The puzzle of complete preemption.

Author:Seinfeld, Gil


It is a commonplace, at least for those of us who like to spend lots of time thinking about federal jurisdiction, that the conferral of jurisdiction on the federal courts over cases involving questions of federal law is designed principally to serve two goals. First, the establishment of such jurisdiction secures a hospitable forum for parties advancing claims that are grounded in federal law. State courts, it is argued, are apt to exhibit bias against federal claims; the establishment of federal jurisdiction permits parties who are concerned about such bias to avoid litigating in the state courts. Second, the jurisdictional grant is thought to yield greater uniformity in the interpretation of federal law because federal judges have more expertise in the interpretation of such law and are less numerous than their counterparts at the state level.

As one might expect, entire bodies of Supreme Court doctrine involving the scope of federal jurisdiction explicitly take heed of concerns relating to state court bias and, indeed, are largely driven by judges' attitudes with respect to this issue. For example, cases relating to the proper scope of federal habeas review, and whether federal courts should abstain from deciding questions of federal law (so that state court proceedings can run their course), focus intently on the issue of state-court bias against federally protected rights. (1)

Case law at the intersection of federal jurisdiction and the uniformity concern, however, is markedlv different in character. One must strain to identify cases in which the Court carefully tinkers with the rules of federal jurisdiction so as to calibrate them in a manner that will best serve the interest in securing a uniform interpretation of federal law. While Supreme Court opinions occasionally mention this interest, the Justices typically fail to offer it sustained attention.

Nowhere is this more evident than in connection with the doctrine of complete preemption. Through this doctrine, the Court has singled out a set of preemptive federal statutes for special jurisdictional treatment. Specifically, notwithstanding the venerable well-pleaded complaint rule, which permits litigants to invoke federal question jurisdiction only when the plaintiff's cause of action is grounded in federal law, the complete preemption cases allow the federal courts to exercise jurisdiction over causes of action that are pleaded in state law terms.

One can imagine a jurisdictional doctrine that treats preemption cases specially on the ground that the interest in uniformity features prominently when such statutes are at issue. When Congress preempts state law, one effect of its doing so is to homogenize the rule with which regulated entities are expected to comply. And we might want to make it particularly easy for cases calling for the interpretation of such statutes to get into the federal system, where they will be decided by courts that are thought most likely to interpret the law uniformly, thereby helping to secure the homogeneity Congress means to provide. (2)

But the Court has declined to connect the doctrine of complete preemption to the basic policies relevant to the existence and scope of federal question jurisdiction, including the interest in a uniform interpretation of federal law. Indeed, the complete preemption cases offer nothing in the way of systematic thinking about the uniformity interest and how it relates to federal jurisdiction. Complete preemption doctrine thus presents a puzzle: how and why has the Court come to afford the covered cases special jurisdictional treatment, and why is a doctrine that appears to call for justification by reference to foundational jurisdictional policies--the uniformity interest in particular--seemingly disconnected from them? This Article offers a close analysis of this unusual rule of federal jurisdiction in an effort to answer these questions. It makes the case that, due to its neglect of the core values underlying the vesting of federal question jurisdiction in the federal courts, the Court has established a doctrine that is unstable and unsound. This Article argues, further, that the doctrine might be satisfyingly remodeled by shaping it around the interest in a uniform interpretation of federal law.

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court.

Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the face of the plaintiff's well-pleaded complaint. Under the complete preemption rule, a state-law claim will fall within the federal question jurisdiction of the federal courts if it is preempted by a federal statutory scheme that provides the exclusive cause of action for the harm alleged. Part II emphasizes the apparent disconnect between this special jurisdictional rule and the reasons underlying the creation of federal question jurisdiction in the first place--in particular, the need for uniformity in the interpretation of federal law.

Part III answers the question of what complete preemption jurisprudence might look like were it reshaped in light of the relationship between preemption and the uniformity interest. I develop this answer by focusing on a feature of this interest that has been overlooked by courts and commentators alike. Specifically, the interest in uniformity comes in two distinct forms: "equal-application uniformity," which denotes the interest in assuring that all parties subject to a particular regulatory rule are treated alike, and "regulatory" uniformity," which refers to the interest in subjecting regulated entities to a single rule of law when regulation by a multitude of sovereigns would be intolerable. I argue that the intensity, of the interest in regulatory uniformity varies significantly among federal statutory schemes and that where this interest is implicated with unusual force, the argument for federal jurisdiction is strongest. I explain, finally, that we can discern when the interest in regulatory uniformity is in play through careful attention to how broadly preemptive a federal statutory scheme is. Accordingly, Part III makes the case that the doctrine of complete preemption would operate more sensibly if it were remodeled with an eye to the breadth of federal preemption.


    1. The Basics

      Article III, Section 2 of the Constitution authorizes Congress to confer jurisdiction on the federal courts over "all Cases ... arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." (3) The canonical interpretation of this Clause is provided by the Supreme Court's decision in Osborn v. Bank of the United States, which holds that a suit "arises under" federal law so long as a question of federal law "forms an ingredient of the original cause." (4) Under this construction, Congress may channel cases into the federal courts in which no federal question is actually raised by either party; all that is required is that a federal question lurk in the background of the litigation. (5)

      The federal statute governing the scope of federal question jurisdiction, 28 U.S.C. [section] 1331, largely mirrors the constitutional text. It provides that "[t] he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." (6) Notwithstanding the textual similarity, statutory "arising under" jurisdiction is considerably narrower than its constitutional counterpart. In a series of cases decided in the decades immediately following the passage of the Judiciary Act of 1875 (7) (which conferred general federal question jurisdiction on the federal courts for the first time (8)), the Court took the position that jurisdiction under the federal question statute exists only when a federal question is presented on the face of the plaintiff's well-pleaded complaint. That is, jurisdiction will exist under [section] 1331 only if a claim grounded in federal law is present in the complaint, (9) and is asserted by the plaintiff (10) as part of her affirmative theory of relief. (11)

    2. The Reasoning Behind the Jurisdictional Scheme

      1. Why Federal Question Jurisdiction?

        The vesting of federal question jurisdiction in the federal courts has long been understood to serve two principal goals: it helps prevent state court hostility to claims grounded in federal law from undermining the purposes these laws are intended to serve, and it helps to secure uniformity in the interpretation and application of federal law. (12) Concern relating to state judicial bias in the application of federal law is as old as the Union itself. Thus, in Federalist 81, Alexander Hamilton insisted that

        the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes.... State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. (13) Numerous landmark decisions of the Supreme Court relating to the scope of federal jurisdiction advance claims similar to those raised in Federalist 81. (14) The capacity of the lower federal courts to produce greater uniformity in the interpretation of federal law likewise lies at the heart of the conventional wisdom relating to why the...

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