Federal Practice Manual for Legal Aid Attorneys: 9.4.1 Preservation of Access to the Courts
Section 9.4 updated 2013 by Richard Rothschild, 2016 by Jeffrey S. Gutman, 2022 by Richard Rothschild
Section 9.4 updated 2013 by Richard Rothschild, 2016 by Jeffrey S. Gutman, 2022 by Richard Rothschild
[SECTION 9.5 IS UNDERGOING REVISION]
Section 9.5 updated 2015 by Jeffrey S. Gutman, 2023 by Nicholas A. Gable
This Chapter addresses issues related to the recovery of relief in federal litigation. Section 9.1 of this Chapter discusses the general rules governing the recovery of compensatory and punitive damages, focusing primarily on litigation under 42 U.S.C. § 1983.
The third Article III component is the requirement that the relief sought must redress the claimed injury, or provide some form of remedial benefit to the plaintiff. In many cases the inquiry into causation and redressability overlap.
Organization of the facts and the file should begin as soon as you know that you will commence litigation. Your system should be flexible enough to accommodate growth of the file. The particular way that you organize your file will depend on its potential size, the type of case, your personal style, and your program’s use of computer case management tools.
A consent decree is an agreement of the parties and is embodied in an injunctive order of the court, signed by the judge, and entered as the judgment of the court.
A settlement whose terms are not incorporated into a decree entered by the court stands on a very different legal footing from a consent decree. Most commonly, when cases are resolved by such an agreement, the parties terminate the litigation by a stipulation of dismissal which may or may not refer to the agreement. In Kokkonen v.
While obtaining a consent decree should be sufficient in itself to justify plaintiffs’ entitlement to fees, other forms of settlement may be more problematic after Buckhannon.4442 Obtaining an agreement that plaintiffs are the prevailing party and entitled to specified fees is often possible and should be pursued. Such an agreement will likely avoid litigation over the issue and establish the right to a fee award.
Under the leading case of Hensley v. Eckerhart, the “lodestar” method provides the starting point for determining the amount of a reasonable statutory fee award: “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”4559
Motions generally involve at least two sets of documents: (1) the actual motion itself, which seeks specified relief from the court; and (2) an accompanying memorandum of law, which may include attachments, such as declarations and exhibits, that provide factual support for the motion.
To qualify for a fee award under most federal fee-shifting statutes, a litigant must be a “prevailing party.”4509 To qualify as a prevailing party entitled to seek fees, two issues that often arise are: (1) what form the victory must take; and (2) how much the litigant has to win.
In Comm’r of Internal Revenue v. Banks, the Court held that “as a general rule, when a litigant's recovery constitutes income, the litigant's income includes the portion of the recovery paid to the attorney as a contingent fee.”4674 The Court in Banks did not rule on the question most legal aid and public interest attorneys confront, where fees are received through a fee-shifting statute, such as § 1988.
The Equal Access to Justice Act (EAJA) presents different fee entitlement questions.
Exhaustion of federal or state administrative remedies is required when Congress explicitly requires exhaustion as a prerequisite to bringing an action in federal court.1125 Such an expression must be specific and clear.1126 “Of paramount importance to any exhaustion inquiry is congressional intent.”1127
Section 2.1 updated 2013, 2023 by Jeffrey S. Gutman
Section 2.5 updated 2015, 2023 by Jeffrey S. Gutman
Section 5.4 updated 2013 by Rochelle Bobroff, 2017 by Jeffrey S. Gutman, 2023 by Seth Davis
Section 2.9 updated 2013 by Jeffrey S. Gutman, 2023 by Alan M. Trammell
A case clearly arises under the Constitution for purposes of § 1331 when the plaintiff claims, for example, that a government officer or employee, acting in his or her official capacity, injures the plaintiff by taking an action that violates a provision of the Constitution or by acting pursuant to an unconstitutional statute. The federal question jurisdiction of the district courts also encompasses causes of action created by federal statutes, such as 42 U.S.C.
Article III, Section 2, Clause 1 of the Constitution provides that federal judicial power extends to cases between citizens of different states and between a citizen of a state and a citizen of a foreign country.184 The federal diversity statute, 28 U.S.C.
The Declaratory Judgment Act confers on the federal courts unusual and substantial discretion in determining whether to “declare” the rights of litigants.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court set the standards for the admissibility of scientific expert opinion.3077 Expert testimony is only admissible if it meets certain “gatekeeping” requirements, which include that the expert is qualified through education, knowledge, experience, skill, or training to render an expert opinion and the expert's methodology is sufficiently reliable to support the proposed opinions.
At the Rule 26(f) meeting, counsel and unrepresented parties must confer to “consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”2246
The parties must also develop a discovery plan that addresses the subjects listed in Rule 26(f)(3), which are:
U.S. magistrate judges may be used in two circumstances.2280 First, they may act, in effect, as district judges and decide cases on the merits when the parties consent. Indeed, one of the most significant decisions you will make shortly after the parties have entered appearances in the lawsuit is whether to consent to referring the case to the magistrate to hear and decide on the merits.
Non-parties to an action may seek to join that action by filing a motion to intervene.