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What Is the ''Eichleay Formula'' ?

What is the Eichleay Formula and how is it used ?

The Eichleay formula is used to determine a government contractor's damages reflecting unabsorbed home office overhead when the government delays work on the contract indefinitely but requires the contractor to remain available to resume work immediately on the government's instruction.

Eichleay damages are calculated by multiplying the daily amount of the contractor's unabsorbed home office overhead allocated to the particular contract by the number of days for which work was suspended.

In Eichleay Corp., A.S.B.C.A. No. 5183, 60-2 B.C.A. (CCH) p 2688, 1960 WL 538 (July 29, 1960), aff'd on recons., 61-1 B.C.A. p 2894, 1960 WL 684 (Dec. 27, 1960), the Board approved, as "a realistic method of allocation of continuing home office expenses" "incurred during a period of suspension of work" when it was not practical for the contractor to undertake the performance of other work which might absorb them, the following computation, which has become known as the Eichleay formula.

It involves: an allocation of the total recorded main office expense to the contract in the ratio of contract billings to total billings for the period of performance. The resulting determination of a contract allocation is divided into a daily rate, which is multiplied by the number of days of delay to arrive at the amount of the claim. Eichleay, 60-2 B.C.A. at 13,574.

The Court implicitly approved the Eichleay formula, apparently for the first time, in Capital Electric Co. v. United States, 729 F.2d 743 (Fed.Cir.1984), in which the General Services Board of Contract Appeals had rejected the formula.

Since then the Court has considered the Eichleay formula in a number of cases in which it has explained and developed the conditions for applying the formula. See, e.g., Interstate Gen. Gov't Contractors v. West, 12 F.3d 1053 (Fed.Cir.1993); Wickham Contracting Co. v. Fischer, 12 F.3d 1574 (Fed.Cir.1994).

The three elements necessary to recover Eichleay damages are:

(1) a government-imposed delay occurred;

(2) the government required the contractor to "stand by" during the delay;

(3) while "standing by," the contractor was unable to take on additional work. Interstate, 12 F.3d at 1056.

The court also has explained the rationale for the Eichleay formula. "Home office overhead costs are those costs that are expended for the benefit of the whole business, which by their nature cannot be attributed or charged to any particular contract." Altmayer v. Johnson, 79 F.3d 1129, 1132 (Fed.Cir.1996).

The Panduit Test

Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 197 USPQ 726 (6th Cir.1978), articulated a four-factor test that has since been accepted as a useful, but non-exclusive, way for a patentee to prove entitlement to lost profits damages. See State Indus., Inc. v. Mor-Flo Indus., Inc., 883 F.2d 1573, 1577, 12 USPQ2d 1026, 1028 (Fed.Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 725, 107 L.Ed.2d 744 (1990).

The Panduit test requires that a patentee establish:

(1) demand for the patented product;

(2) absence of acceptable non-infringing substitutes;

(3) manufacturing and marketing capability to exploit the demand;

(4) the amount of the profit it would have made. (Panduit, 575 F.2d at 1156, 197 USPQ at 730.)

A showing under Panduit permits a court to reasonably infer that the lost profits claimed were in fact caused by the infringing sales, thus establishing a patentee's prima facie case with respect to "but for" causation. Kaufman Co. v. Lantech, Inc., 926 F.2d 1136, 1141, 17 USPQ2d 1828, 1831 (Fed.Cir.1991).

A patentee need not negate every possibility that the purchaser might not have purchased a product other than its own, absent the infringement. Id.

The patentee need only show that there was a reasonable probability that the sales would have been made "but for" the infringement. Id.

When the patentee establishes the reasonableness of this inference, e.g., by satisfying the Panduit test, it has sustained the burden of proving entitlement to lost profits due to the infringing sales. Id. at 1141, 17 USPQ2d at 1832.

The burden then shifts to the infringer to show that the inference is unreasonable for some or all of the lost sales. Id.

The Fitchik Factors

In Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir.1989) (en banc) the Court set the test that determines whether an agency is entitled to sovereign immunity by balancing three factors:

(1) state treasury, (2) status under state law, and (3) autonomy.

In Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239 (3d Cir. 2005), the Court addressed whether the First Judicial District of Pennsylvania (Philadelphia's state court system) was entitled to sovereign immunity.

The Court noted the funding scheme for this judicial system placed "considerable financial responsibility" on the local counties rather than the state. Benn, 426 F.3d at 240.

But more significant was the judicial system's status under state law and its lack of autonomy from the Pennsylvania Supreme Court.

Therefore, the Court concluded "the Fitchik factors strongly favor Eleventh Amendment immunity." Id.

Suing for Damages Arising From Terrorist Attacks Sponsored by Iran

In Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20 (D.D.C. 2009), and Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006), the plaintiffs secured judgments for more than $590 million for the 1996 bombing of the Khobar Towers in Saudi Arabia.

In Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15 (D.D.C. 2008), the plaintiffs received a judgment of more than $350 million because of a 1990 mass shooting.

In Bennett v. Islamic Republic of Iran, 507 F. Supp. 2d 117 (D.D.C. 2007), the plaintiffs obtained a judgment for damages of nearly $13 million for Iran’s role in the 2002 bombing of a cafeteria at Hebrew University in Jerusalem.

In Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90 (D.D.C. 2006), the plaintiffs were awarded almost $20 million for damages suffered as a result of the bombing of a Jerusalem restaurant in 2001. Collectively, the judgments total nearly $1 billion.

Although all the judgments were taken by default, it is undisputed that all are valid final judgments and that Iran owes the amounts of those judgments to the respective plaintiffs.

Patent Misuse Doctrine

What Is the "Patent Misuse" Doctrine ?

In the cases applying the Supreme Court's patent misuse decisions, the Court characterized patent misuse as the patentee's act of "impermissibly broadening the `physical or temporal scope' of the patent grant with anticompetitive effect." Windsurfing Int'l, Inc. v. AMF, Inc., 782 F.2d 995, 1001 (Fed.Cir.1986).

When the patentee has used restrictive conditions on licenses or sales to broaden the scope of the patent grant, the Court held that an accused infringer may invoke the doctrine of patent misuse to defeat the patentee's claim. See Monsanto Co. v. McFarling, 363 F.3d 1336, 1341 (Fed.Cir.2004); Va. Panel Corp. v. MAC Panel Co., 133 F.3d 860, 870 (Fed.Cir.1997); Senza-Gel Corp. v. Seiffhart, 803 F.2d 661 (Fed.Cir.1986).

In B. Braun Medical, Inc. v. Abbott Laboratories, 124 F.3d 1419 (Fed.Cir. 1997), and Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed.Cir.1992), the Court explained the rationale underlying the doctrine of patent misuse.

As a general matter, the unconditional sale of a patented device exhausts the patentee's right to control the purchaser's use of the device thereafter, on the theory that the patentee has bargained for, and received, the full value of the goods. That "exhaustion" doctrine does not apply, however, to a conditional sale or license, where it is more reasonable to infer that a negotiated price reflects only the value of the "use" rights conferred by the patentee.

Thus, express conditions accompanying the sale or license of a patented product, such as field of use limitations, are generally upheld. See Gen. Talking Pictures Corp. v. W. Elec. Co., 304 U.S. 175, 181, 58 S.Ct. 849, 82 L.Ed. 1273 (1938) ("Patent owners may grant licenses extending to all uses or limited to use in a defined field."). When those contractual conditions violate public policy, however, as in the case of price-fixing conditions and tying restraints, the underlying patents become unenforceable, and the patentee loses its right to sue for infringement or breach of contract. B. Braun, 124 F.3d at 1426; Mallinckrodt, 976 F.2d at 706.

The doctrine of patent misuse is thus grounded in the policy-based desire to "prevent a patentee from using the patent to obtain market benefit beyond that which inheres in the statutory patent right." Mallinckrodt, 976 F.2d at 704.

It follows that the key inquiry under the patent misuse doctrine is whether, by imposing the condition in question, the patentee has impermissibly broadened the physical or temporal scope of the patent grant and has done so in a manner that has anticompetitive effects. B. Braun, 124 F.3d at 1426.

Where the patentee has not leveraged its patent beyond the scope of rights granted by the Patent Act, misuse has not been found. See Monsanto, 363 F.3d at 1341 ("In the cases in which the restriction is reasonably within the patent grant, the patent misuse defense can never succeed."); Virginia Panel, 133 F.3d at 869 (particular practices by the patentee "did not constitute patent misuse because they did not broaden the scope of its patent, either in terms of covered subject matter or temporally").

In determining whether a particular licensing condition has the effect of impermissibly broadening the patent grant, courts have noted that the patentee begins with substantial rights under the patent grant-"including the right to suppress the invention while continuing to prevent all others from using it, to license others, or to refuse to license, ... to charge such royalty as the leverage of the patent monopoly permits," and to limit the scope of the license to a particular "field of use." United States v. Studiengesellschaft Kohle, m.b.H., 670 F.2d 1122, 1127, 1133 (D.C.Cir. 1981).

Given that the patent grant entitles the patentee to impose a broad range of conditions in licensing the right to practice the patent, the doctrine of patent misuse "has largely been confined to a handful of specific practices by which the patentee seemed to be trying to `extend' his patent grant beyond its statutory limits." USM Corp. v. SPS Techs., Inc., 694 F.2d 505, 510 (7th Cir.1982).

Recognizing the narrow scope of the doctrine, the Court emphasized that the defense of patent misuse is not available to a presumptive infringer simply because a patentee engages in some kind of wrongful commercial conduct, even conduct that may have anticompetitive effects. See C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1373 (Fed.Cir.1998) ("Although the defense of patent misuse ... evolved to protect against `wrongful' use of patents, the catalog of practices labeled `patent misuse' does not include a general notion of `wrongful' use.").

Other courts have expressed the same view. See Kolene Corp. v. Motor City Metal Treating, Inc., 440 F.2d 77, 84-85 (6th Cir.1971) (There is no such thing as "misuse in the air. The misuse must be of the patent in suit. An antitrust offense does not necessarily amount to misuse merely because it involves patented products or products which are the subject of a patented process."); McCullough Tool Co. v. Well Surveys, Inc., 395 F.2d 230, 238-39 (10th Cir.1968) (the defense of patent misuse has been allowed "only where there had been a misuse of the patent in suit").

While proof of an antitrust violation shows that the patentee has committed wrongful conduct having anticompetitive effects, that does not establish misuse of the patent in suit unless the conduct in question restricts the use of that patent and does so in one of the specific ways that have been held to be outside the otherwise broad scope of the patent grant.

Although patent misuse has been mainly a judicially created defense, Congress has not been entirely silent about the doctrine.

However, instead of saying what patent misuse is, Congress has said what it is not. Thus, section 271(d) of the Patent Act sets forth five types of conduct that may not provide the basis for finding "misuse or illegal extension of the patent right." The last two of the five, which were added in 1988, are:

(4) refusing to license or use any rights to the patent; or (5) conditioning the license of any rights to the patent or the sale of the patented product on the acquisition of a license to rights in another patent or purchase of a separate product, unless, in view of the circumstances, the patent owner has market power in the relevant market for the patent or patented product on which the license or sale is conditioned. 35 U.S.C. § 271(d).

Importantly, Congress enacted section 271(d) not to broaden the doctrine of patent misuse, but to cabin it. See Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 201, 100 S.Ct. 2601, 65 L.Ed.2d 696 (1980) (addressing the role of section 271(d) in narrowing the scope of patent misuse). The 1988 amendment in particular was designed to confine patent misuse, with respect to certain licensing practices, to conduct having anticompetitive effects. See Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 41, 126 S.Ct. 1281, 164 L.Ed.2d 26 (2006); S.Rep. No. 100-492, at 9 (1988) (explaining that purpose of the amendment was to narrow the patent misuse doctrine, which "punishes innovators engaged in procompetitive distribution and licensing practices"); id. at 14 ("The lack of clarity and predictability in application of the patent misuse doctrine and that doctrine's potential for impeding procompetitive arrangements are major causes for concern."); 134 Cong. Rec. 32,471 (1988) (statement of Sen. Patrick Leahy) ("Reform of patent misuse will ensure that the harsh misuse sanction of unenforceability is imposed only against those engaging in truly anticompetitive conduct."); id. at 32,-295 (statement of Rep. Robert Kastenmeier) ("The proposed modifications should have a procompetitive effect, insofar as they require some linkage between patent licensing practice and anti-competitive conduct.").

Doctrine of Noscitur a Sociis

What Does Noscitur a Sociis Mean ?

The doctrine of "Noscitur a Sociis" sets the meaning of a word by associating it with the terms accompanying it. See Indian Head, Inc. v. United States, 597 F.2d 266, 268 (CCPA 1979).

In Apple Computer, Inc. v. United States, 14 C.I.T. 77 (1990), the Court of International Trade construed heading 710 under the doctrine of noscitur a sociis.

According to this doctrine, the Court of International Trade noted that heading 710 contains terms such as compasses, dividers, ruling pens, etc. -items used to create designs.

The court thus interpreted "drafting and drawing machines" to cover only items used in the creation of designs.

The Apple plotter, in contrast, did not "assist in the creation of hand drawn designs," but rather served "as a printer for designs created by the designer on a computer." Apple Computer, 14 C.I.T. at 86.

The Sumitronics, Inc. v. United States, 19 C.I.T. 122 (1995) court used similar reasoning to reject classification of writing heads used in plotters as other parts of drawing machines under 710.80. See Sumitronics, Inc. v. United States, 19 C.I.T. at 124 ("Neither the Apple Computer plotter nor the CES plotter assist in the design or creation of the drawings themselves, rather, they merely assist in the recording and writing of what was created on a data processing machine.").

What Is the ''Younger Abstention'' Doctrine ?

Younger generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings. Younger, 401 U.S. 37, 43-44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Although the Younger abstention doctrine was born in the context of state criminal proceedings, it now applies with equal force to state administrative proceedings. Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986).

This doctrine of federal abstention rests foursquare on the notion that, in the ordinary course, "a state proceeding provides an adequate forum for the vindication of federal constitutional rights." Cullen, 18 F.3d at 103 (citing Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975)).

Therefore, giving the respect to our co-equal sovereigns that principles of "Our Federalism" demand, we generally prohibit federal courts from intervening in such matters. Younger, 401 U.S. at 44, 91 S.Ct. 746; see also Cullen, 18 F.3d at 103.

Younger abstention is required when three conditions are met:

(1) there is an ongoing state proceeding;

(2) an important state interest is implicated in that proceeding;

(3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims. Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir.2001).

Despite the strong policy in favor of abstention, a federal court may nevertheless intervene in a state proceeding upon a showing of "bad faith, harassment or any other unusual circumstance that would call for equitable relief." Younger, 401 U.S. at 54, 91 S.Ct. 746.

However, a plaintiff who seeks to head off Younger abstention bears the burden of establishing that one of the exceptions applies. See Kirschner v. Klemons, 225 F.3d 227, 235-36 (2d Cir.2000).

What Is the Rooker-Feldman Doctrine ?

The Rooker-Feldman doctrine is the namesake of Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

In Rooker, the plaintiffs brought suit in federal district court seeking a declaration that a state-court judgment against them was "null and void" because, they alleged, it was in violation of the Constitution. Id. at 414-15, 44 S.Ct. 149.

The Supreme Court concluded that the district court lacked subject-matter jurisdiction over the claim because "under the legislation of Congress, no court of the United States other than this court could entertain a proceeding to reverse or modify a state-court judgment for errors of Constitutional character." Id. at 416, 44 S.Ct. 149.

In Feldman, the plaintiffs brought suit in federal district court against the District of Columbia Court of Appeals alleging (1) the District of Columbia court's rule prohibiting those who had not graduated from law school from becoming members of the bar violated federal constitutional and statutory law and (2) the District of Columbia court's denial of their petitions for a waiver from the bar-admission rule also violated federal constitutional and statutory law. Id. at 468, 103 S.Ct. 1303.

The Supreme Court held that the district court had subject-matter jurisdiction to consider the plaintiffs' first claim because the facial challenge to the rule was like any other challenge of any legislative enactment. Id. at 486, 103 S.Ct. 1303.

The second claim, however, was different. There, in ruling on the plaintiffs' application for a waiver, the District of Columbia court had acted in a judicial, rather than a legislative, capacity. Id. at 480-82, 103 S.Ct. 1303.

The plaintiffs' second claim challenged that judicial determination and therefore effectively sought appellate review of the District of Columbia court's ruling in the district court. Id. Because only the Supreme Court has appellate jurisdiction to review a state court's order, see 28 U.S.C.A. § 1257(a) (West 1993), the Supreme Court held that the district court lacked subject-matter jurisdiction to hear the plaintiffs' second claim. Id. at 482, 103 S.Ct. 1303.

In a cryptic footnote, the Supreme Court rejected the argument that the district court would have had subject-matter jurisdiction over the plaintiffs' second claim if the plaintiffs had failed to make their federal-law arguments to the state court, instead holding that "if the constitutional claims presented to the district court are inextricably intertwined with the state court's ruling in a judicial proceeding ..., then the district court is in essence being called upon to review the state court decision." Id. at 482, 103 S.Ct. 1303 n. 16.

What Is the ''Mobile-Sierra Doctrine'' ?

The Mobile-Sierra doctrine is derived from the Supreme Court's companion cases United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956), and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388 (1956).

"Under the Mobile-Sierra doctrine Federal Energy Regulatory Commission (“FERC”) may abrogate or modify freely negotiated private contracts that set firm rates or establish a specific methodology for setting the rates for service ... only if required by the public interest." Atl. City Elec. Co. v. FERC, 295 F.3d 1, 14 (D.C.Cir.2002) (citing Texaco Inc. v. FERC, 148 F.3d 1091, 1095 (D.C.Cir.1998))

The doctrine requires FERC to "presume that the rate set out in a freely negotiated ... contract meets the `just and reasonable' requirement imposed by law. The presumption may be overcome only if FERC concludes that the contract seriously harms the public interest." Morgan Stanley Capital Group Inc. v. Pub. Util. Dist. No. 1 of Snohomish County, U.S. 128 S.Ct. 2733, 2736, L.Ed.2d (2008).

Generally, this requires "a finding that the existing rate `might impair the financial ability of [a] public utility to continue its service,' or that the rate would `cast upon other consumers an excessive burden, or be unduly discriminatory,' [or that there are] other `circumstances of unequivocal public necessity.' " Wis. Pub. Power, 493 F.3d at 271 (quoting Fed. Power Comm'n v. Sierra Pac. Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 100 L.Ed. 388 (1956); Permian Basin Area Rate Cases, 390 U.S. 747, 822, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968)).

What is the ''Batson 3 Part Test'' ?

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S., at 96-98.

The analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process.

(1) First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97.

(2) Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98.

(3) Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id., at 98.

In that case, Batson, the defendant who complained that black persons were being excluded from his petit jury, was himself black. During the voir dire examination of the venire for Batson's trial, the prosecutor used his peremptory challenges to strike all four black persons on the venire, resulting in a petit jury composed only of white persons.

Batson's counsel moved without success to discharge the jury before it was empaneled on the ground that the prosecutor's removal of black venirepersons violated his rights under the Sixth and Fourteenth Amendments.

In Batson we held that a defendant can raise an equal protection challenge to the use of peremptories at his own trial by showing that the prosecutor used them for the purpose of excluding members of the defendant's race. Id., at 96.

In Batson v. Kentucky, the U.S. Supreme Court held that "a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination" sufficient to satisfy the defendant's burden of proving an equal protection violation. Id., at 97. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation." Ibid.

If the prosecutor offers no explanation, the defendant has succeeded in establishing an equal protection violation based on the evidence of invidious intent that gave rise to the prima facie case. If the prosecutor seeks to dispel the inference of discriminatory intent, in order to succeed his explanation "need not rise to the level justifying exercise of a challenge for cause." Ibid.

However, the prosecutor's justification must identify "`legitimate reasons'" that are "related to the particular case to be tried" and sufficiently persuasive to "rebut a defendant's prima facie case." Id., at 98, and n. 20.

What Is a Himalaya Clause ?

A Himalaya clause is a clause in a bill of lading that extends the carrier's defenses and limitations of liability under the bill to the carrier's agents and subcontractors.

The roots of that requirement lie in the seminal American case on Himalaya clauses, Robert C. Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1958). In Herd, the Supreme Court refused to extend a bill of lading's liability limitations to a stevedore, because the bill only mentioned the carrier as the beneficiary of those limitations. Id. at 302, 79 S.Ct. at 769-70.

The Herd Court, however, left open the possibility that a clause in a bill of lading could limit the liability of parties hired by the carrier, if drafted with sufficient clarity to specifically identify those parties. Id.

Subsequent cases made that possibility a reality. Today Himalaya clauses are standard fare in bills of lading. However, courts addressing the enforceability of Himalaya clauses are constrained by the Herd Court's admonition that "contracts purporting to grant ... limitation of liability must be strictly construed and limited to their intended beneficiaries." Herd, 359 U.S. at 305, 79 S.Ct. at 771.

In Akiyama Corp. of Am. v. M.V. Hanjin Marseilles, 162 F.3d 571, 574 (9th Cir.1998) the two parties were allowed to invoke the Himalaya clause. The first was a terminal operator, who did have contractual privity with the carrier, and was held to be covered by the relational term "independent contractor" in the clause. Akiyama, 162 F.3d at 574.

The second was a stevedore, who contracted with the terminal operator and thus did not have direct contractual privity with the carrier, but was held to be covered by the descriptive term "stevedore" in the clause. Id.

Title 42 U.S.C. Section 1988 - Interpretation

Title 42 U.S. C. § 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

In Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 269 (1975), the Supreme Court held that it was beyond the competence of judges to "pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others."

Congress, however, has full authority to make such decisions, and it responded to the challenge of Alyeska by doing the "picking and choosing" itself. Its legislative solution legitimates the federal common law of attorney's fees that had developed in the years before Alyeska by specifying when and to whom fees are to be available.

Section 1988 manifests a finely balanced congressional purpose to provide plaintiffs asserting asserting specified federal rights with "fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976); cf. H. R. Rep. No. 94-1558, p. 9 (1976)

The ''Bad Faith Exception'' in Criminal Prosecutions

Like the Younger abstention doctrine itself (Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the genesis of the so-called bad faith exception was in the context of criminal prosecutions.

In a companion case to Younger v. Harris, the Supreme Court expanded on Younger's conception of bad faith, explaining that abstention may be inappropriate "in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction...." Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).

As the application of Younger abstention evolved beyond the criminal realm, the language of the bad faith exception became more generic. So, now, for a federal plaintiff to invoke the bad faith exception, "the party bringing the state action must have no reasonable expectation of obtaining a favorable outcome." Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir.1994)

Thus, for example, the Court found that a refusal to abstain would be justified where a "proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass." Id. at 103-04.

The cases concerning the bad faith exception have further emphasized that the subjective motivation of the state authority in bringing the proceeding is critical to, if not determinative of, this inquiry. See Schlagler v. Phillips, 166 F.3d 439, 442-443 (2d Cir.1999); see also Kirschner v. Klemons, 225 F.3d 227, 236-37 (2d Cir.2000).

A state proceeding that is legitimate in its purposes, but unconstitutional in its execution - even when the violations of constitutional rights are egregious - will not warrant the application of the bad faith exception. See Schlagler, 166 F.3d at 443-44.

To invoke this exception, the federal plaintiff must show that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive. See id. at 442-44.

Rooker–Feldman Doctrine Explained

Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over "federal complaints ... that essentially invite federal courts of first instance to review and reverse unfavorable state-court judgments."


(1) D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983);

(2) Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

The jurisdictional statute providing for Supreme Court review of state court judgments states that "final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari" when certain federal questions are presented. 28 U.S.C. § 1257;<#fn5> see also id. § 1258 (same for Puerto Rico Supreme Court).

Rooker held that Congress, by the terms of that statute, granted the United States Supreme Court, and only the United States Supreme Court, jurisdiction over appeals from state courts:

If the constitutional questions stated in the federal complaint actually arose in the state case, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction.... Under the legislation of Congress, no court of the United States other than this Court could entertain a proceeding to reverse or modify the judgment for errors of that character. To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original. (263 U.S. at 415-16, 44 S.Ct. 149.)

In other words, Rooker is based on a negative inference: because Congress only provided for review of state court judgments by the Supreme Court, Congress therefore intended to preclude lower federal courts from exercising such review.

Feldman repeated this reasoning: "A United States District Court has no authority to review final judgments of a state court in judicial proceedings. Review of such judgments may be had only in this Court." (460 U.S. at 482, 103 S.Ct. 1303.)

Payton Warrant

Payton v. New York, 445 U.S. 573, 588-89, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), pro-hibits the warrantless arrest of a suspect inside his residence.

In United States v. Al-Azzawy, 784 F.2d 890, 893-95 (9th Cir.1985), the Court held that the Payton warrant rule applied when police officers surrounded the suspect's trailer, drew their weapons, and directed him (with a bullhorn) to exit the residence. Id. at 893.

The suspect only left his residence "under circumstances of extreme coercion." Id.

Kentucky's Two-Tier Misdemeanor Court System

Kentucky has a two-tier misdemeanor court system. An appeal of right is provided from the decision of a police judge to the circuit court where all judges are lawyers, and in that court a jury trial de novo may be had. Ky. Rev. Stat. Ann. § 23.032 (1971); Ky. Rule Crim. Proc. 12.06.

In Colten v. Kentucky, 407 U.S. 104 (1972), the Court considered Kentucky's two-tier system there challenged on other grounds.

The Court noted:

"The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew. . . . The case is to be regarded exactly as if it had been brought there in the first instance." Id., at 113.

The Court went on to note that the justifications urged by States for continuing such tribunals are the "increasing burdens on state judiciaries" and the "interest of both the defendant and the State, to provide speedier and less costly adjudications" than those provided in courts "where the full range of constitutional guarantees is available . . . ." Id., at 114.

Is Advertising by Lawyers Entitled to Protection by the First Amendment ?

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Court decided that advertising by lawyers was a form of commercial speech entitled to protection by the First Amendment.

Justice Powell summarized the standards applicable to such claims for the unanimous Court in In re R. M. J., 455 U.S. 191, 203 (1982):

"Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e. g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. . . .

"Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served."

Interpretation of 18 U.S.C. Section 924

In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court explained what conduct constitutes "use" under 18 U.S.C. § 924.

The Court determined that in order to show "use" for purposes of establishing a § 924 violation, the government must show that "the defendant actively employed the firearm during and in relation to the predicate crime." Bailey, 516 U.S. at 150 (finding that the defendant did not "use" the firearm where it was found, unloaded, in a footlocker in a closet).

Such "active employment" includes "brandishing, displaying, bartering, striking with, and... firing or attempting to fire a firearm." Id. at 148.

Although the Court in Bailey found it unnecessary to specifically articulate standards for what constitutes "carry" under § 924, the Court did note that an offender "carries" a firearm when he "keeps a gun hidden in his clothing throughout a drug transaction." Id. at 146.

In addition, the Court distinguished "use" from "carry" and went on to note that "[a] defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession." Id. at 149.

In United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996), the Court further elaborated on the carry prong and held that "in order for a defendant to be convicted of carrying a gun in violation of section 924(c)(1), the firearm must be immediately available for use-on the defendant or within his or her reach.

Such availability takes the weapon beyond simple possession or storage." Id. at 623.

In order to establish that the firearm was carried "in relation to" a drug trafficking offense, the government must prove that the firearm "furthered the purpose or effect of the crime and that its presence or involvement was not the result of coincidence." Id. (citing Smith v. United States, 508 U.S. 223 (1993)).

Further elaborating on the Riascos-Suarez definition of "carry," the Court noted in United States v. Moore, 76 F.3d 111 (6th Cir. 1996), as follows:

"Although the immediate availability of the gun to the [defendant] was a key factor in Riascos-Suarez, we do not read that case as identifying availability as the only relevant consideration; if Congress had meant section 924(c)(1) to implicate any individual who happens to be within arm's reach of a firearm, surely it would have selected a more accurate term than "carry." A definition of "carry" that takes only availability into account ignores the term's most obvious connotation, i.e., physical transportation. Immediate availability is therefore a necessary, but not sufficient, determinant.... The [defendant] in Riascos-Suarez "carried" the firearm not only because he had it within reach, but also because he physically brought it with him in the course of his drug trade." Id. at 113.

Case Law on the Jencks Act

Cases under the Jencks Act have indicated that the Act calls not only for timely disclosure of statements, but also for the preservation of statements for future disclosure.

In Campbell (I) v. United States, 365 U.S. 85, 98, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), a majority of the Supreme Court found it unnecessary to decide when destruction of possible Jencks Act material would require sanctions, but failed to adopt the minority view that the Act imposed no duty of preservation, Id. at 102, 81 S.Ct. 421.

Subsequently, the Court implied there was some duty to preserve, holding that the destruction of an F.B.I. agent's notes was not impermissible as long as the data in them had been incorporated in another document and the notes had been destroyed in good faith and in keeping with general practice. Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). See also United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) (government had duty of producing tapes covered by Jencks Act, or explaining why it could not do so).

Lower courts have held that the intentional destruction, even in good faith, of a government witness' statement can violate the Jencks Act and warrant sanctions. E. g., United States v. Bufalino, 576 F.2d 446, 448-50 (2d Cir.), Cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978) (although no sanctions imposed for the destruction of backup tapes of drug transactions, deliberate destruction of Jencks material will ordinarily call for sanctions in the future); United States v. Well, 572 F.2d 1383, 1384-85 (9th Cir. 1978) (routine destruction of interview tapes justified a mistrial and suppression of testimony), United States v. Carrasco, 537 F.2d 372, 375-77 (9th Cir. 1976) (routine good faith destruction of informant's diary called for a new trial); United States v. Bryant, 142 U.S.App.D.C. 132, 140-143, 439 F.2d 642, 650-53 (D.C. Cir.) (negligent or bad faith nonpreservation of tapes of a drug transaction might call for sanctions; remanded), Appeal after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971); Lee v. United States, 125 U.S.App.D.C. 126, 129-130, 368 F.2d 834, 837-38 (D.C. Cir. 1966) (testimony of agents whose reports had been destroyed in the ordinary course of business should have been stricken); United States v. Lonardo, 350 F.2d 523, 527-30 (6th Cir. 1965) (deliberate destruction of stenographic transcripts required mistrial). Compare, e. g., United States v. Miranda, 526 F.2d 1319, 1328-29 (2d Cir. 1975), Cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976) (inadvertent or negligent, nonprejudicial loss of tape of drug transactions did not warrant sanctions); United States v. Perry, 153 U.S.App.D.C. 89, 94-98, 471 F.2d 1057, 1062-66 (D.C. Cir. 1972) (unintentional, nonnegligent loss of grand jury minutes would not justify sanctions; remanded).

Case Law on Racial Discrimination in Jury Selection

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court reaffirmed the fundamental principle that "racial discrimination in jury selection offends the Equal Protection Clause," 476 U.S. at 85, 106 S.Ct. 1712, and further held that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Id. at 96, 106 S.Ct. 1712.

The Court then addressed the now-familiar three-step analysis guiding trial courts' constitutional review of peremptory challenges, which places the initial burden on the defendant to come forward with a prima facie case indicating discriminatory purpose by the prosecution in the exercise of its challenges, id. at 96-97, 106 S.Ct. 1712, then shifts the burden to the prosecution, which must supply race-neutral explanations for its challenges, id. at 97, 106 S.Ct. 1712, and finally tasks the court with the duty of "determining if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712.

While Batson discussed the analysis of a defendant's objection to the prosecution's use of peremptory challenges, the Court expressly "declined ... to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges," id. at 99, 106 S.Ct. 1712, explaining that "in light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today." Id. at 99 n. 24, 106 S.Ct. 1712.

Just a few months after Batson was issued, the New Jersey Supreme Court, in State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986), accepted the implicit invitation to "spell out the contours of Batson's Equal Protection holding," Batson, 476 U.S. at 103, 106 S.Ct. 1712 (White, J., concurring), and proceeded to "formulate the procedures to be followed by trial courts when a defendant alleges that a prosecutor is improperly using peremptory challenges," Gilmore, 511 A.2d at 1163.

Though the Gilmore court expressly "basedits decision on the New Jersey Constitution, which protects fundamental rights independently of the United States Constitution," id. at 1157, it clearly intended its holding to conform to the parameters set forth in Batson. See id. ("We observe that under Batson's interpretation of the Equal Protection Clause of the Fourteenth Amendment ... the United States Constitution would compel the result that we reach on independent state grounds."). Gilmore effectively added flesh to the framework discussed in Batson by setting forth the precise standards applicable to each step of the analysis. Id. at 1164-67.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court made clear that the prosecution in a criminal case cannot use its peremptory challenges in jury voir dire to strike potential jurors solely on account of their race.

To ensure that such discrimination does not go unchecked, the Court established an evidentiary scheme which allows a defendant to establish a three part prima facie case of discrimination. First, he must show that he is a "member of a cognizable racial group." Id. at 96, 106 S.Ct. at 1722-23.

Second, the prosecutor must have used his peremptories to strike venire members of the defendant's race. Id.

Third, the defendant must prove that these facts, plus any other relevant circumstances "raise an inference" that the prosecutor excluded the veniremen on account of race. Id.

Once this prima facie case has been made, the burden shifts to the state to come forward with racially-neutral explanations for the strikes. Id.

In Batson, the Supreme Court discussed the requirements for a prima facie case in the following terms:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire-men from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712.

The Batson standard for assessing a prima facie showing is fluid, mainly because it places great confidence in the ability of trial judges to assess whether discrimination is at work based on the evidence at hand. The judge's assessment "largely will turn on evaluation of credibility," id. at 98 n. 21, 106 S.Ct. 1712, and "[t]he analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process." Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

The defendant's burden at the initial stage is to show merely that jurors of his race have been struck and that the strikes are indicative of an improper motive.

The defendant generally meets this burden if there is a pattern of strikes or if the prosecutor's questions and statements during voir dire support an inference of discriminatory purpose. Notably absent from the Batson discussion of the prima facie case is any call for trial judges to seek the type of statistical accounting required by the Spence rule (Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993)) nor do we see how such an accounting fits within Batson's first step.

A trial judge undoubtedly might find in a given case that a full accounting regarding the race of the venire and the jurors struck would be helpful at the third stage of the Batson analysis, after it has heard the prosecutor's explanation for the strikes and must "determine if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712.

Burford Abstention Doctrine

The Burford abstention, first enunciated by the Supreme Court in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), just two years after Pullman, held that federal courts should exercise equitable discretion and refrain from exercising authority over questions involving basic problems of state policy pertaining to the regulation of important state natural resources, even if federal court jurisdiction is predicated on diversity of citizenship.

The Court subsequently observed in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1975):

Where the State had established its own elaborate review system for dealing with the geological complexities of oil and gas fields, federal review would have had an impermissibly disruptive effect on state policy for the management of those fields.

Id. at 815, 96 S.Ct. at 1245. Burford abstention is usually applied to state regulatory matters such as establishing rates for natural gas or transportation, discontinuing railroad passenger services, Alabama Public Services Commission v. Southern Railway, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951), discontinuing intrastate air service, Allegheny Airlines v. Pennsylvania Pub. Util. Com'n, 465 F.2d 237 (3d Cir.), cert. denied 410 U.S. 943, 93 S.Ct. 1367, 35 L.Ed.2d 609 (1973), or applying state eminent domain procedures, Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir.1975).

In Burford v. Sun Oil, the Supreme Court explicitly premised its order of abstention on the power, unique to courts of equity, to refuse, for policy reasons, to exercise their jurisdiction:

Although a federal equity court does have jurisdiction of a particular proceeding, it may, in its sound discretion ... refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest....(319 U.S. at 317-18, 63 S.Ct. at 1099.)

Burford abstention is not the only abstention doctrine grounded in the unique power of courts of equity. Cases involving other abstention doctrines also emphasized that the source of the courts' authority to develop a doctrine of abstention was based upon the discretion to decline or grant equitable relief. See Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324-25, 12 L.Ed.2d 377 (1964); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 500-01, 61 S.Ct. 643, 645-46, 85 L.Ed. 971 (1941).

The reasoning of Burford, Pullman and the other cases locating the power to abstain in the unique powers of equitable courts has never been rejected. The Supreme Court has, however, subsequently applied some forms of abstention doctrine to cases at law, without discussion.

Furthermore, the Supreme Court explicitly expanded some forms of abstention to a few "special" classes of damage actions.

These cases were severely criticized by dissenting justices.

In his dissent in Fair Assessment in Real Estate Association v. McNary, Justice Brennan pointed out that "[w]hile the 'principle of comity' may be a source of judicial policy, it is emphatically no source of judicial power to renounce jurisdiction.... There is little room for the 'principle of comity' in actions at law where, apart from matters of administration, judicial discretion is at a minimum." 454 U.S. 100, 119-21, 102 S.Ct. 177, 188, 70 L.Ed.2d 271 (1981) (Brennan, J., dissenting).

Bivens Claim Legal Definition

In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that a petitioner whose fourth amendment rights were violated by federal agents was entitled to redress his injury through a federal suit for damages.

Although there existed no applicable statutory cause of action for the alleged constitutional interference, the court recognized a federal right of action where the complainant would otherwise be deprived of an adequate remedy. Id. 403 U.S. at 395-97, 91 S.Ct. at 2004-05, 29 L.Ed.2d at 626-27.

Bivens-type actions are somewhat extraordinary and are restricted to the vindication of the constitutional rights of an aggrieved victim only when no equally effective remedy is available. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

After oral argument in this case, the United States Supreme Court handed down its decision in Bush v. Lucas, U.S. 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), unanimously holding that a federal employee may not assert a Bivens-type claim for an alleged violation of his first amendment rights by his superiors. In thus affirming the decision of the Court of Appeals for the Fifth Circuit, the Supreme Court declared that the judiciary "must pay particular heed to any special factors counselling hesitation before authorizing a new kind of federal litigation." Id., 103 S.Ct. at 2411.

In Bush, the unique relationship between the federal government and its civil service employees is precisely such a "special factor." Id., at 103 S.Ct. at 2408.

Observing that Congress has neither specifically authorized nor expressly precluded the remedy sought by the petitioner, the Court declined to create such a cause of action stating:

In all events, Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts. Nor is there any reason to discount Congress' ability to make an evenhanded assessment of the desirability of creating a new remedy for federal employees who have been demoted or discharged for expressing controversial views. Id., at 103 S.Ct. at 2417.

5 Factors Courts Consider in Analyzing Existence of Antitrust Standing

In Associated General Contractors of California, Inc. v. California State Council of Carpenters, the Court articulated five factors that courts should consider in analyzing the existence of antitrust standing. 459 U.S. 519, 545 (1983).

The Court of Appeals for the Third Circuit has summarized them as follows:

(1) the causal connection between the antitrust violation and the harm to the plaintiff and the intent by the defendant to cause harm, with neither factor alone conferring standing;

(2) whether the plaintiff's alleged injury is of the type for which the antitrust laws were intended to provide redress;

(3) the directness of the injury, which addresses the concerns that liberal application of standing principles might produce speculative claims;

(4) the existence of more direct victims of the alleged antitrust violations; and (5) the potential for duplicative recovery or complex apportionment of damages. In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1163 n.9 (3d Cir. 1993).

Zucht v. King - Case Brief Summary (U.S. Supreme Court)

Zucht v. King, 260 U.S. 174 (1922), was brought to the Supreme Court on writ of error solely on the ground that the state court had upheld a municipal ordinance against the contention that it was invalid under the Constitution of the United States.

The Supreme Court dealt with the initial question of jurisdiction as follows, p. 176:

"The validity of the ordinances under the Federal Constitution was drawn in question by objections properly taken below. A city ordinance is a law of the State within the meaning of § 237 of the Judicial Code as amended, which provides a review by writ of error where the validity of a law is sustained by the highest court of the State in which a decision in the suit could be had. Atlantic Coast Line R.R. Co. v. Goldsboro, 232 U.S. 548, 555."

Ziglar v. Abbasi - Case Brief Summary (U.S. Supreme Court)

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Court stressed that “national-security policy is the prerogative of the Congress and the President.” Abbasi, 137 S. Ct. at 1861.

The plaintiffs note the Court’s warning that “national security” should not “become a talisman used to ward off inconvenient claims.” Id. at 1862.

But the Court stated that “this danger of abuse” is particularly relevant in “domestic cases.” See id.

In Abbasi, aliens detained for immigration violations following the September 11 attacks brought a class action suit against high-level federal executive officials and detention facility wardens. 137 S. Ct. at 1852-54. The detainees alleged that they had been detained in harsh conditions, including that they were confined in tiny cells for over 23 hours a day, subjected to regular strip searches, denied basic hygiene products and most forms of communication, and subjected to regular verbal and physical abuse by guards. Id. at 1853.

Detainee-plaintiffs brought their Bivens claims alleging that the detention and policies authorizing it violated their Fourth and Fifth Amendment rights. Id. at 1853-54.

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