DOC

Federal Jurisdiction

By Jon Kelley,2014-05-31 18:36
17 views 0
Federal Jurisdiction

Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    Table of Contents

    I. Introduction ............................................................................................................................................... 1 A. Article III ?1 .......................................................................................................................................... 1 B. Article III ? 2 ......................................................................................................................................... 1 C. Supreme Court Jurisdiction Art III, ? 2 ................................................................................................ 1

    II. Congressional Control of the Jurisdiction of the Federal Courts ................................................................. 1

    A. Lower Courts ......................................................................................................................................... 1 B. Supreme Court ....................................................................................................................................... 3 III. Federal Question Jurisdiction ................................................................................................................. 4 A. Constitutional Boundaries Article III "arising under" power. ............................................................... 4

    B. Statutory Boundaries of 28 USC ? 1331 ................................................................................................. 9

    C. Declaratory Judgments ......................................................................................................................... 12 D. Statutory Jurisdictional Provisions aside from ? 1331 ........................................................................... 14

    IV. Suits Against Government Officials ..................................................................................................... 15 A. Before Monroe, how did you remedy violations of your constitutional rights? ...................................... 15

    B. ?1983 State Officials ......................................................................................................................... 15

    C. Bivens Federal Officials .................................................................................................................... 18

    V. Immunities Against Suits ......................................................................................................................... 20 A. Official Immunities = people, Sovereign Immunities equal Governmental Entities ............................... 20

    B. Official Immunities .............................................................................................................................. 20 C. Sovereign Immunities .......................................................................................................................... 22 VI. Federalism Based Limits on Jurisdiction: Judicially Based Abstentions ............................................... 25

    A. Younger Abstention ............................................................................................................................. 25 B. Pullman Abstention .............................................................................................................................. 29 C. Burford & Thibodaux Abstention ......................................................................................................... 30

    D. Colorado River Abstention parallel proceedings, blah blah blah. ....................................................... 30

    E. Exhaustion of Administrative remedies before using 1983 not generally necessary Patsy. .............. 30 VII. An Overview of Abstention Doctrines .................................................................................................. 30

    VIII. Federalism Based Limits on Jurisdiction: Statutory Based Limits ........................................................ 31

    A. Anti-Injunction Act 22 USC 2283 ....................................................................................................... 31

    B. Tax Injunction Act 28 USC 1341 ........................................................................................................ 31

    C. Johnson Act 28 USC 1342 .................................................................................................................. 31 IX. Habeas Corpus .................................................................................................................................. 31

    A. Old Habeas .......................................................................................................................................... 31 B. New Habeas now statute'd ................................................................................................................. 31

    X. Case Chart ............................................................................................................................................... 32

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    Introduction I.

    A. Article III ?1

    1. judicial power "shall be vested in one supreme court, and in such inferior Courts as the Congress may from time

    to time ordain and establish."

    a) Supreme Court established, cannot be abolished by Congress

    b) Congress controls the existence of the lower courts

    2. This is the Madisonian Compromise between those wanting extensive federal judiciary (fearing/mistrusting

    states) and those fearing a "King's" judiciary like colonial times

    a) Mandates one highest court, gives Congress control over whether to establish and how to establish

    lower federal courts

    b) Requires that state courts be able/allowed to enforce federal rights

    1) Supremacy Clause (Art IV cl 2) requires state courts to follow the Constitution and federal

    law above state laws

    2) Compromise inherently values state courts as protectors of federal rights

    c) Gives at least one federal forum in appellate review of Supreme Court (how done textually?)

    B. Article III ? 2

    1. judicial power "shall extend to all Cases"

    a) "arising under this Constitution, the Laws of the United States, and Treaties"

    b) "affecting Ambassadors, other public Ministers and Consuls"

    c) "of admiralty and maritime Jurisdiction"

    2. "to Controversies"

    a) "to which the United States shall be a party"

    b) "between two or more States"

    c) "between a State and Citizens of another State"

    1) question of sovereign immunity, Chisolm, 11th Amendment

    d) "between Citizens of different States"

    e) "between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects."

    1) No alien on alien diversity or controversy defined see Verlinden.

    C. Supreme Court Jurisdiction Art III, ? 2

    1. Original "shall have original Jurisdiction"

    a) Ambassadors, other public Ministers and Consels

    b) And those in which a State shall be a Party

    2. Appellate In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to

    law and Fact, with such Exceptions and under such regulations as the Congress shall make."

    a) Source of Congressional power to take away SCt appellate review.

    II. Congressional Control of the Jurisdiction of the Federal Courts

    A. Lower Courts

    1. Congressional power over lower courts includes ability to legislate out of jurisdiction something ostensibly

    within the ?2 constitutional grant of federal judicial power. In other words, the "shall" in Article 2 is not, has

    never been, considered mandatory. Sheldon v. Sill.

    2. Sheldon v. Sill (1850)

    a) MI bondholder assigns to NY citizen, who sues MI debtor under diversity. Judiciary Act 1789, ? 11

    prohibits such suits when assignor of a chose in action couldn't have brought suit.

    b) No jurisdiction here, ? 11 consitutional.

    c) Greater includes lesser argumentArt III, ?1 gives power to establish lower courts, surely such greater

    power includes lesser power of establishing limited jurisdiction for such a court. 3. Justice Story Argument Article III says "shall extend," that is a mandatory command. Cannot be restricted by

    Congress.

    a) Would seem to require an all or nothing situation Congress can create the courts, but must do so with

    full judicial power.

    b) Never followed. First Judiciary Act (JA), written by many of same people who wrote Art III, didn't

    give full judicial power to courts. Powerful practical argument that language never meant to require all

    or nothing.

    c) Would eliminate all specialized courts BR, patents

    d) Milder Version

     1

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    1) Can create limited jurisdiction courts,

    2) But there must be some inferior federal court that has article III power. Look at whole of

    federal judiciary every part of Article III power must exist somewhere in judiciary, but not

    necessarily all in one court.

    e) Again, never gotten any play outside academia. Madisonian Compromise seems to make this moot,

    practicality issues.

    4. Madisonian Compromise and this power.

    a) Compromise itself seems to consider possibility that no lower courts will exist to hear actions

    governing federal rights as an original matter. Only state courts - Then Supreme Court exists to review

    if necessary.

    b) Sees Congress + SCt sufficient to protect federal interests.

    c) Consider, though, ?25 of JA 1789 SCt review of federal claim only if federal claim LOSES in

    lower/state court. Possible no Supreme Court review, if federal claim successful (found

    constitutional/valid).

    1) In light of original concerns to protect federal rights against statesnot a problem.

    2) Modern world, individuals seeking vindication of rights against both federal and state claims,

    would leave individuals without recourse when federal claim wins.

    5. First of places where the clear language of the Constitution simply can't work as written, and is simply

    ignored/swept aside.

    6. Are there any limits on this power; how far does it extend?

    a) Other than not being able to expand beyond Art III, there are no explicit limits, and Madisonian

    Compromise seems to consider possibility of only having Supreme Court review and no lower courts

    with original jurisdiction, so any restriction less than total not outside the pale. Law certainly doesn't

    delineate any limits.

    1) Lauf v. EG Shinner "There can be no question of the power of Congress thus to define and

    limit the jurisdiction of the inferior courts of the United States." Power is plenary.

    2) This cannot be right.

    b) But, must be some limits Surely couldn't say, "No lawsuits by Lutherans."

    c) Internal/External Limits can't restrict jurisdiction in a way that violates other parts of the constitution.

    Bill of Rights, stuff.

    d) Extreme substantive subject matter limitations? (a la Sheldon) Taking away ability to enforce a

    specific federal right in federal court.

    1) Fits Madisonian Compromise states as protector of rights, limited by other parts of

    constitution.

    2) Certainly done and accepted in many areas. And done so because of hostility to court's

    substantive rulings.

    (A) Tax Injunction Act fed cts can't enjoin state tax collection

    (B) Johnson Act can't enjoin utility rate-setting bodies.

    3) Concerns are at the extremes, or when Congress takes away substantive jurisdiction when it

    disagrees with Court's actions.

    (A) Often proposed to take away jurisdiction for challenges to school prayers, Medicaid,

    abortion.

    (B) Essentially a selective subsidy problem in what way can Congress selectively

    empower/subsidize courts with jurisdiction over constitutional issues?

    (C) DAS at some point Congress must go "to far," when simply to burden a

    constitutional right it removes subject matter jurisdiction. Simple jurisdictional

    housekeeping, like diversity amount, clearly okay. But law is not there. e) Jurisdictional limitations on Remedies right not unenforceable, just only enforceable in certain ways

    in all courts (state and federal).

    1) Congress can clearly create specialized courts for specific subject matter areas, and can limit

    the type of relief granted, and limit the ability of federal courts to review decisions.

    (A) Norris-LaGuardia Act (Lauf) (pro-labor law) Restricted federal courts' ability to

    enjoin labor disputes or enforce yellow dog contracts.

    (1) Above statement that Congress has plenary power over jurisdiction.

    (a) Cannot be right simplest response is can't violate Bill of Rights

    under guise of jurisdiction.

    (B) Price Control Act

     2

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    (1) Created new court to hear challenges under act, granted exclusive

    jurisdiction to Act challenges. Limited court's power no injunctions or

    stays of Act. No interlocutory relief.

    (2) Lockerty federal court had no jurisdiction to hear challenge to

    enforcement of price controls under act. Congress has power to confer

    exclusive power over subject matter to specialized court.

    (3) Yakus criminal defendant prosecuted for price control violation raised

    constitutionality as defense. No jurisdiction because hadn't challenged

    violated regulation through statutorily commanded channels. Can still

    challenge the ACT itself as defense in crim prosecution, though (nice out)

    (a) Rutledge dissent Judges and courts have duties and powers to

    decide cases. Aren't we asking them to ignore part of the case, and

    isn't this something we cannot do, outside what's permissible

    somehow to send to jail someone he believes is innocent or not

    decide whole case.

    (b) Court interprets statutes to avoid Yakus problem Mendoza-Lopez:

    statute designed to limit deportation collateral challenges. Court

    says constitutional defects in prior proceedings not included in

    limitations, can attack (Congress couldn't mean to violate due

    process!).

    (4) DAS - Analogy in criminal cases certain challenges can only be raised at

    certain times. If you don't raise them, waived. No one worries about that.

    Here, though, different forums (separated challenges from prosecution

    under). Watch due process on that notice, opportunity to be heard,

    adequacy.

    2) But surely cannot "gut" the right by limiting the remedy to point where right is useless, moot,

    i.e., essence is to strip of right even with the allowed remedy.

    (A) Ex. can't use busing to desegregate schools.

    (B) Evaluated with whole of society individuals may be left remediless, fall between

    cracks, without eviscerating the right as a whole.

    (C) Court's often interpret statute to avoid gutting right Mendoza-Lopez.

    3) Specialized courts.

    (A) Clearly Allowed - patents, ct of claims, ct of int'l trade

    (B) Concern stacking the deck, getting court that is jaded by claims, higher stds,

    favorable to certain interests.

    (C) Backhanded gutting handicapping by stacking, underground limiting of relief via

    venue. If so extreme as to be rigging outcomes, problem.

    B. Supreme Court

    1. Different Question!!!

    a) Madisonian Compromise is NOT ABOUT THE SUPREME COURT. Sheldon v. Sill does not apply

    here.

    b) Source of Court's power is in the Constitution, specifically and expressly outlined. c) Can't abolish court, certainly no plenary power of Congress over creation of jurisdiction (not soooo

    clear).

    2. Source of power, Art III, ? 2 ?2

    a) "In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to

    law and Fact, with such Exceptions and under such regulations as the Congress shall make."

    b) Appears to have self-executing universal appellate authority. No need for Congress to authorize via

    statute, only need to outline "exceptions." Yet, Congress does pass statutes granting appellate

    jurisdiction for Court. What's up?

    1) Court interprets grants of jurisdiction as expressio unis. Court has always acted as if in any

    area not affirmatively outlined, Congress meant to exclude jurisdiction. Durousseau (1810)

    2) Started 1789 JA only appellate jurisdiction when federal claim lost. Interpreted to deny

    jurisdiction when federal claim won. .

    3. So what are limits of "exceptions" that Congress can make to Supreme Court's power? Can it strip Court of

    ALL appellate jurisdiction in an area?

    a) Extremes

    1) Edge 1 -Congress can do what it wants. Almost plenary in ability to exclude jurisdiction from

    SCt.

     3

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    2) Edge 2 Housekeeping power. Can limit in ways facilitating administrative functions, but

    otherwise not to be touched. (DAS likes this edge more).

    (A) Since 1789 JA, ? 25, not this way written much by founders

    (B) So unbroken history seems to deny this.

    b) Dominant View Essential Functions Thesis.

    1) Ratner/Hart's view Congress cannot use exceptions to negate "essential role of the Supreme

    Court in the Constitutional Plan" nor its "essential functions."

    (A) Appropriately ambiguous middle ground resolves tension of reality and theory.

    2) In 80's Reagan's conservative administration (Atty Gen French, written by Ted Olsen) decided

    laws limiting substantive jurisdiction would be unconstitutional for this reason during time

    when it would have been possible for Republicans to possibly go to extreme one in rolling

    back liberal precedents. Gives it aura of "truth" to have been adopted by group most able to

    violate it.

    c) Structural View

    1) Cannot divest Court of so much power that it serves nominal function

    2) Result would undo the Madisonian compromise

    4. McCardle (356)

    a) Court allows Congressional statute to divest it of jurisdiction of pending habeas appeal from lower

    court concerning military courts in Reconstruction south statute passed specifically to keep Court

    from fucking with Reconstruction.

    b) Appears alarming, but opinion famously weasels out of its own holding by reading statute narrowly so

    as to not prohibit other types of original habeas writs. A path then taken a year later in Yerger (whose

    charges were dismissed when the Court upheld jurisdiction to avoid the feared decision on military

    courts part of the DMZ dance in this area).

    5. Court has repeated this method recently in Felker v Turpin.

    a) 1996 Antiterrorism and Effective Death Penalty Bill prohibited state prisoners from bringing

    successive habeas petitions unless the denying Court of Appeals approves appeal.

    b) Idea eliminate SCt review of any decision denying or approving habeas by Ct of Appeals.

    Streamline the killing machine.

    c) Court said not a problem, can still hear original habeas petitions.

    1) Practical matter, Court hasn't granted original habeas since 1925.

    6. Result? A deliberate demilitarized zone between extremes where Congress doesn't push it for fear of getting

    spanked and Court contorts itself to avoid invalidating any "exceptions" to avoid constitutional crisis.

    a) People like this DMZ because the uncertainty as to the exact location of the line makes it a dicey

    proposition to get too close to it.

    b) Keeps everybody separated, like kids in the backseat of the minivan.

    III. Federal Question Jurisdiction

    A. Constitutional Boundaries Article III "arising under" power.

    1. What is at stake?

    a) Supremacy and Uniformity Making sure federal issues can (if Congress so deems) get before the

    federal courts in some capacity, either as original matter or appellate review of Supreme Court. Want

    federal court to have the last say on federal issues.

    1) Subtext to this is hostility of state courts to federal issues. Clear in the BUS context of

    Osborn.

    2) Protective Jurisdiction concept below meshes here.

    b) The "all other Cases before mentioned, the supreme Court shall have appellate jurisdiction" language

    of Art III, ? 2, ?2 is a textual hook and barrier to this

    1) If, as a ? 2 ?1 matter, a given case doesn't "arise under" Constitution, then it cannot be

    reviewed as an appellate matter by Supreme Court.

    2) So a narrow interpretation of arising under risks excluding actual constitutional issues from

    the constitutional purview of the Supreme Court.

    3) Marshall acutely aware of this in Osborn. perhaps too much so.

    2. Osborn v. Bank of the US (883)

    a) Really about two cases

    1) Osborn state tax on Nat'l bank

     4

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    2) Planter's Bank K action versus state bank by Nat'l Bank. Here is tough one. How to get

    garden-variety K action into arising under jurisdiction.

    b) Facts

    1) Ohio state law penalizing BUS from operating in state. State officials stormed bank and took

    100K in penalties for operating. BUS challenged action in federal court, got order to return $ 2) State challenges federal court's power to hear case.

    c) Practical Housekeeping Threshold stuff

    1) Can court split only hear federal issues and leave state issues to state courts? Marshall say

    "no way."

    2) Practical reason to burdensome to litigate on two fronts

    3) Formal Reason Article III extends to "all cases" not all issues, therefore court can decide all

    issues in a case, even if some are state issues.

    d) Levels of Analysis applies to all stuff in this area (Section III A & B)

    1) Does a Congressional statute authorize jurisdiction? (III B)

    (A) Significant for 1331 analysis belowin such cases if it falls within narrower statute,

    it meets the arising under test by definition

    (B) In this section, not so significant because we are dealing with express statutory

    authorization of questionable constitutional grounds.

    2) Is such a statute allowed by the Constitution. (III A)

    (A) That is this section.

    e) Statute done deal

    1) Charter for bank says "sue or be sued" in US Circuit Courts. Court finds this clear

    authorization

    2) Not only reading can simply be noting power as legal person, without necessarily giving

    blanket federal jurisdiction.

    f) Constitutional Power?

    1) Yes. Whenever there is a potential federal question present, the case meets the minimum of

    "arising under" jurisdiction.

    2) Incredibly broad reading, vulnerable to the "nightmare scenario" of making all actions federal

     swallowing the state judiciary.

    (A) Is there any case where you cannot imagine a possible federal issue? No

    (B) So can Article III possibly be meant to allow Congress to legislate all state actions

    into federal court? No.

    (C) But this reading of Osborn allows it on its face.

    3) Marshall tacking against what he sees as only alternative, allowing arising under for clearly

    present federal issue in complaint (not confused with well-pleaded complaint, which is

    statutory).

    (A) Such a construction would in essence make constitutionally prohibited the hearing of

    a case where a federal issue arises as a defense, or as a counter-response to a defense.

    (B) And, by extension, no Supreme Court review of the state court decision on such a

    case. Fear of not having last word on federal matter.

     statutorily, 3)(A) is the case. But Marshall didn't want to necessarily exclude (C) Note

    such a thing as a constitutional matter.

    4) What about REMOVAL/APPEAL?

    (A) Marshall viewed appellate and original federal jurisdiction as coextensive. Where no

    original jurisdiction, no appellate.

    (B) Once you disaggregate, allow possibility that changing circumstances (like post-

    complaint raising of federal issue) can invoke arising under powers for removal, or

    that Supreme Court looks at possible appellate review at END of case not at ORIGIN

    (if federal issue arises, even if no original jurisdication, SC can exercise appellate

    jurisdiction)

    (1) Strauss likes

    (2) Verlinden suggests?

    (C) Maybe a deliberate thing by Marshall

    (1) Highly hostile state forum, BUS keep getting dragged into court

    (2) State machinations to keep all federal issues out, allow hostile forum to fuck

    with justice. Screw bank procedurally without implicating federal law.

    (3) Possibilities endless. Marshall wanted to avoid this

     5

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    (4) Again, protective jurisdiction theme.

    3. Protective Jurisdiction

    a) To what extent can Congress grant jurisdiction for fear of a hostile forum? Protective jurisdiction says that federal institutions are, themselves, a federal issue, and we want a federal court to have the last word on cases involving these institutions because we don't trust that state courts will be fair to these institutions by virtue of their federal-ness.

    1) Has nothing to do with a federal issue Planter's Bank pure K but rather Congress creating

    federal jurisdiction (like Osborn dissent noted ) to protect the federal institution. Federal

    substantive law says "All K's must be written on special paper X." Any state law K action

    could theoretically involve a question of this law, and can be brought, therefore, in federal

    court.

    2) Smells counter to Madisonian Compromise state courts presumed okay for deciding federal

    issues. But are federal institutions and their relationship to the state the same as federal rights? 3) Greater includes lesser argument might support Congress can regulate federal institutions

    with federal law, so why make them go the whole way. Simply let them give jurisdiction to

    federal courts, and incorporate state law by reference they do it in other areas.

    4) Bankruptcy Courts and Osborn itself hard to understand without some elements of protective

    jurisdiction

    5) Frankfurter counter from Lincoln Mills Diversity jurisdiction is Constitution's answer to PJ

    concerns. Only there do we have PJ. All else excluded expressio unis.

    b) Federal Officer Removal Statute - 28 USC ? 1442 (p 905).

    1) Any civil action commenced in a State court against [a federal officer] may be removed by

    them to the district court for that area where action pending.

    2) Nothing in language concerns the existence of an actual federal issue

    (A) Under Osborn, could be motivated by mere possibility of federal issue

    (B) Or it's a protective thing, wanting federal courts to govern actions involving a federal

    instrumentality.

    (C) Likely not an issue as some federal immunity likely to be raised.

    3) Hypo

    (A) Ruby Ridge FBI sniper kills survivalist's wife

    (B) State brings state law complaint of manslaughter. No federal issue in complaint.

    Likely an immunity defense going to be raised.

    (C) Should this be removable?

    4) Mesa v. California

    (A) Post Office workers facing state criminal charges for traffic violations. Try to

    remove even though there was no colorable federal issue raised as complaint or

    defense.

    (B) Court rejects!!

    (C) Interprets Statute as requiring a federal defense to ACTUALLY be raised in order to

    remove. Avoids imbuing statute with true protective jurisdiction.

    (D) DAS concern that purely protective jurisdiction not squarely within Article III.

    c) Bankruptcy (pp901-902)

    1) Mechanics under federal statute

    (A) Trustee appointed, collects assets, distributes to USC's. Assets include claims

    against others for $$ -- K actions, torts, AR's

    (B) Trustee must go after on claims to collect $$, often run of the mill state claims.

    (C) Law allows these claims to be brought in federal court BR court.

    (D) Therefore, trustee is bringing state law claims, without diversity (often), in a federal

    court. How is this okay?

    2) Justification

    (A) Osborn: always possible the legitimacy of the trustee will be challenged. Possibility

    of federal issue = arising under. W/o original jurisdiction, possibility of no federal

    review of federal issue.

    (1) DAS once you separate original and appellate, this concern drops out b/c

    SCt will get last word when it wants to.

    (B) PJ state courts, local creditors, federal agent in trustee, possibly outsider = hostile

    forum.

    (1) Nightmare scenario, swallows Madisonian Compromise.

     6

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    (2) Diversity argument.

    (C) Article 1 - Greater includes lesser: Court has power to regulate BR, and could make

    law on all these issues, so why can't it just offer up jurisdiction over all aspects of it

    and incorporate state law…?

    (D) Interest in orderly system of BR

    (1) Nightmare scenario.

    (E) Supplemental Jurisdiction inevitably a mix of federal and state issues across a

    variety of cases. To do other than is done would burden trustee to fight across two

    forums. Same principles that allow SJ to coopt state issues should (on more meta

    level) allow trustee to coopt state cases into federal court as part of a larger, Estate

    level SJ.

    (1) DAS thinks Court sees BR this way, but not entirely sure about it's working.

    d) Lincoln Mills (891)

    1) Union suit to compel arbitration under collective bargaining agreement invoking ?301 of Taft

    Hartley, which gives jurisdiction over suits for violation of labor contracts (collective

    bargaining agreements).

    2) Majority concluded ?301 authorized a use of federal common law as substantive law for

    implementing this statute - avoids arising under confusion, PJ issue.

    (A) Not ridiculous admiralty does this. Likely results in considerable state law

    incorporation

    (B) But the Court is basically implying a Congressional command for the Court to make

    up the law.

    (C) Similary to FTCA, other situations where Congress is incorporating state law by

    reference DAS says "sensible"

    3) Concurrence says no federal substantive law, but protective jurisdiction

    4) Dissent Frankenfurter: 301 doesn't authorize federal common law, without federal common

    law, no jurisdiction. Doesn't buy PJ argument.

    e) Where Are We Left?

    1) Court has declined to accept PJ, but has not expressly rejected it.

    (A) Lincoln Mills.

    2) Some Cases are hard to explain without SOME hint of it.

    (A) Osborn, BR

    3) Problems

    (A) Nightmare Scenario

    (B) Expressio Unis that Diversity represents extent of PJ allowed by Constitution

    (C) Swallows Madisonian Compromise.

    4) Justifications, Defenses, Limiting Principles.

    (A) Greater Includes the Lesser in many areas Congress would have Article 1 power to

    comprehensively legislate an area under Commerce Clause, so what is wrong with

    allowing them to grant jurisdiction, and incorporate state law.

    (1) Still a nightmare scenario Commerce Clause even more amuck.

    (B) Limit to certain areas of Congressional Power

    (1) Areas where there is extensive federal regulation, or a strong national

    interest (foreign relations), areas of specific grants of Article 1 power (not

    just blanket commerce clause).

    (2) Hinted at in Mishkin's article, Frankfurter's dissent in Lincoln Mills.

    4. Verlinden (903-904) Foreign Sovereign's Immunities Act 28 USC ? 1330

    a) 1330(a) gives court jurisdiction over any civil action against a foreign state where the state is not immune as defined under another section of the act, codified elsewhere.

    1) This particular suit is alien on alien, and unless it "arises under" this law it is beyond the

    purview of all other sections of constitution.

    2) No statutory problem statute clearly authorizes the suits.

    b) Clear Protective Jurisdiction argument (hostile state forum to foreign states, federal foreign policy interests wants federal court to have final word on this).

    1) Court rejects this.

    c) Court cites Osborn as controlling, but doesn't go to the edge.

    1) Osborn's "broad conception" of arising under folds this within.

     7

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    2) However, need not allow this because of "possibility" of federal Q, because a federal issue

    "necessarily arises" as the threshold question to suit is an examination of substantive

    immunity provisions to determine if suit can be maintained.

    3) BOOTSTRAPPING!!!

    (A) There must be limits to this. All cases require a threshold determination of subject

    matter jurisdiction. Leads to nightmare scenario

    (B) Plus, still back at circular argument that Congress can simply create jurisdiction by

    passing statute saying there is jurisdiction.

    (C) There must be more. . . .

    d) New Test a modified Osborn substantive federal issue necessarily/highly probably will be

    raised - Probability and Substantiveness.

    1) Verlinden to be read not as bootstrapping, nightmare scenario. The necessary question of

    foreign immunity is a substantive question of law based on statutory provisions passed by

    Congress

    (A) Distinguishes it from a purely circular, naked grant of jurisdiction (all medmal suits

    can be brought in federal court).

    2) This substantive question necessarily will be decided at the outset.

    3) What probability must exist? Certainty? Likely not so rigorous, but close.

    5. What kinds of questions/areas satisfy the Verlinden/Osborn test?

    a) Immunity Verlinden

    b) Interpleader Diplomatic Relations Act (906) exclusive jurisdiction over insurers of diplomats in

    cases involving diplomats injuring others (intended for auto accidents).

    c) Scope of Federal Employment - FTCA Lamagno

    d) Federal Defenses Federal Officer Removal Statute Mesa.

    e) Federal Common Law Lincoln Mills.

    f) Federally Chartered Organizations ("sue or be sued") Osborn, Red Cross.

    6. Other Cases in same vein

    a) Lamagno (905 FN4) threshold question of whether federal employee acting within scope of

    employment for attaching vicarious liability to Fed Gov a significant substantive question of federal

    law under act defining scope for FTCA. Get into federal court as arising under. Cites Verlinden.

    1) Interesting dilemma. If threshold answer is NO not scope of employment, then it remains a

    purely private action (Gov't not substituted for D under FTCA) on state law tort issues, but in

    federal court.

    b) Red Cross (898) Charter, like Osborn, a federal statute noting "sue or be sued" in "federal courts."

    Court says that sufficient statutory grant of federal power. Then goes to Art III questions afterwards….

    7. Final Thoughts

    a) Verlinden/Osborn = highly probable question of substantive federal law will be raised. b) Protective Jurisdiction present in background but not approved.

    c) Disaggregating original and appellate jurisdiction, expanding removal interp, eliminates the Osborn

    motivator of wanting federal last word on federal issues.

    d) The opposite concern of the nightmare scenario is theoretically limited by requiring probability and

    substantiveness, but the lack of clear definition on those makes it's presence ever dangerous. e) The Article 1 justification maybe not so convincing if we think Court treats Art III with more

    scrutiny/ownership than Article 1Commerce Clause, etc. are Congress's domain and Court stays

    hands off, but isn't going to read same limits into its treatment of Art III questions. Cheap fed reg

    without political price, as well

     8

    Class: Federal Jurisdiction Professor: Strauss

    Book: Hart & Wechsler's The Federal Courts And The Federal System (4th Ed) Term: Winter 2002

    Article III ―Arising Under‖ Jurisdictional Problems

    BEGIN, analysis requires: Art III jurisdiction is 1) ok. Lincoln Mills ; no other constitutional (no Marcos (CA2). head of jurisdcition diversity) YES

    2) no federal question on Does this case arise under face of well-pleaded (? 301 of federal common law complaint (otherwise there Taft-Hartley Act; antitrust is ? 1331 jurisdiction and laws; FCLFR)? necessarily Art III NO jurisdiction) Does the statute 3) party seeks federal court require application of jurisdiction under statute federal substantive that law beyond its is not ? 1331 mere jurisdictional ? requirements No Art III jurisdiction, NO YES jurisdictional boot-strapping is not allowed. Has there been Art III jurisdiction NO substantial is ok. Verlinden . adjudication of whether Art III jurisdiction is available is AND this inquiry related YES of the to the merits suit? Possibly federal jurisdiction under Lamagno .

     To this add is there a federally chartered institution involved (Red Cross);

B. Statutory Boundaries of 28 USC ? 1331

    1. 28 USC 1331 : The district courts shall have original jurisdiction of all civil actions arising under the

    Constitution, laws, or treaties of the United States.

    a) Tracks Article III language, but has never been treated the same. Interpreted more narrowly, under

    Mottley.

    1) SECOND example where Court says language "just won't work"

    2) Statutory way to balance Marshall's fear with the nightmare scenarionarrowing the practical

    application of "arising under" without taking away Supreme Court appellate review.

    b) This general federal Q statutory jurisdiction not given until 1875

    1) Why do we need statute for this? Isn't it in Const.

    2) Durousseau Court treats affirmative grants as expressio unis excluding all other jurisdictions.

    Without grant, no jursidction

    c) Amount in controversy limitation removed in 1980.

    2. Mottley (907)

    a) Well Pleaded complaint rule. Court found no jurisdiction for case suing on breach of contract where it

    was admitted that RR had breached K because of federal statute requiring RR not to honor K for free

    lifetime passes, and that to win the P would have to overcome this statute by showing it was

    unconstitutional.

    1) A federal question must appear on the face of a well-pleaded complaint to invoke federal

    jurisdiction. The existence of a likely or actual subsequent federal issue (defense, or response

    to defense) is insufficient to get into federal court.

    (A) Statements of necessary parts of a cause of action, includes elements based on

    federal law, Constitution

    (B) Places a burden on the state rules of pleading. In some states, certain states would

    require a P to allege the absence of certain defenses like Contributory Negligence.

    Can game the system a bit.

    2) The existence of a federal defense, or, in this case, a federal response to a defense is

    insufficient.

     9

Report this document

For any questions or suggestions please email
cust-service@docsford.com