GULLY AND THE FAILURE TO STAKE A 28 U.S.C. § 1331 "CLAIM"
Lumen N. Mulligan(fn*)
Abstract : In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school's approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view-read as a call for judges simply to select sufficiently important matters, in relation to plaintiff's case in chief, for inclusion in federal question jurisdiction-does not have a unique affinity to legal-process-school jurisprudential norms. To the contrary, legal-process-school principles support a more traditional rights-and-causes-of-action approach to § 1331 doctrine, understood as a means of effectuating the principle of congressional control over lower federal court jurisdiction. Second, I contend that Gully, understood as espousing a transaction or claim-centric approach to § 1331, lays a poor foundation for this doctrine. Indeed, this interpretation of Gully is both inaccurate and anachronistic. In this same vein, I note that the Supreme Court's contemporary use of the term "claim" subsumes the very notions of right and cause of action that the claim-centric view aims to avoid, and that a claim-centered view is likely to cause more practical havoc than help. Finally, I argue that this return to Gully is more emblematic of a pragmatic approach to § 1331 jurisdictional law, which I reject within the confines of the broader contemporary discussion regarding the role of "simple" versus "complex" jurisdictional regimes.
INTRODUCTION ................................................................................ 442
I. THE LEGAL PROCESS SCHOOL, GULLY, AND § 1331 DOCTRINE .................................................................................. 448
A. Rights and Causes of Action as Expressions of Legal-Process-School Norms ....................................................... 453
B. The Gully Approach to § 1331 Fails to Live Up to the Standards of the Legal Process School ............................... 459
II. READING GULLY AS A CLAIM-BASED APPROACH .......... 462
A. There is No Golden-Age of a Claim-Centric § 1331 to
Which We Can Return ....................................................... 462
1. Gully Speaks in Terms of Rights, Not Claims .............. 462
2. "Claim" in the Context of Gully Is Anachronistic ........ 466
B. Contemporary Usage of Jurisdictional Claim Does Not Support a Claim-Centered View of § 1331 Doctrine ......... 468
1. The Court's Current Use of Claim Subsumes Causesof Action and Rights ..................................................... 469
2. Other Conceptions of a § 1331 Claim Are Not Fact Focused ......................................................................... 471
3. Confusing Jurisdictional and On-The-Merits Dismissals ..................................................................... 474
III. GULLY AS JURISDICTIONAL PRAGMATISM ...................... 479
CONCLUSION .................................................................................... 485
INTRODUCTION
In a recent thought-provoking piece, Professor Simona Grossi argues from a legal-process-school point of view that 28 U.S.C. § 1331 doctrine should be re-constructed in light of Gully v. First National Bank in Meridian.(fn1) She contends that this Gully-inspired approach clarifies federal question jurisdiction law when read either as a call for judges simply to select sufficiently important matters, in relation to plaintiff's case in chief, for inclusion in federal question jurisdiction or when read in terms of "claims,"(fn2) a concept that she defines "by reference to the facts that establish a legal right to relief" as that concept is used in the Federal Rules of Civil Procedure and contemporary res judicata law.(fn3) In this piece, I praise Grossi's renewed focus on legal-process-school norms. Indeed, based upon her call to return to our legal-process roots, I contend that my past work in the § 1331 canon is consistent with these jurisprudential norms. Nevertheless, I argue that neither Gully, interpreted as requiring judges to select sufficiently important matters for jurisdictional purposes, nor the concept of claim can serve as useful tools for interpreting the § 1331 canon.
I begin with a brief primer on § 1331 doctrine. In 1875, Congress passed the first general grant of federal question jurisdiction, now codified in § 1331.(fn4) Even though the language of § 1331 parallels that of Article III of the Constitution, modern Supreme Court opinions consistently hold that § 1331 federal question jurisdiction is not identical in scope to the constitutional federal question jurisdiction provision.(fn5) Indeed, the modern Court interprets § 1331 as granting a much narrower scope of jurisdiction than the Constitution permits.(fn6) In furtherance of this generally restrictive interpretive principle, all § 1331 jurisdictional cases are subject to the well-pleaded complaint rule.(fn7) Following this rule, only federal issues raised in a plaintiff's complaint, not anticipated defenses, establish federal question jurisdiction.(fn8)
Doctrinal orthodoxy further maintains that the Court has since established two independent and irreconcilable tests for determining when a complaint raises a well-pleaded federal question. According to the black-letter view, the overwhelming majority of federal question cases(fn9) vest under § 1331 because federal law-be it by statute, treaty, Constitution or federal common law(fn10)-creates the plaintiff's cause of action.(fn11) Justice Holmes so forcefully advocated for this understanding of § 1331 that this view is often referred to as the "Holmes test."(fn12) Conversely, pursuant to the second black-letter test, federal question jurisdiction will lie in rare instances over state-law causes of action that necessarily require construction of an embedded federal right.(fn13) As Smith v. Kansas City Title & Trust Co.(fn14) is the Court's classic statement of this position, this line of cases is often referred to as the Smith test. In Smith, a stockholder-plaintiff brought a breach of fiduciary duty cause of action under state law. This case would not satisfy the Holmes test, as it was not brought under a federal cause of action. But the Court held that federal question jurisdiction arose under § 1331 because an element of the plaintiff's state-law claim required adjudication of the constitutionality of a federal act.(fn15) The standard account of § 1331 jurisdiction, then, finds that federal question subject matter jurisdiction vests under one of two established tests: either (1) because the plaintiff brings a federal cause of action under the Holmes test; or (2) the plaintiff relies upon a federal right under the Smith test.
With this briefest of overviews in hand, I turn next to a summary of Grossi's thoughtful work that challenges many of these traditional understandings of § 1331 jurisprudence. Grossi rejects both the cause-of-action-based and rights-based views presented above and instead argues that § 1331 jurisprudence should focus solely upon the Court's 1936 Gully opinion.(fn16) In so doing, she casts off the Court's current focus on the Holmes test, with its focus on cause of action, which she describes as overly "mechanical"(fn17) and contrary to the earlier-predominantly nineteenth century-interpretations of the Act.(fn18) She similarly rejects a view that focuses upon both rights and causes of action as a blend of the Holmes and Smith tests, espoused by myself and others,(fn19) also as overly mechanistic.(fn20) She contends that her view is superior to others as judged by legal-process-school principles, which she asserts form the best vantage from which to evaluate the normative attractiveness of jurisdictional doctrine.(fn21) Grossi presents these legal-process norms in terms of five concepts: (1) a focus upon institutional settlement; (2) a purposive approach to judicial decision-making; (3) a commitment to rule of law; (4) a commitment to reasoned elaboration of enduring legal principles; and (5) a special attention to the balancing of neutral principles that transcend the immediate facts of any particular case such as the structural features of the Constitution-namely, federalism, separation of powers, and individual rights.(fn22)
Relying on these principles, Grossi instructs us to consider Gully as the proper cornerstone of § 1331 doctrine. The relevant facts from Gully are straight-forward. Mr. Gully, a state tax collector, brought state law causes of action against the First National Bank for overdue state levies.(fn23) The case did not arise under the Holmes test precisely because the plaintiff did not allege a federal cause of action.(fn24) Nevertheless, the Bank removed to federal court on the theory that § 1331 jurisdiction arose because a federal statute, which was otherwise not at issue in the suit, initially allowed the state to levy taxes against this nationally chartered bank. One interpretation, then, is that the Bank was pushing for an extension of the Smith test.(fn25) The Supreme Court ultimately found...
