Pendent Jurisdiction.

Once jurisdiction has been acquired through allegation of a federal question not plainly wanting in substance,853 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.854 “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.”855 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.856 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 substantially predominated, the court would be justified in dismissing the state claim.857

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 had been independently presented.858 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.859 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.860 And a colorable constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.861

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.862 Although the Supreme Court at first tentatively found some merit in the idea,863 in Finley v. United States,864 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.865 Within the year, Congress supplied the affirmative grant, adopting not only pendent party jurisdiction but also codifying pendent jurisdiction and ancillary jurisdiction under the name of “supplemental jurisdiction.”866

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

Footnotes

853
Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. Lavine, 415 U.S. 528, 534–543 (1974). [Back to text]
854
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822–28 (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). [Back to text]
855
Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of Hurn v. Oursler, 289 U.S. 238, 245–46 (1933). 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”). [Back to text]
856
Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 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 & Hosp. 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. [Back to text]
857
United Mine Workers v. Gibbs, 383 U.S. 715, 726–27 (1966). [Back to text]
858
The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in which federal jurisdiction was founded on diversity of citizenship. [Back to text]
859
Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). [Back to text]
860
Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). [Back to text]
861
Rosado v. Wyman, 397 U.S. 397, 400–05 (1970). [Back to text]
862
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). [Back to text]
863
Aldinger v. Howard, 427 U.S. 1 (1976). [Back to text]
864
490 U.S. 545 (1989). [Back to text]
865
490 U.S. at 553, 556. [Back to text]
866
Act of Dec. 1, 1990, Pub. L. 101–650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367. In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the Court, despite the absence of language making § 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. [Back to text]