Finley v. United States/Dissent Stevens

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

The Court's holding is not faithful to our precedents and casually dismisses the accumulated wisdom of our best judges. As we observed more than 16 years ago, "numerous decisions throughout the courts of appeals since [Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966),] have recognized the existence of judicial power to hear pendent claims involving pendent parties where 'the entire action before the cou t comprises but one constitutional "case" ' as defined in Gibbs." Moor v. County of Alameda, 411 U.S. 693, 713, 93 S.Ct. 1785, 1797, 36 L.Ed.2d 596 (1973). I shall first explain why the position taken by the overwhelming consensus of federal judges is correct and then comment on major flaws in the opinion the Court announces today.

* Article III of the Constitution identifies the categories of "Cases" and "Controversies" that federal courts may have jurisdiction to decide. If a case is not within one of the specified categories, neither Congress nor the parties may authorize a federal court to decide it. Objections to a federal court's jurisdiction over the subject matter of a case cannot be waived. Although Article III strictly confines the subject-matter jurisdiction of federal courts, it does not limit the extent of the courts' personal jurisdiction over individual parties or their power to decide individual claims in cases within any of the specified categories. A party beyond the reach of a federal court's process may voluntarily submit to its jurisdiction over his person, but he cannot create subject-matter jurisdiction-by waiver, estoppel, or the filing of a lawsuit-over a non-Article III case.

The case before us today is one in which the United States is a party. Given the plain language of Article III, there is not even an arguable basis for questioning the federal court's constitutional power to decide it. Moreover, by enacting the Federal Tort Claims Act (FTCA) in 1946, 28 U.S.C. § 1346(b), Congress unquestionably authorized the District Court to accept jurisdiction of "civil actions on claims against the United States." Thus, it is perfectly clear that the District Court has both constitutional and statutory power to decide this case.

It is also undisputed that this power will not be defeated by the joinder of two private defendants. Rule 14(a) of the Federal Rules of Civil Procedure expressly authorizes the defendant to implead joint tortfeasors, and this Rule is applicable to FTCA cases. Moreover, if the claim against nonfederal defendants had been properly brought in a federal court, those defendants could require the United States to defend their claim for contribution in that action. The dispute between all the parties derives from a common nucleus of operative fact. There is accordingly ample basis for regarding this entire three-cornered controversy as a single "case" and for allowing petitioner to assert additional claims against the nonfederal defendants as she is authorized to do by Rule 20(a) of the Federal Rules.

Prior to the adoption of the Federal Rules of Civil Procedure in 1938, the federal courts routinely decided state-law claims in cases in which they had subject-matter jurisdiction, see, e.g., Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 589, 77 L.Ed. 1148 (1933); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), and granted relief against nondiverse parties on state claims as to which there was no independent basis for federal jurisdiction, see, e.g., Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926); Julian v. Central Trust Co., 193 U.S. 93, 112-114, 24 S.Ct. 399, 407-408, 48 L.Ed. 629 (1904); Freeman v. Howe, 65 U.S. (24 How.) 450, 460, 16 L.Ed. 749 (1861). Although the contours of the federal cause of action-or "case"-were then more narrowly defined than they are today, see, e.g., Hurn v. Oursler, supra, the doctrine of "pendent" or "ancillary" jurisdiction had long been firmly established. The relevant change that was effectuated by the adoption of the Rules in 1938 was, in essence, a statutory broadening of the dimensions of the cases that federal courts may entertain.

The Court's unanimous opinion in Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), highlights the modern conception of a "civil action" and a "constitutional case." At issue was the exercise of pendent jurisdiction over a state-law claim in an action brought under the Labor Management Relations Act, 1947. We wrote: "Hurn was decided in 1933, before the unification of law     and equity by the Federal Rules of Civil Procedure.   t the      time, the meaning of 'cause of action' was a subject of      serious dispute;  the phrase might 'mean one thing for one      purpose and something different for another.'  United States      v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68, 53 S.Ct. 278,      280, 77 L.Ed. 619.  The Court in Hurn identified what it      meant by the term by citation of Baltimore S.S.C.o. v.      Phillips, 274 U.S. 316, 47 S.Ct. 600, a case in which 'cause      of action' had been used to identify the operative scope of      the doctrine of res judicata.  In that case the Court had      noted that ' "the whole tendency of our decisions is to      require a plaintiff to try his whole cause of action and his      whole case at one time." '  274 U.S., at 320[, 47 S.Ct., at      602.]

* *  *  *  *

"With the adoption of the Federal Rules of Civil     Procedure and the unified form of action, Fed.Rule Civ.Proc.      2, much of the controversy over 'cause of action' abated.      The phrase remained as the keystone of the Hurn test,      however, and, as commentators have noted, has been the source      of considerable confusion.  Under the Rules, the impulse is      toward entertaining the broadest possible scope of action      consistent with fairness to the parties;  joinder of claims,      parties and remedies is strongly encouraged.  Yet because the      Hurn question involves issues of jurisdiction as well as      convenience, there has been some tendency to limit its      application to cases in which the state and federal claims      are, as in Hurn, 'little more than the equivalent of      different epithets to characterize the same group of      circumstances.'  289 U.S., at 246, 53 S.Ct., at 590.

"This limited approach is unnecessarily grudging.     Pendent jurisdiction, in the sense of judicial power, exists      whenever there is a claim 'arising under [the] Constitution,      the Laws of the United States, and Treaties made, or which      shall be made, under their Authority . . .,' U.S.C.onst., Art III, § 2, and the relationship between that      claim and the state claim permits the conclusion that the      entire action before the court comprises but one      constitutional 'case.'  The federal claim must have substance      sufficient to confer subject matter jurisdiction on the      court.  Levering & Garrigues Co. v. Morrin, 289 U.S. 103[, 53      S.Ct. 549, 77 L.Ed. 1062].  The state and federal claims must      derive from a common nucleus of operative fact.  But if,      considered without regard to their federal or state      character, a plaintiff's claims are such that he would      ordinarily be expected to try them all in one judicial      proceeding, then, assuming substantiality of the federal      issues, there is power in federal courts to hear the whole." Id., at 722-725, 86 S.Ct., at 1136-1138 (emphasis in     original;  footnotes omitted).

Immediately after Gibbs was decided, federal judges throughout the Nation recognized that i § reasoning applied to cases in which it was necessary to add an additional party on a pendent, nonfederal claim in order to grant complete relief. For example, Judge Henry Friendly considered this precise question in three separate opinions. Because he is universally recognized not only as one of our wisest judges, but also as one with special learning and expertise in matters of federal jurisdiction, a reference to each of those opinions is appropriate.

In Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (CA2 1971), Judge Friendly summarized the understanding of the Gibbs doctrine that prevailed in 1971, as follows:

"To be sure, the Gibbs Court was not confronted with the     question whether pendent jurisdiction extended to a state      claim against a party not named in the federal claim.  But as      we have recently observed in Astor-Honor, Inc. v. Grosset &      Dunlap, Inc., 441 F.2d 627, 629 (2 Cir.1971), 'Mr. Justice      Brennan's language and the common sense considerations      underlying it seem broad enough to cover that problem also.      See Note, UMW v. Gibbs and Pendent Jurisdiction, 81      Harv.L.Rev. 657, 664 (1968).'  In that decision, involving federal claims under the copyright      laws and state claims of unfair trade practice and unfair      competition, including a defendant not named in the copyright      claims, we held that a federal court had power to hear a      state claim against a party not named in the federal claim,      provided the Gibbs test was met, noting that this conclusion      was buttressed by our decisions concerning ancillary      jurisdiction to entertain compulsory counterclaims under      F.R.Civ.P. 13(a), United Artists Corp. v. Masterpiece      Productions, Inc., 221 F.2d 213 (2 Cir.1955), and third-party      claims under F.R.Civ.P. 14(a), Dery v. Wyer, 265 F.2d 804 (2      Cir.1959)." Id., at 809-810.

It is noteworthy that in his Leather's Best opinion, Judge Friendly relied, in part, on the Federal Rules of Civil Procedure, just as Justice BRENNAN had done in the Gibbs opinion itself. Indeed, in another paragraph of his opini n, Judge Friendly concluded that the 1966 amendments to the Rules made it appropriate to extend the ancillary jurisdiction doctrine to the admiralty context as well as to ordinary civil cases. In another opinion in 1971, he unequivocally concluded that "the doctrine of pendent jurisdiction is sufficiently broad to support a claim within the limits of Gibbs against a person not a party to the primary, jurisdiction-granting claim." Almenares v. Wyman, 453 F.2d 1075, 1083 (CA2 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972).

Before Judge Friendly addressed this issue for the third time, we decided Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). In that case, after declining to announce any general rule governing pendent-party jurisdiction, we held that such jurisdiction should not be exercised if Congress has "expressly or by implication negated its existence" in the statute granting subject-matter jurisdiction over the particular claim before the Court. Id., at 18-19, 96 S.Ct., at 2422. Specifically, we concluded that the Civil Rights Acts, as then interpreted, precluded the joinder of a municipal corporation as a defendant to a claim asserted pursuant to 42 U.S.C. § 1983 or to a state-law claim pendent to such a federal claim. Although a reasonable argument can be made that the Court misconstrued the intent of Congress in that case, see 427 U.S., at 23-37, 96 S.Ct., at 2424-2430 (BRENNAN, J., dissenting), there surely can be no quarrel with the proposition that Congress may withdraw or deny pendent jurisdiction over particular claims or parties.

In his third "pendent-party" opinion, Judge Friendly correctly described the limited scope of our holding in Aldinger. He wrote:

"Although the Aldinger Court disapproved of the joinder of a     pendent party defendant in the case before it, the Court explicitly limited its  onclusion to 'the issue of      so-called "pendent party" jurisdiction with respect to a      claim brought under [28 U.S.C.] § 1343(3) and [42 U.S.C. §]      1983,' [427 U.S.,] at 18, . . . [96 S.Ct. at 2422] and noted      that '[o]ther statutory grants and other alignments of      parties and claims might call for a different result,' id.,      and that 'it would be as unwise as it would be unnecessary to      lay down any sweeping pronouncement upon the existence or      exercise of such jurisdiction,' id.

"The circumstances here are about as powerful for the     exercise of pendent party jurisdiction as can be imagined.      The exclusivity of federal jurisdiction over claims for      violation of the Securities Exchange Act makes a federal      court the only one where a complete disposition of federal      and related state claims can be rendered.  Cf. the Court's      comment in Aldinger that '[w]hen the grant of jurisdiction to      a federal court is exclusive, for example, as in the      prosecution of tort claims against the United States under 28      U.S.C. § 1346, the argument of judicial economy and      convenience can be coupled with the additional argument that      only in federal court may all of the claims be tried      together,' 427 U.S., at 18 . . . . [96 S.Ct., at 2422]." Weinberger v. Kendrick, 698 F.2d 61, 76-77 (CA2 1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983).

In the Weinberger case the circumstances were "about as powerful for the exercise of pendent party jurisdiction as can be imagined" because Congress had vested the federal courts with exclusive jurisdiction over claims arising under the Securities Exchange Act. The Federal District Court was therefore the only forum in which the entire constitutional case could be tried at one time. That powerful circumstance is also present in cases arising under the FTCA. In fact, in dicta, the Aldinger Court suggested that pendent-party jurisdiction might be available under the FTCA for precisely this reason. 427 U.S., at 18, 96 S.Ct., at 2422.

I would thus hold that the grant of jurisdiction to hear "civil actions on claims against the United States" authorizes the federal courts to hear state-law claims against a pendent party. As many other judges have recognized, the fact that such claims are within the exclusive federal jurisdiction, together with the absence of any evidence of congressional disapproval of the exercise of pendent-party jurisdiction in FTCA cases, provides a fully sufficient justification for applying the holding in Gibbs to this case.

The Court's contrary conclusion rests on an insufficient major premise, a failure to distinguish between diversity and federal-question cases, and an implicit reliance on a narrow view of the waiver of sovereign immunity in the FTCA.

The Court treats the absence of an affirmative grant of jurisdiction by Congress as though it constituted the kind of implicit rejection of pendent jurisdiction that we found in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). Its opinion laboriously demonstrates that the FTCA "defines jurisdiction in a manner that does not reach defendants other than the United States," ante, at 553, and that the language of the statute cannot be construed as "adopting pendent-party jurisdiction," ante, at 555. That, of course, is always the predicate for the question whether a federal court may rely on the doctrine of ancillary or pendent jurisdiction to fill a gap in the relevant jurisdictional statute. If the Court's demonstration were controlling, Gibbs, Hurn, and Moore, as well as a good many other cases, were incorrectly decided.

In Aldinger, we adopted a rule of construction that assumed the existence of pendent jurisdiction unless "Congress in the statutes conferring jurisdiction has . . . expressly or by implication negated its existence," 427 U.S., at 18, 96 S.Ct., at 2422. We rejected the assertion of pendent-party jurisdiction there because it arose "not in the context of congressional silence or tacit encouragement, but in quite the opposite context." Id., at 15-16, 96 S.Ct., at 2421. Congress' exclusion of municipal corporations from the definition of persons under § 1983, we concluded, evinced an intent to preclude the exercise of federal-court jurisdiction over them. If congressional silence were sufficient to defeat pendent jurisdiction, the careful reasoning in our Aldinger opinion was wholly unnecessary, for obviously the civil rights statutes do not affirmatively authorize the joinder of any state-law claims.

A similar approach, focusing on a legislative intent to bar a party from federal court, guided our analysis in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). In Zahn, we surveyed the "firmly rooted" law that "multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in federal courts," 414 U.S., at 294, 94 S.Ct., at 508, and refused to adopt a rule that would allow putative plaintiffs who could not meet the jurisdictional amount to assert claims pendent to jurisdictionally sufficient claims. We noted that adoption of such a rule "would undermine the purpose and intent of Congress in providing that plaintiffs in diversity cases must present claims in excess of the specified jurisdictional amount" and would depart from "the historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years." Id., at 301, 94 S.Ct., at 512. In Kroger, the rule at issue was the requirement that a plaintiff invoking diversity jurisdiction plead complete diversity. After noting the historical evidence demonstrating "a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same State as any defendant," 437 U.S., at 374, 98 S.Ct., at 2403, we held that that jurisdictional requirement could not be circumvented through the exercise of pendent jurisdiction.

The Court today adopts a sharply different approach. Without even so much as acknowledging our statement in Aldinger that before a federal court may exercise pendentparty jurisdiction it must satisfy itself that Congress "has not expressly or by implication negated its existence," 427 U.S., at 18, 96 S.Ct., at 2422, it now instructs that "a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties." Ante, at 556. This rule, the Court asserts, is necessary to provide Congress "a background of clear interpretative rules" and to avoid sowing confusion. Ibid. But as a method of statutory interpretation, the Court's approach is neither clear nor faithful to our judicial obligation to discern congressional intent. While with respect to the joinder of additional defendants on pendent state claims, the Court's mandate is now clear, its approach offers little guidance with respect to the many other claims that a court must address in the course of deciding a constitutional case. Because the Court provides no reason why the joinder of pendent defendants over whom there is no other basis of federal jurisdiction should differ from the joinder of pendent claims and other pendent parties, I fear that its approach will confuse more than it clarifies. How much more clear to assume-especially when the courts have long so held-that with respect to all of these situations Congress intended the Federal Rules to govern unless Congress has indicated otherwise.

The Court's focus on diversity cases may explain why it also loses sight of the purpose behind the principle of pendent jurisdiction. The doctrine of pendent jurisdiction rests in part on a recognition that forcing a federal plaintiff to litigate his or her case in both federal and state courts impairs the ability of the federal court to grant full relief, Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367, 41 S.Ct. 338, 342, 65 L.Ed. 673 (1921), and "imparts a fundamental bias against utilization of the federal forum owing to the deterrent effect imposed by the needless requirement of duplicate litigation if the federal forum is chosen." Aldinger, 427 U.S., at 36, 96 S.Ct., at 2430 (BRENNAN, J., dissenting). "The courts, by recognizing pendent jurisdiction, are effectuating Congress' decision to provide the plaintiff with a federal forum for litigating a jurisdictionally sufficient claim." Miller, Ancillary and Pendent Jurisdiction, 26 S.Tex.L.J. 1, 4 (1985). This is especially the case when, by virtue of the grant of exclusive federal jurisdiction, "only in a federal court may all of the claims be tried together." Aldinger, 427 U.S., at 18, 96 S.Ct., at 2422. In such circumstances, in which Congress has unequivocally indicated its intent that the federal right be litigated in a federal forum, there is reason to believe that Congress did not intend that the substance of the federal right be diminished by the increased costs in efficiency and convenience of litigation in two forums. Cf. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 25, 103 S.Ct. 927, 942, 74 L.Ed.2d 765 (1983); Will v. Calvert Fire Ins. Co., 437 U.S. 655, 673-675, 98 S.Ct. 2552, 2562-2564, 57 L.Ed.2d 504 (1978) (BRENNAN, J., dissenting). No such special federal interest is present when federal jurisdiction is invoked on the basis of the diverse citizenship of the parties and the state-law claims may be litigated in a state forum. See Owen Equipment & Erection Co. v. Kroger, 437 U.S., at 376, 98 S.Ct., at 2404; Currie, The Federal Courts and the American Law Institute, 36 U.Chi.L.Rev. 1, 21 (1968). To be sure "[w]hatever we say regarding the scope of jurisdiction conferred by a particular statute can . . . be changed by Congress,"S ante, at 556, but that does not relieve us of our responsibility to be faithful to the congressional design. The Court is quite incorrect to presume that because Congress did not sanction the exercise of pendent-party jurisdiction in the diversity context, it has not permitted its exercise with respect to claims within the exclusive federal jurisdiction.

Finally, the Court seeks to draw support from United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), a case that involved a narrow issue and a narrow construction of the jurisdiction conferred by the Tucker Act. The Court's holding was based partly on the special history of the Court of Claims, see id., at 587, 61 S.Ct., at 770, and partly on the view that the sovereign's consent to be sued "must be strictly interpreted," id., at 590, 61 S.Ct., at 771. Fortunately, after the enactment of the FTCA in 1946, the Court took a much more enlightened view of the waiver of sovereign immunity effected by that statute. Thus, in its decision upholding jurisdiction of a claim against the United States for contribution-incidentally, a claim that was not expressly covered by the Act-the Court wrote:

"This brings the instant cases within the principle     approved in United States v. Aetna Surety Co., 338 U.S. 366,      383 [70 S.Ct. 207, 216, 94 L.Ed. 171]:

" 'In argument before a number of District Courts and Courts     of Appeals, the Government relied upon the doctrine that      statutes waiving sovereign immunity must be strictly      construed.  We think that the congressional attitude in      passing the Tort Claims Act is more accurately reflected by      Judge Cardozo's statement in And rson v. Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28,      29-30:  "The exemption of the sovereign from suit involves      hardship enough where consent has been withheld. We are not     to add to its rigor by refinement of construction where      consent has been announced." '

"Once we have concluded that the Federal Tort Claims Act     covers an action for contribution due a tort-feasor, we      should not, by refinement of construction, limit that consent      to cases where the procedure is by separate action and deny      it where the same relief is sought in a third-party action.      As applied to the State of New York, Judge Cardozo said in      language which is apt here:  'No sensible reason can be      imagined why the State, having consented to be sued, should      thus paralyze the remedy.'  243 N.Y. at 147, 153 N.E. at 29.      'A sense of justice has brought a progressive relaxation by      legislative enactments of the rigor of the immunity rule.  As      representative governments attempt to ameliorate inequalities      as necessities will permit, prerogatives of the government      yield to the needs of the citizen. . . .  When authority is      given, it is liberally construed.'  United States v. Shaw,      309 U.S. 495, 501[, 60 S.Ct. 659, 661, 84 L.Ed. 888]."     United States v. Yellow Cab Co., 340 U.S. 543, 554-555, 71      S.Ct. 399, 406-407, 95 L.Ed. 523 (1951).

Today we should be guided by the wisdom of Cardozo and Friendly rather than by the "unnecessarily grudging" approach that was unanimously rebuffed in Gibbs. See 383 U.S., at 725, 86 S.Ct., at 1138.

I respectfully dissent.