parent nodes: 42 USC 1983 | abstention | Article III | Burford v Sun Oil Co | CivilProcedure | Constitution | diversity jurisdiction | federal jurisdiction | federal supplemental jurisdiction | Foreign Sovereign Immunities Act | Franchise Tax Board of CA v CLTV | Grable and Sons Metal v Darue Engineering | judicial power | jurisdiction | LA Power and Light v City of Thibodaux | Louisville and Nashville RR v Mottley | Lujan v Defenders of Wildlife | Martin v Hunters Lessee | Micro Star v Formgen Inc | Osborn v Bank of the United States | removal | Sosa v Alvarez-Machain | state sovereign immunity | subject matter jurisdiction | Tel-Oren v Libyan Arab Republic | Veeck v SBCCI | venue | Verlinden BV v Central Bank of Nigeria | Walker v Armco Steel Corp | Younger v Harris
federal question jurisdiction
federal jurisdiction
One of the types of subject matter jurisdiction granted by Article III, section 2.
Article III, section 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...
Article VI, section 2: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Note that the Supremacy Clause of [Article VI] binds state judges to apply federal law even if no federal judiciary inferior to the Supreme Court exists.
Article III permits federal question jurisdiction in every case in which the laws of the United States are an "ingredient" of the suit in question. Osborn v Bank of the United States, 22 US 738 (1824) (Article III allowed federal jurisdiction over any suit by or against national bank created by federal statute, as federal law was a precondition of the bank's existence). Under Osborn's reading of Article III, federal question jurisdiction can exist even if the federal ingredient never arises in the suit, or if it has been already decided. "Congress may confer on the federal courts jurisdiction over every case or controversy that might call for the application of federal law." Verlinden BV v Central Bank of Nigeria, 461 US 480 (1983).
Statute
"Naked" grants of jurisdiction and "protective jurisdiction"
It may be unconstitutional under Article III for a federal court to exercise jurisdiction over a case for which federal statute grants jurisdiction but does not actually create any federal law to apply. [Textile Workers Union v Lincoln Mills] (Frankfurter dissenting) (arguing that a law granting federal courts jurisdiction to hear entirely state-law claims between unions and employers was unconstitutional). Even though Osborn v Bank of the United States interpreted Article III to extend judicial power to any case in which federal law might hypothetically form an "ingredient," the text of Article III federal question jurisdiction—"cases . . . arising under this Constitution (and) the laws of the United States"—suggests that the federal law question must be in the "forefront" and not in the "periphery" of a case. [Textile Workers Union v Lincoln Mills] (Frankfurter dissenting)
One possibility is that Congress may provide "protective jurisdiction" over any area for which it might actually enact substantive federal law. Under this rationale, a federal issue would not even be necessary, if the federal government needed to prevent states from hurting the federal government through a question of state law. One textual variant of this argument is that "laws" in Article III includes jurisdictional statutes, or that Congress' power to enact substantive law implies a lesser power to create federal jurisdiction. Frankfurter attacked this argument on the ground that substantive federal law might always be in the "background" of any case, and that courts could concoct a "federal interest" strong enough to exercise jurisdiction over any state claim. [Textile Workers Union v Lincoln Mills] (Frankfurter dissenting). The Court has never actually claimed that it has such jurisdiction. See [Mesa v CA].
A federal law giving an entity legal existence and the ability to sued or be sued is sufficient to gain federal jurisdiction. [American Red Cross v SG]; Osborn v Bank of the United States.
Also, A jurisdictional statute is not "naked" if it incorporates or includes any actually federal substantive law. For example, the Court held that the FSIA, which gives the federal courts "jurisdiction . . . as to any claim . . . with respect to which the foreign state is not entitled to immunity," either under the FSIA itself or any applicable international agreement, provided valid federal question jurisdiction because federal courts needed to apply the FSIA's complex standards for when a foreign state was immune from suit. Verlinden BV v Central Bank of Nigeria (upholding jurisidction under the FSIA itself, rather than under § 1331).
The problem is that a statute could easily bootstrap itself into federal jurisdiction. As a result, the Court may use statutory construction to avoid the risk of "naked" or protective jurisdictional grants. See [Mesa v CA] (upholding removal of postal workers' state criminal prosecutions on the grounds that they had asserted a federal defense).
Specific grants of jurisdiction
United States law grants general federal question jurisdiction to the courts, plus a range of more specific statutory grants:
28 USC 1334(a) (bankruptcy)
28 USC 1337(a) (trade and commerce where controversy >$10K)
28 USC 1343 (civil rights)
28 USC 1345 (suits where US is plaintiff)
28 USC § 1331: general federal question jurisdiction
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
28 USC 1331
However, the courts interpret the phrase "jurisdiction of all civil actions arising under" in 28 USC 1331 far more narrowly than Article III. For example, if Congress extended federal question jurisdiction to the full extent of Article III, the federal courts would have jurisdiction over all land title actions involving the Midwest and Great Plains, where all title to land was originally granted by federal law. [TB Harms v Eliscu] (dicta by Friendly, J.).
The text of 28 USC § 1331 ("original jurisdiction of civil actions arising...") may be narrower than Article III's grant ("judicial power shall extend to all cases, in law or equity, arising"), because "original jurisdiction," unlike judicial power, may denote a requirement that jurisdiction be present at the beginning of the action (thus justifying the well-pleaded complaint rule below). Note also that removal depends on the existence of original federal question jurisdiction if the defendant had brought the suit as a plaintiff in the first place.
Well-pleaded complaint rule
Because 28 USC 1331 limits federal question jurisdiction to "civil actions," a plaintiff must affirmatively plead a federal question sufficient to create subject matter jurisdiction in the initial complaint; it is not enough to anticipate a possible response by a defendant that implicates federal law. Louisville and Nashville RR v Mottley, 211 US 149 (1908) (no jurisdiction where plaintiff brought suit in federal court to recover a previous state settlement, anticipating that the railroad would use a federal statute in its defense). Likewise, federal question jurisdiction cannot be created through a counterclaim. [Holmes Group Inc v Vornado Circulation Systems], 535 US 826 (2002) (no jurisdiction due to patent issue raised in counterclaim).
(a) In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
28 USC § 2201
Declaratory judgments are designed to solve standing problems for plaintiffs who face only a prospective but not an actual legal injury. Plaintiffs can use declaratory judgments in order to gain collateral estoppel in future suits. Further, declaratory judgments allow courts to avoid using contempt sanctions as they would if an injunction was issued and violated.
A plaintiff cannot, however, use "artful pleading" to create federal question jurisdiction through 28 USC §§ 2201–02, which allows declaratory judgments, by anticipating a defense under federal law. [Skelly Oil v Philllips Petroleum], 339 US 667 (1950) (no jurisdiction over action for declaratory judgment that contract that may have been terminated by federal law was still valid). Because Congress "enlarged the range of remedies available in the federal courts but did not extend their jurisdiction," a plaintiff may not use a declaratory judgment action to gain federal question jurisdiction over an action that would not otherwise create § 1331 jurisdiction because fo the well-pleaded complaint rule. [Skelly Oil v Phillips Petroleum]. Frankfurter's view in Skelly Oil is supported by the text of § 2201, which allows courts to grant relief to "actual controversies within (their) jurisdiction." For declaratory judgments, federal jurisdiction lies if either party could get federal jurisdiction over some underlying coercive action. Franchise Tax Board of CA v CLTV.
The same principle applies to state declaratory judgments; a plaintiff may not gain federal jurisdiction over a state law declaratory judgment that anticipates a federal defense. Franchise Tax Board of CA v CLTV.
Likewise, "artful pleading" cannot be used to hide federal question jurisdiction. [Bright v Bechtel Petroleum], 780 F.2d 766 (9th Cir. 1986) (federal jurisdiction over state breach of contract action where employee alleged violation of federal law); see also Franchise Tax Board of CA v CLTV ("(A) plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint"), citing [Avco Corp v Aero Lodge No 735]. A "necessary federal question" arises under a state-law cause of action if the state law COA is "completely preempt(ed)," that is, if an available federal remedy "displace(s) entirely any state cause of action" so that such state COA is "purely a creature of federal law." [Avco Corp v Aero Lodge No 735] (upholding removal over entirely state-law contract action that was "entirely preempted" by federal labor law). "Complete preemption" is, unlike the actual preemption doctrine, actually an exception to the well-pleaded complaint rule. "Complete preemption" only occurs if Congress intends to entirely preempt state law causes of action, and if the state's right to enforce its laws would be of "central concern" to the federal statute. Franchise Tax Board of CA v CLTV (holding that ERISA did not "completely preempt" state-law actions by state governments to collect taxes, given that ERISA did not grant a federal cause of action to such actions, that ERISA disclaimed any attempt to exempt individuals from state financial regulation laws, and likewise that ERISA did not completely preempt a state-law declaratory judgment by a state that ERISA did not preempt state tax laws, given that ERISA only explicitly granted other parties a right to bring a federal declaratory judgment suit); compare [Metropolitan Life Ins Co v Taylor] (holding that state law tort and contract claims by an employee claiming that his employer had violated ERISA by terminating benefit plans were completely preempted by ERISA, thus allowing removal by the employer defendant). Note that "complete preemption" appears to apply now only to ERISA, the Taft-Hartley Act, and the National Bank Act, but that its scope might be expanded in the future. Mortara: the "complete preemption" is an insurance policy against the risk that state courts might decide some important issue of federal law under the guise of an obscure state doctrine, making Supreme Court review impossible.
Note that the Court has explicitly allowed plaintiffs to bring a federal claim that a state law has been preempted. [Shaw v Delta Air Lines] (holding, on the same day as Franchise Tax Board, that employees could bring an action for injunctive and declaratory relief claiming that ERISA preempted state law); but see Franchise Tax Board of CA v CLTV ("(A) declaratory judgment plaintiff could not get original federal jurisdiction if the anticipated lawsuit by the declaratory judgment defendant would not 'arise under' federal law"), citing [Public Service Commn v Wycoff Co].
A more difficult situation is if a defendant attempts removal over a declaratory judgment defense asserting federal law. Federal courts have "regularly found (§ 1331 jurisdiction) where the declaratory judgment defendant brought a coercive action to enforce its rights" and an enforcement action would have "necessarily" presented a federal question. Franchise Tax Board of CA v CLTV. However, a court may decline removal jurisdiction over a declaratory judgment claim asserting a federal defense, even if the declaratory judgment defendant could have brought the action originally as a federal suit seeking an injunction or other coercive relief, based on concerns of "practicality and necessity," as well as federalism concerns. See, for example, Franchise Tax Board of CA v CLTV (rejecting removal of declaratory judgment defense against state tax-enforcement suit, where the defendant claimed that the state's tax law was preempted, on the grounds that "(s)tates are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation," that Congress did not explicitly intend to make ERISA available as a preemptive defense, and that such suits did not create a problem that the federal courts would be flooded by state tax-enforcement suits). (Note that Brennan's argument rests on the interests of the state, even though the trust, not the state, was seeking removal; the decision thus seems to apply a sort of non-parity principle to the decision)
Ways to plead § 1331 jurisdiction
Note that the following section covers what a plaintiff must plead to gain original jurisdiction in a federal court; in comparison, the Supreme Court may still have appellate jurisdiction over such claims if decided in state court.
One sufficient condition to gain federal jurisdiction under 28 USC 1331, advocated by Holmes in [American Well Works v Layne and Bowler Co], is a cause of action explicity created in federal law. Cf. [TB Harms v Eliscu] (no federal question jurisdiction over copyright action not involving infringement, for which Congress had explicitly granted a federal cause of action). (Note that copyright jurisdiction is exclusive, so that a ruling creating federal jurisdiction would effectively destroy state jurisdiction). Thus, a claim may lack federal question jurisdiction if brought by the plaintiff under the wrong cause of action. [Luckett v Delpark Inc], 270 US 496 (1926) (no jurisdiction over patent infringement claim brought as cause of action)
Additionally, a cause of action under federal common law typically creates federal jurisdiction under § 1331. Under the Clearfield Trust rule, federal common law controls where the government has entered into a contract, for example for land. Ordinarily, federal common law is allowed to borrow state law as the rule of decision, but the federal courts are free to create their own common law where state law is hostile to federal interests. Thus, if Clearfield Trust applies, § 1331 jurisdiction exists. But see [Empire Healthcare Assurance v McVeigh] (no federal jurisdiction over state tort action to claim damages under federally mandated contract). Note also specifically that a plaintiff can gain federal jurisdiction over a § 1983 action to declare that a state law has been preempted. [Golden State Transit Corp v City of LA].
A plaintiff might gain federal jurisdiction without a settled private federal right of action if the court needs to determine whether federal law does create an implied cause of action. See [Bell v Hood] (allowing jurisdiction over question whether plaintiff had cause of action implied by Amendment IV and Amendment V). If the plaintiff does not actually have a federal claim, then the cause will be dismissed on the merits; the federal court will dismiss for lack of jurisdiction only if the plaintiff's claim is frivolous. [Bell v Hood]. Note the parallel between the Bell rule and Verlinden; if the court has to spend a substantial amount of time on the question of whether it has jurisdiction, then federal jurisdiction exists to determine that question.
Conversely, not every action created by federal law necessarily creates federal question jurisdiction, especially if the issues that arise in such causes do not necessarily arise under federal laws. [Shoshone Mining v Rutter], 177 US 505 (1900) (no federal jurisdiction over federally created system for determining miners' claims, where issues litigated in such claims depended upon local practices and issues of fact, not federal law).
State law causes of action
"Where it appears from the bill or statement of the plaintiff that the right to relief depends upon ... the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation," a federal court can assert subject matter jurisdiction over a state cause of action. [Smith v Kansas City Title and Trust], 255 US 180 (1921) (jurisdiction over shareholder action to prevent defendant corporation from buying federal bonds the plaintiff alleged unconstitutional, which would mean that the bonds were not made under a "valid law" as the state law required). The plaintiff in Kansas City was required to plead that the bond issued was unlawful, so that the well-pleaded complaint rule does not obviously apply. Another formulation is that "a case may 'arise under' a law of the United States if the complaint discloses a need for determining the meaning or application of such a law." Dicta in [TB Harms v Eliscu] (Friendly, J.). Note the problem that, for example, state law often defines income for tax purposes as identical to the federal tax definition; strict application of the Kansas City rule woiuld allow removal of a state-tax collection suit to federal court. Possible ways of limiting Kansas City may be allowing federal jurisdiction only for challenges to the validity of federal law; making discretionary judgments about the federal system, including the strength of the federal interest involved, see Grable and Sons Metal v Darue Engineering; trying to discern the intent of Congress to create federal jurisdiction for state-law causes of action, see [Merrell Dow Pharmaceuticals v Thompson]; the existence of a federal COA "parallel" to the state action actually pleaded by the plaintiff; the existence of a "pure question" of federal law as opposed to the application of federal law to facts, see [Empire Healthcare Assistance v McVeigh]
The Kansas City rule does not apply, however, if a plaintiff uses federal law as an affirmative defense rather than as a part of the complaint. See [Moore v Chesapeake and Ohio RR] (rejecting jurisdiction over state-law negligence action where plaintiff claimed state law defense that he could not be contributorily negligent, a defense the defendant planned to make, if the defendant violated state law). Note the problem that an element of the plaintiff's claim could be recast as an affirmative defense and vice versa.
A state law claim may lead to federal question jurisdiction if a "parallel" federal cause of action exists. [City of Chicago v International College of Surgeons] (jurisdiction over state-law claim under state law parallel to APA, also claiming violation of Amendment XIV). However, if Congress has not intended in making federal law to create a federal cause of action, a "parallel" state law claim may not gain federal jurisdiction simply because it includes a question of federal law as an element. [Merrell Dow Pharmaceuticals v Thompson] (no removal jurisdiction over state law products liability claim based in part on claim that defendant violated FDA branding guidelines and was thus per se negligence). The Court (through Stevens) held that Congress had not created a cause of action for misbranding violations, so that Congress had presumably intended not to allow federal jurisdiction over a state-law claim involving a misbranding violation. The Court cited federalism and judicial economy concerns in inferring Congressional intent from the fact that Congress had created a federal cause of action for other FDA violations, but had remained silent on federal causes of action for misbranding. (Note that Merrell Dow involves the relationship between preemption and federal question jurisdiction). Note also, however, that the state-law tort plaintiff in Merrell Dow chose to use the misbranding charge as part of his complaint, whereas the plaintiff in Grable, for example, was required to plead the insufficiency of the IRS' process in order to make his complaint. Note that the plaintiff in Merrell Dow need not have used a federal law violation as an element of his negligence claim; the situation might be different if the plaintiff must necessarily plead a federal question as an element of his claim.
However, even a state cause of action without a parallel federal COA may create federal question jurisdiction if (1) the claim sufficiently implicates "actually disputed and and substantial" national interests (2) in light of Congress' determination of the proper balance between federal and state judicial power. Grable and Sons Metal v Darue Engineering, 545 U.S. 308 (2005) (federal question jurisdiction over state claim where former owner of land seized by IRS brought quiet title action against new owner through execution sale, alleging improper process by IRS); see also dicta in [TB Harms v Eliscu] (Friendly, J.) (possible federal question jurisdiction where a "distinctive federal policy" exists). Grable re-read [Merrell Dow Pharmaceuticals v Thompson] to involve federalism and judicial economy concerns. The federal-state balance may depend on factors such as the comprehensiveness of federal regulation over the area (in a similar manner to preemption law).
(if there is no explicitly federal law cause of action: otherwise, yes under American Well Works)
-Is a federal question part of the state cause of action? - Does the plaintiff need to prove something about federal law for his claim to succeed?
- no: no § 1331 jurisdiction (Motley, Moore)
- yes:
- Is there a parallel federal cause of action?
- yes: § 1331 jurisdiction over state law claim (City of Chicago v College of Surgeons)
- no:
- unclear what test should actually apply:
- is the validity of the federal action at issue?
- yes: § 1331 jurisdiction (Kansas City Title, Hopkins, Grable)
- no: § no 1331 jurisdiction (Merrell Dow)
- note that FDA statute only created rebuttable presumption of negligence
- will it "flood the courts?"
- no: § 1331 jurisdiction (Grable)
- this may not be accurate for Merrell Dow
- has the plaintiff himself necessarily brought up a federal question?
- yes: § 1331 jurisdiction (Grable)
- no: no § 1331 jurisdiction (Merrell Dow)
- is the federal interest strong?
- yes: § 1331 jurisdiction (Grable, Kansas City)
- this test is hard to apply
[alias: declaratory judgment]