Constitutional Dimension: The Scope of Congressional Authority to Confer Jurisdiction

Question 1

National Mutual Insurance Co. v. Tidewater Transfer Co. - Facts

Answer 1

• 1949
• Involved constitutionality of provision allowing for diversity jurisdiction between citizen of a state + one of D.C.
• Both District Court + Circuit Court concluded unconstitutional b/c Article III says suits “between citizens of different States” + didn’t think DC qualified as a state for this clause

Question 2

Tidewater Transfer - Significance

Answer 2

• challenged the general background notion that Article III acts as a ceiling on federal court jurisdiction (Congress can’t give fed courts more jurisdiction than is authorized by Article III)
• note that Prof said this is still the general rule - you can’t put things in fed cts that aren’t in Article III (but Tidewater has never been overruled, so technically still on the books)

Question 3

Tidewater - Overview of Decision

Answer 3

There CAN be jurisdiction in fed cts, but opinion is fractured:

• Jackson (Black and Burton): Art I power over DC lets Congress give access to fed courts
• Rutledge and Murphy (concurrence) - DC = state for Art III
• Dissent: DC citizens can’t get into fed ct

Question 4

Tidewater - Jackson

Answer 4

• main opinion
• thought DC WASN’T a state for Article III
  ->based this thinking on an 1804 case (Hepburn & Dundas v. Ellzey) in which SCOTUS had held not a state for purposes of the First Judiciary Act -> concluded Congress couldn’t give the courts diversity jurisdiction over DC-state suits deriving from Article III powers
• BUT said dec on Art. III didn’t determine that Congress lacked power to grant such jurisdiction under other provisions of the Constitution -> pointed to Art I (broad Congressional constitutional power to legislate for DC + also Necessary and Proper Clause)
• acknowledged limits to nature of duties Congress can impose on Article III courts, but also emphasized limited nature of the diversity provision at issue (limited to justiciable controversies, vs. some kind of attempt to have courts do something legislative or administrative; not an instance of Congress trying to usurp judicial power)

Question 5

Tidewater - Rutledge and Murphy

Answer 5

• concurrence
• disagreed Congress could give fed cts juris not provided for in Article III
• notwithstanding Hepburn, DC could be considered a state for Art. III purposes – not foreclosed by text of clause or its history, + supported by pragmatic + equitable considerations

Question 6

Prof’s View on Tidewater

Answer 6

• emphasized weirdness that Jackson theory wholly rejected by 6 justices but winds up being the deciding one
• says if it came up today, she thinks Murphy/Rutledge op would be adopted

Question 7

Article III vs. Fed Q Statute

Answer 7

• have nearly identical text, but well-settled that they have different meanings
  ->under Art III, Congress has broad power to use fed district cts to decide disputes involving fed policy
  -> stat language construed more narrowly - requires q of fed law appear on face of “well-pleaded complaint” (Prof is not fond of the rigid rules that keep things out)

Question 8

Osborn v. Bank of the United States - Facts

Answer 8

• 1824
• Bank of the U.S. couldn’t be tax – somebody in Ohio broke into the office + stole $120,000 to give to state treasury -> fed court ordered the $ returned, but defs argued no jurisdiction
• No general fed q statute at the time + no diversity jurisdiction between the parties
• Bank relied on a statute providing bank was “able and capable” to “sue + be sued” etc. “in all state courts having competent jurisdiction, and in any circuit court of the United States” -> SCOTUS wound up ruling this statute established jurisdiction in circuit courts over any suit involving Bank of US

Question 9

Osborn - Reasoning

Answer 9

• ORIGINAL INGREDIENT THEORY
• Rejected arg that case can’t be heard in fed court if it presents questions “which depend upon the general principles of the law, not on any act of Congress” -> argued cases can depend on several q’s of fact and law-> when a fed question “forms an ingredient of the original cause”, fed courts can be granted power to hear it even if there are other q’s involved
• addressed dissent’s argument that under his reading, every naturalized citizen would have right to sue -> said the relevant act only makes you a naturalized citizen, unlike the one at issue w/ the bank, it doesn’t set up citizen’s capacities or regulate them
• also argued of co-extensive branches of gov – exec can constitutionally execute any laws Congress passes, + judiciary can constitutionally receive power to construe any such laws -> “[Article III] enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it.”

Question 10

Osborn -Application of Original Ingredient Theory to Case

Answer 10

• bank’s capacity to sue was well-settled + not disputed, but still counted as an “original ingredient” (plaintiff’s right to sue necessarily presented a fed question, whether or not def chose to contest the issue)

Question 11

Osborn - Johnson

Answer 11

• dissent
• argued fed courts shouldn’t assume jurisdiction “on a mere hypothesis” + claimed cases don’t arise under fed law until such question “actually arise[s]”

Question 12

Field - Original Ingredient

Answer 12

• when a federal question forms an ingredient of the original cause, then it’s alright for Congress to place federal jurisdiction in the federal courts
• any issue that could’ve been raised is an original ingredient
• unusual thing about this test is it could be way in the background -> even if know issues aren’t gonna come up, can have juris. even if there are fed issues in the remote background of the case (original ingredient of the cause, if Congress decides it wants these things litigated in fed court it can have them in fed court)

Question 13

Prof’s View on Johnson Dissent

Answer 13

• Prof says reads Marshall’s opinion totally differently (totally wrong in her opinion)
• Original ingredient is necessary in Prof’s opinion, vs. Johnson frames it as any time a federal question can possibly arise
• Marshall is saying there IS a federal question in the case and it needs to be in there – may be very likely it’s not going to be litigated + no one will raise an issue about it, but it needs to be there for there to be an original ingredient
• Prof says it’s true original ingredient is very broad, but not everywhere
• She disagrees with Johnson’s framing of it as “possibly will arise”

Question 14

Original Ingredient - Pls vs Defs

Answer 14

Prof seemed to indicate it doesn’t mean only pl can get fed q juris - needs to be original ingredient in EITHER pl or def’s case

Question 15

Protective Jurisdiction Theory

Answer 15

• Congress can give fed courts jurisdiction over state law claims asserted by non-diverse plaintiffs who need the “protection” of the federal forum
• could be b/c neutrality of state courts suspect, or b/c of procedural advantages in fed court
• Congress always has power to confer fed court jurisdiction where it has created a federal claim, but the debated issue is whether it can exercise power of letting a state claim be brought in fed court where it technically has the power to create a fed claim but hasn’t done so

Question 16

Protective Juris vs. Original Ing

Answer 16

• prof says different because protective doesn’t go all the way into the background of the case

Question 17

Textile Workers Union v. Lincoln Mills - Facts

Answer 17

• 1957
• Section 301 of Labor Management Relations Act says can bring suits for violation of contracts between employer + labor org in district court w/o respect to $ in controversy or regard to citizenship of parties, + also labor orgs can sue or be sued in district court of US
• Textile Workers Union -> collective bargaining agreement w/ Lincoln Mills w/ no-strike clause + compulsory arbitration in grievance clause -> employer refused to submit union grievances to arbitration + labor org sued

Question 18

Lincoln Mills - Majority

Answer 18

• Douglas
• held 301(a) authorized fed courts to develop body of common law to enforce labor contracts
• specific enhancement of arbitration agreements was part of the federal common law that the courts were meant to enforce

Question 19

Lincoln Mills - Frankfurter Dissent

Answer 19

-Thought stat shouldn’t be interpreted as directing fed cts to fashion body of fed common law + suggested cts might lack such power even if Congress so instructed
-Then addressed q of whether Congress could confer jurisdiction on fed district courts to hear non-diversity suits turning on questions of state law

-Rejects theory of “protective jurisdiction” – he says this would vastly expand fed court jurisdiction + wouldn’t respect the technical terms of Art. III
->Discusses Mishkin theory of protective jurisdiction – Mishkin says can’t just decide to protect particular litigants (b/c this is already addressed through diversity juris.) but can decide to protect a federal policy by conferring jurisdiction on fed courts for all cases in that area (even those ultimately governed by state law)
->Seems to say he’d buy this theory more if there are federal rights in the interstices of §301 actions

-Says if there were some basis for expanding concepts of Art. III juris. through “arising under”, the area is “not great” + would need “substantial federal interest” (greater than doubt on effectiveness of state procedures)

Question 20

Prof’s Opinion on Fed Q Juris

Answer 20

• her main takeway was Congress CAN put in fed q juris anything it wants
• at the end of the day, though, they’re not trying to federalize everything anyway

Question 21

Verlinden B.V. v. Central Bank of Nigeria - Facts

Answer 21

• 1983
• Dutch corporation (pl) contracted with Nigeria for delivery of cement
• contract specified Dutch law and French forum for resolution of disputes, but pl filed suit in U.S. federal district court for anticipatory breach

Question 22

Verlinden - Issue

Answer 22

• whether Foreign Sovereign Immunities Act (FSIA, now § 1330) violates Art. III by authorizing foreign pl to sue a foreign state in district court on a nonfederal cause of action

Question 23

Verlinden - Holding

Answer 23

• FSIA’s jurisdictional grant falls within “arising under” jx of Art. III, since every action against a foreign sovereign necessarily involves application of a body of substantive federal law (governing amenability of foreign nations to suit), and accordingly “arises under” federal law
• FSIA specifies exceptions to foreign govts’ sovereign immunity from suit in state or federal court
  -“Arising under” clause of Art. III authorize FISA’s grant of federal jx over actions by foreign Ps
  -Suit against a foreign state under this act necessarily raises questions of substantive federal law at the outset (i.e., application of one of FSIA’s exceptions to foreign sov immunity)

Question 24

Mesa v. California - Facts

Answer 24

• 1989
• CA issued criminal complaints against 2 mail-truck drivers involved in serious accidents.
• Both removed their cases to federal court under 28 U.S.C. § 1442(a), which provides for removal of a civil or criminal prosecution commenced in state court against any officer of the U.S. for any act under color of such office.

Question 25

Mesa - Issue

Answer 25

• whether removal jx could be based solely on the fact that Ds were federal officers, or whether it was also required they allege federal defense

Question 26

Mesa - Holding

Answer 26

• O’Connor Opinion
• Federal officers must allege federal defense for removal under § 1442(a).
  -Pure jurisdictional statutes that do nothing more than grant jx over particular class of cases cannot support Art. III “arising under” jx
  -§ 1442(a) is a pure jurisdictional statute that does nothing more than grant district court jx over cases in which federal officer is D
  ->§ 1442(a) thus cannot independently support Art. III “arising under” jx

Question 27

Mesa - Brennan Concurrence

Answer 27

• Where a federal officer is prosecuted because of local hostility to federal authority, careful pleading, demonstrating close connection between state prosecution and federal officer’s performance of his duty, might adequately replace specific averment of federal defense

Question 28

Gutierrez de Martinez v. Lamagno - Facts

Answer 28

• 1995
• Westfall Act grants absolute immunity from common law tort claims to federal employees for acts undertaken in scope of their employment.
• When employee is sued for negligence, AG may certify that the employee was within scope of employment, substitute U.S. as def under FTCA, and remove to federal court.

Question 29

Gutierrez - Issue

Answer 29

• whether factual basis of govt certification under the Westfall Act was subject to judicial review

Question 30

Gutierrez - Holding

Answer 30

• Ginsburg
• Certification is reviewable—raises question of substantive federal law at the outset (i.e., whether employee was within scope of employment) and thus “arises under” federal law.
• When case removed to federal court, it presents federal question of whether employee was acting within scope of federal employment
  ->Westfall Act was designed to ensure this question could be heard in federal forum

-Considerations of judicial economy, convenience, and fairness to litigants make it reasonable for federal forum to proceed beyond federal question to final judgment

Question 31

Gutierrez - Souter

Answer 31

• dissent
• Under the Act, once state tort action is removed to federal court following certification by AG, it can never be remanded to state court.
• But if judicial review of certification is permitted and federal court invalidates it (resubstituting employee as D), federal court must retain jx over state-law tort claims between nondiverse parties that do not implicate federal law.
• Question of whether employee acted within scope of employment cannot supply basis for “arising under” jx, because answer to that question determines validity of AG’s certification providing removal jx, and authority to determine whether court has jx over cause of action cannot supply the very jx that is subject to challenge.