REMEDIES RULES OUTLINE

RULE

AUTHORITY

INTERPRETATION/APPLICATION
INTRO TO REMEDIES

General
Approach to
Crafting a
Remedy

Steps to Crafting a Remedy

1. Is there liability? Must determine whether the defendant is legally responsible for some harm to the plaintiff.
2. Identify the relevant remedial goals.
a. Pls Rightful Position
b. Defs Rightful Position
c. Punishment (i.e. disgorgement)
d. Enforcement
e. Declare rights
3. Determine the appropriate type of remedy.
a. Specific Remedies (Future Harm)
-Injunctive Relief
-Specific Performance: Contract remedy for breach.
-Writs of Mandamus: Order to a public/corp. officer to perform a duty (Marbury)
-Writs of Prohibition: An order to a judge to refrain from unwarranted conduct.
-Writ of Habas Corpus: Order to justify detention of prisoner.
-Ejectment: Order to eject possessors from property owned by someone else.
-Replevin: Order to put plaintiff in possession of chattels.
-Declaratory Judgment: A declaration of liability or non-liability.
-Statutory Remedies for Illegal Admin. Action
b. Substitutionary Remedies (Future Harm)
c. Substitutionary Remedies (Past Harm)
4. How to implement the remedy.
a. i.e. What is the rightful position or adequate substitute
5. How to enforce the remedy.
Private v. Public 1. Private Law Litigation (Traditional)
Law Litigation

A lawsuit initiated by one party against another to determine if a set of events occurred and what the consequences are.
Logical remedy approach.
2. Public Law Litigation (Modern)

A lawsuit initiated by a class of people to vindicate a Constitutional/Statutory right.

Judges are more active in the lawsuit.

Requires the use of equitable relief (injunctions) with a decree modifying future behavior being the main remedy sought.
THOUGH THERE IS A RIGHT THERE MAY NOT BE A REMEDY
Bivens
Bivens v. Six Unknown Named Agents of Fed Bureau of Narcotics (SCT 1971)
Facts
1. Mans house is searched unconstitutionally; never charged with anything so there is no remedy b/c 42 USC 1983
exclusionary rule does not apply.
2. Individual capacity suit in order to avoid sovereign immunity
Holding
Fed cts can imply a cause of action and damage remedy for a 4th A violation despite lack of a controlling fed statute. Known
subsequently as a Bivens Action.
Analysis
Courts must have power to allow for remedies for the violation of rights when (1) there is no alternate remedy and (2) Congress
has not specifically spoken on a subject.
The present case involves no special factors counseling hesitation in the absence of affirmative action by Congress.
Must prove that violation was of clearly established const. law in order to obtain damages from the govt.
Key to Bivens may really be that no other remedy is available
Harlan Concurrence
Damages are the only remedy. Injunction is useless b/c it looks to the future not to the past.
Dissent (Black)
Existence of 42 USC 1983 demonstrates that congress has considered issue and declined to provide comp damages under the
circumstances.
Dissent (Burger)
1. Wants to re-evaluate the remedies for a 4th Amendment violation.
2. Exclusionary rule is bad b/c it lets bad guys go free and refuses to use good evidence
3. Bivens action is inadequate.
a. Juries will be reluctant to find against officers.

Constitutional
Torts: Bivens
Legacy

b. Difficult to locate individual accts.

4. Better to sue state under doctrine of respondeat superior and have a tribunal to determine monetary remedy for violation of 4 th
Amendment.
Bush v. Lucas (SCT 1983)
Nobody has questioned that court has the power to issue
Holding: Court cannot imply remedy when other
prospective looking injunctive relief for constitutional
meaningful relief is available.
violations. The question is can they imply a money damages
1. Federal employees cant bring Bivens claims against their
remedy.
employer.
Bivens Claim Analysis (Katzberg): allows for $ damages on a
2. No private action for emotional distress and atty fees for 1st
const claim against federal or state officials
A violation perpetrated against federal employee fired for
1. Is a constl right at stake?
making public statements critical of his agency where
2. Is there evidence from which we may find or infer, within the
legislation provides for (1) reinstatement (2) retroactive
constitutional provision at issue, an affirmative intent
seniority (3) retroactive back pay
either to authorize or to withhold a damages action to
remedy a violation. If not is there a basis for concluding
Chappel v. Wallace (SCT 1983) (no private action for
that a damages remedy was intended to be foreclosed.
military personnel who are injured due to uncostl actions of 3. If no affirmative intent either to authorize or to withhold a
superiors)
damages remedy is found, undertake the constitutional tort
analysis adopted by Bivens.
Schweiker v. Chilicky (SCT 1988)
a. Has Congress spoken: Is there a meaningful and
Facts:
adequate statutory remedy in existence.
Congress reforms Continuing Disability Review Program
b. consider the extent to which a constitutional tort action
(CDR) by which SSD disability claims are reviewed.
would change established tort law
Provides for more careful review before denial and
c. consider the nature and significance of the constitutional
retroactive benefits if.
provision.
Procedure
4. If Bivens factors favor recognizing a constitutional tort, also
Suit for mental and emotional distress for adopting
consider the existence of any special factors counseling
unconstitutional illegal policies that terminated benefits in
hesitation in recognizing a damages action
violation of PDP rights.

deference to legislative judgment

Holding/Analysis

avoidance of adverse policy consequences

1. Court cannot imply remedy when other meaningful relief is

considerations of government fiscal policy

available. Does not matter if relief is incomplete.

practical issues of proof

2. Cong has considered this situation and provided meaningful

competence of courts to assess particular types of

remedies. Must show deference to Cong.
damages (ie ct is more competent in social welfare than
3. Like the plaintiff in Bush they were reinstated, given
military situations)
retroactive benefits and there is nothing analogous to
seniority.
* Chilicky had the statute not already been modified
injunctive relief would clearly be appropriate
Dissent
The new SSD Benefit Reform Act of 1984 does not benefit
these individuals. Cong. does not have special expertise in
the area of social welfare unlike Chappel and Bush.
Wilkie v. Robbins (SCT 2007) (no private cause of action
against fed agents for extortionate attempts to obtain land
easement in absence of statutory remedy. Line drawing here
counseled against creating a judicial remedy.)
Katzberg v. Regents of University of California (CAL 2002)
(no PDP Bivens action for Prof who is demoted in absence of
name clearing hearing where traditional
injunction/declaratory relief is available and appropriate i.e.
defamation, writ of mandate which would allow damages
under CA R. of Civ. Pro.)
Gonzaga Uni v. Doe (SCT 2002) (Rhenquist) (no private 42
USC 1983 right of action for student harmed when school
wrongly disclosed records b/c cong intended Fam Ed Rights
and Privacy Act, which does not provide private right of
action, to be the exclusive remedy)

Wilkie Two Factor Bivens Action Test

1. Is there a meaningful statutory remedy in existence?
2. If not, undertake a remedial determination that is
appropriate for a common-law tribunal carefully
considering special factors counseling hesitation
*With the current ct the likelihood of implying a Bivens
damages remedy for constitutional torts is virtually dead in the
water. (see Wilkie v. Robbins)
42 USC 1983: Allows damages action against federal or state
officials for violation of any federal right.

Under 42 USC 1983 plaintiff must only show that a

statute confers a right then 1983 will supply the remedy.
Pl does not have to show a cong intent to create a
private remedy.

Easier to prove 1983 suit than very high burden to

obtain damages in individual capacity suit. Must show
violation of clearly established con law.

Where suing in individual capacity would subject pl to

even worse treatment 1983 suit is preferable

Interlocutory
Appeal

Temporary
Restraining
Orders (TRO)

Prelim
Injunction

PRELIMINARY RELIERF
Interlocutory appeal of TRO or Prelim Injunction is available (can be expedited)
Circuit Split: Whether appeal of prelim injunction is a automatic stay or does it remains in place unless you obtain a stay
Appellate standard of review: abuse of Discretion: as long as dct got the law right it will not be reversed b/c app ct would have
applied law to the facts differently
Carroll v. President of Princess Anne (SCT 1968) (KKK
Temporary Retraining Order FRCP 65
case)
Test: immediate and irreparable injury, loss, or damage
No place within the area of basic freedoms guaranteed by
requires immediate order to maintain the status quo
First Amendment for such orders (ex parte TRO) where no
Shown through affidavits.
showing is made that it is impossible to serve or notify
About
opposing parties and to give them opportunity to participate. 1. Can be done ex parte but requires attempts to give notice or
demonstration of why such attempts should not be reqd
2.
Requires
bond
Mandatory Binding Authority (Lovell)
3. Duration: 10 days with one renewal regardless of notice.
Hates language in rule which makes it seem like ex parte
4. Notice must be given while TRO is in effect so prelim
TRO should be routine when it should be an exceptional
injunction hearing can be set.
practice that should only be used in limited circumstances
where def is operating in bad faith and they will abscond if 5. Adverse party can file motion to dissolve TRO on 2 days notice
to other party (sooner w/ leave)
you notify them. Ex parte prelim orders set the stage for
6. Interlocutory appeal available (can be expedited)
poor negotiations with fixed positions.
See Fed Labor Relations Act: due to abuse of ex parte TRO
process Cong. largely barred fed cts from issuing injunctions
in Labor cases.
LA Coliseum v. NFL (9th Cir 1986) Attempt by Coliseum to
enjoin the NFL managers from enforcing its rule of an
affirmative vote before a team could transfer location.
Monetary harm is not irreparable harm can be
compensated

Status quo v. Mandatory Prelim Injunction

Must consider whether prelim injunction is maintaining status
quo or whether it is a mandatory prelim injunction. Mandatory
prelim injunction: reqs affirmative action requires heightened
showing (i.e. hire instead of stop hiring in equal emp case).

Circuit Split
Dataphase v. CL Systems (8th Cir. 1981)
Dataphase Sliding Scale Test for Prelim Injunction
A competing company alleges violation of anti-trust law and
(9th Cir; 8th Cir. Unlike 9th Cir. the 8th Cir. applies Winter in
obtained injunction which is vacated on appeal.
cases challenging state statutes)
Holding: When determining if there is a substantial
likelihood of success on the merits the court does not have to 1. Probable threat of irreparable damage (Dataphase said
possible but after Winter should be probable)
establish 51% if the other factors are strongly supported.
2. Fair chance of success (not necessarily above 50% -- but less
*Lovell argued in DSM case that reordering of factors
probability means more need for certain irreparable damage)
suggested an emphasis on irrep harm.
3. Balance of equities: the state of the balance between this harm
and the injury that granting the injunction will inflict on
Governator Case (9th Cir. 2003) (denying prelim injunction
other parties litigant
in Bush v. Gore type claim over outdated punch ballots. One 4. Public interest
of few cases to actually consider the public interest factor.) 5. Sliding scale part: Only substantial and not mathematical
probability of success required if the balance of other
Winter v. NRDC (SCT 2008) (Natl Security Case)
factors tips decidedly toward movant and the movant has
Despite DCT and CAP finding of near certainty of
raised questions so serious and difficult as to call for more
irreparable harm to the environment SCT denies preliminary
deliberate investigation. (look at context)
relief b/c of natl security under public interest factor.
Lovell says this limits or even modifies sliding scale in
Winter Fixed Threshold Test for Prelim Injunction
Dataphase but says heightened public interest is probably
(11th Circuit)
only for natl security. Shows that this conservative SCT
1. Likelihood of irreparable harm (must be more than a mere
would probably follow Planned Parenthood. Most recent
possibility)
SCT case to talk about prelim injs.
2. Likelihood of success on the merits (50%+)
3. Balance of equities (discuss rightful place and undue burden)
Planned Parenthood v. Rounds (8th Cir. 2008) (came down 4. In the public interest (higher standard then perm injunction is
before Winter decision) (Abortion provider brought action
justified)
to enjoin amendments to states informed consent law)
(success on merits must be likely (50%+) when statutes are
Pointers
challenged. Statutes are based on the presumptively
1. Notice required
reasoned democratic process)
2. Court has ability to consolidate the hearing for Preliminary
Injunction into a trial on the merits.
Adopts the phrase likely to prevail on the merits
See fn6: Same test for enforcement of statutes. City leg gets
K Suits Against the State: strong irreparable harm argument
less deference. Heightened test might also apply to

challenged admin agency action.

Motion for a
TRO in Moore

b/c sovereign immunity prevents K suits against states. True in

most municipal bond cases.

Master Builders of Iowa v. Fort Madison Prison (has not

occurred yet but pls wisely sought TRO to prevent state
from signing K)
Moore v. City of Des Moines (S.D.IA 1984)
(Lovell used Dataphase standard but maybe Planned Parenthood would apply since government action is being challenged)
1. Irreparable Harm: Focus on class based nature of the relief: w/out injunction it will take at least one year until the next hiring
to pursue rightful place Layoffs may mean that there will be no jobs next year (weakest factor here)
a. Measures such as hiring ratios cannot be taken if there are no vacancies to fill
b. Ct will almost never remove hired applicant to give pl a job
c. No rightful place remedy
2. Liklihood of success on the merits: inexonerable zero. Huge disparate impact.
3. Balancing the Equities. No undue burden Virtually full fire dept. Even a temp delay will not endanger public.
4. Public interest: Diversity is a legitimate public interest.
Potential Damages:
1. Backpay to sept 82 and retroactive seniority
2. Front pay remedy reqing city to pay fire fighters salary until he gets a job minus mitigation
3. Perhaps other consequential damages (i.e.e foreclosure)
4. Reasonable atty fees were recovered
Consent decree was negotiated.
THE NATURE, AVAILABILITY, AND SCOPE OF INJUNCTIONS
Prerequisites for Injunctive Relief

Injunctions
Generally

Injunction
1. An EQUITABLE REMEDY, in the form of a COURT ORDER that directs a person to act or refrain from acting (prohibits or
compels/restrains or enjoins) in a specific way.
2. Enforcement: Coercive remedy enforced by power of contempt.
a. Compensatory civil contempt: If injunction/order is violated court may award monetary compensation to plaintiff: The
contemnor has no right to a jury trial and court will typically award pl atty fees (exception to the American rule)
b. Coercive civil contempt = jail or fine does not affect pls rightful position
c. Criminal contempt = for willful violation of an injunction a sentence can be issued
Types of Injunctions:
1. Preventive: Injunctions which prevents wrongs from occurring again.
2. Reparative: Injunctions issued to eliminate the effects of past wrongs.

i.e. Requiring the building of recreation area for prisoners in Newman.

Notes
Injunction drafting should be a joint effort, if cooperation is not possible then plaintiff will typically draft it. Plaintiff wields
power of the first draft.
Reach of injunction can be expanded beyond named defendant to other entities/persons in concert with defendant
When def. practices are voluntarily changed retain jurisdiction for further review as in Aikens.
The usual standard of appellate review with an injunction is Abuse of Discretion
o Case will be moot if there is no reasonable expectation that the wrong will be repeated.
o Case is not ripe if there are no violations and no showing of future violations.

Black Letter

Portland Feminist Womens Health Center (9th Cir. 1988): injunction on abortion protestors challenged as being vague because
it didnt specify decible level. Court says theyll only set aside an injunction if it is VERY vague more vague than this
apparently.
**Prof Lovell Preferred Permanent Injunction Factors** TIBP
1. Threat of legal harm necessitating Court action
a. likely to continue or mere aberration?
2. Irreparable injury b/c damages are inadequate
a. Money wont fix i.e. ct treats real estate/property as unique ie new river cannot be bought
b. Would damages fully and adequately make the pl whole? If so this injury is not irreparable in the eyes of the law.
3. Balancing of hardships: indicates that remedy in equity is warranted

a. Will granting the injunction impose undue hardship or unfairness to defendant

4. Public interest will not be disserved by permanent injunction
a. Do not have to prove furtherance of public interest. (will not, by itself, typically operate to deny relief entirely but see
Milwaukee v. Activated Sludge)
b. Practicality of Enforcement: No overwhelming monitoring/enforcement burden on the court. Is it worth it from an
administration of justice standpoint

Black Letter
Cases

Monsanto: Reestablishes Four-Factor Analysis IIBP

1. irreparable injury (threat of legal harm necessitating Court action)
2. remedies available at law are inadequate
3. balancing of hardships/equities indicates that remedy in equity is warranted (should come first if there is a statute as in Hecht
or TVA but statute has to be damn clear)
4. public interest will not be disserved by permanent injunction (furtherance of public interest) (will not, by itself, typically
operate to deny relief entirely but see Milwaukee v. Activated Sludge)
Ebay v. Mercexchange (SCT 2006)
Majority (Thomas)
1. Four factor test for injunctive relief applies to the Patent Act. Must use flexible equitable discretion doctrine and not rigid
presumption that injunction shall issue upon showing of patent infringement absent exceptional circumstances.
2. historically injunctions have applied to patents and no intention to depart from tradition is evident
3. patents act declares that patents have attributes of personal property
Concurrence (Kennedy): Must be aware of new phenomenon where patent is only for licensing and injunction is just a
bargaining chip to get bigger licensing fees.

Monsanto v. Geerston (SCT 2010) (Injunction is drastic and extraordinary remedy and is not issued to absolutely prohibit
USDA from deregulating GMO seeds. Here partial dereg is appropriate. However, they should conduct a EIS)
Prerequisites for Injunctive Relief
Prerequisites for Injunctive Relief: Balancing The Equities
Balancing the
Black letter
Equities
1. Court must (almost) always balance the equities when issuing an injunction.
(proportionality) 2. Injunction should be balanced and match scope of harm threatened.
Before issuing permanent specific relief court must consider:
1. Whether the relief would impose hardship on def AND
2. whether that hardship is substantially disproportionate to the disadvantage to plaintiff of receiving only substitutionary relief
3. In balancing those interests ct should consider relative fault of both parties

If P doesnt act to stop the harm when he should have, that balances away from his favor (Staso is example of P who
DOES act on time) Laches Doctrine
4. Also can be formulated to state that court should balance advantage to plaintiff receiving specific rather than substitutionary
relief against burden on defendant.
Prerequisites for Injunctive Relief: Balancing The Equities: Plaintiffs Rightful Place
Rightful Place in Mt Healthy School Dist Bd of Ed v. Doyle (SCT 1977)
Mixed Motives
Procedure
Wrongful
42 USC 1983 damages suit for alleged retaliatory refusal to renew K in violation of 1 st and 14th
Termination
Facts: Pl is non-tenured teacher whose K is not renewed. Engaged in string of unsavory conduct including 1 st A protected
Cases
speech on radio station.
Holding
Plaintiffs will be denied recovery for wrongful termination based on exercising a protected conduct if employer would have
reached same decision in absence of protected conduct.
Analysis
If he would have been terminated despite constl violation then reinstatement with backpay would put pl in better than rightful
position.
Mt Healthy Mixed Motive Test (use for non-discrimination wrongful termination cases)
1. Pl must carry burden of showing protected conduct was a substantial factor in decision not to rehire then
2. The burden shifts to def to show by the preponderance of the evidence that they would not have rehired him even in
the absence of the protected conduct.
Note: Backpay is considered an injunctive remedy. SCT has taken the position that Cong gets to decide what type of remedy
backpay is. Differs from statute to statute.
Civil Rights Act of 1991 42 USC sec 2000e-2(m) (use for wrongful termination discrimination cases) Alters Hopkins v.
Price Waterhouse
Unlawful to use race, color, religion, sex, or national origin as a motivating factor in any employment practice even though

other factors also motivated the practice. (lowers pls burden of proof)
Even if employer can prove they would not have rehired anyway it is only a partial defense in this case. If this is shown it limits
remedy to injunctive and declaratory relief and atty fees/costs. Remedy is basically atty fees and statement dont do it again.
Note that cong. has the power to alter remedies for constl violations
DeBoom v. Raining Rose (IA) (woman is fired, apparently because of pregnancy. Unclear whether IA allows full recovery
where discrimination is merely a motivating factor)

Right Place in
Reconsideration
Relief Cases
Rightful Place in
Pattern Practice
Cases

1.
2.
3.
1.
2.
3.

Mckennon v. Nashville Banner Pub Co. (SCT 1995) (After acquired evidence case)
Facts
Woman steals files that prove she will be fired for age discrimy purpose
Holding
When employer is attempting to justify termination, they are limited by the knowledge they had at the time of termination.
Analysis
Where employee illegally takes home confidential documents to demonstrate she was improperly terminated this after acquired
evidence, unknown to the employer at the time of termination does not provide supervening legal reason for termination.
No reinstatement since she can be terminated upon discovery of after acquired evidence. Proper remedy is back pay from date
of termination to date after acquired evidence (of theft) was discovered.
Rightful Position as Reconsideration or Remand to Agency in Administrative Law
Reconsideration Relief: A remedy available to the plaintiff to have an administrative body reconsider a prior holding.
Rightful place is error free decision. Does not meant Plaintiff necessarily gets what he wants.
Rizzo v. Goode (SCT 1976)
Rarely will an injunction issue against unlawful and uncost. police action b/c the issues are very delicate.
Facts
High police officials are sued for pervasive pattern of illegal and unconstitutional mistreatment by police officers under the
theory of official indifference to police misconduct and the likelihood that it would reoccur.
Holdings
Injunctions must be tailored so that they are limited to forcing those adjudged to have violated plaintiffs rights to restore them
to their rightful position. (def must be liable or there is no remedy against that defendant)
Injunctions will not issue if there is not threat of future harm.
An injunction should only issue in order to vindicate rights.
Analysis
Nonfeasance as to high police officials in this case. No policy of ignoring police abuse. Malfeasant misconduct was by low
level officers not the high level officers being sued.
Typically injunctive relief does not run against individual officers
Do not read to broadly. Misfeasance by high police officials would have allowed for injunction. See Hague v. C.I.O. (case
allowing injunction against mayor and chief of police for active misfeasance)
42 U.S.C. 14141: Gives U.S. Dept. of Justice authority to bring pattern and practice litigation to enjoin police misconduct.

Rightful Place in
Election Cases

Rightful Place in
Structural
Injunction
Cases
1.
2.
1.
2.

New Jersey Consent Decree: DOJ obtained injunction eliminated use of race in police activities. This is allowed, post-Rizzo,
because it was the U.S. (not individuals) suing NJ. Congress modified Rizzo with 42 USC 14141 allowing for DOJ suits.
Marks v. Stinson (3d Cir. 1994) (if pl loses election due to flawed vote counting new election will not be ordered unless he
demonstrates that more votes were affected than the margin of victory) BUT SEE MORE THAN RIGHTFUL PLACE
ELECTION CASES
Bell v. Southwell (5th Cir. 1967) (where candidate is black and black voters are excluded she can get a new election even
though blacks excluded from voting was less than margin of victory. Presumption that racially charged environment caused
whites not to vote for her).
McCarthey v. Briscoe (5th Cir. 1977) (allowing presidential candidate to be put on ballot where unconstl statute prevented him
from obtaining statutorily reqs nominating procedure)
Aikens v. Lash (***Lovell Case***) (N.D. Ind. 1974)
Procedure: Prison reform cases seeking structural injunction (requires a variety systemic changes in the way an institution
operates)
Facts
Segregation cells unfit for animals
First time fed ct ever closed cells in max security prison
Holding/Analysis
Cruel and unusual punishment is found when it offends contemporary concepts of decency and human dignity and precepts of
civilization which we profess to possess.
Courts of equity have broad discretion to issue injunctions for preventative and reparative relief.

3. Deference shown to give prison admin and leg the benefit of the doubt. Ct cannot take over prison and recognizes that they are
understaffed.
4. During lawsuit prison policy was changed to allow for hearing. Lovell successfully argued prior hearing was reqd prior to
segregation under Morrissey grievous loss standard. Morissey v. Brewer (IA SCT).
a. reqs adequate procedural hearings including advocate for all inmates in IDU unit within 10 days.
b. retains jurisdiction to ensure new already approved hearing procedures are implemented
5. Ct holds against pls on challenge re IDU seclusion unit. but retains jurisdiction to give leg a chance to pass bill under
consideration that would provide for renovation, more guards (less than rightful place remedy at time of issuance).
6. Prison staff was opening atty correspondence. This violated right to counsel under 6 th, and 14th Amds. Ct holds that it can only
be opened in front of inmate, if there is suspicion of contraband.
7. Ct ordered D.O. unit closed within 20 days.
a.
Long term confinement in D.O. seg is not uncost. but periodic 30 day review hearings with adversary setting is reqd
b. One year later D.O. seclusion unit had been converted into prison library with skylights, windows.

Rightful Place in
PDP Prisoner
Cases

*Note: Aikens was a prison reform structural/reparative injunction. In 1995 Gingrich and PLRA limits relief.
Morrissey v. Brewer (IA SCT 1972) (Parole is a liberty interest to which due process attaches)
Grievous Loss Standard
If there is potential for grievous loss the following are reqd
1. adequate and timely written notice of the charge
2. a fair opportunity to explain and to request that witnesses be called or interviewed
3. impartial decision maker.
**Note: The same is reqd for revocaiton of statutory good time.

Less than
Rightful Place

1.
2.
1.
2.
3.

Gagnon v. Scarpelli (SCT 1973) (probation is a liberty interest to which due process attaches)
Smith v. Staso Milling (2d Cir. 1927) (balancing appropriate even though it is unclear whether it is permitted under VT law)
Majority (Hand)
Facts
Milling plant starts up less than a mile from pls vacation home. Causes air and water pollution as well as air pollution. Pl
expressed concern before building began. Def provided assurances that water pollution would not take place.
Holding
Water pollution absolutely enjoined b/c of prior promise. (laches).
Air pollution injunction also stands but w/ leave for def. to request modification upon further showing that there is no better
technology, impossible to further reduce the dust, injunction will result in closing down.
Analysis
Def attempting to limit harm to least possible extent and there is a large public interest at stake that must be balanced against pls
rights.
Failure to balance would result in a means of extortion since biz is worth millions and house is worth $40,000
State of the art technology is preventing all but 1% of air pollution

Brown v. Bd of Ed (Brown II SCT 1955)

1. First structural injunction transforming law of remedies
2. Ct supervision of local action: responsibility of local officials come up with solutions and adopt/implement plans; responsibility
of court to determine if strategy meets law. (public interest)
3. All deliberate speed: Court has responsibility of determining if actions are a good faith implementation of the law.
4. Practicalities of enforcement weigh heavily resulting in less than rightful place remedy

Except in context of contract law, this practicality of enforcement rarely comes into play as it does here
Remedial Delay: Rightful position can be delayed if only attainable with remedial steps. *It took a decade before any real
desegregation began to occur b/c political branches finally came on bd with Presidency of Lyndon B. Johnson
Rightful Place
TVA v. Hill (SCT 1978): enjoining dam construction that endangered snail darters in violation of endangered species act
Balancing in
Holding: Endangered Species Act was a rare occasion where statute was damn clear that injunction would issue for violation
Statutory Cases
and ct did not have usual equitable discretion.
(Power of Congress to take away judicial discretion in regards to injunctions)
Three possible interpretations
1. equitable discretion may never be used to allow a statutory violation to continue
2. *equitable discretion may in general be so used, but the ESA prohibited balancing in cases arising under it*
3. equitable discretion may be so used and the Act does not forbid balancing, but the balancing in this case came out in favor of the
snail darters
Weinberger v. Romero-Barcelo (SCT 1982)
Navy found to be violating statute during training exercises by discharging ordnance into water in PR w/out obtaining permit.
Under FWPCA balancing was allowed b/c military could obtain a permit. Lack of enviro harm contributed to less than rightful

Balancing:
More Than
Rightful Place
Remedy

place remedy.
Times when a more than rightful place remedy is appropriate.
1. Ct is dealing with obstructionist or recalcitrant defendant
2. Prophylaxis and Impossibility: It is very difficult to fashion a precise rightful place remedy but bright line more than rightful
place remedy is easily enforceable
Women Prisoners v. DC
Evidence of abuse results in hotline, grievance procedure, staff training, reporting mechanism, employee sanctions, expert
consult, staff training.

Hutto v. Finney (SCT 1978)

Facts: Horrible Prison Conditions
(1) Trustees prisoner guards with guns (2) 8 real guards for 1000 prisoners, 2 at night (3) Disease infested mattresses (4) No
window in cell, up to 10 ppl per 8x10 cell (5) Rampant rape and attacks at night (6) 17 stabbings in eighteen months (7) prison
ran for profit, prisoners driven like slaves, beaten with leather strap: forced to do up to 12 hrs hard labor in clothing
inappropriate for weather (8) Less than 1000 calories per day (9) Electric shock punishment
Procedure: History of Recalcitrance
1969: Initial hearings ordered prison to correct the conditions when funds were available: (1) Defer to expert authorities like
in Brown II (2) File reports on progress
1971: court issued guidelines, identifying four areas of change that would cure the worst evils: (1) improving conditions in the
isolation cells (2) increasing inmate safety (3) eliminating the barracks sleeping arrangements (4) putting an end to the trusty
system.
1973: dct terminated injunction and ct which appeals reversed this decision in 1974.
1976: dct holds additional hearings and finds conditions had worsened: (1) grue diet continued (2) worse overcrowding (3)
vandalism (4) isolation for months at a time
8th Cir. ordered atty fees based on bad faith of state and counsel for going back to worse conditions once supervision was
withdrawn
Holding
More than 30 day isolation is not necessarily unconsl but under these circumstances the isolation violates the 8 th amendment.
This is a more than rightful place remedy.
Analysis
(1) Injunction can go beyond the plaintiffs rightful position given history of noncompliance. (2) Injunctions can go beyond the
plaintiffs rightful position if evidence that defendant would not comply with a narrow order. (3) Seeking to bring an ongoing
violation to an immediate halt. (4) FN 11: Due to noncompliance in order to accomplish remedy bright line is needed that goes
beyond rightful place
Dissent (Rehnquist)
Defer to local govt in managing its own affairs
Disagrees with position that state was recalcitrant
*Note: If state will not appropriate funding for certain areas, like prisons, the court can put a cap on the number of prisoner per
guards in the prison.
Balancing The Equities: School Desegregation Cases
Green v. School Bd. (SCT 1968) (freedom of choice remedy violates desegregation order b/c burden of desegregation falls on school bd not kids and
families)
Swann v. Charlotte-Mecklenburg Bd of Ed (SCT 1971) (Perhaps the most successful deseg case)
Holding: School can engage in temporary gerrymandering of districts and bussing to eliminate segregation.
Analysis (racial balancing approach)
1. Interdistrict violation
2. Court has broad remedial power to repair denial of constl right
3. One race schools req heightened scrutiny with the burden lying on authorities to show that discrim is not taking place
4. Redrawing attendance zones is within the courts broad remedial power. Ct ordered quotas to attain racial proportionality are allowed overruled in
Parents Involved v. Seattle School District #1 (2009)
5. Ct ordered bussing allowed if it does not risk health of children, impinge on the ed. process, and the children are not very young.

average bus ride before deseg remedy was 15 mi for 1 hr. Under deseg decree avg bus ride was 7 mi. and 35 mins.
Milliken v. Bradley I (SCT 1974) (with no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict
violation the district courts remedy was wholly impermissible)
Milliken v. Bradley II (SCT 1977) (magnet schools okay where they are implemented for quality of education purposes and the state of Michigan
can be ordered to pay for them)

MO v. Jenkins III (SCT 1995) (voluntary approach)

Holding: The court cannot remedy an intradistrict problem by ordering a remedy with an interdistrict purpose.
KC magnet program is an interdistrict remedy which is beyond the scope of the intradistrict constl violation therefore DCT has devised a remedy to
accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of students
Analysis
1. Unlike Swann no interdistrict violation only intradistrict violation
2. DCT ordered that all schools in KC district become magnet schools: Goal was to attract white student that left the district to return.
3. Scope of the remedy was broader than Milliken: Cannot support intradistrict remedy with unlimited expenditure and unlimited duration in the
name of desegregative attractiveness.
4. Relies on 3-Part Milliken Framework. Ct does not mention traditional 4 factor test.
a. the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation
b. the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible `to restore the victims of
discriminatory conduct to the position they would have occupied in the absence of such conduct.
c. the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own
affairs
Concurring (Thomas): Rejects idea of structural injunction. Ct should issue injunction and be done.
Dissent (Lovell)
1. Remedy was not overly intrusive
2. Segregation caused white flight
3. Intradistrict violation with interdistrict effects can justify intradistrict remedy with intended interdistrict effects as long as it does not require gov
action by districts not in violation
Retroactive
Begins from the time application is made. Teamsters provides that at the remedies stage non-applicants can make a claim for
Seniority
individual relief but it is a very difficult burden: must prove that they would have applied (ie letter of inquiry). Also in class
action it is difficult to identify non-applicants.
The Other Prerequisites for Injunctive Relief
Threat of
Hecht Co. v. Bowles (SCT 1944)
Irreparable
Facts
Harm
1. Govt sought injunction to keep store from violating Emergency Price Control Act.
2. Statute provided that fed agency may apply for injunction and it shall issue.
3. The dist. court dismissed case due to adequate corrective action taken by company.
Holding: In a case in which a statute is sought to be enforced the court is not required to issue an injunction when there is no
threat of harm unless that statute is damn clear that language in statute is strong enough to override tradl/ historical
presumption that courts have power to balance equities. Injunctions are meant to deter not to punish.
But see CBS v. EchoStar (11th Cir. 2001) (permanent injunction language in Satellite Home Viewer Act reqs ct to issue
injunction for violation)
Inadequate
Traditional Rule: Courts cannot grant an equitable remedy if the problem can be remedied at law (with money).
Remedy at Law
Traditional Situations in Which Remedies at Law are in Adequate JID-R-MMF
1. Defendant is judgment proof.
2. Defendant is immune from damages.
a. i.e. Govt officials
3. Damages are very difficult to estimate: violation of constl right
a. lost profits in new biz
b. pl value of property is higher than market value i.e. heirloom
4. Plaintiff cannot be put in rightful place with damages no market for loss.
5. Complete recovery would require multiplicity of lawsuits
a. Ongoing nuisance
b. NJ Toxic Torts case debating whether past and future damages can be obtained in one law suit.
6. Allowing injury to take place would be morally repugnant i.e. intentional/deliberate injury to property
7. Where the lawsuit doesnt allow for future damages.
Prof Laycock: as a practical matter this maxim is obsolete
However cts still use this language.
Real rule of Inadequate Remedy at Law
Pro-legal rationale
1. Equity will not act if there is an adequate remedy at law
2. Adequate Remedy means a remedy as complete, practical and efficient as the equitable remedy
OR
Tiebreaker rationale
1. This means that if a legal and an equitable remedy are equally complete, practical and efficient the legal remedy shall be used
2. This means that the plaintiff is entitled in all cases to the most complete practical and efficient remedy

Constl Variations of Inadequacy Req

1. 5th A: by permitting taking of property for public use the 5th A denies owner injunctive relief see Kelo v. City of New London
(damages remedy mandated)
2. 1st A: Prohibition on prior restraint makes it much easier to collect damages than enjoin speech. Must wait until after harm and
file action ie defamation.

The Contempt
Power

Statutory Variations of Inadequacy Req

1. Tax Injunction Act: no fed injunctions for tax over assessment where state law provides a remedy.
2. Statute may proscribe or prescribe adequate remedy rule
a. EPA clean up cannot be challenged until after the fact to prevent delays and expense in clean up
b. PLRA reqs administrative exhaustion even where process does not permit damages
ENFORCING THE INJUNCTION
Hicks v. Feiock (SCT 1988)
Compensatory Civil Contempt: Award of civil damages for
Man cant pay child support (claims impossibility)
violating injunction paid to the plaintiff.
Held in contempt which shifts the burden to D to show that
payment is impossible. Claims this violates PDP.
Coercive Civil Contempt:
Holding: Contempt for failure to pay child support may

Coerces D into compliance: Fining and jailing defendant

constitutionally be civil contempt where probation ends upon
as long as disobedience continues (generally punishment
full payment. This is coercive and designed to benefit pl.
goes away after behavior is modified). Bagwell.

Compensates the complainant for losses sustained:

UMW v. Bagwell (SCT 1994): Complex injunction arising
Generally fines go to the plaintiff. Bagwell.
out of labor law dispute.

Defendant has keys to the jailhouse door

Holding: Disobedience to complex injunctions require

Defendant can usually purge the fine/sentence

factfinding criminal protections are necessary and

Burden is clear and convincing

appropriate.
Judge warned that he would charge fixed amount fines for
noncompliance ahead of time previously delineated
penalties look criminal. No opportunity to purge. Fines were
payable to state not pl. Involved indirect contempt that ct did
not observe.
Merrimack v. City of Clay Center (SCT 1911)
City cuts down telephone poles while appeal is pending
Holding: inherent power of SCT to issue contempt for
conduct calculated to remove the subject-matter of the appeal
beyond its control.

Criminal Contempt: Guilty of crime and court imposes fine

or sentence for a fixed period of time.

Willful or repeated violation of court order.

Criminal PDP Protections Reqd: proof beyond a

reasonable doubt; trial by jury

Sentence/fine cannot be purged and is for a definite fixed

period

Probation is generally sufficient to make it a criminal

procedure but see Hicks

Civil or Criminal Contempt Test Hicks

Griffin v. County School Bd of Prince Edward County
1. Substance of the Proceeding
(SCT 1966) (Getting Tricky with the Court)
2. Character of the Relief that the Proceeding will Afford
Where school board closed public schools and gave vouchers
o If contempt is remedial and benefits plaintiff it is
to whites to go to private schools. Ct asks county for
generally civil contempt
stipulation that no grants will issue until he can hear case;
o If contempt is punitive and vindicates state it is
county says no, and stays up all night distributing vouchers
criminal
which are cashed the same day. Extraordinary factual
situation demonstrating deviousness and egregious bad faith
Indirect Contempt: Out of court contempt that the court does
supports contempt without violation of actual court order.
not observe. More likely to be criminal contempt.
Holding: Typically you need some type of order to prevail in
contempt hearing. But when extremely obstructionist D
Direct Contempt: in court, is generally civil.
takes away the very subject of the proposed injunction, they
are in contempt.
Reasons contempt is useful
Lovell says Ps in this case should have sought stay

Individual liability gets their attention

Famous language: allowing courts to use the power that is

Potential liability for attorneys fees.

theirs this is quoted in Jenkins II and Yonkers.

Demoralization. Connotation of guilt.

Collateral Bar
Rule

Cobbledick v. US (SCT 1940) Motion to quash subpoena

duces tecum is not a final order so there is no interlocutory

Personal liability of Govt. Officials: Can only be held

personally liable for civil contempt for willfully violating
clearly established constitutional right. Spallone
Issues in a Contempt Hearing for violating Court Order
Injunction

10

appeal. SCT ruled that when a motion to quash subpoena

duces tecum is denied movant may violate it and if cited for
contempt may properly contest its validity in the contempt
proceeding.
Walker v. City of Birmingham (SCT 1967) (Still Good
Law) (MLK and others enjoined (ex parte TRO) from
holding demonstration on Good Friday. They did so anyway.
Cited with contempt which is upheld under collateral bar
rule.)
Dissent: Ordinance provided for criminal sanctions and city
could have prosecuted for misdemeanor. Ct usurped function
of jury. Unfair in prior restraint case b/c if you are
prosecuted for a crime but def has constl challenge to a
statute this is an absolute defense. Defendants were
repeatedly denied permit. Ex parte TRO, lack of
representation is manifestly unfair. Broad TRO with
language of parade ordinance. Less than 24 hrs to modify or
dissolve TRO with no attys available. BUT SEE . . .
Carroll v. President of Princess Anne (SCT 1968)
KKK Rally is enjoined. In First A prior restraint case a TRO
issuing a prior restraint is transparently invalid if no showing
is made that it is impossible to serve or notify opposing
parties and to give them opportunity to participate.

1.
2.
3.

Are you the addressee, did you receive notice

Did you violate TRO.
Was the order transparently invalid (clearly unconstl)

Collateral Bar Rule: A defendant violating a court order

before challenging it in court, cannot challenge the underlying
substantive law in a contempt hearing.
Exceptions to CBR
A defendant violating a court order before challenging it in
court, can challenge the underlying substantive law in a
contempt hearing if . . .
1. order was transparently invalid, has only a
frivolous pretense to validity
2. they are given the run around on appeal
3. SM or Personal jurisdiction is lacking.
4. CBR may not apply to non-appealable orders? See
Cobbledick
Pointers: When a TRO/Prelim injunction is issued the
defending party should file a motion to dissolve/quash or an
expedited interlocutory appeal. Especially if TRO was
obtained ex parte.
Rationale: Rests on interest in rule of law enforcing validity
of courts decision. Also safety and public order. Preserving
civil liberties through preserving public order.

In re Providence Journal Co (1st Cir. 1987) Paper has 3-day

TRO put on it not to run story about mafia king death.
Violates TRO, which subsequently is found to be unconst.
under 1st amendment.
Per curiam: Publishers must, in good faith, seek exhaustion
of appellate remedies: expedited appeal must be sought.
this is an institutional defendant with counsel on demand.
Maybe distinguish on these grounds in a case involving
commy defendant like in Walker. Indicates that ct will be
more cautious in pure speech case with no apparent a risk of
violence.
ENFORCEMENT AGAINST THE GOVERNMENT
11th Amendment
Chisholm v. Georgia (SCT 1795) (ruling that citizens can
The Eleventh Amendment
Immunity
sue states in fed ct under diversity jurisdiction. Leads to 11th
The Judicial power of the United States shall not be construed
A)
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
Hans v. Louisiana (SCT 1890) (11th A bars suits by citizens
another State, or by Citizens or Subjects of any Foreign State
against states in diversity and fed question cases)
Athough11th A is not a jurisdictional issue it can be raised at
th
VA v. WVA (SCT 1918) (No 11 A immunity in a suit btw
any point in litigation.
states. SCT indicates that the ct could require WVA to levy a
tax to pay the judgment. However, they allow WVA to take
Stripping Doctrine Young: If the act which the state [official]
action in good faith which they do.)
seeks to enforce be a violation of the Federal Constitution, the
officer in proceeding under such enactment comes into conflict
Ex Parte Young (1908): Lochner era.
with the superior authority of that Constitution, and he is in that
Facts/Procedure: RRs challenged MN statute regulating RR
case stripped of his official or representative character and is
rates as confiscatory violation of SDP. Fed ct issued
subjected in his person to the consequences of his individual
injunction prohibiting new rates and enjoined MN Atty Gen
conduct. The State has no power to impart to him any
Young from taking action to enforce the law. Young files
immunity from responsibility to the supreme authority of the
mandamus action seeking to compel compliance by RRs. So
United States.
pls go back to fed ct and argue that Young is in contempt.
Holding: State officials can be sued in their individual
Application of Stripping Doctrine
capacity under the stripping doctrine
1. Never sue the state. Always name individual official and
Analysis
name them in their official capacity. This is called suing
1. P&I clause in 14th A runs against the state conflicting with
them individually in their official capacity. Injunctive

11

2.
3.

interpretation of 11th A in Hans.

To reconcile the two the ct invented the stripping
doctrine.
Best way to understand this is that 14th A came after 11th A 2.
and is specifically intended to limit sovereign immunity
of the state.

relief runs against officer in his official capacity and will

run against successor. Legal fiction yeah it makes no
sense.
If official is sued in individual capacity this is individual
damage liabilities. Other qualified immunity doctrines
generally protect individuals from this unless they clearly
violate well-established constl law.

Castle Rock v. Gonzales (SCT 2005) (town and its police

department could not be sued under 42 U.S.C. 1983 for
failing to enforce a restraining order, which had led to the
murder of a womans three children by her estranged
husband)

Prospective vs
Retrospective
Relief From
State

Statutes
Authorizing
Atty Fees
Against State

Atty Fees in
Cases Against
the State

Exceptions to 11th A immunity SDLAWS

1. Does not apply in suits btw states
2. 11th A has no application if DOJ brings the suit.
3. Local government entities are not protected by 11th A ie city,
school bd etc
4. Congress has power under sec 5 of 14th A to abrogate 11th A
immunity.
a. Title 7 Gender Discrimination. Fitzpatrick v. Bitzer.
b. Civil Rights Act of 1976. Hutto v. Finney.
5. State can waive immunity strictly construed
a. by the most express language or by such
overwhelming implications from the text as will leave
no room for any other reasonable construction
Edelman v. Jordan.
6. State officials can be stripped and sued in their individual
capacity for damages. State may or may not indemnify the
individual official.
Black letter: only prospective fiscal costs can be imposed on states. 11th A bars retroactive relief.

Atty fees are considered prospective relief. Hutto v. Finney

Edelman v. Jordan (SCT 1974) (The Edelman Divide)
Illinois was taking too long to provide relief to blind and disabled in violation of fed welfare program.
Holding: Ct. ruled that prospective injunction was okay against state officials, but by 5-4 ruled that retrospective relief was not
possible.
Dissent: Equitable restitution rationale. Senseless distinction btw retro and prospective relief since both require state to spend
money. Plus in this case the damages are not unpredictable at all. State knows exactly how much is owed and is being unjustly
enriched.
Note** Edleman heightens the importance of prelim injunctions under irreparable harm prong b/c if it turns out the pl was
wrongfully denied they will be unable to obtain retroactive benefits
Atty Fees Under Civil Rights Act of 1976
1. Cong has plenary power to abrogate 11th A immunity.
2. Virtually every substantive constl right covered EQP, SDP, PDP
3. Provides for atty fees for prevailing party
Title 7: Provides for atty fees for prevailing party
Fitzpatrick v. Bitzer (SCT 1974) (title 7 abrogates 11th A immunity and provides for backpay against states and other public
employers)
Hutto v. Finney (SCT 2004)
Holding: Ct cites Ex parte young and Edelman in awarding atty fees against the govt.
Analysis
1. Securing the cost of compliance to an injunction is considered prospective relief. Atty fees are incurred after litigation
begins and are necessary to obtain prospective injunctive relief authorized under Edelman. This is ancillary to prospective
relief and therefore on prospective side of Edelman divide. Does not compensate for past harm.
2. This is compensatory in a sense but operates prospectively to bring def in compliance. Second atty fee award came under
Civil Rights Act of 1976 and Cong. has plenary power to abrogate 11th A immunity.
3. Also historically fed ct have imposed costs on govt just like they were any other party and statute authorizes award of atty
fees as cost.
Farrar v. Hobby (SCT 1992) (In vast majority of cases no fees allowed in cases for nominal damages)
TEST: In order to get attorneys fees for nominal damages you have to consider
1. Difference between the judgment recovered and judgment sought
2. Significance of the legal issue on which plaintiff prevailed

12

Consent Decrees
in Cases Against
the State

Tools for
Forcing State
Compliance

Forcing State
Compliance
Cases

3. Public Purpose served.

Frew v. Hawkins (SCT 2004)
Facts: consent decree negotiated in child welfare case in TX. State violated it and when pls sought compliance claimed 11 th A
immunity.
Holding: Consent decrees are binding on the state even without a showing of violation of fed law. Successors in Office are
bound by decree.
Possible Tools to Secure State Compliance PCSOI
1. Postpone responding to violation in hopes that legislature will grant authority, parties will settle, or Congress will act.
(Welsch)
2. Contempt: State could always make an impossibility defense. (Spallone) (Griffin)
3. Strike down state law (Jenkins II)
4. Order official to disregard state law (Welsch)
5. Indirect means negative order
Welsch v. Likins (8th Cir. 1977) Institution for mentally retarded people needs funds. Ct orders state to disregard statute that
says they cant give money to institution without an appropriations bill. But Ct waits for legislature and governor to take action,
rather than holding them in contempt.
MO v. Jenkins II (1990):
Facts: KC district and state of MO found to be jointly and severally liable. Statute limited ability of school bd to raise taxes
without referendum by public. Public rejected the referendum so there was no money to institute magnet school remedy.
Holding: court cannot order an increased of property and income tax to pay for segregation plan in this case. Proper remedy is
to enjoin enforcement of existing tax statute.
Analysis
1. Statute require public referendum was older than ct order so it was not enacted in order to circumvent court order to
integrate.
2. Federalism/Sep of powers requires the ct to use as little power as possible in fashioning relief. Here the ct should have
enjoined the enforcement of the statute and give the city an opportunity to comply.
3. Indicates that court levied tax may be appropriate in extreme circumstances if it is the only alternative to remedy constl
violation. VA v. WVA
Notes: Judge Lay thinks the court should pose the balance of the bill on the state under joint and several liability doctrine. CWA
anticipates dilemma and has solution similar to Judge Lay. Provides that in suit brought by fed govt. against municipality states
shall be joined.
Griffin v. County School Bd of Prince Edward County (ct orders state to exercise the power to tax which is theirs. Also this is
a case of a recalcitrant defendant.)

Contempt
Against the
Govt

Van Hoffman (City issued bonds and state imposed statutory limit on cities ability to tax. The ct held that the statute was a
violation of the contracts clause. Therefore ct did not actually order or strike down a tax. Here the statute as in NC bussing case
the statute was passed to obstruct enforcement of a decree.)
Spallone v. US (SCT 1990)
Title 8 of fair housing act case alleging Yonkers segregation of public/subsidized housing. City violated consent decree and ct
ordered them to vote a certain way. They refuse. Ct imposed huge contempt fines and individual contempt liability on the
grounds that council members could not invoke sovereign immunity since they agreed to the consent decree.
Holding: Ct can order council members to vote a certain way in order to effectuate consent decree to which they agreed. City
can be held them in contempt for not voting but individual contempt liability should be avoided.
Analysis
While sovereign immunity does not apply b/c city is bound by consent decree in this case individual contempt liability is not
warranted. Individual liability could make legislators put policy considerations on the backburner.
Dissent
Maj decision will encourage recalcitrant defendants to test the remedial authority of the courts
RIGHT TO DAMAGES

Damages
Generally

Damages
Three kinds:
o Nominal damages
o Compensatory damage

Rightful place

the value of deterrence

o Punitive damages
Damages are awarded by jury

13

Lawyer should be sure to consider damages from day one of the case
Remitturer federal courts do not allow additur

Quantification
of Damages

Equitable v.
Legal Relief

Tort Damages

Presumed damages: when plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish.
Rationale based on hard to quantify and broad consensus that actual injury takes place. If liability is proven pl can go to the jury
without proof of injury. (defamation, assault and battery)
Memphis v. Stachtura (SCT 1986)
Facts: Teacher seeks compensatory and punitive damages for violation of sec 1983 rights (1 st A and 14th A SDP). Suspended
with pay but k not renewed.
Holding: Damages based on the abstract value or importance of constitutional rights are not a permissible element of
compensatory damages in 1983 cases.
Analysis: To vague and authorizes arbitrary awards. Malice is reqd for punitive damages. Since 1983 authorizes
compensatory damages presumed damages cannot be available here.
Mertens v. Hewitt Associates (denies comp damages in
Legal v. Equitable
ERISA cases since the section of the statute in question
Right to jury trial is civil cases is determined by whether relief
specifically authorizes only equitable relief)
will be equitable or legal, however there are times when
equity cts routinely award money damages (ie breach of
Teamsters v. Terry
trust).
Labor law case in issue of whether union had breached its
Cts have found backpay or frontpay are legal remedies.
duty of fair representation to some members.
Under Title VII backpay and frontpay are characterized as
Hybrid action: part breach of K and breach of fiduciary duty
equitable relief under the statute. Ct will allow cong to
Ct looked at the nature of the remedy/relief and found that
classify backpay as a legal or equitable remedy. Teamsters
here it was controlling. Backpay and benefits are equivalent
v. Terry
to comp damages. Therefore, right to jury trial.
Ayers v. Jackson Township (NJ 1987)
Facts: Toxic tort contaminated water case
Damages for annoyance and inconvenience allowed.
Medical surveillance allowed: allows for early care,
mitigation and serves deterrence.
Emotional distress damages not allowed barred by NJ Tort
statute.
Enhanced risk damages not allowed because not reasonably
certain or easily quantifiable.
Court supervised fund would be preferable but was not raised
below.
Special Court Supervised Fund
Generally the court will want to create a fund to insure that
this money is still there when people need it AND this limits
unnecessary expenditure for defendant.
Pros: makes sure money is spent on surveillance, some of
liability may be offset by payment from collateral sources
Cons:
Admin costs, burden on ct
May raise problems with atty fees which are usually obtained
on contingent basis in this type of case. However, I think
a special fund is a common fund. Under American
system atty fees allowed when authorized by specific
statute, for bad faith litigation, or common fund

Requirements for Tort Damages FRM

1.

Foreseeability

2.

Reasonable Certainty

3.

Mitigation: no damages for harm that could have been

mitigated.

4.

Collateral Source Rule D cant benefit from Ps other

sources of benefit

Enhanced Risk Damages

Generally the court will deny compensation for an enhanced
risk of harm because there is no way of knowing whether this
harm will arise.
Medical Surveillance Damages
Generally the court will allow compensation for medical
surveillance because it is an easily quantifiable sum that will
have to be spent and it is a cost that arose from harm.
Proving Med Surveillance Damages
1.

Significance and the extent of exposure to chemicals.

2.

Toxicity of chemicals

3.

Seriousness of the diseases for which individuals are at risk

4.

Relative increase in the change of onset of disease in those

14

exposed

Measuring
Comp Damages
and Remittur

5.

The value of early diagnosis

6.

That such surveillance to monitor effect of exposure to

toxic chemicals is reasonable and necessary.

Tullis v. Townley (7th Cir. 2001)

Tullis injures his back and asks for workers comp; fired; sues for retaliation.
Holding: (1) psychological suffering claim for damages can be based soley on plaintiffs testimony (friends and family
testimony is way better makes the case) (2) his damages were comparable to other cases like his.
*Note: In retaliation case you do not have to prevail on underlying claims. Here he does not have to show he injured his back
but rather he was firing for claiming he did.
Tullis Three Part Test to Review a Comp Damages award MRC
1. Monstrously excessive
2. Whether there is no rational connection between award and evidence
3. Whether awards is roughly comparable to award in similar cases

In comparing awards must account for inflation and adjust award

McCabe v. Parker (8th Cir. 2010)
Protestors at RNC rally. When they refused to leave they were ordered arrested, taken to jail, and subjected to strip search.
1. district court abused its discretion in remitting damages award from $750,000 to $75,000.
2. DCT cannot reduce jury award below maximum amount jury could reasonably find or it would violate 7 th A right to trial by
jury.
Arpin v. US (7th Cir. 2008)
Facts: Med mal diversity bench trial granted $7M award granted for loss of consortium
Holding: Loss of consortium damages should be a proportional ratio to compensatory damages (suggests 1:5 ratio). Idea is to
avoid major disparities btw different pls. Also suggests consideration of avg ratio in other wrongful death cases any facts that
may warrant departure from the average.
Factors That May Warrant Departure from Average Award in Other Loss of Consortium Cases NCM
1. Number of children (4 here indicates upward)
2. Closeness of relationship (close here indicates upward)
3. Minor/adults (adults here indicates downward)
Note: Typically unmarried cohabitants can make a loss of consortium claim. Growing tort reform development limits pain and
suffering damages

Measuring
Punitive
Damages and
Remittur

Walker v. Ritchie (8th Cir.) (established that a gender neutral formula should be used to calculate damages)
Note: Contemporary courts will virtually universally employ gender neutral or male statistics for women i.e. 9/11 fund used
male earning statistics to compensate men and women
Exxon Shipping Co v. Baker (SCT 2008)
Facts: Exxon knew that navigator was an alchoholic who had dropped out of AA. He got really drunk and crashed the boat.
Total comp damages of $507m and punitives of $500b which is remitted by 9 th Cir to $2.5b.
Holding: maritime law allow judge-made remedies when Congress has not authorized them
Circuit split remains: 4-4 Ruling on question of whether Exxon can be held vicariously liable here.
No constl due process question b/c this is maritime common law case
Exxon Approaches to Avoiding Outlier Awards (2 quantitative 1 verbal)
1. Verbal approach (jury instructions): analogous to fed sentencing guidelines
2. Maximum cap (quantitative): Congress does not always adequately adjust for inflation
3. Ratio (quantitative) (Employed here)
3:1 ratio is only appropriate for egregious or intentional conduct calculated to increase defendants profit.
average in cases where there was no intl or malicious conduct or bad behavior driven for gain is about 2/3rds of comp
damages. However 1:1 ratio is appropriate here.
Dissent
The ratios are too rigid. This is not a major problem and when it does occur outlier awards are obvious and can be fixed.
Arbino v. Johnson (OH 2007) (Punitive damages may be limited further if def is a individual or a\ small employer (not more
than 100 full time employees or for manf. enterprise 500 full time employees)

15

State Farm v Campbell (SCT 2003)

SCT applies Gore factors in reducing $145m punitive damage award to $9m where comp damages are $1m
Standard is De novo review
Holding: Cannot exceed 9:1 ratio btw punitive and comp damages. Utah cannot punish out of state misconduct (which was
mostly lawful when it occurred)
Factors for Assessing Punitive Damages RDC
1. the degree of reprehensibility of the defendants misconduct PRVRT
a. harm caused was physical or economic
b. tortious conduct w/ indifference to or reckless disregard for health or safety of others
c. the target of the conduct had financial vulnerability
d. the conduct involved repeated action or was an isolated incident
e. harm was result of intentional trickery or was a mere accident
2. the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages
a. single digit ratio
b. larger comp award lower punitives should be.
3. difference between punitives awarded by the jury and civil/criminal penalties authorized in comparable cases
a. loss of license
b. disgorgement
c. possible imprisonment
Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003)
Facts: Plaintiffs are bitten by bedbugs at Red Roof Inn. Evidence that they knew about the problem and failed to address it.
Holding: Proportionality is modified when probability of detection is very low or the misconduct is potentially lucrative.

Note: Antitrust cases allow for treble damages but this is designed to give incentive for private attys to bring cases when DOJ
lacks resources to pursue it (sometimes also provide for atty fees)
Title 7 rule: sex harassment by supervisor is not automatic basis for punitives and employer can put on defense that they have
taken appropriate steps and made good faith efforts to enforce them as a defense to punitives.
ATTORNEYS FEES
MO v. Jenkins (SCT 1990)
Under American system each party typically pays their own
MO atty argued that Ps should only get 20% of requested atty fees because they
atty. However, fee-shifting typically allowed for public
hadnt prevailed on getting suburbs into the suit.
interest litigation, when authorized by specific statute, for
Lovell used the credibility approach to obtain award in which only 3 of his hours are
bad faith litigation, or common fund cases
cut. Showed voluntary cuts, additional cuts, and disputed cuts on each page
Lovell made front page of Wall Street Journal for fees in Jenkins. $4.1 m with post
Hensley Partially-Prevailing Plaintiff Test
judgment interest of S800k. Still biggest civil rights fee affirmed by SCT. Lead to
1. If non-prevailing claim was unrelated to prevailing
publication of ct awarded fees book for ABA.
claim no atty fees
Lessons
2. If non-prevailing claim was related, and prevailing
claim was substantial atty fees for both
Should get interest for delay in payment (prospective)
3. If non-prevailing claim and prevailing claim were
Can get pre-judgment interest (interest on the money that you earned before the
related, but prevailing claim was NOT substantial (only
judgment)
limited success) fees in relation to the degree of
Can get post-judgment interest (for the interest accruing from the date that you are
success
entitled to attorney fees date you win the case until the time you actually get
4.
Full lodestar amount is appropriate in cases that achieve
attorney fees)
excellent results even if no damages or injunction
Post judgment interest can start at two points
obtained.
th
o Fees Entitlement When you are entitled to fees. Lovell got 8 Cir. to adopt
this standard. SCT denied cert so circuits are still split.
Lodestar Amount=Reasonable Hours MULTIPLIED by
o Fees Qualification When all the numbers are set.
Reasonable Attorneys Fees
Can not get fees for experts
Both parties submit fee suggestionand judge decides what is
Probably cannot get risk enhancement award in fed ct for now.
a reasonable fee that does not result in windfall.
Paralegal and law clerk time is compensated. Lovell prevailed on law and
Lodestar formula
economics efficiency argument picking up all votes except Rhenquist.
actual hours worked MINUS billing judgment OR
reasonable number of hours billable MULTIPLIED BY
Hensley v. Eckerhart (SCT 1983) (controls partially-prevailing plaintiff cases
reasonable hourly rate based on expertise/experience.
and establishes Lodestar formula)
Market rate: current reasonable rate in local jurisdiction for
atty of similar experience handling similar case. Done by
TX v. Garland (SCT 1989) (fees allowed even when pl does not prevail on central
affadavits, surveys, bar rates.
issue in case. Check to see if case altered legal relationship btw P and D)
Exception to market rate: no competent counsel within
jurisdiction or case is too notorious for local competent atty.
Maher v. Gagne (SCT 1980) (Can get attorney fees for a consent decree)

16

Buckhannon Board v. WV (SCT 2001)

Facts/Procedure: Nursing home residents sue under ADA to not have house closed
down because of state self-preservation law. Self-preservation law is changed
before suit ends, so case dismissed.
Holding: Catalyst theory does not get your atty fees absent judgment on the merits
or a court-ordered consent decree. No atty fees.
Analysis
Majority decision based on Blacks Law Dictionary definition of prevailing party.
Farrar v. Hobby (SCT 1992) (in vast majority cases no fees allowed in cases for
nominal damages. If case was all about comp damages and you only got nominal
damages reasonable fee is no fee at all)
Sole v. Wyner (SCT 2007) (winning a prelim inj but losing on merits does not merit
atty fees)
Bernhard (CO SCt 1996) (cant get atty fees for bad faith insurance action.
Exceptions to American Rule are very narrow)
Blum v. Stenson (SCT 1984): (1) in complex civil rights litigation prevailing legal
aid atty must be paid reasonable market rates in order to encourage attys to take
cases that vindicate fed rights (2) also held that public service orgs on case are
entitled to recover market rates
Riverside v. Rivera (SCT 1986) (fee award can exceed the amount of damages.
Rejected direct proportionality btw damages and fees. Never been overruled but in
reality some proportionality principles will go into cts analysis)
City of Burlington v. Dague (SCT 1992) (ct probably will not embrace risk
enhancement. Seems to be a matter for the leg)
Evans v. Jeff D. (SCT 1986) (atty fees act does not prevent party from waiving
eligibility for atty fees in consent decree)

Calculating a Reasonable Fee

1. Some Judges are nitpicky some just cut a percentage.
Strategically pl counsel must determine whether to take
Lovell credibility approach to fee cuts in Jenkins I or
throw in the kitchen sink. May depend on Judge.
2. In Jenkins I defendants: made coded categories
providing reasons for cuts and applied them to every
page of fees.
3. Show the court each element of the calculation with
specificity.
4. Duplicate Billing: Must show why 2(+) ppl are needed.
5. Two parts are interrelated. If you are an expert then it
should take less hours to do the things.
6. Not paid to educate yourself unless it is required
research.
7. Lawyer should demonstrate and show ct where they
have exercised billing judgment to eliminate
inefficiencies and duplications.
Danger of overreaching: huge court cuts, kill the goose that
laid the golden egg congress reduces availability of atty
fees, or get embarrassed in opinion. Pub interest lawyers
probably held to a higher standard.
Rule: You can always argue that you as an attorney should
be compensated for interest on money that you earned but
didnt collect until later.
Block Billing = Bad practice.
Good practice to do itemized billing even when not seeking
atty fees.
Catalyst Theory Buckhannon: idea that you won if you got
defendant to change their behavior. Must be a change in the
legal relationship.

Blanchard v. Bergeron (SCT 1989) (atty fees are not limited by contingency K)
Venegas v. Mitchell (SCT 1990) (Attorney fee is not limited by contingency contract
and attorney can only collect on private K w/ pl as well)
Gratz v. Bollinger (SCT 2005) Michigan affirmative action in undergraduate
schools. Quota system failed EQP analysis b/c it was not narrowly tailored. So
Court found Gratz system unconst, but the Ps also did NOT fully prevail, because
they didnt prove that there should be NO system just not THAT system. Court
finds P prevailing party because public benefitted, but then cuts fees in half.
Lovell says under Garland they should have got full fees b/c they prevailed on
central claim.
Gordy says they should have got nothing b/c uni voluntarily changed policy, neither
pl got admitted, and no judicially enforced judgement to benefit pls.

Consent Decrees
Generally

TEST: In order to get attorneys fees for nominal damages

you have to show
1. Difference between the judgment recovered and
judgment sought
2. Degree of success: significance of the legal issue on
which plaintiff prevailed
3. Public Purpose served.
Risk Enhancement: Risk associated with not getting paid
unless you prevail at end of litigation. Not allowed in feds.
Some states have statutes that permit it. Can argue for it in
IA.

INTERPRETATION AND MODIFICATION OF A DECREE

Advantages of consent decree
Quicker
Lower cost of litigation
Def can deny liability and bargain for position instead of being at the mercy of a ct
Fairness and Adequacy Hearing: Prior to consent decree approval by court hearing is held where public may be heard. Must
make sure that interest of class have been adequately protected and represented by class and counsel.
Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to
curing a constitutional violation that has been adjudicated. But we have no doubt that, to save themselves the time, expense,
and inevitable risk of litigation, petitioners could settle the dispute over the proper remedy for the constitutional violations that

17

had been found by undertaking to do more than the Constitution itself requires. Rufo.

Standard for
Modification of
Consent Decree

Modification of
Consent Decree:
Moving Party
Plaintiff in
Institutional
Reform Litig

Evans v. Jeff D. (atty fees act does not prevent party from waiving eligibility for atty fees in consent decree)
Swift (1932): Cardozo: If the defendant moves to modify an
FRCP 60(b)(5) Relieving a Party from a Final Judgment
injunction it will only take place if there is a clear showing
Allows more flexible standard than Swift
of grievous wrong evoked by new and unforeseen
Modification may be warranted when changed factual
conditions
conditions make compliance with the decree substantially more
onerous, when the decree proves to be unworkable because of
United Shoe (1968): Sup ct holds that grevious wrong
unforeseen obstacles, or when enforcement of the decree
standard does not apply to Pls. Only applies to modifications
without modification would be detrimental to the public interest
requested by defendant seeking to avoid responsibilities
under the imposed order.
Standard for modification of a consent decree differs
depending on which party is seeking modification.
Frew v. Hawkins (SCT 2004): Successors in Office are
Swift : Strict standard for defendants not involved in
bound by decree. However, under Rufo change of
institutional reform.
executive administration weighs in favor of modificaiton.
Shoe: Lenient standard for plaintiffs not involved in
Successor was not a party to original decree and may have
institutional reform.
new insights and solutions.
Rufo: If defendant in institutional reform case shows
unforeseeable but not actually anticipated change in law or fact
that called for later modification flexible standard applies.
Stotts: Heavy burden for plaintiff in institutional reform case
that could foresee the conditions that called for later
modification.
Firefighters Local Union v. Stotts (SCT 1984)
General Rule: The scope of a consent decree must be
Consent decree in firefighter case in which Plaintiff did not
discerned within its four corners, not by reference to what
obtain retroactive seniority provision and black firefighters
might satisfy the purposes of one of the parties to it or by what
were laid off pursuant to seniority system during budget
might have been written had the party established his factual
crises. Ct did not allow modification since lack of
claims and legal theories in litigation.
retroactive seniority was part of consideration for consent
General Rule: You cannot modify a consent decree when that
decree. Key: Title 7 703H allows for bona fide nonmodification will violate constitution or statute
discrimy seniority system. Modifications cannot violate fed
law. BUT SEE . . .

Teamsters Case (bargaining unit seniority can be challenged

under Title 7 when it operates as seniority suicide)
Modification of
Rufo v. Inmates (SCT 1992)
Consent Decree
Facts/Procedure: Sheriff seeks to modify a prior consent
in Institutional
decree to allow for double bunking of male detainees even
Reform Litig
though consent decree was specifically entered into to
prevent this.
Holding: Modification Granted. Swift grievous wrong
standard does not apply to institutional reform litig.
Anlalysis
1. If modification of one term under FRCP 60(b) defeats the
purpose then modification would be impossible.
Dissent: single cell occupancy is not a trivial
term put fundamental purpose of decree
2. New flexible standard. Is this just for institutional reform
litig?
3. Change in law showed that double bunking was not
unconstl
Dissent (Stevens)
1. It took def 14 years after finding of liability w/ serious
constl violations to start construction. History of noncompliance weighs heavily.
2. A change in law does not work here b/c Bell was in 1979
prior to first modification in 1985
3. Double bunking not just one term but remedial goal of
decree
4. Lacks finality

Encourages frequent requests for modifications

Rufo Flexible Modification Standard (for institutional

reform litigation)
1. Moving party carries burden of establishing change in fact
or law warrants modification makes compliance substantially
more onerous. White.

no unforseeability req

however generally should not be granted when movant

relies upon events that were actually anticipated at the
time of decree unless the party satisfies the heavy burden
of convincing the court that it agreed to the decree in good
faith.

Must be modified if one or more of the obligations placed

upon parties has become impermissible under fed law.

If (a) decree puts obligations that are now illegal or (b)

law is changed so that what the decree enjoined is now
permissible then this is a basis for modification. White.
o A decision that merely clarifies the law could
constitute a change supporting modification if the
parties had based their agreement on a
misunderstanding of the governing law.
2. Proposed modification must be suitably tailored to changed
circumstance

Modification must not create/perpetuate constitutional

violation. Stotts.

Modification shouldnt strive to rewrite consent decree so

18

5.

Relief from an
Order/Judgmen
t in Institutional 1.
Reform Litig
2.
3.
4.
5.

6.

Terminating a
Case

Legislative
Direction to
Termination
Jurisdiction

Makes ppl less likely to enter decrees

Unfair to force pl to relitigate after years of
negotiation
Stricter standard should apply where modification
requests undermine central purpose of a consent decree.

that it conforms to constitutional floor.

Defer to local authorities. Financial constraints are legit
concerns but may not be used to justify constitutional
violations. Jenkins.

White
Consent decree banned union shops and then leg was passed
that allowed union shops. This was basis for modification.
Horne v. Flores (SCT 2009) (reversing and remanding order denying AZ schools relief from judgments)
Analysis
Rule 60(b)(5) allowing modification if a significant change either in factual conditions or in law renders continued
enforcement detrimental to the public interest, serves a particularly important function in institutional reform litigation.
Must apply flexible standard in Rufo. DCT failed to consider four changed circumstances may warrant relief.
(i) the impact of a new ELL learning program, (ii) the impact of No Child Left Behind, (iii) the impact of structural
and managerial changes in its school system, and (iv) the impact of an increased state general education fund.
Modification should be granted unless there is an ongoing EEOA violation
Although the EEOA requires a State to take appropriate action, it entrusts state and local authorities with choosing how to
meet this obligation (may not require more funds)
Castaneda v. Pickard: guidelines for assessing bilingual program under EEOA
a. The bilingual education program must be based on sound educational theory.
b. The program must be implemented effectively with resources for personnel, instructional materials, and space.
c. After a trial period, the program must be proven effective in overcoming language barriers/handicaps.
The state attorney generals concern that a Nogales only remedy would run afoul of the Arizona Constitutions equal-funding
requirement did not provide a valid basis for a statewide federal injunction, for it raises a state-law question to be determined
by state authorities. Unless the District Court concludes that Arizona is violating the EEOA statewide, it should vacate the
injunction insofar as it extends beyond Nogales.
Dissent
The DCT properly considered the changed circumstances and under Castaneda v. Pickard the EEOA standard is necessary
funding. The prospect of a Nogales only remedy was not raised by either party.
RETAINING AND TERMINATING AN INJUNCTION
Federal Rule of Civil Procedure 60: Court can relive party
Rule for Termination of School Deseg Injunction Dowell
from final judgment if it is no longer equitable that the
1. Did the district comply in good faith with desegregation decree
judgment should have prospective application.
2. Have vestiges of past discrimination been eliminated to the
extent practicable.
OK v. Dowell (US 1991): Desegregation plan. Judicial
termination of injunction. Cannot use Swift doctrine when
the decree is for desegregation because the injunction does
not live on forever. Lovell says ct declared a false victory.

Freeman v. Pitts (US 1992): In desegregation cases the court

can relinquish its judicial supervision over a consent decree
in phases releasing parts of district that have been remedies.
Prison Litigation Reform Act of 1994: Congress can limit injunctions through statutes. Limits prospective relief available in a
prison reform case. PLRA says that D can move to terminate prison reform injunctions every year and this will activate
automatic stay of injunction. Ct must terminate them unless they find they are
1. Prospective relief is still needed to correct a current or ongoing violation of a federal right.
2. The relief extends no further than necessary to correct the violation
3. The relief is narrowly drawn
4. The relief is the least intrusive means of rectifying the violation.
Miller v. French (SCT 2000)
Def move to terminate injunction under PRLA this activates automatic stay provision of PLRA. Prisoners respond with a
motion for TRO/Prelim Injuction to enjoin the automatic stay.
Holding: PLRA constitutionally restricts equitable discretion of ct to enjoin automatic stay.
Counterarg Automatic stay violates sep of powers b/c it mandates a TRO prior to judicial finding of whether PLRA
standards are met
Dissent
This statute should be construed to avoid constl issues. Under Hecht language is not clear enough to restrict equitable
discretion.

19

Wheeling bridge (SCT 1850 ) (where underlying law is changed by congress injunctive relief may become unenforceable)
Congress can pass laws which invalidate a court decision when it has to do with prospective relief but not a damages decision
for past harm.

CASE NAMES
Moore v. City of Des Moines (S.D.IA
Biven Con Tort Givings
1984)
Bivens v. Six Unknown Named Agents
of Fed Bureau of Narcotics (SCT
Portland Says its not Vague
1971)
Portland Feminist Womens Health
Center (9th Cir. 1988)
No Emotional Bush
Bush v. Lucas (SCT 1983)
FlexEBAY
Ebay v. Mercexchange (SCT 2006)
Mili-CHAPPEL Bivens Babble
Chappel v. Wallace (SCT 1983)
MONSANTanordinary Four
Monsanto v. Geerston (SCT 2010)
No Bivens SSD in Chilicky
Schweiker v. Chilicky (SCT 1988)
Mt Healthy Schools Mixed Motive
Rules
Wilkie Bivens 2 Factory
Mt Healthy School Dist Bd of Ed v.
Wilkie v. Robbins (SCT 2007)
Doyle (SCT 1977)
Katzberg Bivens Act Words
Katzberg v. Regents of University of
California (CAL 2002)
Gonzaga Uni Disclosure Puny
Gonzaga Uni v. Doe (SCT 2002)

After Acquired McKevidence

Mckennon v. Nashville Banner Pub
Co. (SCT 1995)
Enjoining nonfeasant po pos no
GOODE in RIZZO
Rizzo v. Goode (SCT 1976)

Enjoin-a-Hauge Misfeasant Ways

KK-CARROL
Carroll v. President of Princess Anne Hague v. C.I.O.
MARKSin of Victory
(SCT 1968)
Marks v. Stinson (3d Cir. 1994)
Dataphase Sliding Ways
Dataphase v. CL Systems (8th Cir.
1981)
Governator Case (9th Cir. 2003)
Get a Winter Fix
Winter v. NRDC (SCT 2008)
ROUNDly Reasoned Democratic
Process
Planned Parenthood v. Rounds
Master Builders of Iowa v. Fort
Madison Prison
LA Coliseum v. NFL (9th Cir 1986)

The Racist BELLection

Bell v. Southwell (5th Cir. 1967)

PractiBROWNities of Enforcement
Brown v. Bd of Ed (Brown II SCT
1955)
Damn Clear HILL
TVA v. Hill (SCT 1978)
Navy Sound WEINBERGalancing
allowed
Weinberger v. Romero-Barcelo (SCT
1982)
MORE THAN RIGHTFUL PLACE
Women Prisoners v. DC
More than Rightful Prophyl-HUTTO
Hutto v. Finney (SCT 1978)
Greendom of Choice
Green v. School Bd. (SCT 1968)
InterSWANN
Swann v. Charlotte-Mecklenburg Bd
of Ed (SCT 1971)
IntraMILLIKEN
Milliken v. Bradley I (SCT 1974)
3 Part JENKilliken
MO v. Jenkins III (SCT 1995)
No Threat Unclear Hecht
Hecht Co. v. Bowles (SCT 1944)

More than Rightful

EchoStar Damn Clear Law
MCCARTHEYlection
But see CBS v. EchoStar (11th Cir.
McCarthey v. Briscoe (5th Cir. 1977) 2001)
Lovell was born AIKEN for prison
reform
Aikens v. Lash (***Lovell Case***)

5 KELO mandates C-Notes

Kelo v. City of New London

Civil Coerce-HICKS Support

Grievous LossORRISEY
Hicks v. Feiock (SCT 1988)
Morrissey v. Brewer (IA SCT 1972)
Complex Bagwell Criminal as well
UMW v. Bagwell (SCT 1994)
ProGAGNON Liberty
Gagnon v. Scarpelli (SCT 1973)
Contempt Appeals to Merrimack
Merrimack v. City of Clay Center
Staso Less than Lasso
Smith v. Staso Milling (2d Cir. 1927) (SCT 1911)

MOORE Lovell in Action

20

Appeal to Trickin Contempt in

Memphis v. Stachtura (SCT 1986)
Griffin
Griffin v. County School Bd of Prince ERISA Hurtin Mertens
Edward County
Mertens v. Hewitt Associates
CollaterOBBLEDICK Exception
Cobbledick v. US (SCT 1940)
Collate-Rules Walker Lose
Walker v. City of Birmingham (SCT
1967)

Look at the Nature of the

RemeTERRY
Teamsters v. Terry
Medical SurvAYERS
Ayers v. Jackson Township (NJ 1987)

KK-Carroll Bar Exception

Three Part Tullis Award
Carroll v. President of Princess Anne Tullis v. Townley (7th Cir. 2001)
(SCT 1968)
Reasonable MCAB-onsetary
PriOVIDENCE Restraint but
Reductions
Appeals are Great
McCabe v. Parker (8th Cir. 2010)
In re Providence Journal Co (1st Cir.
1987)
Loss of ConsARPIN Ratio
Arpin v. US (7th Cir. 2008)
VA Immunity No Way
VA v. WVA (SCT 1918)
GendeRITCHIE Neutral
Walker v. Ritchie (8th Cir.)
Young Strippers
Ex Parte Young (1908)
Exxon Puni-SHIPPING
Exxon Shipping Co v. Baker (SCT
Castle Rock Immuni-Rock
2008)
Castle Rock v. Gonzales (SCT 2005)
Arbino Biz Small Punitives
The Edelman Divide
Arbino v. Johnson (OH 2007)
Edelman v. Jordan (SCT 1974)
State Puni-FARM Factors
Title 7 Fitzpatrick Immuni-Vanish State Farm v Campbell (SCT 2003)
Fitzpatrick v. Bitzer (SCT 1974)
Punitive Pr-ACCOR-tionality
Hutto Pays Attorney Wage
Modification
Hutto v. Finney (SCT 2004)
Mathias v. Accor Economy Lodging,
Inc. (7th Cir. 2003)
No Money for Nominal Hobby
Farrar v. Hobby (SCT 1992)
Partia-HENSLEY Prevailing
Hensley v. Eckerhart (SCT 1983)
Consent DeFREW State must Lose
Frew v. Hawkins (SCT 2004)
Fees When you lose the CentraPostpoWELCH
Welch v. Likins (8th Cir. 1977)
In-JENK-tion of the Statute
MO v. Jenkins II (1990)

Bernhard Faith Insurance

Bernhard (CO SCt 1996)
Market Funds for EveryBLUM
Blum v. Stenson (SCT 1984)
Fees Can Outsize Damages on the
Riverside
Riverside v. Rivera (SCT 1986)
No Risk EnDAGUE-ment
City of Burlington v. Dague (SCT
1992)
Consent Jeff D can Waive the Fee
Evans v. Jeff D. (SCT 1986)
K doesnt limit the BLANCH-award
Blanchard v. Bergeron (SCT 1989)
Ill Take the K Please and VENE-fees
Venegas v. Mitchell (SCT 1990)
Gratz Fee Logic Solomonic
Gratz v. Bollinger (SCT 2005)
Grievous Swift
Swift (1932)
Ps Dont Use Grievous SHOEs
United Shoe (1968)
Successors Too Consent De-FREW
Frew v. Hawkins (SCT 2004)
Stotts Modification Stops
Firefighters Local Union v. Stotts
(SCT 1984)
Institution-O Flexi-BO ModifiRUFO
Rufo v. Inmates (SCT 1992)

GARLAND Issue
TX v. Garland (SCT 1989)

HORNE-y for Relief from Reformy

Horne v. Flores (SCT 2009)

Fees for Consent GAGNE-crees

Maher v. Gagne (SCT 1980)

Dowell Seg Swift is Dead

OK v. Dowell (US 1991)

Van Hoffman Contracts Clausin

Catalyst Slammin in Buckhannon

Free-men in Phases
Buckhannon Board v. WV (SCT 2001) Freeman v. Pitts (US 1992)

Spallone-Yonkers Contempt is
Bonkers
Spallone v. US (SCT 1990)

No Money for Nominal Hobby

Farrar v. Hobby (SCT 1992)

French Pris-Miller Says TRO Stays

Miller v. French (SCT 2000)

Prelim SOLE-y gets you No Fee

Sole v. Wyner (SCT 2007)

Change in Under-WHEELING law

Wheeling bridge (SCT 1850 )

No Vague ConSTACHTURA
Damages

21