CRS Annotated Constitution

Article III -- Table of Contents

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Pendent Jurisdiction.—Once jurisdiction has been acquired through allegation of a federal question not plainly wanting in substance,700 a federal court may decide any issue necessary to the disposition of a case, notwithstanding that other non–federal questions of fact and law may be involved therein.701 “Pendent jurisdiction,” as this form is commonly called, exists whenever the state and federal claims “derive from a common nucleus of operative fact” and are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.”702 Ordinarily, it is a rule of prudence that federal courts should not pass on federal constitutional claims if they may avoid it and should rest their conclusions upon principles of state law where possible.703 But the federal court has discretion whether to hear the pendent state claims in the proper case. Thus, the trial court should look to “considerations of judicial economy, convenience and fairness to litigants” in exercising its discretion and should avoid needless decisions of state law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim was substantially predominate, the court would be justified in dismissing the state claim.704

A variant of pendent jurisdiction, sometimes called “ancillary jurisdiction,” is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it might properly not have had jurisdiction of one of the issues if it[p.722]had been independently presented.705 Thus, in an action under a federal statute, a compulsory counterclaim not involving a federal question is properly before the court and should be decided.706 The concept has been applied to a claim otherwise cognizable only in admiralty when joined with a related claim on the law side of the federal court and in this way to give an injured seaman a right to jury trial on all of his claims when ordinarily the claim cognizable only in admiralty would be tried without a jury.707 And a colorable constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.708

Still another variant is the doctrine of “pendent parties,” under which a federal court could take jurisdiction of a state claim against one party if it were related closely enough to a federal claim against another party, even though there was no independent jurisdictional base for the state claim.709 While the Supreme Court at first tentatively found some merit in the idea,710 in Finley v. United States,711 by a 5–to–4 vote the Court firmly disapproved of the pendent party concept and cast considerable doubt on the other prongs of pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia wrote for the Court, was within the constitutional grant of judicial power, but to be operable it must be affirmatively granted by congressional enactment.712 Within the year, Congress supplied the affirmative grant, adopting not only pendent party jurisdiction but codifying as well pendent jurisdiction and ancillary jurisdiction under the name of “supplemental jurisdiction.”713

Thus, these interrelated doctrinal standards seem now well– grounded.

Protective Jurisdiction.—A conceptually difficult doctrine, which approaches the verge of a serious constitutional gap, is the concept of protective jurisdiction. Under this doctrine, it is argued that in instances in which Congress has legislative jurisdiction, it can confer federal jurisdiction, with the jurisdictional statute itself[p.723]being the “law of the United States” within the meaning of Article III, even thoug Congress has enacted no substantive rule of decision and state law is to be applied. Put forward in controversial cases,714 the doctrine has neither been rejected nor accepted by the Supreme Court. In Verlinden B. V. v. Central Bank of Nigeria,715 the Court reviewed a congressional grant of jurisdiction to federal courts to hear suits by an alien against a foreign state, jurisdiction not within the “arising under” provision of article III. Federal substantive law was not applicable, that resting either on state or international law. Refusing to consider protective jurisdiction, the Court found that the statute regulated foreign commerce by promulgating rules governing sovereign immunity from suit and was a law requiring interpretation as a federal– question matter. That the doctrine does raise constitutional doubts is perhaps grounds enough to avoid reaching it.716

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Article III -- Table of Contents

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