Supplemental jurisdiction and section 1367: the case for a sympathetic textualism.

Author:Pfander, James E.

INTRODUCTION

Something appears to be going badly wrong with the interpretation of 28 U.S.C. [sections] 1367 ("section 1367"). In the nine short years since Congress enacted it as one of several "noncontroversial" provisions of the Judicial Improvements Act of 1990,(1) the statute that defines the supplemental jurisdiction(2) of the district courts of the United States has attracted an enormous body of scholarly commentary, much of it critical of Congress's handiwork.(3) With this body of critical commentary have come the predictable calls for reform and revision.(4) Although defenders of the statute initially argued that the federal courts could work around the problems through flexible interpretation,(5) the prospects for such creative solutions have diminished in recent years as the federal courts have adopted a more text-centered approach to statutory interpretation.(6) This rigorous textualism now threatens to reshape the rules of federal jurisdiction quite dramatically and to produce results that appear very much at odds with the relatively modest expectations of the enacting Congress.(7)

As a consequence, a growing consensus of academic opinion now holds that Congress should revise the law of supplemental jurisdiction. One recent symposium featured articles from a variety of respected scholars, many of whom agree that section 1367 requires at least a tune-up if not a more substantial legislative overhaul.(8) This movement for a statutory fix coincides with last year's action of the American Law Institute ("ALI"). Acting at its meeting in May 1998, the ALI approved Tentative Draft No. 2 of a fully revised version of section 1367.(9) The ALI Draft presents a new conceptual approach to the issues of supplemental jurisdiction and traces the implications of its new approach in illuminating and sometimes exhausting detail. Approval of the draft lends the ALI's prestige as an agency of law reform to the movement for a statutory revision.

Although amendments to the statute may indeed prove necessary, their adoption should await the judicial consideration of an alternative approach to the interpretation of section 1367. The alternative presented in this Article, which I refer to as "sympathetic textualism," represents an attempt to fuse two competing approaches to the interpretation of jurisdictional law, those of the legislative historians and of the rigorous textualists. In the wake of section 1367's adoption, opinion about the workability of the statute divided into two camps. On one side were the drafters of the statute and its defenders, who argued that the federal courts could resolve textual problems with the statute through reliance upon legislative history. In contrast to those who invoked legislative history, the statute's critics insisted upon the interpretive primacy of the text and argued that the statute might well unsettle jurisdictional law. The debate between the historians and the textualists over the meaning of the supplemental jurisdiction statute corresponded to a similar debate in legisprudential circles over the role of legislative history in statutory interpretation. Indeed, it was the Court's leading textualist, Justice Antonin Scalia, who emphasized the centrality of the text in Finley v. United States,(10) the jurisdictional decision that led to the adoption of section 1367.

In calling for a sympathetic textualism, I propose a reading of section 1367 that attempts to bridge the gap between these two schools of interpretive thought. My sympathetic approach takes the expressed purpose of Congress and the history of pendent and ancillary jurisdiction as valid (if not controlling) considerations and uncovers new interpretive possibilities in the language of the statute. I thus follow to some extent the lead of the more historically minded drafters of the statute, who first called for a "sympathetic" consideration of legislative purpose in the interpretation of the statute.(11) The textualism I advance here may also appeal to the more rigorous textual critics of the statute. For even the most committed textualist will often invoke canons of statutory construction to aid the interpretive process, as Justice Scalia's own textualist decision in Finley reveals. Finley invoked the canon that Congress, in revising and consolidating the laws, does not intend to change their effect unless such intention is "`clearly expressed.'"(12) Such a rule establishes a regime of continuity with the past, very much in keeping with the insights in Professor David Shapiro's thoughtful defense of the use of the canons in the interpretive process.(13) The canons can thus assist the textualist, as Professor Shapiro notes, in a "sincere and sympathetic effort" to uncover the meaning of a statute by reminding us all that statutes rarely produce unannounced but revolutionary changes in the law.(14)

My sympathetic textualism produces a reading of section 1367 that fits well both with the legislative history's expressed desire to preserve the established rules of complete diversity and with the canonical emphasis on continuity with the past. In particular, my approach reads section 1367(a) as having incorporated the joinder and aggregation rules of complete diversity into its requirement that the district courts first obtain "original jurisdiction" of the claims in a civil action. On this account, the grant of supplemental jurisdiction in section 1367(a) does not supplant diversity's joinder and aggregation rules but comes into play in diversity proceedings only after those requirements have been satisfied. Similarly, the restrictions in section 1367(b) operate to prevent the erosion of the complete diversity requirement that might otherwise result from an expansive application of what was once termed the doctrine of ancillary jurisdiction. So read, the statute leaves in place differences that had marked the pre-codification operation of the doctrine of supplemental jurisdiction in federal-question and diversity matters, and occasions none of the unexpected changes in law that the current interpretive approach ascribes to the statute. In thus proposing a reading of section 1367 that corresponds to Congress's apparent design, this Article's "sympathetic textualism" may obviate the need for further legislative tinkering and restore the courts' role in the further elaboration of supplemental jurisdictional law.

The Article develops its case for a sympathetic interpretation of section 1367 in three parts. Part I reviews the origins of the supplemental jurisdiction statute and sketches its academic and judicial reception. I show that, beneath the surface of an ongoing debate over its proper interpretation, a broad consensus has developed concerning the meaning of the statutory text. Part II of the Article presents a more sympathetic alternative to the standard account of the text. Building on the important jurisdictional distinction between federal-question cases and diverse-party controversies, and the way that distinction informed the evolution of the judge-made doctrines of pendent and ancillary jurisdiction that became supplemental jurisdiction, the Article proposes and defends an interpretation of section 1367(a) that leaves the federal courts free to apply the tenets of diversity jurisdiction as they continued to evolve before and after the statute's adoption. Part III suggests that the Article's contrast between sympathetic and unsympathetic textualism may shed some light on current debates over the proper role of the federal courts in the interpretation of jurisdictional statutes and on the need for further reform of the kind now contemplated in the work of the ALI.

  1. THE STANDARD ACCOUNT OF SECTION 1367

    Although fierce academic battles have marked much of the field of supplemental jurisdiction,(15) some uncontested terrain remains. Perhaps most importantly, one finds in the literature a virtually universal and largely unspoken consensus about the best way to understand the interplay between the first two subsections of section 1367.(16) The Article describes this reading as the standard account of section 1367. To understand the standard account and to see how it influences modern interpretations of the statute requires some background on the nature of supplemental jurisdiction. After providing the necessary background, this Part sets out the standard account of section 1367, notes its influence with courts and commentators, and shows how it informs the revision project of the ALI.

    1. The Origins of Supplemental Jurisdiction

      Section 1367 represents an attempt by Congress to codify the doctrines of pendent and ancillary jurisdiction under the common rubric of supplemental jurisdiction.(17) The Supreme Court had developed the two doctrines in a series of decisions running well back into the nineteenth century(18) without much in the way of explicit guidance from Congress(19) and without identifying an entirely satisfying conceptual or statutory basis for them.(20) As a consequence, the judicial doctrine of supplemental jurisdiction showed some of the messy signs of case-by-case elaboration, with curious stops and starts along the way. Although the Court adopted a rather expansive approach to pendent jurisdiction in the federal-question context of United Mine Workers v. Gibbs,(21) its more cautious approach in Owen Equipment & Erection Co. v. Krogersought to prevent ancillary jurisdiction from eroding the rule of complete diversity.(22)

      The contrast between Gibbs and Kroger provides a useful introduction to the conceptual underpinnings of supplemental jurisdiction and to the debate that continues to swirl around the statute. In Gibbs, the plaintiff brought suit in federal court alleging both a secondary-boycott claim under federal labor law and a state-law claim for interference with advantageous business relations.(23) In the current parlance of supplemental jurisdiction, we would refer to the...

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