Another Removability Puzzle (Updated)

The Philadelphia DA brought a state-law civil nuisance action against Elon Musk and his PAC, alleging they were engaging in unlawful activities relating to voting and the election (it's the $ 1 million giveaway to people who vote, which the state argues is an illegal lottery). Musk and the PAC removed on two theories:

1) The case arises under under Grable/Gunn because the PAC's activities are First Amendment protected and the case is about the presidential election, which creates a federal issue and federal interest within the state claim. This seems to take a broad perspective on when a federal issue is embedded, as opposed to being a defense or presenting federal concerns. The logic of the removal argument might federalize an assault that happens at the polling place.

2) There is diversity jurisdiction because the DA is not acting as the Commonwealth but in his individual capacity, making him a citizen of Pennsylvania (and Musk and the PAC are not). This argument relies on a distinction between a DA bringing a criminal case and a DA bringing a civil case, although that distinction appears to be about control over enforcement, not about whether a DA enforcing state law ceases to act as the state.

Update: That did not take long. The state filed an emergency motion for remand, asking the court to move quickly because of the looming election. Here is the order remanding and here is a short opinion explaining that 1) the DA acts for the Commonwealth and thus the state (not a citizen) is the party and 2) there is no federal issue that must be resolved or proven for the Commonwealth to prove its claim and the federal "context" (that it surrounds or effects an election) is insufficient for Grable. Musk only sought removal under § 1441, so this order is not reviewable.

This course in a nutshell

I said on the first day of class that much of what you see in the news relates to this course. That is especially true in presidential election years.

This Fourth Circuit decision is its own Fed Courts class. The RNC sued in state court, challenging the state' failure to clear voter roles as violating federal law and the state constitution; the state officials and the DNC as intervening defendant removed. The Fourth Circuit held that the case was properly removed. The whole thing is 40 pages long, but worth a read. It features:

    • Embedded federal issues under Grable and Gunn.

    •  § 1443(2) civil rights removal and when a law provides for racial equality.

    • Organizational and associational standing, the difference between them, and the limits Hippocratic Medicine might have imposed on both. (The concurring opinion discussing standing is only 8 pages--I recommend reading it as preparation for our discussion on Monday).

For Monday

Tuesday audio. 11th Amendment papers due Monday.

• On what basis might the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

Prep Taxpayer Standing and Third-Party Standing for Monday; we will get to State Standing on Tuesday.

    • Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?

    • Consider: Congress wants to support people having crucifixes (obviously an Establishment Clause violation). It can choose 3 approaches; which are subject to challenge on a Flast theory:

            • Govt purchases crucifixes and sends one to every citizen

            • Individuals purchase and Govt reimburses at 100 %

            • Individuals purchase and Govt gives a tax credit of 100 % of price

    • Why limit third-party standing?  How does this doctrine turn on the distinction between rights and injuries?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • White homeowner challenging a racially restrictive covenant

        • Attorney challenging state law not providing free attorneys for appeals of guilty pleas.

        • Bar owner challenging a state law imposing a higher drinking age for men than women

        • Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge

        • Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a US-citizen father to pass citizenship to his child compared with a US-citizen mother. (In other words, the Man would have been a US citizen from birth had his mother been a US citizen, but was not a US citizen from birth because his father was a US citizen).

• What is First Amendment overbreadth? How can you explain it as a standing doctrine and how can you explain it as a substantive constitutional doctrine?

• What is the difference between organizational standing and associational standing? Read the portions of Hippocratic Medicine dealing with the organization's standing, as well as Justice Thomas' concurring opinion.

We will get to State Standing on Tuesday, then move to the next panel on Mootness and Ripeness.

For Tuesday

Monday audio--Part I, Part II. 11th Amendment papers due next Monday.

We continue with Considerations. It came up during break but bears emphasis: Why was there standing in

    • What are the principles, purposes, or policies underlying standing and how do they explain the doctrine? If not separation of powers, what else is going on? What is the argument that each does not, in fact, explain the doctrine? What is the best explanation? What is "adverseness" and how does it fit into the standing analysis?

    • What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?

    • What is the connection between standing and merits? See Judge Newsom's concurrence in Sierra and the discussion of Prof. Fletcher.

    • On what basis might the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

    • If standing comes from Article III, what happens in state court? Suppose the TransUnion filed suit in state court in a state with different standing requirements and the state courts adjudicated the claims? Could the losing party appeal to SCOTUS?

Prep Taxpayer Standing and Third-Party Standing (leave State Standing for next week)

    • Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?

    • Consider: Congress wants to support people having crucifixes (obviously an Establishment Clause violation). It can choose 3 approaches; which are subject to challenge on a Flast theory:

            • Govt purchases crucifixes and sends one to every citizen

            • Individuals purchase and Govt reimburses at 100 %

            • Individuals purchase and Govt gives a tax credit of 100 % of price

    • Why limit third-party standing?  How does this doctrine turn on the distinction between rights and injuries?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • White homeowner challenging a racially restrictive covenant

        • Attorney challenging state law not providing free attorneys for appeals of guilty pleas.

        • Bar owner challenging a state law imposing a higher drinking age for men than women

        • Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge

        • Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a father to pass citizenship compared with mother.

 

Ongoing standing controversy

A district court issue a TRO in response to letters from the Florida Department of Health threatening to prosecute tv stations if they ran an ad supporting Amendment 4.

We will not discuss in class, but this may offer a nice subject for a reaction paper. In particular, looking at what the state did, who the plaintiffs are, and the different theories of standing, did the court get the standing analysis right?

Federal Officer Removal

Two Eleventh Circuit decisions rejecting federal-officer removal of the Georgia prosecutions related to the 2020 election--one attempt by former assistant AG Jeffrey Clark and one by a group of fake electors. Check out Judge Rosenbaum in the latter case: "Defendants were no more presidential Electors simply because they give themselves the title than Martin Sheen was ever the President because he went by President Bartlet. See generally The West Wing (NBC television broadcast Sept. 22, 1999).

One more standing case to consider

Last term's decision in FDA v. Alliance for Hippocratic Medicine, a challenge by a group of doctors and a medical association to permit and expand use of mifepristone, one of the drugs used for medication/non-surgical abortions.

The doctors claimed the following possible injuries:

• Moral and ideological objections to the broader availability of the drug.

• Conscience objections to having to treat (including by completing a surgical abortion) patients who suffer complications or side effects of the drug. (It appears that a separate law prohibits doctors from being compelled to perform abortions contrary to conscience)

• Economic injury from having to spend more time and money treating patients suffering side effects.

The association claimed injury from having to spend money opposing mifepristone access, such as by lobbying, conducting studies, and engaging in public advocacy and education.

For Monday, be ready to discuss the doctors' standing and what makes the challenge unusual.

For Monday (Double Session)

Tuesday audio. Double session next Monday, October 28.

We will finish 11th Amendment.

Consider:

    A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:

        • Damages for pain and suffering

        • Reinstatement to his job

        • Backpay (wages he would have earned from his wrongful firing until the point of judgment)

        • Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)

Consider the following:

    New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.

    (Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).

Also, have a look at Free Speech Coalition v. Anderson, from the 10th Circuit; it illustrates the problems we discussed of identifying the "responsible executive officer" in trying to bring an EpY action. This was a challenge to a state law requiring porn sites to adopt procedures for age verification. The law adopts private enforcement as its main enforcement scheme (following in the footsteps of the Texas abortion law), identifying one form of verification (an electronic drivers' license, issued by the Department of Public Safety). Everyone agrees the AG's general enforcement power did not do it, since the statute identifies a different officer to enforce. The panel divided over the action against the Commissioner of the Department of Public Safety, mainly over the source of his power.

Move to Standing; prep Constitutional and Statutory Considerations; in addition to the cases listed, focus on TransUnion (discussed in Pfander) and SpokeO (discussed in both). Also read pp. 40-49 of Sierra.

What are the elements and types of standing? What are the supposed purposes of standing and why do they justify (or not) the doctrine? How does standing connect with the merits--and what is the argument that what we call standing is really about the merits? Consider:

    • What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech Act?"

    • Congress in 2017 amended the Affordable Care Act to zero-out the penalty for not purchasing insurance. The obligation to purchase remains in the statute, but no consequence can be imposed. Does an individual who does not want to purchase insurance have standing to challenge the validity of the must-purchase requirement?

    • What is the difference between "certainly impending" and "substantial risk" for pre-enforcement standing? When does Driehaus say a risk of enforcement is sufficiently imminent? Can you reconcile Clapper and Driehaus in terms of imminence?

    • Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies who discriminate on the basis of race), and Clapper (challenging a law authorizing warrantless surveillance)

    • What are the principles, purposes, or policies underlying standing? How do they explain the doctrine? What is the argument that each does not, in fact, explain the doctrine? What is the best explanation?

    • What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?

    • What is the connection between standing and merits? See Judge Newsom's concurrence in Sierra.

    • On what basis should the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

    • Is there standing in the following case: A, a website and graphic designer, wants to begin designing web sites for weddings. She has laid the groundwork for those plans, including mock-ups of the sites she would design, although she has never designed (or been asked to design) a site for a couple. State law prohibits discrimination in places of public accommodation because of sexual orientation. A has ideological and religious objections to same-sex marriage and would not want to tell on her web-site the story of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.

    • What about the following case: A operates a restaurant and wants to begin hosting a family drag brunch. Although she has never hosted any life performances (much less drag shows), she has laid the groundwork, including speaking with performers and a band and planning to renovate the space to accommodate a performance area. State law prohibits drag performances in front of children; a business can lose its liquor license.

For Tuesday

Monday audio. EPY/Non-Article III papers due tomorrow.

No new reading and no new panel. We should finish Eleventh Amendment tomorrow and move to Standing next Monday.

    • Why is abrogation permissible under § 5 (and the other post-Civil War amendments)? What are the limits on § 5 abrogation? Consider modern civil rights statutes, which allow abrogation and which do not and how can you explain the different results?

    • Consider whether the following ADA claims can be brought in federal court in the following cases:

        • A, an employee of a private law firm, is fired because of a disability.

        • B, an employee of the City of Coral Gables Legal Counsel, is fired because of a disability.

        • C, an employee of the Office of the Florida Attorney General, is fired because of a disability.

    • What is the connection between Ex parte Young and the Eleventh Amendment? If the lawsuit was against the Office of Attorney General Young, why didn't sovereign immunity apply?

    • In what way(s) is EPY a "legal fiction" and in what ways can we says it actually is consistent with principles of sovereign immunity? How does EPY lend new meaning to "the King can do no wrong?"

    • What two things must be true for a claim to fall within the "Ex parte Young exception" to the Eleventh Amendment?

    A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:

        • Damages for pain and suffering

        • Reinstatement to his job

        • Backpay (wages he would have earned from his wrongful firing until the point of judgment)

        • Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)

Consider the following:

    New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.

    (Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).

 

Yet More Appealability

The Fifth Circuit allowed collateral-order doctrine appeal of an order compelling Media Matters (an advocacy group) to disclose its donors and funding. (Only for purposes of a stay of the order pending appeal). While recognizing that COD ordinarily does not cover discovery orders, especially after Mohawk, the court relied on a separate line of precedent applying COD to non-final orders that arguably infringe on First Amendment rights.

This should be setting off bells to whoever has Moody Bible for arguments.

More appealability

Actress Gina Carano (formerly on the Mandalorian) sued Disney for firing her from the show in response to her political views. The district court denied a 12(b)(6) several weeks ago. Yesterday the court denied Disney's motion to certify under § 1292(b). A nice illustration of the analysis of that question, especially for what qualifies as a question of law.

Query whether Disney attempts mandamus. It is not implausible--Disney's basic argument is that it is an expressive organization and thus has its own First Amendment rights that it can protect by deciding who acts in its (inherently expressive) tv shows.

Lesson: It is not so simple as finality.

FIU Law Votes, Tuesday, October 22 (Right After Class)

 

Ex parte Young in action (Updated)

I am sure most of you have been following efforts of the Florida government to oppose Amendment 4.

The most recent controversy surround an ad titled "Caroline;"it features a pregnant woman with terminal cancer who wanted to terminate her 20+-week pregnancy to receive life-extending (but not life-saving care) and states that she could not obtain that abortion under current Florida law (but could under the law Amendment 4 would create). The state responded by sending letter to several tv stations demanding they stop running the ad; because they insist the statement that Caroline could not receive an abortion is false, they threatened  prosecution or civil enforcement for public nuisance for making false statements that could injure the public. Recent reports state that the state has hired private law firms to pursue these cases. Floridians Protecting Freedom, the initiative sponsor, filed an EpY/§ 1983 action against the state surgeon general and the lawyer who signed the letter to the tv stations, seeking a declaration that threats violate the First Amendment (and, necessarily, a declaration that the ad is constitutionally protected).

This reflects EpY in action. Rather than wait for state enforcement--and knowing that they suffer harm in the interim should any tv stations yield to the threat and pull the ads--they take the offensive and go to (federal) court first.

The case raises some interesting issues beyond EpY, namely standing (. The state directed the threats at the tv stations and the tv stations would be the targets of any enforcement action (although FPF likely could and would intervene in that suit). So this is a bit different than the typical EpY, in which the state defendant is the state plaintiff. We get to standing after 11th Amendment, perhaps as early as next Tuesday, stay keep this in mind.

You can watch the ad here.

Update: That was fast. The standing analysis begins on p.4; it will make more sense in a couple weeks. For purposes of what we already have covered, note that the order is styled a TRO and expires in 14 days and thus us not immediately reviewable. But it issued following adversarial proceedings, albeit fast and limited. It is possible that, should the state attempt to appeal, the 11th Circuit might treat it as a preliminary injunction.

Also, a PR moment: The lawyer who wrote the letter quit, loudly (contains link to a paywalled Herald article, if you have subscription)--"A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Note that this course was obvious before and while he was writing that letter. And resigning after the fact did not stop him from getting sued.

For Monday

Tuesday audio. Non-Article III Reax Papers due at the beginning of class Tuesday.

We continue with Eleventh Amendment/Sovereign Immunity.

Torres v. Texas Dept. of Public Safety is from 2022, showing how the Court has shifted in its approach to abrogation and Article I. Read at least Justice Breyer's majority opinion. Then read the remainder of the assigned pages in both treatises.

What are the competing theories of the Eleventh Amendment's meaning besides plain meaning? What is the textual argument for the diversity theory? What are the purposes of sovereign immunity--what does it hope to achieve? What does immunity protect states from and what does it not protect them from? What is abrogation and when can Congress abrogate or not? How does abrogation relate to and depart from the concept of the "plan of the Convention" before and after PennEast and Torres? What are the "structural safeguards of federalism" and how does that explain abrogation? Looking at what abrogation has been allowed for modern civil rights statutes under § 5, what logic explains the different outcomes? Can Congress subject states to suit under the Spending Clause and why, if it is a § 8 power?

For Tuesday

Monday audio. The next Panel should be ready to go.

We will finish Non-Article III Jurisdiction. What is the interaction between the 7th Amendment question and the Article III/Public Rights question? Consider the following:

    The SEC brings a civil-enforcement action for securities fraud, seeking civil monetary penalties. It chooses to proceed in an agency proceeding before an ALJ.

Valid under Article III? Valid under the 7th Amendment?

What are the drawbacks to non-Article III adjudication, how did Congress try to alleviate those problems, and does it work?

We next turn to Magistrates, with a detailed focus on § 636, and Bankruptcy Courts. For bankruptcy, look at 28 U.S.C. § 157 and 28 U.S.C. § 158, which establish the process for bankruptcy cases (somewhat similar to magistrates). As to both, what is the connection between the non-Article III adjudicator and the Article III district judge?

We  Eleventh Amendment and the next panel. For tomorrow, we will touch on the background to sovereign immunity and the Eleventh Amendment. Read the Amendment, along with Pfander pp. 249-56 and Chemerinsky pp. 445-72. What are the competing theories of the Eleventh Amendment's meaning? Where does sovereign immunity come from and what is its purpose? What does it mean to say "The king can do no wrong?" What happened in Chisholm and how did the Eleventh Amendment respond to that decision?

For Monday

Tuesday audio. District Court papers due Monday.

We continue with Declaratory Judgments. How is federal-question jurisdiction determined in these anticipatory actions? is there jurisdiction in Skelly, Medimmune, and MGM?

Then move to Non-Article III Courts, including the additional statutes on the blog. Plus, look at the 7th Amendment to the Constitution. What do we mean by "non-Article III courts?" What are the four types of non-Article III bodies? What is the public rights doctrine and how does it explain non-Article III jurisdiction? How does the 7th Amendment fit these issues? What is the argument, grounded in Marbury, for and against SCOTUS power to review the Court of Appeals for the Armed Forces? Would it be different if review was in the courts of appeals? What are the powers and responsibilities of magistrates? What is the purpose of having these as part of the court?

Eleventh Amendment panel should expect to begin on Tuesday of next week.

For Tuesday

Monday audio. District Court papers due next Monday, October 14. Make-up class at lunchtime on Monday, October 21.

How do 3-judge courts resolve objections to EpY? What is it about the cases listed in current § 2284(a) that warrant 3-judge courts? What does "when otherwise required by Act of Congress" mean in § 2284(a)? When might Congress require a 3-judge court, how, and why?

What is a declaratory judgment and how does it differ from an injunction? How does the availability of declaratory judgments address the concerns underlying EpY? Again, use the versions of § 2201 and § 2202 from the blog; the versions in the books are incomplete.

Consider possible enforcement and anticipatory/pre-enforcement actions for DJ that could arise from the following circumstances:

    • 2017 MGM mass shooting (complaint on blog): Victims have tort claims against MGM; MGM believes it is protected by a federal statute immunizing property owners from claims arising from terrorist activities. The statute provides a federal right of action against the third-party hired by the property owner to provide security services; no claim lies against the property owner. (Note that the stuff that matters for us begins on p. 46 of the complaint; the rest is party identity).

    • Nautilus Ins. Co. provides commercial liability insurance for the Fantasia Hookah Lounge; the policy has an exclusion (does not provide coverage) for assault and battery. During an exchange of gunfire between Fantasia security and an armed patron, Jorge Hernandez sustains injuries.

    • Mottley

    • Medimmune v. Genentech

    • Skelly Oil (discussed in Chemerinsky)

How is federal-question jurisdiction determined in these anticipatory actions and is there federal-question jurisdiction in the above cases?

Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

For Monday

Tuesday audio. No make-up class on Monday the 14th; it will be on Monday, October 21.

We will finish District Courts; prep Complete Preemption and International Law. Is Rodriguez removable? What is the difference between a jurisdictional grant and a right of action and how does that explain § 1350? How does the Court understand § 1350 and what problems does that interpretation create?

We then turn to EpY/Declaratory/Non-Article III and Panel V. For Monday, prep Three-Judge Courts and Declaratory Judgments. Begin with Ex parte Young, as discussed in Pfander. What happened in the case and how did it create a new way for constitutional rights to be litigated? Absent EpY, how do individuals assert individual rights? What is the "rule" of EpY and what sorts of lawsuits does it allow. What are the criticisms of this way of adjudicating rights? What are the benefits to the federal rights-holder?

Both 3-judge courts and declaratory judgments reflect ways to address objections to and criticisms of EpY--how does each do that and why?

What is the complete process for 3-judge courts in § 2284(b), Shapiro, and § 1253? Why allow those 3 classes of cases to still be heard by 3-judge courts? What does "when otherwise required by Act of Congress" mean in § 2284(a)? When might Congress require a 3-judge court, how, and why?

What is a declaratory judgment and how does it differ from an injunction? Consider the enforcement and anticipatory/pre-enforcement actions for DJ that could arise from the following circumstances:

    • 2017 MGM mass shooting (complaint on blog): Victims have tort claims against MGM; MGM believes it is protected by a federal statute immunizing property owners from claims arising from terrorist activities. The statute provides a federal right of action against the third-party hired by the property owner to provide security services; no claim lies against the property owner.

    • I insures Dr. X against malpractice; Dr. X injures A, one of his patients.

    • Mottley

    • Medimmune v. Genentech (on blog)

    • Skelly Oil (discussed in Chemerinsky)

How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?