Federal Questions Resulting from Special Jurisdictional Grants.

In the Labor-Management Relations Act of 1947, Con- gress authorized federal courts to entertain suits for violation of collective bargaining agreements without respect to the amount in controversy or the citizenship of the parties.839 Although it is likely that Congress meant no more than that labor unions could be suable in law or equity, in distinction from the usual rule, the Court construed the grant of jurisdiction to be more than procedural and to empower federal courts to apply substantive federal law, divined and fashioned from the policy of national labor laws, in such suits.840 State courts are not disabled from hearing actions brought under the section,841 but they must apply federal law.842 Developments under this section illustrate the substantive importance of many jurisdictional grants and indicate how the workload of the federal courts may be increased by unexpected interpretations of such grants.843

Footnotes

839
§ 301, 61 Stat. 156 (1947), 29 U.S.C. § 185. [Back to text]
840
Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the Court had given the section a restricted reading in Association of Employees v. Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented a federal question sufficient for federal jurisdiction. Id. at 449–52, 459–61 (opinion of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse, that no jurisdiction exists under § 301 for suits to enforce personal rights of employees claiming unpaid wages, was overturned in Smith v. Evening News Ass’n, 371 U.S. 195 (1962). [Back to text]
841
Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). [Back to text]
842
Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). State law is not, however, to be totally disregarded. “State law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy . . . . Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957). [Back to text]
843
For example, when federal statutes create new duties without explicitly creating private federal remedies for their violation, the willingness of the federal courts to infer private causes will implicate the federal courts’ workload. During the mid- 20th century, the Court would imply causes of action that were not explicit in the text of a statute as a routine matter. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969) (“We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.”); Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969) (“The existence of a statutory right implies the existence of all necessary and appropriate remedies.”). In the late 1970s, the Court began to move away from such an approach, see Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (“When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights.”), and more recently has instead held that for a court to recognize a statutory cause of action, the statute itself must “displa[y] an intent to create” both a private right and a private remedy. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001). In the context of constitutional rights, the Court in 1971 recognized (in the absence of any federal statute) an implied damages remedy to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Since Bivens, the Court has recognized a similar remedy for a violation of the equal protection component of the Fifth Amendment’s Due Process Clause, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and an Eighth Amendment Cruel and Unusual Punishment Clause violation, see Carlson v. Green, 446 U.S. 14, 19 (1980). However, these three cases are anomolous and represent the “only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” See Ziglar v. Abbasi, 582 U.S. ___, No. 15–1358, slip op. at 7 (2017). Instead, in a series of cases, the Court has rejected extending the Bivens remedy to other contexts. See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (rejecting an Eighth Amendment-based Bivens claim against employees of a privately operated federal prison); Wilkie v. Robbins, 551 U.S. 537, 547–48, 562 (2007) (refusing to recognize a Bivens claim against officials of the Bureau of Land Management accused of harassment and intimidation aimed at extracting an easement across private property in violation of the Fourth and Fifth Amendments); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (refusing to extend Bivens to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons); FDIC v. Meyer, 510 U.S. 471 (1994) (declining to imply a Bivens cause of action directly against an agency of the Federal Government); Schweiker v. Chilicki, 487 U.S. 412 (1988) (refusing to infer a damages action against individual government employees alleged to have violated due process in their handling of Social Security applications); United States v. Stanley, 483 U.S. 669, 671–72, 683–84 (1987) (holding that Bivens does not extend to any claim incident to military service); Bush v. Lucas, 462 U.S. 367, 389 (1983) (declining to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment); Chappell v. Wallace, 462 U.S. 296, 298 (1983) (declining to extend Bivens to claims by military personnel against superior officers). Recognizing that “it is a significant step under separation-of-powers principles for a court to determine that it has the authority . . . to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation,” the Court in Ziglar v. Abbasi, without overturning Bivens, held that if a case is different in a meaningful way from the three previous instances in which the Court recognized a damages remedy, Bivens should not be extended to a new context if there are “special factors” counseling hesitation. See Ziglar, slip op. at 10–16. In particular, if there are reasons to think that Congress might have questioned the need for a damages remedy, courts must refrain from creating such a remedy. Id. at 10. Moreover, the Court supported its conclusion by noting that courts generally are not well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Id. at 12. In addition “federal common law” may exist in a number of areas where federal interests are involved and federal courts may take cognizance of such suits under their “arising under” jurisdiction. See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972); Int’l Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987). The Court, however, has been somewhat wary of finding “federal common law” in the absence of some congressional authorization to formulate substantive rules, see Texas Industries v. Radcliff Materials, 451 U.S. 630, 640 (1981), and Congress may always statutorily displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 at 107 (1981). [Back to text]