Tightening the Reigns on Pendent and Ancillary Jurisdiction

Publication year1985



Tightening the Reigns on Pendent and Ancillary Jurisdiction

David Lawyer

I. Introduction

Federal courts are courts of limited jurisdiction. Article III, section 2 of the United States Constitution makes this principle clear by the statement that "judicial Power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties . . . and . . . to all controversies . . . between Citizens of different States . . . ."(fn1) One might argue that "judicial power" under article II(fn2) is not the same thing as jurisdiction. But the exercise of jurisdiction in situations in which a federal court does not have judicial power would not be likely to yield any conclusive results between the parties.(fn3) At the heart of the idea of limited jurisdiction is the concept of "cases" and "controversies." The following analysis will explore the limits of the scope of a constitutional case and will suggest that federal courts have lost sight of their expressly limited role in adjudication by expanding the scope of the constitutional case. This phenomenon has been responsible for an unwarranted intrusion by federal courts into adjudications on questions of state law.

State courts, in contrast to federal courts, are courts of general jurisdiction, though there are exceptions to this rule.(fn4) With only a few exceptions, however, state courts are empowered to hear claims and counterclaims between parties regardless of the federal or state law character of those claims.(fn5)

This bifurcated system of justice contains safeguards for the uniform application of federal law. One safeguard is the appeal process of suits originating in state courts. Where the suit involves a question of federal law and where the highest state court has decided the case, the United States Supreme Court can grant certiorari and review the case.(fn6) Indeed, with only one exception,(fn7) "federal question" cases could not originate in federal court until 1875.(fn8) Thus, until 1875, appellate review of federal questions decided in state courts seemed to adequately minimize the risk that state court interpretations of federal law might dictate the evolution of federal law construction. But the eventual expansion in the number and scope of federal statutes led to a need for increased uniformity of construction of federal law, which in turn led to a "full independent national system of federal trial courts."(fn9) A second safeguard to state court domination of federal law interpretation is the doctrine of removal, whereby defendants in state court suits may request that the proceeding be removed to a federal district court.(fn10)

Although these safeguards exist to ensure that federal courts have the opportunity, at least in theory, to determine the construction of federal law, they do not address the equally important goal of allowing state courts to control the destiny of state law construction.(fn11)

The bifurcated structure described admits to a very serious risk. Too many suits involving questions of state law may originate in federal court by virtue of a claim in the suit that arises out of federal law. This deprives state courts of the opportunity to resolve questions of state law and raises issues of federalism and comity.(fn12) While it is difficult to determine at what point too many suits involving state law claims are being brought to the federal courts, at some point the expansion of federal jurisdiction to accommodate suits containing state law claims is an encroachment into judicial territory that rightfully belongs to the states.

One way in which federal courts have effected their expansion of subject matter jurisdiction has been through the exercise of ancillary and pendent jurisdiction.(fn13) Through historical analysis of both ancillary and pendent jurisdiction, collectively referred to as auxiliary jurisdiction, this Comment will identify the constitutional limits of a federal question case under article III.(fn14) This Comment contends, primarily, that the development of ancillary jurisdiction has had an impermissibly expansive impact on the definition of a constitutional "case." The reason for the expansion of ancillary jurisdiction is that federal courts have shifted their perspective in viewing the propriety of federal court adjudication of nonfederal claims. Originally, the federal courts approached the question of their power to adjudicate ancillary claims by reference to the necessity of preserving the judgments and processes of federal courts.(fn15) More recently, however, federal courts have turned to a "convenience perspective," determining their power to hear ancillary claims by reference to the goals of expedience, convenience, and judicial economy.(fn16) While the exercise of pendent jurisdiction has increased to some extent, it has not undergone such a change in perspective, and most federal judges now assume that the power of the federal courts to hear pendent claims is much more narrow than the power to hear ancillary claims.(fn17)

Subject matter jurisdiction raises questions of power, or competence to adjudicate. Insofar as the two perspectives-necessity and convenience-suggest differences in the power of federal courts to hear auxiliary claims, no constitutional or statutory authority supports the difference. This Comment asserts that the necessity perspective marks the outer limits of power to hear auxiliary claims, and proposes a model for keeping the exercise of auxiliary jurisdiction within its constitutional limits. The more expansive convenience perspective purports to grant more power to federal courts than the Constitution allows. For this reason, federal courts should return to the necessity perspective in the exercise of ancillary jurisdiction. By doing so, federal courts can limit the number of cases coming before them that involve issues of state law, with minimum adverse effects on the parties who will be precluded from bringing their nonfederal claims in federal court. Determining jurisdiction from the necessity perspective will guarantee that state courts will be the primary fora for interpretations of state law.

II. Ancillary Jurisdiction-Evolution of Standards

Ancillary jurisdiction, applying to certain claims filed after, or ancillary to, the original complaint, is a doctrine permitting a federal court to hear claims over which it would not otherwise have subject matter jurisdiction.(fn18) A federal court may exercise ancillary jurisdiction whenever a party asserts a claim under state law, after the original complaint has been filed in a proceeding containing a federal claim, that is sufficiently closely related to the federal claim in the suit, except in the case of pendent jurisdiction-where an original plaintiff brings both federal and nonfederal claims against the same original defendant.(fn19)

The Supreme Court first recognized ancillary jurisdiction in Freeman v. Howe.(fn20) In Freeman, a United States marshal seized a number of railroad cars under writs of attachment issued by a federal court. Individuals with mortgage claims to the property then brought an action of replevin against the marshal in state court, and received a favorable judgment. The Supreme Court, reviewing the state court decision, held that a state court lacks authority to interfere with property under the control of a federal court.(fn21) The mortgagees argued that a bar to their state court action would leave them remediless because they lacked diversity with the plaintiffs in the federal court action. The Court held that any party whose interests were affected by the action in federal court could bring a claim to property already in the federal court's control and that the mortgagees' state law claim would be ancillary to the original suit.(fn22)

The Freeman holding can be explained in one of several ways. One explanation is that property occupies so special a position in American society that an exception to the normal limitations of federal subject matter jurisdiction is warranted in order to protect property interests.(fn23) Another explanation is that all claims to property comprise but one constitutional case, in which event the entire matter is legitimately within the federal court's subject matter jurisdiction and no exception is necessary.(fn24) A third explanation is that extension of ancillary jurisdiction over the claim in Freeman was necessary to the full adjudication of the suit before the court, regardless of the claim being one to property, and that the claims of nondiverse parties were for that reason part of the same case.(fn25) Extension of jurisdiction can be "necessary" in that refusal to hear a nonfederal claim may violate fifth amendment due process guarantees if parties with a rightful claim to property before a federal court are completely foreclosed of a remedy.(fn26) This latter explanation of Freeman can be appropriately referred to as the "necessity perspective" of power to exercise auxiliary jurisdiction. Regardless of which of the three explanations prevailed in the minds of jurists, the Freeman rule was applied uniformly after I860.(fn27)

In 1926, the Supreme Court significantly expanded ancillary jurisdiction in Moore v. New York Cotton Exchange(fn28) by applying the doctrine to compulsory counterclaims. In Moore, ...

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