought in state court of which the District Courts of the U.S. have original jdn
(i) D may remove a case to fed’l ct only if the p’s suit could initially have been filed in fed’l ct (p’s complaint must present either diversity or FQJ)
(ii) only D may remove from state to fed’l court