Immunities of States and Public Officials

Question 1

Little v. Barreme (1804)

Answer 1

Capt. Little seized Danish vessel en route from a French port to a Danish port in the Caribbean, believing it was an American vessel violating an Executive Order. Danish owner brought suit against Capt. Little, claiming damages for common law trespass.

Little is liable despite good faith and Executive Order. Little was indemnified by Congress thru private bill.

Question 2

United States v. Lee (1882)

Answer 2

Lee estate in Arlington occupied by fed officers; Lee’s son tried to eject them; officers claimed SI because the suit essentially against the U.S.

Court accepted sovereign immunity as given; key question was its contours. No sovereign immunity bar where United States is not necessary party. Naming officer rather than government is not always enough to avoid sovereign immunity bar, but it’s enough here. (If the remedy is just the officer handing over the keys and the title, then US not a necessary party.)

Question 3

Simmons v. Himmelreich (2016)

Answer 3

Unanimous Court concluded that judgment bar is not triggered when a court dismisses an FTCA case because challenged conduct falls within discretionary function exception.

Question 4

Judgement Bar

Answer 4

The (final) judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

Question 5

Federal Tort Claims Act (1946)

Answer 5

Waives SI for suits in tort against U.S.: “[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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.”

Question 6

Westfall Act (1988)

Answer 6

FTCA is exclusive remedy for any tort claim arising from acts/omissions of government employees acting within the scope of employment. However, statute expressly preserves Bivens (that is, constitutional) claims against officers. See outline for procedure.

Question 7

APA 702

Answer 7

Broadly waives sovereign immunity for non-damage remedies, creating strong presumption that agency action is reviewable.

Question 8

Law Enforcement Proviso

Answer 8

Liability permitted for certain intentional torts by law enforcement. any time a law enforcement officer is acting within scope of employment (not just when they are investigating).

Question 9

Millbrook v. United States (2013)

Answer 9

Supreme Court unanimously held that prisoner who was sexually assaulted by corrections official while in custody could sue under the FTCA.

Question 10

Dalehite v. United States (1953)

Answer 10

Class of over 8000 victims brought suit in federal district court under the FTCA. No individual acts of negligence shown, so claim: was that United States wrongly brought dangerous materials to a highly congested area without grasping/expending $ to mitigate risks or warning the population.

Suit precluded by the discretionary function exception. Plaintiffs haven’t alleged a specific act of negligence; they are challenging whole decision to manufacture and transport the fertilizer given the potential risks. Where plaintiffs challenge such exercises of high-level policy judgment, FTCA doesn’t permit suit.

Question 11

Berkovitz v. United States (1988)

Answer 11

Child developed severe polio after taking oral polio vaccine. Parents sued government under FTCA claiming that licensing of particular batch violated federal regulations.

Discretionary function exception does not apply, and parents can sue. DF exception only applicable where employee faces some element of choice/discretion. Here, petitioner claimed officials authorized vaccine without requesting and considering information required by statute. Officials lacked any discretion to depart from mandated procedure, so exception inapplicable.

Question 12

Cope v. Scott (CADC 1995)

Answer 12

Plaintiff, injured in car accident in Rock Creek Park, claimed Park Service failed to maintain road and failed to place ”slippery when wet” signs where needed.

(1) Within DF exception (so no claim): claims related to the maintenance and design of the road, including suggestions that Park Service should have reduced the traffic load, used different material in construction, or milled the surface of the curve to create grooves. These involve balancing of many factors and prioritization. (2) Not within DF exception (suit permitted): claims related to placement of warning signs. Placement isn’t grounded in regulatory policy. This is so even if placement involves some choice.

Question 13

Due Care Exception

Answer 13

Two-part inquiry: [1] Did statute/regulation require what agent did? [2] If so, did agent exercise due care? Only if answer to [2] is no can a suit proceed.

Question 14

Chisholm v. Georgia (1793)

Answer 14

South Carolina merchant filed assumpsit (contract) claim against State of Georgia as original action in U.S. Supreme Court after Georgia defaulted on its debts.

All 5 Justices wrote, and 4 rejected Georgia’s assertion of sovereign immunity.
Dissent (Iredell): We should interpret the Judiciary Act of 1789 in light of the common law principle of sovereign immunity.

Question 15

Hans v. Louisiana (1890)

Answer 15

Hans, a Louisiana citizen, owned Louisiana bonds issued to finance the state’s participation in the Civil War. Hans argued: Clear text of the Eleventh Amendment bars ONLY suits by non-citizens against States. I’m a citizen, so it does not apply and bar my suit.

Suit is barred by SI; Everyone understood that states enjoyed immunity from suit in federal court at the time of the framing.

Question 16

Ex parte Young (1908)

Answer 16

MN Commission rolled back RR rates and imposed harsh fines for violation. Each ticket sold over prescribed rate would result in 5 years in prison and a $5000 fine. RR shareholders’ suit claimed state rate setting was confiscatory and sought injunction in federal court against state attorney general to bar enforcement based on DP and Commerce Clause.

State penalties for violation of the rate law are so severe as to be unconstitutional on their face. State official who is about to commence proceedings to enforce unconstitutional state legislation may be enjoined from doing so. Eleventh Amendment is no bar here. If the threatened act violates the Constitution, the officer is stripped of official character and is sued as an individual. Suits against officers to enjoin the enforcement of unconstitutional acts do not violate the Eleventh Amendment.

Question 17

Edelman v. Jordan (1974)

Answer 17

Jordan brought action against state officers claiming they were administering programs aiding the disabled in a manner inconsistent with federal regulations and the 14th Amendment

Can get prospective relief, even if it incidentally requires state expenditure of money, but not retrospective relief (aka damages). State is real party in interest when action seeks recovery from state treasury. Can only sue if there’s waiver or valid abrogation.

Question 18

Milliken v. Bradley (1977)

Answer 18

Court orders officers to undertake many measures designed to remedy inadequate desegregation efforts, calling them prospective even though measures require significant expenditures from state treasury.

Question 19

Hutto v. Finney (1978)

Answer 19

Court upholds order that officials pay $20,000 out of Department of Correction funds in attorney’s fees because of bad faith. This is ancillary to power to impose prospective injunctive relief. Award not so large that interferes with state budgeting process.

Question 20

Pennhurst (1984)

Answer 20

Resident of gothic-nightmare-type state asylum filed class action against state officials (under Ex parte Young theory) seeking injunctive relief on state and federal grounds.

Ex parte Young “fiction” is not available to enjoin a state official’s threatened violation of state law. This trenches too much on state sovereignty.

Question 21

Fitzpatrick v. Bitzer (1976)

Answer 21

Plaintiff sued a state official claiming Connecticut’s retirement plan violated Title VII of the Civil Rights Act and sought retroactive retirement benefits paid from the state treasury.

Suit can proceed. Congress enacted statute pursuant to § 5 of the Fourteenth Amendment, which shifted the federal-state balance. Eleventh Amendment is necessarily limited by Fourteenth, and when Congress acts under § 5 power it may provide for private suits against states.

Question 22

Pennsylvania v. Union Gas (1989)

Answer 22

QP: Does the Superfund statute, enacted under the Commerce Clause, permit suits for money damages against States in federal court?

Plurality (of 4, Brennan): Yes. Congress can abrogate state immunity pursuant to its Commerce Clause power because that operates as a check against state authority. States surrendered authority to federal government in the constitutional convention.

Question 23

Hess v. Port Authority (1994)

Answer 23

QP: Does Eleventh Amendment preclude personal injury suit for damages against a multi-state compact entity (PATH trains running between NJ and NYC)?

No Eleventh Amendment bar to this suit where, as here, the compact entity is privately funded. “[T]he vulnerability of the state’s purse [is] the most salient factor in Eleventh Amendment determinations.”

Question 24

Seminole Tribe v. Florida (1996)

Answer 24

Seminole Tribe sued State of Florida and its governor, Lawton Chiles, alleging that the defendants had violated good-faith negotiation requirement by refusing to negotiate re casino gambling.

(1) Congress cannot abrogate state 11A SI under its Art. I Indian Commerce Clause powers/. Union Gas overruled. 11A is not limited to damage concerns (cutting back on Hess). Hans remains the law, and we will continue to avoid “blind reliance” on the text of the Eleventh Amendment. (2) Fed court has no jx under Ex parte Young to order prospective relief against Fl Gov. Congress has provided an alternate remedial scheme and we do not think Congress intended to permit Ex parte Young relief. The Act’s remedial scheme is exclusive.

Question 25

Idaho v. Coeur D’Alene Tribe (1997)

Answer 25

Action by Indian tribe against state and state officials claiming rights in submerged lands. By time case got to Supreme Court, only officials remained in suit.

Suit is barred by 11A. Young is inapplicable given state’s “special concern” for submerged lands. We now see this as a weird categorical exception.

Question 26

Verizon v. PSC (2002)

Answer 26

“In determining whether Ex Parte Young avoids an 11A bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective”

Question 27

City of Boerne v. Flores (1997)

Answer 27

Religious Freedom Restoration Act is an invalid exercise of 14A Section 5 power. To act under Section 5, Congress must show “congruence and proportionality” between the constitutional problem and the means selected to remedy it. Here, Congress isn’t enforcing/remedying; it is trying to change the underlying content of the Free Exercise Clause.

Question 28

Florida Prepaid (1999)

Answer 28

Patent Remedy Act can’t abrogate state immunity under Section 5 because it isn’t a valid exercise of Section 5 enforcement power. Congress didn’t identify pattern of patent infringement by states – e.g., no big state problem requiring 11A abrogation.

Question 29

Kimel v. Fla. Bd. of Regents (2000)

Answer 29

Age Discrimination in Employment Act can’t abrogate state immunity under Section 5 because its substantive requirements are disproportionate to alleged problem – e.g., no big state problem justifies 11A abrogation.

Question 30

Univ. of Alabama v. Garrett (2001)

Answer 30

ADA can’t abrogate state immunity under ADA where there’s insufficient evidence of state discrimination – e.g., no big state problem justifies 11A abrogation.

Question 31

Nevada Dep’t of HR v. Hibbs (2003)

Answer 31

FMLA can abrogate state sovereign immunity because Congress “met its burden” under Section 5 given evidence of a pattern of state violation and thus could enact “appropriate prophylactic legislation.”

Question 32

Tennessee v. Lane (2004)

Answer 32

Congress can abrogate state immunity under ADA by permitting suits challenging access for the disabled to state courts. Here, record demonstrates lots of local violations. Court approves “as applied” abrogation given importance of right.

Question 33

United States v. Georgia (2006)

Answer 33

(Unanimous) Congress can abrogate state immunity under ADA where claim is right to be free of actual cruel and unusual punishment. Also “as applied.”

Question 34

Coleman v. Ct. of Appeals of MD (2012)

Answer 34

Congress cannot abrogate state immunity from suit under (different provision of) FMLA where it hasn’t shown sufficient link between state action and proposed remedy – no big state problem warrants abrogation.

Question 35

Central VA. Comty. College v. Katz (2006)

Answer 35

Bankruptcy trustee sought to set aside “preferential transfers” made to state agencies. State agencies moved to dismiss on Eleventh Amendment grounds.

Bankruptcy Act can override state immunity. History of Bankruptcy Clause and legislation immediately post-ratification reflect it’s much more than a grant of legislative authority to Congress

Question 36

Allen v. Cooper (2020)

Answer 36

Congress lacks power to abrogate state sovereign immunity under the IP Clause. Katz does not compel a clause-by-clause approach but rather was premised on the unique history of the Bankruptcy Clause. We rejected precisely this argument in Florida Prepaid, and nothing in Katz inclines us to change our mind.

Question 37

Alden v. Maine (1999)

Answer 37

Maine employees filed suit against Maine in federal court, alleging violation of FLSA and seeking money damages. District court dismissed, citing Seminole Tribe (11A barred suit in federal court). Plaintiffs refiled same action in state court, and state again claimed sovereign immunity that Congress lacked power to abrogate.

State is right, and suit is dismissed; Congress lacks power to abrogate state immunity in state court, too. Anything else = affront to state dignity.

Question 38

Monroe v. Pape (1961)

Answer 38

Monroe was subject to massive indignities at hands of Chicago police, in plain violation of Fourth Amendment and laws of Illinois. Question Presented: To what extent does § 1983 reach acts by state officers that are either unauthorized or, in fact, specifically illegal under state law?

Suit can proceed against officials despite fact that his conduct violates state law and despite the fact that state law also provides remedies for this violation. Major goal of statute was to provide a supplemental federal remedy in addition to state remedies.
Notes: Monroe equates “under color of state law” for § 1983 purposes with the Fourteenth Amendment’s state action requirement.

Question 39

Quern v. Jordan (1979)

Answer 39

§ 1983 does NOT “explicitly and by clear language” abrogate Eleventh Amendment immunity.

Question 40

Will v. Michigan State Police

Answer 40

A State is never a “person” under § 1983; neither are state agencies.

Question 41

Ashcroft v. Iqbal

Answer 41

No supervisory liability; the Court said that Attorney General Ashcroft was not liable for his subordinate’s illegal detention of a terror suspect, even when he knew about it. This applies to both § 1983 and Bivens.

Question 42

Monell (1978)

Answer 42

Female employees sued municipal agencies for back pay and injunctive relief due to policy of requiring forced, unpaid leave for pregnant employees.

The portion of Monroe holding that a city isn’t a person under § 1983 is overruled. The Court in Monroe misread the legislative history. Cities and counties can be sued directly for damages and injunctive relief .

Question 43

Pembaur (1986)

Answer 43

Single decision of a high-ranking local policymaker = official “policy” and is enough for Monell-type 1983 liability.

Question 44

Praprotnik (1988)

Answer 44

Look to local law to see who is a policymaking official; only where city actor has official policymaking authority does her action give rise to Monell liability.

Question 45

City of Canton v. Harris (1989)

Answer 45

Plaintiff claimed police violated Constitution by failing to give her necessary medical treatment when she was under arrest. She sued the city, claiming it had inadequately trained police.

A city will be liable for “failure to train” only where its actions amount to “deliberate indifference.” No liability for simple mistake, rogue conduct, or indifference of individual officer. Focus on adequacy of training program.

Question 46

Bd. of Cty. Comm’rs v. Brown (1997)

Answer 46

Plaintiff, subject to excessive force on arrest, claimed that sheriff, a policymaking official, had hired arresting official without sufficiently reviewing his background.

Plaintiff doesn’t claim sheriff directly violated law or authorized a constitutional violation. Plaintiff must show policymaker was “moving force” and acted with deliberate indifference to the risk of the particular injury suffered by plaintiff. This is difficult to make out on the basis of a single hiring decision, and it’s certainly a higher bar that Canton’s failure to train standard.

Question 47

Gravel v. United States (1972)

Answer 47

Congressional aides get absolute immunity that would be afforded their bosses. They are “alter egos.”

Question 48

Butz v. Economou (1978)

Answer 48

Secretary and Assistant Secretary of Agriculture are not absolutely immune from suit claiming retaliatory investigation in violation of the First Amendment.

Question 49

Nixon v. Fitzgerald (1982)

Answer 49

President of the United States enjoys absolute immunity against suits for damages based on his official acts.

Question 50

Officials Receiving “Absolute” Immunity

Answer 50

• Legislators and their aides acting in legislative or deliberative capacity.
• Judges acting in their judicial functions (unless they act “in the clear absence of all jurisdiction”). (Damage actions)
• The President for acts undertaken during office (Nixon v. Fitzgerald), but not for actions taken before office (Clinton v. Jones).
• Prosecutors for in-court acts (and some out-of-court acts related to their prosecutorial function).

Question 51

Harlow v. Fitzgerald (1982)

Answer 51

Fitzgerald, a whistleblower reporting $2.3 billion dollar cost overrun in Air Force program, brought a Bivens action seeking damages for retaliation against senior Nixon aides after they eliminated his job.

Government officials are generally entitled to some immunity to shield them from undue interference with their duties and disabling possible effects of liability. However, normal executive officials generally have qualified, not absolute, immunity. Immunity unless conduct violates clearly established rights of which a reasonable person would have known.

Question 52

Anderson v. Creighton (1987)

Answer 52

Knowledge that Fourth Amendment precludes warrantless searches absent exigent circumstances is not enough to overcome QI. Reasonable officer must understand that his/her specific behavior is likely to violate that right. If officer could have reasonably believed his conduct did not run afoul of that rule, qualified immunity applies.

Question 53

Ashcroft v. al-Kidd (2011)

Answer 53

We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”

Question 54

Hope v. Pelzer (2002)

Answer 54

State prisoner brought § 1983 action alleging Eighth Amendment violations after he was handcuffed to a hitching post for hours, shirtless, in the hot sun. Lower courts said his situation was not “materially similar” to prior cases.

We don’t require that this precise situation have been confronted before. Immunity claim defeated. Key to inquiry is whether defendant had “fair warning.” If already-familiar principles apply with obvious clarity to situation, that’s enough. Here, we have a general Supreme Court case laying down principle, many Eleventh Circuit cases condemning things like this, and a DOJ report urging states to stop this.

Question 55

Malley v. Briggs (1986)

Answer 55

If a warrant application clearly lacks probable cause, officer’s reliance on issued warrant is unreasonable.

Question 56

Messerschmidt v. Millender (2012)

Answer 56

Generally, fact that a magistrate issued a warrant is sufficient to suggest that officer relying on it acted reasonably. Malley is narrow exception that applies only where magistrate’s error is so obvious that any reasonable officer would recognize error.

Question 57

Taylor v. Riojas (2020)

Answer 57

Prisoner spends six days in shockingly unsanitary cell, covered in feces. Lower court grants qualified immunity because there’s no prior case on point.

Summarily reverses: Any reasonably officer would have realized this violated the law.

Question 58

McCoy v. Alamu (2021)

Answer 58

Prisoner sprayed in face with mace for no reason by prison guard. Fifth Circuit grants qualified immunity because there’s no prior case on point.

Supreme Court issues 4-line order: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Taylor v. Riojas.

Question 59

Camreta v. Greene (2011)

Answer 59

Mother brought § 1983 action against officers who conducted warrantless interview of her daughter regarding sexual assault charges, claiming Fourth Amendment violation. CA9 said [1] this is a Fourth Amendment violation BUT [2] it’s not a clearly established Fourth Amendment violation, so officers get immunity. QP: Can Court review holding [1] given grant of immunity?

Yes, Supreme Court can review. We usually follow a doctrine of constitutional avoidance, but in the qualified immunity context, that can lead to massive uncertainty in the law.

Question 60

United States v. Lanier (1997)

Answer 60

A right can be clearly established even in absence of a Supreme Court decision, particularly where there is unanimity in lower courts.

Question 61

Safford Unified School District #1 v. Redding (2009)

Answer 61

where lower courts are in substantial disarray, with many well-reasoned majority and dissenting opinions, law may not be sufficiently clear to defeat an immunity claim

Question 62

Padilla v. Yoo (9th Cir. 2012)

Answer 62

Bivens action filed by Jose Padilla, an American citizen detained as an enemy combatant and subjected to harsh conditions, against John Yoo, former head of OLC who authored the administration’s policy.

Yoo has qualified immunity. “Although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners were, in many respects, clearly established, it was not ’beyond debate’ at that time that Padilla, who was a suspected terrorist designated an enemy combatant – was entitled to the same constitutional protections.”