IV. TOWARD A THEORY OF NON-CONTENTIOUS JURISDICTION
The Theory Sketched
Original and Ancillary Non-Contentious Jurisdiction
Having demonstrated the constitutional basis for the non-contentious jurisdiction of federal courts, we now face the task of delineating the forms of that jurisdiction and the principles governing it. First, we must distinguish between "original" and "ancillary" non-contentious jurisdiction. In our view, the non-contentious matters we have described in this Article can be separated into actions that are originally non-contentious and non-contentious features of actions that are ancillary to an actual or potential dispute. A federal statute conferring original non-contentious jurisdiction must provide for the assertion of a claim of right. Typically, the party will claim an entitlement to a benefit created by federal law, such as the right to naturalized citizenship or to seek a mitigation of penalties or the waiver of fees. In other contexts, the party seeks legal validation of an act or status, such as in the application for a warrant or the condemnation of property. In still other contexts, the party claims a right to the invocation of administrative or judicial machinery for the disposition of an estate, as in bankruptcy proceedings or the appointment of an equity receiver.
Apart from assigning federal courts "original" jurisdiction over noncontentious matters, we believe that Congress may also confer power on the federal courts to entertain "ancillary" non-contentious proceedings. Many of the examples of non-contentious jurisdiction that we cataloged in Part I arise in connection with a dispute between actual or potential adversaries. Consent decrees settle disputes between contending parties, just as guilty pleas resolve criminal charges, and default judgments are entered in connection with litigation to secure an unmet demand upon a party who has failed to answer the court's summons. In all these instances, the power of federal courts grows out of their duty, in any case properly before them, to provide parties with the relief to which applicable law entitles them. (445) Like consent decrees, which are ancillary to the resolution of pending disputes (as Redish and Kastanek have recognized), much of the non-contentious work of the federal courts takes place in the shadow of potential or actual contention. Both original and ancillary non-contentious jurisdiction have a place in our conception of federal judicial power.
The Elements of Non-Contentious Jurisdiction
Drawing on the Marshall-Story formulation of a case, as well as on the features of non-contentious jurisdiction handed down from the Romans, we think that Congress has power to assign federal courts responsibility for the adjudication or administration of certain claims brought without the presence of an adverse party. Recall what Chief Justice Marshall said in defining power over federal question "cases" (but not "controversies") in especially broad terms:
[The federal question grant] 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. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. (446) Here, Chief Justice Marshall emphasizes three elements: the party must assert a claim of right, the claim must implicate federal law, and the claim must proceed in the "form prescribed by law." (447)
Although Chief Justice Marshall did not say so expressly, the second element of his definition--the requirement that cases must implicate the Constitution, laws, or treaties of the United States--imposes an important limit on the scope of original non-contentious jurisdiction. While the federal courts may hear non-contentious "cases" that seek to vindicate a claim of federal right, the original non-contentious power does not extend to "controversies" defined by the alignment of the parties. Controversies really do require opposing parties, as Justice Scalia and Pushaw and Redish have observed. The paradigmatic example of such a controversy, a diversity dispute between citizens of different states, helped to define the early contentious work of the federal courts. Apart from the linguistic fact that a controversy connotes a dispute between parties, the federal courts have little business exercising original non-contentious jurisdiction over matters of non-federal law. State legislatures would not ordinarily welcome federal judicial administration of state law, for example, and lack the power to assign such matters to the federal courts even if they did welcome their assistance. The familiar "probate exception" to Article III might best be understood as an outgrowth of the principle that federal judicial power over controversies requires a dispute between adversaries and does not extend to original non-contentious applications for rights created by state law. (448)
But the inability of the federal courts to exercise "original" non-contentious jurisdiction over matters of state law does not preclude those courts' exercise of "ancillary" non-contentious jurisdiction in controversies otherwise properly before them. As long as a dispute within the contentious jurisdiction of the federal courts implicates the judicial power of the United States, the court may grant the full range of approved remedies. This means that a federal court may undertake the inquisitorial duties associated with entry of consent decrees and de fault judgments in any matter properly before the court, even in diverse-party controversies that do not seek to vindicate any federal right. In this sense, at least, our construct of ancillary non-contentious jurisdiction applies to some matters that others might characterize as involving potential adversaries.
The final element of Chief Justice Marshall's definition requires the party seeking to invoke the non-contentious jurisdiction of the federal courts to follow the form "prescribed by law." This element of the definition properly captures the primacy of Congress in defining the scope of non-contentious jurisdiction. Congress can, as Justice Brandeis observed, assign administrative matters to federal agencies or to federal courts or create a system of shared responsibility among them. (449) While the federal courts presume that Congress intends to preserve contentious judicial review of final agency action, (450) no similar presumption should operate in favor of judicial resolution of noncontentious proceedings in the first instance. Federal courts, on this view, should accept congressional assignments of non-contentious work but should not seek out such assignments through the "alchemy" of statutory interpretation. (451) Nor should they develop a counterpart to their disputed (and to some extent disavowed) power to recognize the existence of implied rights of action to enforce federal statutes that contain no explicit right of action. (452) We see no basis for the creation of an implied non-contentious right of action that would enable private parties to choose a federal judicial proceeding instead of one in the proper agency (nor do we think it likely that federal judges would clamor to create such a doctrine).
At the same time, the common-law tradition, as confirmed by federal practice, can provide a form "prescribed by law" within which a party or parties may pursue uncontested proceedings. Default judgments, both in law and equity, have deep roots in the legal tradition. From the power to issue default judgments, courts derive the power to register settlement agreements and enter guilty pleas. In all of these instances, the federal courts proceed in ancillary non-contentious jurisdiction and do so without any specific grant of authority from Congress. Yet congressional approval of these practices can be easily inferred from the available legal materials. In the case of default judgments, authorized by Rule 55 of the Federal Rules of Civil Procedure, the Rules Enabling Act confers rulemaking authority on the Supreme Court, culminating in the promulgation of rules that take effect unless Congress disapproves of them. (453) Judicial activity in uncontested bankruptcy proceedings, the entry of plea agreements, and the registration of settlements enjoy a similar foundation in positive law. (454)
Other Requirements for the Exercise of Non-Contentious Jurisdiction
Apart from the elements embedded in the Marshall-Story formulation of a "case," several other requirements deserve a place in the definition of the scope of federal non-contentious jurisdiction. (455) First, the federal courts can exercise non-contentious jurisdiction only where their decisions will enjoy the finality demanded by Article III. The finality requirement emerges from Hayburn's Case, in which various justices and district judges adverted to the prospect of executive revision in refusing to accept the judicial role thrust upon them by Congress. (456) The Court has consistently reaffirmed the finality rule in various settings, (457) particularly in the context of ex parte proceedings. For example, finality concerns informed the Court's approach to naturalization proceedings in Spratt v. Spratt. (458) Speaking through the Chief Justice, the Court emphasized that a decision granting a petition for citizenship was subject to review but was to be regarded as a binding judgment unless it was overturned through proper proceedings. (459) Justice Brandeis made much the same argument in Tutun, emphasizing that a judgment conferring citizenship was conclusive, although subject to proper forms of judicial revision. (460) Under the common-law system, writs of scire facias and coram nobis were available to reopen proceedings and challenge matters of record. (Those writs no longer control in federal...