ArtIII.S2.C1.2.1.1 Arising Under Jurisdiction: Overview

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Cases arising under the Constitution are cases that require an interpretation of the Constitution for their correct decision.1 They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a state legislature, and asks for judicial relief. The clause furnishes the principal textual basis for the implied power of judicial review of the constitutionality of legislation and other official acts.

Development of Federal Question Jurisdiction

Almost from the beginning, the Convention demonstrated an intent to create federal question jurisdiction in the federal courts with regard to federal laws;2 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments.3 But when Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts, but left litigants to remedies in state courts with appeals to the United States Supreme Court if judgment went against federal constitutional claims.4 Although there were a few jurisdictional provisions enacted in the early years,5 it was not until the period following the Civil War that Congress, in order to protect newly created federal civil rights and in the flush of nationalist sentiment, first created federal jurisdiction in civil rights cases,6 and then in 1875 conferred general federal question jurisdiction on the lower federal courts.7 Since that time, the trend generally has been toward conferral of ever-increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.8

When a Case Arises Under

The 1875 statute and its present form both speak of civil suits arising under the Constitution, laws, or treaties of the United States,9 the language of the Constitution. Thus, many of the early cases relied heavily upon Chief Justice Marshall's construction of the constitutional language to interpret the statutory language.10 The result was probably to accept more jurisdiction than Congress had intended to convey.11 Later cases take a somewhat more restrictive course.12

Determination whether there is federal question jurisdiction is made on the basis of the plaintiff's pleadings and not upon the response or the facts as they may develop.13 Plaintiffs seeking access to federal courts on this ground must set out a federal claim which is well-pleaded and the claim must be real and substantial and may not be without color of merit.14 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the action.15 But what exactly must be pleaded to establish a federal question is a matter of considerable uncertainty in many cases. It is no longer the rule that, when federal law is an ingredient of the claim, there is a federal question.16

Many suits will present federal questions because a federal law creates the action.17 Perhaps Justice Cardozo presented the most understandable line of definition, while cautioning that [t]o define broadly and in the abstract ‘a case arising under the Constitution or laws of the United States’ has hazards [approaching futility].18 How and when a case arises 'under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. . . . The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. . . . A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto. . . .19

It was long evident, though the courts were not very specific about it, that the federal question jurisdictional statute is and always was narrower than the constitutional arising under jurisdictional standard.20 Chief Justice Marshall in Osborn was interpreting the Article III language to its utmost extent, but the courts sometimes construed the statute equivalently, with doubtful results.21

Removal from State Court to Federal Court

A limited right to remove certain cases from state courts to federal courts was granted to defendants in the Judiciary Act of 1789,22 and from then to 1872 Congress enacted several specific removal statutes, most of them prompted by instances of state resistance to the enforcement of federal laws through harassment of federal officers.23 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation.24 The present statute provides for the removal by a defendant of any civil action which could have been brought originally in a federal district court, with no diversity of citizenship required in federal question cases.25 A special civil rights removal statute permits removal of any civil or criminal action by a defendant who is denied or cannot enforce in the state court a right under any law providing for equal civil rights of persons or who is being proceeded against for any act under color of authority derived from any law providing for equal rights.26

The constitutionality of removal statutes was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,27 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its constitutionality.28 In Tennessee v. Davis,29 which involved a state attempt to prosecute a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the national government to defend itself against state harassment and restraint. The power to provide for removal was discerned in the Necessary and Proper Clause authorization to Congress to pass laws to carry into execution the powers vested in any other department or officer, here the judiciary.30 The judicial power of the United States, said the Court, embraces alike civil and criminal cases arising under the Constitution and laws and the power asserted in civil cases may be asserted in criminal cases. A case arising under the Constitution and laws is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. . . .

The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of which had assisted in framing the Constitution; and though some doubts were soon after suggested whether cases could be removed from state courts before trial, those doubts soon disappeared.31 The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.32 Other removal statutes, notably the civil rights removal statute, have not been so broadly interpreted.33

Corporations Chartered by Congress

In Osborn v. Bank of the United States,34 Chief Justice Marshall seized upon the authorization for the Bank to sue and be sued as a grant by Congress to the federal courts of jurisdiction in all cases to which the bank was a party.35 Consequently, upon enactment of the 1875 law, the door was open to other federally chartered corporations to seek relief in federal courts. This opportunity was made actual when the Court in the Pacific R.R. Removal Cases36 held that tort actions against railroads with federal charters could be removed to federal courts solely on the basis of federal incorporation. In a series of acts, Congress deprived national banks of the right to sue in federal court solely on the basis of federal incorporation in 1882,37 deprived railroads holding federal charters of this right in 1915,38 and finally in 1925 removed from federal jurisdiction all suits brought by federally chartered corporations on the sole basis of such incorporation, except where the United States holds at least half of the stock.39

Federal Questions Resulting from Special Jurisdictional Grants

In the Labor-Management Relations Act of 1947, Congress authorized federal courts to entertain suits for violation of collective bargaining agreements without respect to the amount in controversy or the citizenship of the parties.40 Although it is likely that Congress meant no more than that labor unions could be suable in law or equity, in distinction from the usual rule, the Court construed the grant of jurisdiction to be more than procedural and to empower federal courts to apply substantive federal law, divined and fashioned from the policy of national labor laws, in such suits.41 State courts are not disabled from hearing actions brought under the section,42 but they must apply federal law.43 Developments under this section illustrate the substantive importance of many jurisdictional grants and indicate how the workload of the federal courts may be increased by unexpected interpretations of such grants.44

Civil Rights Act Jurisdiction

Perhaps the most important of the special federal question jurisdictional statutes is that conferring jurisdiction on federal district courts to hear suits challenging the deprivation under color of state law or custom of any right, privilege, or immunity secured by the Constitution or by any act of Congress providing for equal rights.45 Because it contains no jurisdictional amount provision46 (while the general federal question statute at one time did)47 and because the Court has held inapplicable the judicially created requirement that a litigant exhaust his state remedies before bringing federal action,48 the statute has been heavily used, resulting in a formidable caseload, by plaintiffs attacking racial discrimination, malapportionment and suffrage restrictions, illegal and unconstitutional police practices, state restrictions on access to welfare and other public assistance, and a variety of other state and local governmental practices.49 Congress has encouraged use of the two statutes by providing for attorneys' fees under § 1983,50 and by enacting related and specialized complementary statutes.51 The Court in recent years has generally interpreted § 1983 and its jurisdictional statute broadly, but it has also sought to restrict the kinds of claims that may be brought in federal courts.52 Note that § 1983 and § 1343(3) need not always go together, as § 1983 actions may be brought in state courts.53

Pendent Jurisdiction

Once jurisdiction has been acquired through allegation of a federal question not plainly wanting in substance,54 a federal court may decide any issue necessary to the disposition of a case, notwithstanding that other non-federal questions of fact and law may be involved therein.55 Pendent jurisdiction, as this form is commonly called, exists whenever the state and federal claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.56 Ordinarily, it is a rule of prudence that federal courts should not pass on federal constitutional claims if they may avoid it and should rest their conclusions upon principles of state law where possible.57 But the federal court has discretion whether to hear the pendent state claims in the proper case. Thus, the trial court should look to considerations of judicial economy, convenience and fairness to litigants in exercising its discretion and should avoid needless decisions of state law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim substantially predominated, the court would be justified in dismissing the state claim.58

A variant of pendent jurisdiction, sometimes called ancillary jurisdiction, is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it might properly not have had jurisdiction of one of the issues if it had been independently presented.59 Thus, in an action under a federal statute, a compulsory counterclaim not involving a federal question is properly before the court and should be decided.60 The concept has been applied to a claim otherwise cognizable only in admiralty when joined with a related claim on the law side of the federal court, and in this way to give an injured seaman a right to jury trial on all of his claims when ordinarily the claim cognizable only in admiralty would be tried without a jury.61 And a colorable constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.62

Still another variant is the doctrine of pendent parties, under which a federal court could take jurisdiction of a state claim against one party if it were related closely enough to a federal claim against another party, even though there was no independent jurisdictional base for the state claim.63 Although the Supreme Court at first tentatively found some merit in the idea,64 in Finley v. United States,65 by a 5-to-4 vote the Court firmly disapproved of the pendent party concept and cast considerable doubt on the other prongs of pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia wrote for the Court, was within the constitutional grant of judicial power, but to be operable it must be affirmatively granted by congressional enactment.66 Within the year, Congress supplied the affirmative grant, adopting not only pendent party jurisdiction but also codifying pendent jurisdiction and ancillary jurisdiction under the name of supplemental jurisdiction.67

Thus, these interrelated doctrinal standards now seem well-grounded.

Footnotes

  1.  Jump to essay-1Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).
  2.  Jump to essay-2Farrand, supra at 22, 211–12, 220, 244; 2 id. at 146–47, 186–87.
  3.  Jump to essay-3Id. at 423–24, 430, 431.
  4.  Jump to essay-41 Stat. 73. The district courts were given cognizance of suits for penalties and forfeitures incurred, under the laws of the United States and of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States . . . . Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals to the Supreme Court from state court constitutional decisions.
  5.  Jump to essay-5Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793, § 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted.
  6.  Jump to essay-6Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142; Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat. 14, 15.
  7.  Jump to essay-7Act of March 3, 1875, § 1, 18 Stat. 470 (codified at 28 U.S.C. § 1331(a)). The classic treatment of the subject and its history is F. Frankfurter & J. Landis, supra.
  8.  Jump to essay-8For a brief summary, see Hart & Wechsler (6th ed.), supra at 743–48.
  9.  Jump to essay-928 U.S.C. § 1331(a). The original Act was worded slightly differently.
  10.  Jump to essay-10Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379 (1821).
  11.  Jump to essay-11C. Wright, Handbook of the Law of Federal Courts § 17 (4th ed. 1983).
  12.  Jump to essay-12See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. ___, No. 14-1132, slip op. at 9–10 (2016) (This Court has long read the words ‘arising under’ in Article III to extend quite broadly, to all cases in which a federal question is an ingredient of the action . . . In the statutory context, however, we . . . give those same words a narrower scope in the light of § 1331’s history, the demands of reason and coherence, and the dictates of sound judicial policy.) (internal brackets, citations, and quotations omitted).
  13.  Jump to essay-13See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983).
  14.  Jump to essay-14Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305–308 (1923). If the complaint states a case arising under the Constitution or federal law, then federal jurisdiction exists even though on the merits the party may have no federal right. In such a case, the proper course for the court is to dismiss for failure to state a claim on which relief can be granted rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course, dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obviously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933).
  15.  Jump to essay-15Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974).
  16.  Jump to essay-16Such was the rule derived from Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986).
  17.  Jump to essay-17American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), and People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with Feibelman v. Packard, 109 U.S. 421 (1883), and The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913).
  18.  Jump to essay-18Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936).
  19.  Jump to essay-19299 U.S. at 112–13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377 U.S. 426 (1964); Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).
  20.  Jump to essay-20For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.51 (1959).
  21.  Jump to essay-21E.g., Pacific R.R. Removal Cases, 115 U.S. 1 (1885); see also id. at 24 (Chief Justice Waite dissenting).
  22.  Jump to essay-22§ 12, 1 Stat. 79.
  23.  Jump to essay-23The first was the Act of February 4, 1815, § 8, 3 Stat. 198. The series of statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405–406 (1969), and in Hart & Wechsler (6th ed.), supra at 396-398. See 28 U.S.C. §§ 1442, 1442a.
  24.  Jump to essay-24Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25 Stat. 433.
  25.  Jump to essay-2528 U.S.C. § 1441.
  26.  Jump to essay-2628 U.S.C. § 1443.
  27.  Jump to essay-27Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347–351 (1816). Story was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments.
  28.  Jump to essay-28Chicago & N.W. Ry. v. Whitton's Administrator, 80 U.S. (13 Wall.) 270 (1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 71 U.S. (4 Wall.) 411, 429–430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868).
  29.  Jump to essay-29100 U.S. 257 (1880).
  30.  Jump to essay-30100 U.S. at 263–64.
  31.  Jump to essay-31100 U.S. at 264–65.
  32.  Jump to essay-32Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute's plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991).
  33.  Jump to essay-33Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975).
  34.  Jump to essay-3422 U.S. (9 Wheat.) 738 (1824).
  35.  Jump to essay-35The First Bank could not sue because it was not so authorized. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall interpreted as conveying jurisdiction, was long construed simply to give a party the right to sue and be sued without itself creating jurisdiction, Bankers Trust Co. v. Texas & P. Ry., 241 U.S. 295 (1916), but, in American National Red Cross v. S. G., 505 U.S. 247 (1992), a 5-to-4 decision, the Court held that, when a federal statutory charter expressly mentions the federal courts in its sue and be sued provision, the charter creates original federal-question jurisdiction as well, although a general authorization to sue and be sued in courts of general jurisdiction, including federal courts, without expressly mentioning them, does not confer jurisdiction.
  36.  Jump to essay-36115 U.S. 1 (1885).
  37.  Jump to essay-37§ 4, 22 Stat. 162.
  38.  Jump to essay-38§ 5, 38 Stat. 803.
  39.  Jump to essay-39See 28 U.S.C. § 1349.
  40.  Jump to essay-40§ 301, 61 Stat. 156 (1947), 29 U.S.C. § 185.
  41.  Jump to essay-41Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the Court had given the section a restricted reading in Association of Employees v. Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented a federal question sufficient for federal jurisdiction. Id. at 449–52, 459–61 (opinion of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse, that no jurisdiction exists under § 301 for suits to enforce personal rights of employees claiming unpaid wages, was overturned in Smith v. Evening News Ass'n, 371 U.S. 195 (1962).
  42.  Jump to essay-42Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).
  43.  Jump to essay-43Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). State law is not, however, to be totally disregarded. State law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy . . . . Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957).
  44.  Jump to essay-44For example, when federal statutes create new duties without explicitly creating private federal remedies for their violation, the willingness of the federal courts to infer private causes will implicate the federal courts' workload. During the mid-20th century, the Court would imply causes of action that were not explicit in the text of a statute as a routine matter. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969) (We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.); Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969) (The existence of a statutory right implies the existence of all necessary and appropriate remedies.). In the late 1970s, the Court began to move away from such an approach, see Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights.), and more recently has instead held that for a court to recognize a statutory cause of action, the statute itself must displa[y] an intent to create both a private right and a private remedy. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

    In the context of constitutional rights, the Court in 1971 recognized (in the absence of any federal statute) an implied damages remedy to compensate persons injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Since Bivens, the Court has recognized a similar remedy for a violation of the equal protection component of the Fifth Amendment's Due Process Clause, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and an Eighth Amendment Cruel and Unusual Punishment Clause violation, see Carlson v. Green, 446 U.S. 14, 19 (1980). However, these three cases are anomolous and represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself. See Ziglar v. Abbasi, 582 U.S. ___, No. 15-1358, slip op. at 7 (2017). Instead, in a series of cases, the Court has rejected extending the Bivens remedy to other contexts. See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (rejecting an Eighth Amendment-based Bivens claim against employees of a privately operated federal prison); Wilkie v. Robbins, 551 U.S. 537, 547–48, 562 (2007) (refusing to recognize a Bivens claim against officials of the Bureau of Land Management accused of harassment and intimidation aimed at extracting an easement across private property in violation of the Fourth and Fifth Amendments); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (refusing to extend Bivens to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons); FDIC v. Meyer, 510 U.S. 471 (1994) (declining to imply a Bivens cause of action directly against an agency of the Federal Government); Schweiker v. Chilicki, 487 U.S. 412 (1988) (refusing to infer a damages action against individual government employees alleged to have violated due process in their handling of Social Security applications); United States v. Stanley, 483 U.S. 669, 671–72, 683–84 (1987) (holding that Bivens does not extend to any claim incident to military service); Bush v. Lucas, 462 U.S. 367, 389 (1983) (declining to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment); Chappell v. Wallace, 462 U.S. 296, 298 (1983) (declining to extend Bivens to claims by military personnel against superior officers). Recognizing that it is a significant step under separation-of-powers principles for a court to determine that it has the authority . . . to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation, the Court in Ziglar v. Abbasi, without overturning Bivens, held that if a case is different in a meaningful way from the three previous instances in which the Court recognized a damages remedy, Bivens should not be extended to a new context if there are special factors counseling hesitation. See Ziglar, slip op. at 10–16. In particular, if there are reasons to think that Congress might have questioned the need for a damages remedy, courts must refrain from creating such a remedy. Id. at 10. Moreover, the Court supported its conclusion by noting that courts generally are not well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Id. at 12.

    In addition federal common law may exist in a number of areas where federal interests are involved and federal courts may take cognizance of such suits under their arising under jurisdiction. See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972); Int'l Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987). The Court, however, has been somewhat wary of finding federal common law in the absence of some congressional authorization to formulate substantive rules, see Texas Industries v. Radcliff Materials, 451 U.S. 630, 640 (1981), and Congress may always statutorily displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 at 107 (1981).

  45.  Jump to essay-4528 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant applies is 42 U.S.C. § 1983, making liable and subject to other redress any person who, acting under color of state law, deprives any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States. For discussion of the history and development of these two statutes, see Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978); Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two statutes originally had the same wording in respect to the Constitution and laws of the United States, when the substantive and jurisdictional aspects were separated and codified, § 1983 retained the all-inclusive laws provision, while § 1343(3) read any Act of Congress providing for equal rights. The Court has interpreted the language of the two statutes literally, so that while claims under laws of the United States need not relate to equal rights but may encompass welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do not spring from an act providing for equal rights may not be brought under § 1343(3). Chapman v. Houston Welfare Rights Org., supra. This was important when there was a jurisdictional amount provision in the federal question statute but is of little significance today.
  46.  Jump to essay-46See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it was argued that only cases involving personal rights, that could not be valued in dollars, could be brought under § 1343(3), and that cases involving property rights, which could be so valued, had to be brought under the federal question statute. This attempted distinction was rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546–48 (1972). On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247 (1978). See also Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986) (compensatory damages must be based on injury to the plaintiff, not on some abstract valuation of constitutional rights).
  47.  Jump to essay-4728 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. No. 94-574, 90 Stat. 2721; Pub. L. No. 96-486, 94 Stat. 2369.
  48.  Jump to essay-48Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). This had been the rule since at least McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). See also Felder v. Casey, 487 U.S. 131 (1988) (state notice of claim statute, requiring notice and waiting period before bringing suit in state court under § 1983, is preempted).
  49.  Jump to essay-49Thus, such notable cases as Brown v. Board of Education, 347 U.S. 483 (1954), and Baker v. Carr, 369 U.S. 186 (1962), arose under the statutes.
  50.  Jump to essay-50Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine v. Thiboutot, 448 U.S. 1 (1980).
  51.  Jump to essay-51E.g., Civil Rights of Institutionalized Persons Act, Pub. L. No. 96-247, 94 Stat. 349 (1980), 42 U.S.C. §§ 1997 et seq.
  52.  Jump to essay-52E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S. 651 (1977).
  53.  Jump to essay-53Maine v. Thiboutot, 448 U.S. 1 (1980).
  54.  Jump to essay-54Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. Lavine, 415 U.S. 528, 534–543 (1974).
  55.  Jump to essay-55Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822–28 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
  56.  Jump to essay-56Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of Hurn v. Oursler, 289 U.S. 238, 245–46 (1933). See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases using the new vernacular of ancillary jurisdiction).
  57.  Jump to essay-57Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546–550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court held in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984), held that, when a pendent claim of state law involves a claim that is against a state for purposes of the Eleventh Amendment, federal courts may not adjudicate it.
  58.  Jump to essay-58United Mine Workers v. Gibbs, 383 U.S. 715, 726–27 (1966).
  59.  Jump to essay-59The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in which federal jurisdiction was founded on diversity of citizenship.
  60.  Jump to essay-60Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).
  61.  Jump to essay-61Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963).
  62.  Jump to essay-62Rosado v. Wyman, 397 U.S. 397, 400–05 (1970).
  63.  Jump to essay-63Judge Friendly originated the concept in Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971); Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971).
  64.  Jump to essay-64Aldinger v. Howard, 427 U.S. 1 (1976).
  65.  Jump to essay-65490 U.S. 545 (1989).
  66.  Jump to essay-66490 U.S. at 553, 556.
  67.  Jump to essay-67Act of Dec. 1, 1990, Pub. L. No. 101-650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367. In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the Court, despite the absence of language making § 1367 applicable, held that the statute gave district courts jurisdiction over state-law claims in cases originating in state court and then removed to federal court.