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CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

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


Footnotes

700 Levering & Garringues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. Lavine, 415 U.S. 528, 534–543 (1974).
701 Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738, 822–828 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
702 Id., 725. This test replaced a difficult–to–apply test of Hurn v. Oursler, 289 U.S. 238, 245–246 (1933).

Supplement: [P. 721, add to n.702:]

See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ; Peacock v. Thomas, 516 U.S. 349 (1996) (both cases using the new vernacular of “ancillary jurisdiction”).

703 Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R. Co., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546–550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court held in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), held that when a pendent claim of state law involves a claim that is against a State for purposes of the Eleventh Amendment federal courts may not adjudicate it.
704 United Mine Workers v. Gibbs, 383 U.S. 715, 726–727 (1966).
705 The initial decision was Freeman v. Howe, 24 How. (65 U.S.) 450 (1861), in which federal jurisdiction was founded on diversity of citizenship.
706 Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).
707 Romero v. International Terminal Operating Co., 358 U.S. 354, 380–381 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963).
708 Rosado v. Wyman, 397 U.S. 397, 400–405 (1970).
709 Judge Friendly originated the concept in Astor–Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971); Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971).
710 Aldinger v. Howard, 427 U.S. 1 (1976).
711 490 U.S. 545 (1989).
712 Id., 553, 556.
713 Act of Dec. 1, 1990, P. L. 101–650, 104 Stat. 5089 , Sec. 310, 28 U.S.C. Sec. 1367 .

Supplement: [P. 722, add to n.713:]

In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998) , the Court, despite the absence of language making Sec. 1367 applicable, held that the statute gave district courts jurisdiction over state–law claims in cases originating in state court and then removed to federal court.

714 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); Tetile Workers v. Lincoln Mills, 353 U.S. 448 (1957); and see the bankruptcy cases, Schumacher v. Beeler, 293 U.S. 367 (1934); Williams v. Austrian, 331 U.S. 642 (1947).
715 461 U.S. 480 (1983).
716 E.g., Mesa v. California, 489 U.S. 121, 136–137 (1989) (would “present grave constitutional problems).
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