Federal Courts Exam No. _______

Professor Brant Spring 2000

GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer sheet.

1. This examination is "open universe." You may use any supplemental materials you wish. There are, however, two caveats:

2. If you quote directly from any supplemental source, you must cite your source.

3. You may not discuss this examination with any other person, either while you are taking it or after you have handed it in. This prohibition will remain in effect until the end of the examination period, i.e. May 12, 2000.

4. Three hours will be allotted for the examination. No blue books will be passed out for the first 1/2 hour. This time should be spent reading the question and outlining your response on the scratch paper provided. You may begin writing in your blue books as soon as you receive them.

5. In answering the essay questions, you should rely upon case law from the class materials and our class discussions.

6. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.

Mitch Feinstein, a 62 year-old Professor at Largest State University,("LSU") has been Chairman of the Physics Department for ten years, and Director of the Plasma Institute for nearly six years. He has been legally blind for three years, but teaches his classes and grades his finals with the help of readers and a variety of cutting edge enabling devices. Recently, Feinstein has been having regular arguments with Annie McElroy, Vice-President of Financial Affairs at LSU, over a variety of "overhead charges" that the University has allocated to the Plasma Institute. In Feinstein's view, these charges have been inflated to such a degree as to amount to fraud on the federal government, which funds the Plasma Institute. McElroy argues that the overhead charges are "fair and reasonable."

McElroy decides to remove Feinstein as Director of the Plasma Institute, and replace him with Sandy Greenhorn, a 33-year old Ph.D. in Physics with no administrative experience who was four years out of his Ph.D. program. In a press release announcing the appointment, McElroy praised Greenhorn as "an energetic, enterprising individual who will increase federal financial support for the Plasma Institute." Feinstein retained his position as a tenured faculty member and as Chair of the Physics Department; however his salary was reduced by $20,000 due to the reduction in his responsibilities.

Feinstein exhausted his remedies under the internal appeal procedures of LSU, and then filed a timely suit in state court against LSU and McElroy. He alleged violations of the federal Age Discrimination in Employment Act, 29 U.S.C.§ 621, et seq, ("ADEA"), the Americans with Disabilities Act, 42 U.S.C.§§ 12101-13,("ADA"), and a breach of contract claim. He also alleged violations of 42 U.S.C. § 1983 based on discrimination, equal protection and interference with his right to free speech.

Six months later, Feinstein filed a timely qui tam claim in federal district court under the Federal False Claims Act, 31 U.S.C.§ 3729 et seq, alleging that LSU had been defrauding the United States Government through the allocation of inappropriate "overhead charges" to the Plasma Institute. (A qui tam suit is expressly authorized by the False Claims Act. It resembles a "whistleblower" action, in that someone with inside information of fraud upon the federal government may sue the party responsible for the fraud and recover a "bounty" in the form of a portion of the sums fraudulently taken from the government.) Feinstein satisfied all the statutory prerequisites for a qui tam suit against LSU.

LSU filed a motion in federal court asking the court to abstain from deciding the False Claims Act suit, until the state court resolved the basis for Feinstein's removal as Director of the Plasma Institute. Feinstein then filed a motion to amend his federal complaint to add his federal ADEA and ADA claims and his state claim, based on 28 U.S.C.§ 1367. Feinstein did not, however, ask the state court to dismiss his suit.

The federal district court granted Feinstein's motion to amend his complaint, and took LSU's abstention motion under advisement. LSU then moved the federal court to dismiss all of Feinstein's claims based on the 11th amendment. LSU also argued that the qui tam statute violated the separation of powers doctrine because Feinstein had not suffered an Article III injury in fact. Feinstein argued that the 11th amendment barred none of his claims, that he had standing to bring the qui tam suit, and that even if the False Claims Act violates separation of powers, an action in federal court is still permissible under Ex parte Young.

While the federal court was considering these motions, a state court jury found in favor of Feinstein on both his federal discrimination claims, as well as his breach of contract claim. The jury awarded him $250,000 in damages, and ordered him reinstated as Director of the Plasma Institute. LSU immediately filed a motion in federal court, asking the federal court to stay enforcement of the state court judgment until after federal proceedings were concluded.

Discuss and resolve all federal courts issues. The attached statutory provisions may be useful.

Age Discrimination in Employment Act

29 USC 630(b), (§11 of the ADEA) provides: "The term 'employer' means. . . a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State. . . ." §15(c) of the ADEA provides: "Any person aggrieved my bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act."

Americans with Disabilities Act

§502 of the ADA provides: "A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State."