Foreign relations and federal questions: resolving the judicial split on federal court jurisdiction.

• Jurisdiction: United States
• Author: Terrell, Erin Elizabeth
• Date: 01 November 2002

ABSTRACT

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

TABLE OF CONTENTS

1. INTRODUCTION II. THE PRINCIPLES UNDERLYING THE CIRCUIT SPLIT A. Federal Question Jurisdiction B. Federal Common Law of Foreign Relations III. THE DETAILS OF THE CIRCUIT SPLIT A. The Second Circuit: Republic of the Philippines v. Marcos B. The Fifth Circuit: Torres v. Southern Peru Copper Corporation C. The Eleventh Circuit: Pacheco de Perez v. AT&T Company D. The Ninth Circuit: Patrickson v. Dole Food Company IV. RESOLVING THE SPLIT A. Judicial Resolution by the Supreme Court 1. Federal Jurisdiction Attaches a. The Argument for "Quasi-Protective Jurisdiction" b. The Arguments Against "Quasi-Protective Jurisdiction" i. Forum Non Conveniens ii. Political Question Doctrine 2. No Federal Jurisdiction a. Analogy to "Statehood" b. Strictly Reading Section 1331 B. Legislative Resolution: Implementing the Ninth Circuit Result and Reasoning V. CONCLUSION I. INTRODUCTION

   This Note examines a split among the federal circuits regarding the intersection of two frequently debated issues--one an aspect of U.S. law, the other an aspect of international relations. The U.S. legal matter is the concept of a "federal question," which is fundamental to the jurisdiction of federal courts. (1) The international matter is the concept of "foreign relations," which typically encompasses activities only conducted by the political branches of the federal government. (2) The question here is the relationship between the two: does "foreign relations" necessarily entail a "federal question," as three circuit courts have held, (3) so that litigation involving foreign policy will automatically be granted access to federal courts? Or are the two distinct, as one circuit court most recently held, (4) so that the foreign relations element of a case cannot by itself be a basis to establish federal court jurisdiction?

   To illustrate the implications of the issue, assume that ABC Corporation, a manufacturer of weapons systems of various kinds with its corporate headquarters in State A, has, with federal government approval, established a contract to sell an important military item to an important allied government--Country X--that is strategically critical to the foreign relations interests of the United States. Unfortunately, an accident occurs at an ABC plant in Country X, and workers are killed and injured. Plaintiffs sue ABC in the state courts of State A under the law of State A. If liability results, manufacturing of the item may cease, and relations with Country X may be jeopardized. The question this Note addresses is whether ABC should be able, for any number of strategic reasons, to remove this case to a federal district court in State A under the theory that, despite the fact that ABC may not remove the case to federal court under 28 U.S.C. [section] 1441(b), the foreign relations implications of the case are sufficient to establish federal question jurisdiction. (5)

   As discussed in Part II of this Note, each case decided by one of the circuit courts of appeal involved an action originally filed by plaintiffs in a state court, based on state causes of action, that the defendants sought to remove to federal court. (6) In each of these four cases, the district courts ruled that removal was barred because at least one of the defendants was considered a resident of the state of filing. (7) Thus, for the defendants to remove the case to federal court, they had to argue that a federal question was present. To raise a federal question, the defendants had to plead that because U.S. foreign relations would be implicated by the resolution of the claim, and foreign relations are delegated to the federal government, a federal court should have original jurisdiction over the case. (8)

   The three circuits that have held that foreign policy implications are sufficient to establish federal jurisdiction--the Second, Fifth, and Eleventh Circuits--relied heavily on the U.S. Supreme Court's holding in Banco Nacional de Cuba v. Sabbatino (9) and its acknowledgement of, as others later characterized it, the "federal common law of foreign relations." (10) These courts read the Sabbatino case broadly to stand for the proposition that any time the political relations between the United States and other nations are implicated, federal courts should have original jurisdiction over the action. Thus, because the plaintiffs' complaints implicated U.S. foreign relations, these three circuits held that federal question jurisdiction should attach. (11)

   As discussed in Part III, however, these three circuits conflated federal question jurisdiction in its traditional form, with a separate judicial doctrine labeled "protective jurisdiction": the former attaches if application of federal law--here, the federal common law of foreign relations--is necessary to the plaintiffs well-pleaded complaint, while the latter is granted when a federal statute authorizes federal courts to exercise original jurisdiction over claims based on state law because an important federal interest needs to be protected. (12) The decisions by the Second, Fifth, and Eleventh Circuits, however, created a hybrid "quasi-protective jurisdiction" that can be invoked in the absence of any basis in federal law when the federal interest in foreign relations may be implicated by the plaintiff's case. (13) These decisions are even more unusual because nothing in the text of the statute defining federal court jurisdiction--28 U.S.C. [section] 1331--creates a foundation for such jurisdictional authority.

   The Ninth Circuit, in contrast, refused to read the Sabbatino case so broadly, and concluded that foreign policy implications from a multinational lawsuit are irrelevant to a consideration of whether the plaintiffs complaint raised a substantial federal question. (14) To do so would unduly expand original federal question jurisdiction as established in 28 U.S.C. [section] 1331, which the court was unwilling to do. (15) Instead, the court called upon the political branches to confer federal jurisdiction explicitly on the federal courts for cases involving U.S. foreign relations. (16) Although the Ninth Circuit did not discuss protective jurisdiction, its invitation for congressional action implies that such jurisdiction would be constitutional. (17) But because the other circuits relied on their new form of "quasi-protective jurisdiction," the Ninth Circuit opinion did not directly clarify the confusion between its approach and the others.

   Whatever the merits of the result in the Ninth Circuit, that court's analysis of the issues is the most useful because it presents most clearly the three choices--developed in Part IV below--available for determining the proper relationship between "federal questions" and "foreign relations." The first is to adopt the reasoning of the Ninth Circuit and decide that foreign policy implications are irrelevant to an analysis of federal question jurisdiction because Section 1331 cannot be interpreted to include cases in which no application of federal law is required. (18) In other words, litigants must establish federal jurisdiction independently of the foreign elements in the case and according to traditional bases. This option would preclude federal courts from exercising protective jurisdiction without congressional authorization.

   The second is to endorse the notion of "quasi-protective jurisdiction" of the Second, Fifth, and Eleventh Circuits, creating automatic federal question jurisdiction any time litigation raises sufficient foreign policy implications as measured by the district court. (19) This option is based on the theory that, notwithstanding the political question doctrine, because U.S. foreign relations have been expressly and impliedly delegated to the Executive and Legislative Branches by Articles I and II of the U.S. Constitution, foreign policy considerations arising in litigation should likewise be directed consistently to the federal judiciary so that the nation can speak with "one voice." (20) The details of the different decisions on this issue, however, indicate that this type of purely judicial resolution to the situation, based on interpreting current statutes in light of very different forms of "foreign relations" elements that particular litigants claim in specific cases are implicated, is quite problematic.

   The third option, alluded to by the Ninth Circuit, involves a middle ground response: When litigation raises foreign policy implications and litigants seek federal court jurisdiction, the federal courts could ask the Executive Branch whether those implications are sufficiently important to its conduct of foreign affairs to confer federal question jurisdiction. This option hinges on the reasoning that, because the U.S. Constitution expressly and impliedly delegates foreign relations power to the federal political branches, those political branches should decide when federal judicial authority should be exercised. (21) If Congress passed such legislation, the legislation would have to both expand Section 1331 and also define "foreign policy implications" sufficient to invoke the statute. (22)

2. THE PRINCIPLES UNDERLYING THE CIRCUIT SPLIT

   The background principles analyzed by each court of appeals in the four cases discussed in this Note involved two parts: first, the nature of "federal question" jurisdiction, and second, the relationship of the rules of that form of jurisdiction to the federal common law of foreign relations. (23)

   1. Federal...