Note

Collateral Effects of Habeas Retrogression

Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are not available to challenge most constitutional violations that could also be addressed through petitions for habeas corpus. This has excised a substantial category of constitutional violations from § 1983’s scope. Most prominently, any constitutional violation that results in incarceration can only be challenged through habeas corpus, and not through § 1983. In his recent concurrence in Edwards v. Vannoy, Justice Gorsuch suggested a new approach for federal courts evaluating habeas petitions by state prisoners. In his reading, the writ of habeas corpus only allows courts to grant prisoners relief if the court that convicted them lacked jurisdiction. To Justice Gorsuch, constitutional violations that result in incarceration are not grounds for habeas relief, or even habeas inquiry. In this Note, I take Justice Gorsuch’s statement to that effect at face value and explore the necessary implications of his newly proposed regime for habeas corpus. I conclude that if habeas corpus were held to not provide an avenue to challenge violations of constitutional rights, the Supreme Court’s cases limiting § 1983 suits by state prisoners because of the availability of habeas relief would implicitly be overruled. I then demonstrate that state prisoners would often benefit from raising their challenges as § 1983 suits rather than in habeas petitions.

Introduction

In 1871, Congress enacted the third Force Act,1 1.Enforcement Act of 1871, ch. 22, § 1, 17 Stat. 13; see also Monroe v. Pape, 365 U.S. 167, 174 (1961) (describing enactment of the Act and its purpose).Show More also called the third Ku Klux Klan Act, and now widely known as the Civil Rights Act.2 2.Zanita E. Fenton, Disarming State Action; Discharging State Responsibility, 52 Harv. C.R.-C.L. L. Rev. 47, 53–54 (2017).Show More The Act, for the first time, allowed federal lawsuits against state actors who were alleged to have violated the federal constitutional3 3.The Act is also now understood to allow suits based on violations of other federal, non-constitutional rights. See Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). For the purposes of this Note, however, the ability to bring suit challenging constitutional violations is more relevant.Show More rights of individuals.4 4.See Tiffany R. Wright, Ciarra N. Carr & Jade W.P. Gasek, Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983, 126 Dick. L. Rev. 685, 686 (2022).Show More Prior to its enactment, the only recourse available to someone suffering constitutional injury at the hands of a state was a suit against the state actor under state law. But in cases where a federal constitutional right was violated by a state actor who did not happen to concurrently violate an analogous state law, no remedy was previously available at all.5 5.See Monroe, 365 U.S. at 196 & n.5.Show More The centerpiece of the Act is now codified at 42 U.S.C. § 1983.6 6.42 U.S.C. § 1983.Show More That statute allows suits by individuals for injunction or damages against those acting “under color of” state law who are alleged to have committed a civil rights violation.7 7.Id.Show More

The Ku Klux Klan Act was enacted against a backdrop of rampant violence and lawlessness in the southern states following the Civil War.8 8.Some of the atrocities were described in a letter from President Grant to Congress, within which he reproduced a message from a general stationed in Georgia. See S. Exec. Doc. No. 41-3, at 2 (1869) [hereinafter Presidential Letter] (“[W]ere the most worthless vagabond . . . to be charged with a crime against . . . a negro, neither he nor any other . . . would dare . . . to testify against [the offender], whatever might be their knowledge of his guilt.”).Show More Recently freed slaves and white Republicans were often the targets,9 9.Id. (“[M]ost of the numerous outrages upon freedmen result from hostility to the race, induced by their enfranchisement.”); S. Rep. No. 42-1, at 116 (1871) (“[T]here has been considerable apprehension on the part of the freedmen in regard to their personal safety.”).Show More and state officials—magistrates, constables, sheriffs, and others—were often complicit.10 10.See Presidential Letter, supra note 8, at 2 (“Murders have been . . . frequent. . . . There is great reason to believe that in some cases local magistrates are in sympathy with the members of these organizations.”); S. Rep. No. 42-1, at 83 (1871) (“The sheriff belongs to the organization, and so do his deputies.”); id. (“Question: Are the constables all members of it? Answer: Not quite all.”).Show More A key problem that the Act addressed was the inability of the criminal justice system in the South to protect the interests of Black citizens. This manifested both in crimes against Black citizens going unpunished and in Black citizens’ being faced with an unfair and unjust legal system when they themselves were the defendants.11 11.See Presidential Letter, supra note 8, at 2; see also Blyew v. United States, 80 U.S. (13 Wall.) 581, 583 (1871) (finding that no witnesses were allowed to testify at trial of Black woman’s murderer because all witnesses were Black); Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (describing West Virginia law prohibiting Black citizens from serving on juries); Virginia v. Rives, 100 U.S. 313, 315 (1879) (“The petitioners further represented that their race had never been allowed the right to serve as jurors . . . in the county of Patrick, in any case, civil or criminal.”).Show More

Only a few years before, Congress had enacted the Habeas Corpus Act of 1867,12 12.Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385.Show More which addressed similar concerns. Also for the first time, it extended the availability of federal court review to those incarcerated in state prisons or otherwise in state custody.13 13.Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465 (1963).Show More Although the protections of the Great Writ had been constitutionally enshrined since the Founding,14 14.U.S. Const. art. I, § 9, cl. 2.Show More federal habeas corpus could previously only be invoked by those in federal custody.15 15.Bator, supra note 13, at 465.Show More

The enactment of these two statutes was a moment of promise for the post-Civil War Congress. The Acts represented a commitment by the federal government to offer protection to some of the country’s most marginalized citizens. Individuals who had previously found courts fundamentally inimical to their interests now had an avenue to seek redress for the wrongs they suffered at the hands of powerful actors.

A hundred and fifty years later, both congressional acts have fallen into judicial disfavor. The right of action under § 1983 has been heavily qualified by the application of numerous immunity doctrines that either shield state actors absolutely or protect all but the most egregious offenders.16 16.See, e.g., John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1402 (2007) (“As administered by the courts, qualified immunity shields a vast range of garden-variety unconstitutionality from vindication through money damages.”); id. at 1390 n.12 (“The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized.”).Show More And the once-great writ of habeas corpus has been so riddled with technical, procedural requirements and exemptions that, for most, it might as well not exist at all.17 17.See Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 727 (2002) (quoting McFarland v. Scott, 512 U.S. 1256, 1263 (1994) (Blackmun, J., dissenting from denial of certiorari)) (describing the law of habeas corpus as “a doctrinal jumble that had grown too ‘byzantine’ for ready comprehension or utilization”); Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 174 (2021) (noting that “federal habeas relief is afforded in only 0.29% of noncapital cases,” despite “substantial evidence that states systematically violate criminal defendants’ constitutional rights”).Show More Although the federal judiciary has acted mostly18 18.But see 42 U.S.C. § 1997e (placing limitations on some § 1983 suits by prisoners, including exhaustion requirement and limits on attorneys’ fees and recovery).Show More alone in dissecting § 1983, Congress has stepped in to place its own restraints on habeas corpus.19 19.See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 103-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254).Show More

All of this would be, apparently, the routine development of federal law, if it were not for one thing: habeas corpus and § 1983 have an unusual, judicially created, inverse relationship of applicability. In a series of cases beginning with Preiser v. Rodriguez, the Supreme Court has held that § 1983’s limitations are dependent on the Great Writ’s outer boundaries.20 20.411 U.S. 475, 500 (1973).Show More In essence, the Court held that there are some claims that § 1983 does not recognize because habeas corpus covers them instead. The clearest example is that a prisoner cannot bring a suit under § 1983 to challenge the validity of their confinement, even if they allege that that confinement is the result of a constitutional violation by someone acting under color of state law.21 21.Id. at 489.Show More Some suits several steps removed from this paradigmatic case are also within the “core” of habeas and therefore not cognizable under § 1983.22 22.Id. at 487–88.Show More

In this Note, I examine the implications of the relationship between these two statutes in the face of some recent suggestions by Supreme Court Justices that the writ of habeas corpus should cease to function as it has been understood to for at least the last half century. In effect, I ask how the boundaries of § 1983 that are dependent on the availability of habeas corpus should be affected if the writ’s availability is severely curtailed. Preiser’s holding has long been the source of unanticipated complexities.23 23.See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 87 (1988) (“Preiser . . . leaves open more questions than it answers.”).Show More But while some of the resulting puzzles have been resolved by subsequent cases,24 24.Compare id. at 117–18 (asking whether, after Preiser, prisoners may bring claims for damages based on constitutional violations that resulted in their incarceration), with Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (answering that question in the negative).Show More it may be that the bond it strung between habeas corpus and § 1983 has not exhausted its capacity to surprise.

This issue arrives with particular urgency because of a concurrence penned by Justice Gorsuch in the recent case, Edwards v. Vannoy.25 25.141 S. Ct. 1547 (2021).Show More In that opinion, which is echoed in Justice Gorsuch’s subsequent opinion for the Court in Brown v. Davenport,26 26.142 S. Ct. 1510 (2022); see also id. at 1531 (Kagan, J., dissenting) (“That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion.”).Show More he recounts the modern development of habeas corpus and what he views as its disconnection from its historical operation.27 27.Edwards, 141 S. Ct. at 1568 (Gorsuch, J., concurring).Show More His conclusion: “[t]he writ of habeas corpus does not authorize federal courts to reopen a judgment issued by a court of competent jurisdiction once it has become final.”28 28.Id. at 1573.Show More

Reopening judgments issued by courts of competent jurisdiction that have become final is nearly29 29.Habeas corpus is still invoked, though more rarely, to contest executive detention without trial. See, e.g., Boumediene v. Bush, 553 U.S. 723, 734 (2008).Show More the only thing the writ has done for at least a century. Adoption of Justice Gorsuch’s view would thus have momentous impact—both human and doctrinal.30 30.See Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. 505, 508 (2022).Show More Even now, few litigants find courts as unfriendly to their claims as prisoners bringing suits against state governments.31 31.Ahdout, supra note 17, at 174.Show More But those governments possess immense power to harm. Prisoners, more than other citizens, are at the government’s absolute mercy and under its complete control. Removing the main avenue through which nearly two million people32 32.Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.‌cc/7ZES-P5L7].Show More can challenge violations of their rights by an entity that now controls every aspect of their lives is a proposition that should give us pause.

But Justice Gorsuch’s limitations on the habeas remedy would have a similarly consequential impact on the doctrine that resulted from Preiser and its progeny. That is because Preiser limited the cause of action under § 1983 with explicit reference to and dependence on the availability of habeas review.33 33.See Preiser v. Rodriguez, 411 U.S. 475, 486–87 (1973).Show More

Below, I ask whether Justice Gorsuch’s concurrence in Edwards and the Supreme Court’s opinion in Preiser can be reconciled in their reasoning or results. I conclude that they cannot. Justice Gorsuch’s assertion about the limited scope of habeas relief is fundamentally at odds with the reasoning in Preiser and the cases that followed it. Thus, if Justice Gorsuch (and Justice Thomas, who joined him) maintain their views of what claims habeas corpus does not apply to, logic requires that they also reevaluate their views of what § 1983 does apply to.

To explore that assertion, I proceed in four parts. Part I explains Justice Gorsuch’s position on the history of habeas corpus and how it should influence contemporary courts’ willingness to grant the writ. Part II shows the development in courts of an interrelationship between habeas corpus and § 1983 and explains why the cord binding the two doctrines together would be severed by Justice Gorsuch’s reasoning in Edwards. Part III discusses the legal framework that would result if Justice Gorsuch’s opinion were taken to its logical conclusion and prisoners were able to bring § 1983 suits instead of habeas petitions. Part IV offers additional thoughts about the statutory interpretation that would be necessary to reach this result and asks whether that interpretation is unwarranted or implausible as a response to Justice Gorsuch’s own interpretive exercise.

  1.  Enforcement Act of 1871, ch. 22, § 1, 17 Stat. 13; see also Monroe v. Pape, 365 U.S. 167, 174 (1961) (describing enactment of the Act and its purpose). ↑
  2.  Zanita E. Fenton, Disarming State Action; Discharging State Responsibility, 52 Harv. C.R.-C.L. L. Rev. 47, 53–54 (2017). ↑
  3.  The Act is also now understood to allow suits based on violations of other federal, non-constitutional rights. See Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). For the purposes of this Note, however, the ability to bring suit challenging constitutional violations is more relevant. ↑
  4.  See Tiffany R. Wright, Ciarra N. Carr & Jade W.P. Gasek, Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983, 126 Dick. L. Rev. 685, 686 (2022). ↑
  5.  See Monroe, 365 U.S. at 196 & n.5. ↑
  6.  42 U.S.C. § 1983. ↑
  7.  Id. ↑
  8.  Some of the atrocities were described in a letter from President Grant to Congress, within which he reproduced a message from a general stationed in Georgia. See S. Exec. Doc. No. 41-3, at 2 (1869) [hereinafter Presidential Letter] (“[W]ere the most worthless vagabond . . . to be charged with a crime against . . . a negro, neither he nor any other . . . would dare . . . to testify against [the offender], whatever might be their knowledge of his guilt.”). ↑
  9.  Id. (“[M]ost of the numerous outrages upon freedmen result from hostility to the race, induced by their enfranchisement.”); S. Rep. No. 42-1, at 116 (1871) (“[T]here has been considerable apprehension on the part of the freedmen in regard to their personal safety.”). ↑
  10.  See Presidential Letter, supra note 8, at 2 (“Murders have been . . . frequent. . . . There is great reason to believe that in some cases local magistrates are in sympathy with the members of these organizations.”); S. Rep. No. 42-1, at 83 (1871) (“The sheriff belongs to the organization, and so do his deputies.”); id. (“Question: Are the constables all members of it? Answer: Not quite all.”). ↑
  11.  See Presidential Letter, supra note 8, at 2; see also Blyew v. United States, 80 U.S. (13 Wall.) 581, 583 (1871) (finding that no witnesses were allowed to testify at trial of Black woman’s murderer because all witnesses were Black); Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (describing West Virginia law prohibiting Black citizens from serving on juries); Virginia v. Rives, 100 U.S. 313, 315 (1879) (“The petitioners further represented that their race had never been allowed the right to serve as jurors . . . in the county of Patrick, in any case, civil or criminal.”). ↑
  12.  Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. ↑
  13.  Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465 (1963). ↑
  14.  U.S. Const. art. I, § 9, cl. 2. ↑
  15.  Bator, supra note 13, at 465. ↑
  16.  See, e.g., John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1402 (2007) (“As administered by the courts, qualified immunity shields a vast range of garden-variety unconstitutionality from vindication through money damages.”); id. at 1390 n.12 (“The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized.”). ↑
  17.  See Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 727 (2002) (quoting McFarland v. Scott, 512 U.S. 1256, 1263 (1994) (Blackmun, J., dissenting from denial of certiorari)) (describing the law of habeas corpus as “a doctrinal jumble that had grown too ‘byzantine’ for ready comprehension or utilization”); Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 174 (2021) (noting that “federal habeas relief is afforded in only 0.29% of noncapital cases,” despite “substantial evidence that states systematically violate criminal defendants’ constitutional rights”). ↑
  18.  But see 42 U.S.C. § 1997e (placing limitations on some § 1983 suits by prisoners, including exhaustion requirement and limits on attorneys’ fees and recovery). ↑
  19.  See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 103-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). ↑
  20.  411 U.S. 475, 500 (1973). ↑
  21.  Id. at 489. ↑
  22.  Id. at 487–88. ↑
  23.  See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 87 (1988) (“Preiser . . . leaves open more questions than it answers.”). ↑
  24.  Compare id. at 117–18 (asking whether, after Preiser, prisoners may bring claims for damages based on constitutional violations that resulted in their incarceration), with Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (answering that question in the negative). ↑
  25.  141 S. Ct. 1547 (2021). ↑
  26.  142 S. Ct. 1510 (2022); see also id. at 1531 (Kagan, J., dissenting) (“That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion.”). ↑
  27.  Edwards, 141 S. Ct. at 1568 (Gorsuch, J., concurring). ↑
  28.  Id. at 1573. ↑
  29.  Habeas corpus is still invoked, though more rarely, to contest executive detention without trial. See, e.g., Boumediene v. Bush, 553 U.S. 723, 734 (2008). ↑
  30.  See Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. 505, 508 (2022). ↑
  31.  Ahdout, supra note 17, at 174. ↑
  32.  Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.‌cc/7ZES-P5L7]. ↑

  33.  See Preiser v. Rodriguez, 411 U.S. 475, 486–87 (1973). ↑

The Nullity Doctrine

The Federal Rules of Civil Procedure permit litigants to make changes to the substance of their initial pleading. Those changes raise a constitutional question when the initial pleading fails to establish a constitutionally required element of a federal court’s jurisdiction: May the court permit the change, or must it dismiss the complaint as a nullity? The federal circuit courts are split in their answers to that question, with some circuits even issuing internally inconsistent holdings under different procedural rules. But regardless of the procedural rule at issue, the answer should be the same: Article III’s jurisdictional requirements do not prohibit procedural moves from curing a jurisdictional defect. Taking that position, this Note contributes the only thorough analysis of the so-called “nullity doctrine” and its vices and, in the process, clarifies the relationship between Article III’s jurisdictional requirements and the procedural rules that effectuate them.

Introduction

Federal court litigants routinely change the substance of their initial pleading, often through amendment, supplementation, or party substitution. But otherwise routine changes raise a constitutional question when the original complaint fails to establish a constitutionally required element of the court’s jurisdiction. In those cases, courts must determine if the complaint must be dismissed without further action, or if the jurisdictional defect can be remedied. Some courts permit the jurisdictional defect to be remedied through an applicable Federal Rule of Civil Procedure. Other courts hold that the complaint is a legal nullity that must be dismissed—a position often referred to as the “nullity doctrine.”1 1.See, e.g., 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 n.61 (3d ed. Supp. 2022) (using the term “‘nullity’ doctrine”); Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370, 386 (2d Cir. 2021) (rejecting the “so-called ‘nullity doctrine’”).Show More Though at first glance the nullity doctrine has some formalistic appeal, a closer look reveals the nullity doctrine as an overly technical and mistaken application of Article III’s jurisdictional requirements—most commonly that of Article III standing.2 2.Two comments on the scope of this Note. First, though the nullity doctrine appears in both constitutional and statutory jurisdictional contexts, this Note deals only with constitutionally defective allegations of jurisdiction and uses the term “nullity doctrine” only in that context. However, this Note’s rejection of the nullity doctrine’s constitutional applications applies with equal force to statutory applications. Second, though the term “standing” has both constitutional and sub-constitutional applications, this Note will use the term exclusively in reference to Article III standing.Show More This Note is the first significant contribution to the academic literature to take that closer look.3 3.The Boston College Law Review published a brief commentary on a nullity doctrine case in 2020. Rory T. Skowron, Comment, Whether Events After the Filing of an Initial Complaint May Cure an Article III Standing Defect: The D.C. Circuit’s Approach, 61 B.C. L. Rev. E. Supp. II.-230 (2020). This Note takes a significantly more comprehensive approach to both the nullity doctrine’s manifestations under multiple federal rules and the nullity doctrine’s interaction with Article III.Show More

The reasoning in support of the nullity doctrine is straightforward. The plaintiff who filed suit failed to plead a constitutionally required element of the court’s jurisdiction. As a result, the court lacks jurisdiction. Because the court lacks jurisdiction, the court cannot entertain a motion to amend or supplement the complaint or to substitute a proper party. And because the jurisdictional defect is constitutional, the Federal Rules of Civil Procedure cannot operate to retroactively cure the defect, even though some of those rules permit pleading changes to relate back to the time the suit was filed. Accordingly, permitting amendment or supplementation of the complaint or a party substitution would amount to an expansion of the court’s subject matter jurisdiction, which on their own terms the federal rules cannot do.4 4.Fed. R. Civ. P. 82 (“These rules do not extend or limit the jurisdiction of the district courts . . . .”).Show More Thus, there is no suit at all—the complaint is a nullity that must be dismissed, and the plaintiff must refile.

Despite that syllogism’s intuitive appeal, there are powerful counterarguments.5 5.This Note does not argue that the nullity doctrine is incorrect because of its formalism, but rather that Article III does not require the nullity doctrine’s formalist approach. This Note takes no position on the utility of formalism as such.Show More The nullity doctrine operates to bar a suit that would ultimately be proper (if there is no proper suit then the dismissal is unremarkable). That renders the nullity doctrine an empty procedural formality. Further, Article III does not regulate the minutiae of federal court procedure—the federal rules do that. And there is no constitutionally prescribed moment that a lawsuit is initiated—where a federal rule permits an amendment, supplementation, or party substitution to relate back to the time of filing, Article III’s jurisdictional requirements do not bar relation back. Regardless, pleading changes do not appear to be an exercise of “judicial Power” within Article III’s meaning, and instead look more like the incidental authority federal courts use to stay executions, award costs, and vacate lower court judgments even where they lack (or are unsure of) jurisdiction. And the nullity doctrine’s principal sub-constitutional support—the judge-made time of filing rule—does not prevent jurisdictional cures to relate back to the time the suit was filed. In fact, though the Supreme Court has never directly addressed the nullity doctrine, Supreme Court dicta expressly reject it and many of the Court’s related cases weigh heavily against it.

The federal circuit courts are split on how to treat facially deficient complaints and the procedural rules that could operate to cure the deficiency, most commonly Rule 15’s amendment and supplementation provisions6 6.Fed. R. Civ. P. 15(a) (“A party may amend its pleading once as a matter of course . . . .”); Fed. R. Civ. P. 15(c) (“[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment changes the party” and other conditions obtain); Fed. R. Civ. P. 15(d) (court may permit a supplemental pleading even where the original pleading “is defective in stating a claim or defense”).Show More and Rule 17(a)(3)’s party substitution provision.7 7.Fed. R. Civ. P. 17(a)(3) (“The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to . . . be substituted into the action.”).Show More The U.S. Courts of Appeals for the Second, Sixth, and Ninth Circuits are split with respect to Rule 17(a)(3)—the Sixth and Ninth Circuits adopting the nullity doctrine and the Second Circuit rejecting it. The Seventh, Ninth, District of Columbia, and Federal Circuits are split with respect to Rule 15—the Federal Circuit adopting the nullity doctrine under Rule 15(a) and the other circuits rejecting it under several of Rule 15’s other provisions. Complicating matters, several circuit courts have issued contradictory holdings with respect to different procedural rules. Despite the Federal Circuit’s adoption of the nullity doctrine under Rule 15(a), the same court rejected the nullity doctrine under Rule 15(d). And despite the Ninth Circuit’s adoption of the nullity doctrine under Rule 17(a)(3), the Ninth Circuit rejected the nullity doctrine under Rules 15(b) and 15(d).

Those courts and panels that have rejected the nullity doctrine have the better position. The nullity doctrine’s central premise—that Article III controls what is ultimately a procedural issue—is incorrect. Article III controls the types of suits that a federal court has the power to resolve, not the methods by which those suits come before a court. We have a lengthy body of procedural rules precisely because Article III does not regulate the types of procedural intricacies implicated by the nullity doctrine.

Despite some courts’ differential treatment of the nullity doctrine under different procedural rules, the nullity doctrine’s claimed constitutional justifications would apply with equal force to any procedural rule that permits a change to a pleading. And because those constitutional justifications do not stand up to scrutiny, the nullity doctrine should be rejected across the board, regardless of the procedural rule at issue. The Supreme Court should grant certiorari in an appropriate case to clarify the relationship between Article III and the procedural rules that operate in its trial courts, and to resolve this trans- and intra-circuit split, which implicates everyday procedural moves under some of the most commonly invoked federal rules.

This Note will make that argument in several parts. Part I will describe in greater depth the circuit split and the varying procedural rules and factual scenarios at issue in the nullity doctrine cases. Part II will examine the nullity doctrine’s claimed constitutional underpinnings and will argue that the pleading changes that the nullity doctrine precludes are not exercises of “judicial Power” within Article III’s meaning. Part III will argue that the time of filing rule does not compel adoption of the nullity doctrine, and in the process will detail Supreme Court decisions that weigh against the nullity doctrine, including Supreme Court dicta expressly rejecting it. Part III will be followed by a brief conclusion.

  1.  See, e.g., 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 n.61 (3d ed. Supp. 2022) (using the term “‘nullity’ doctrine”); Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370, 386 (2d Cir. 2021) (rejecting the “so-called ‘nullity doctrine’”). ↑

  2.  Two comments on the scope of this Note. First, though the nullity doctrine appears in both constitutional and statutory jurisdictional contexts, this Note deals only with constitutionally defective allegations of jurisdiction and uses the term “nullity doctrine” only in that context. However, this Note’s rejection of the nullity doctrine’s constitutional applications applies with equal force to statutory applications. Second, though the term “standing” has both constitutional and sub-constitutional applications, this Note will use the term exclusively in reference to Article III standing. ↑

  3.  The Boston College Law Review published a brief commentary on a nullity doctrine case in 2020. Rory T. Skowron, Comment, Whether Events After the Filing of an Initial Complaint May Cure an Article III Standing Defect: The D.C. Circuit’s Approach, 61 B.C. L. Rev. E. Supp. II.-230 (2020). This Note takes a significantly more comprehensive approach to both the nullity doctrine’s manifestations under multiple federal rules and the nullity doctrine’s interaction with Article III. ↑

  4.  Fed. R. Civ. P. 82 (“These rules do not extend or limit the jurisdiction of the district courts . . . .”). ↑

  5.  This Note does not argue that the nullity doctrine is incorrect because of its formalism, but rather that Article III does not require the nullity doctrine’s formalist approach. This Note takes no position on the utility of formalism as such. ↑

  6.  Fed. R. Civ. P. 15(a) (“A party may amend its pleading once as a matter of course . . . .”); Fed. R. Civ. P. 15(c) (“[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment changes the party” and other conditions obtain); Fed. R. Civ. P. 15(d) (court may permit a supplemental pleading even where the original pleading “is defective in stating a claim or defense”). ↑

  7.  Fed. R. Civ. P. 17(a)(3) (“The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to . . . be substituted into the action.”). ↑

A Clash of Constitutional Covenants: Reconciling State Sovereign Immunity and Just Compensation

When two bedrock constitutional guarantees come in conflict, which one prevails? This Note explores the clash between state sovereign immunity and the right to just compensation in inverse condemnation actions. When a state physically invades private property without providing remuneration, plaintiffs rightly take to federal court, asserting their entitlement to just compensation. Yet, state sovereign immunity shields the state from liability—permitting a work-around of the Fifth Amendment. Recognizing this conflict, the federal circuit courts have devised a clever, albeit faulty, solution. Relying on a law review article and dicta, the circuit courts have held that state sovereign immunity can bar inverse condemnation suits in federal courts so long as the state courts theoretically remain open to adjudicate the claims. Yet, as this Note will demonstrate, such an approach is unmoored from precedent and practicability. A proper solution is called for. This Note will discuss alternate ways out of the clash and will ultimately recommend a novel approach: private officer suits with a relaxed qualified immunity bar. As real-world people continue to face permanent damage to their property at the hands of the state, while being deprived of a constitutional guarantee to just compensation, this Note seeks to solve a timely and pressing dilemma.

Introduction: The Clash

Two concepts abound in Anglo-American jurisprudence that shape the contours of sovereign power: state sovereign immunity and the right to just compensation. The first recognizes a supreme authority; the other imposes a limitation on authority. Both are deeply entrenched in the common law.1 1.Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”).Show More Yet, while other seemingly contradictory constitutional provisions leave room for “play in the joints”2 2.Locke v. Davey, 540 U.S. 712, 712 (2004).Show More between them, ensuring both principles are upheld, in many situations state sovereign immunity and the right to just compensation present a zero-sum game. Either the state must consent (or be forced to consent) to liability, or the person whose property has been taken must forego a constitutionally guaranteed remedy of just compensation.3 3.U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states).Show More

This circumstance is limited to when a taking is disputed—that is, when the state acts in such a way that deprives the plaintiff of her property or destroys her property, but that is not a formal exercise of the eminent domain power.4 4.Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006).Show More Even though the plaintiff can try to enjoin the government to stop the activity, she at least will suffer a temporary taking for which she is entitled to compensation.5 5.First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987).Show More And often, the government activity will result in permanent damage. Yet, state sovereign immunity will likely bar any action for damages in federal court, and the plaintiff will be deprived of just compensation.6 6.Berger, supranote 4, at 502.Show More She will find herself completely without a federal remedy.

An illustration will ground the point. Recently, confronting a history of heavy rainfall that impeded evacuation efforts during severe weather events, the Texas Department of Transportation installed an impenetrable concrete median in the middle of Interstate 10.7 7.Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021).Show More The barrier “effectively created a dam” by “barricading all rainfall on the northside” of the Interstate, so as to allow future travelers to use the southernmost lanes for evacuation.8 8.Id.Show More When heavy rainfall occurred again, the State’s plan was successful: a significant quantity of water accumulated against the northernmost side of the dam.9 9.Id.Show More But, then, with nowhere to drain, the water flooded and destroyed private property to the north of the Interstate.10 10.Id.Show More When the owners brought suit, acknowledging the public benefit of the dam but asserting their constitutional guarantee to just compensation, the State of Texas raised its hands, claiming sovereign immunity.11 11.Id.at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful.Show More The matter is on appeal, but, under current understandings of state sovereign immunity, whether or not the plaintiffs will be able to recover is far from clear.12 12.The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc).Show More

This Note will focus on similar plights—claims of a right to just compensation after an “inverse condemnation” by the state.13 13.SeeUnited States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain).Show More This Note limits its understanding of “inverse condemnation” to situations where private property is physically harmed or physically invaded. This Note will not focus on “regulatory takings,” where a government ordinance so diminishes the value of property that it can be called a “taking.”14 14.See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).Show More

The Supreme Court has yet to issue a holding on which age-old provision must yield in these cases: state sovereign immunity or the right to just compensation.15 15.But seeFirst Eng.Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infraSection III.A.Show More In fact, the Court has expressly ducked resolving the clash.16 16.The Court in Palazzolo v. RhodeIsland, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21.Show More In the Court’s October 2020 Term, it did hold that states surrendered their sovereign immunity in the “plan of the Convention” when the federal eminent domain power is being used against a state.17 17.PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021).Show More But the Supreme Court has not decided whether state sovereign immunity gives way in a case where a private plaintiff brings suit against a state. In addressing this conflict, the federal circuit courts have adopted a Solomonic approach. Relying on a due process analogy18 18.Reich v. Collins, 513 U.S. 106 (1994).Show More and a law review article,19 19.Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001).Show More these courts have held that state sovereign immunity bars a claim for inverse condemnation in federal court, so long as the state courts theoretically remain open to adjudicate federal takings claims.20 20.DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022).Show More Yet, for reasons outlined below, this approach is unmoored from reason, history, and Supreme Court precedent. This Note will offer potential ways out of the thicket that are superior to the current approach of the lower federal courts. In so doing, this Note makes a few novel contributions. It is the first to point out the fallibilities with the circuit courts’ approach to just compensation suits against states. It is also the first to examine a range of new potential solutions to a clash that continues to evolve. Finally, it is the first to recommend a relaxation of qualified immunity’s “clearly established” bar in order to allow inverse condemnation plaintiffs to recover from public officials.

This Note proceeds as follows. Part I will discuss the histories of state sovereign immunity and just compensation provisions. Part II will discuss the recent approach of the circuit courts in inverse condemnation suits against states and point out why this approach is in error. Part III will offer novel potential answers. Part IV will conclude.

  1.  Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”). ↑
  2.  Locke v. Davey, 540 U.S. 712, 712 (2004). ↑
  3.  U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states). ↑
  4.  Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006). ↑
  5.  First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987). ↑
  6.  Berger, supra note 4, at 502. ↑
  7.  Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021). ↑
  8.  Id. ↑
  9.  Id. ↑
  10.  Id. ↑
  11.  Id. at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful. ↑
  12.  The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  13.  See United States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain). ↑
  14.  See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). ↑
  15.  But see First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infra Section III.A. ↑
  16.  The Court in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21. ↑
  17.  PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021). ↑
  18.  Reich v. Collins, 513 U.S. 106 (1994). ↑
  19.  Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001). ↑

  20.  DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022). ↑

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