Apparently not-so-easy fed court question on "arising under" Forum

[Germaine]

I think this is one of those concepts that is so basic and simple but I can't seem to unclutter my braine enough to get it. Here goes:

I understand that Article III arising under jurisdiction (Osborn) is broader than 1331. What I don't get is why some cases (e.g., Verlinden) are analyzed under the AIII standard and not 1331. In other words, why isn't 1331 a limit on all attempts by Congress to establish fed ct jurisdiction? Is it just that Congress can get around 1331 by creating a jurisdiction-granting provision within the statute, rather than relying on 1331? And if so, why wouldn't Congress always do that?

[axel.foley]

This is one of those mental/conceptual blocks that is so basic and simple that you're almost embarrassed to ask about it, but here goes.

I understand that Article III arising under jurisdiction (Osborn) is broader than 1331. What I don't get is why some cases (e.g., Verlinden) are analyzed under the AIII standard and not 1331. In other words, why isn't 1331 a limit on all attempts by Congress to establish fed ct jurisdiction? Is it just that Congress can get around 1331 by creating a jurisdiction-granting provision within the statute, rather than relying on 1331? And if so, why wouldn't Congress always do that?

I definitely don't think this is an easy question and one I'm curious about too. My casebook has a 2nd Cir. case Eliscu, which (according to my outline) says that Osborn refers to the “arising under” language in A3; if carried over to Congress’ general grant of FQ jurisdiction in §1331, jurisdiction of the fed cts would be too extensive.

So I'm not sure why some cases would be analyzed under the A3 standard. We didn't cover Verlinden. I agree the likely answer is that it is a congressional authorization thing -- obviously §1331 is a statute and so no reason Congress couldn't give fed cts the full power they have under the Constitution.

[Germaine]

Yeah the E&E explanation of it only has me more confused (and I usually like their explantions). It says (paraphrasing slightly):

The different constructions of A3 and 1331 matter when Congress seeks to authorize jurisdiction based on A3's arising under power, but is legislating in a specific area where 1331 does not provide the statutory jurisdiction.

I've read that sentence 1000 times and I cannot make sense of what it means. If Congress is legislating in an area where 1331 doesn't provide statutory jurisdiction, then why wouldn't Congress just create statutory jurisdiction in that area. Seems like all it would need to do at that point is stay within the exceedingly broad terrain of Osborn.

[almercobb]

Here is what my 3-year-old Fed Courts outline has to say about Article III vs 1331:

1. Statutory jurisdictional grant §1331
   1. “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
   2. Despite similarity of language to expansively interpreted constitutional text, 1331interpreted more restrictively:
      1. Federal jurisdiction supported only when plaintiff’s case includes a non-frivolous federal element.
      2. Federal defenses do not “arise under” for purposes of § 1331. MOTTLEY (1908). 774.
      3. Only a plausible federal claim necessary to provide jurisdiction—novel but reasonable claims later found invalid are sufficient to support federal jurisdiction. BELL v. HOOD (1946). 782.

The constitution is interpreted broadly, giving Congress the authority to grant federal jurisdiction broadly.

However, Congress' actual jurisdictional grant, § 1331, is interpreted narrowly.

This doesn't constrain Congress. If Congress wanted to amend 1331 to be more broad, or create additional jurisdictional grants, it could do so (under broad Article III jurisprudence).

Instead, the narrow 1331 interpretation is a limit on parties seeking access to the federal courts. For example, you have a federal defense to a state law claim and want to remove to federal district court? Too bad. 1331 doesn't extend to federal defenses. (Again, Article III would allow Congress to grant access, but Congress hasn't granted access).

Ah, I don't think we covered Verlinden either, but that looks pretty straightforward: in the facts of Verlinden, with the Foreign Sovereign Immunities Act (FSIA) Congress established additional jurisdiction to federal courts for certain actions against foreign states. This is outside and beyond the general jurisdictional grant of 1331, but that's fine: Congress is entitled to make any jurisdictional grants it wants to as long as they fall within the broad constraints of Article III. The Court in Verlinden is therefore examining only whether the grant of jurisdiction is within the broad constraints of Article III. The narrow 1331 jurisprudence is irrelevant.

[Germaine]

in the facts of Verlinden, with the Foreign Sovereign Immunities Act (FSIA) Congress established additional jurisdiction to federal courts for certain actions against foreign states. This is outside and beyond the general jurisdictional grant of 1331, but that's fine: Congress is entitled to make any jurisdictional grants it wants to as long as they fall within the broad constraints of Article III. The Court in Verlinden is therefore examining only whether the grant of jurisdiction is within the broad constraints of Article III. The narrow 1331 jurisprudence is irrelevant.

Okay so basically the 1331 limitation only applies when Congress is seeking to grant jurisdiction under 1331. That makes sense and lines up with what I thought. Thanks so much for that.

I guess where I'm still confused is why would Congress not create a separate jurisdictional statute, broader than 1331, every time it wanted to make sure its jurisdictional grant would stick? I know this is probably an elementary question, and the answer is probably something like "because Congress can't just add jurisdictional provisions to statutes, it's not that easy." But I wonder if someone can just help me see this right.

[Skool]

in the facts of Verlinden, with the Foreign Sovereign Immunities Act (FSIA) Congress established additional jurisdiction to federal courts for certain actions against foreign states. This is outside and beyond the general jurisdictional grant of 1331, but that's fine: Congress is entitled to make any jurisdictional grants it wants to as long as they fall within the broad constraints of Article III. The Court in Verlinden is therefore examining only whether the grant of jurisdiction is within the broad constraints of Article III. The narrow 1331 jurisprudence is irrelevant.

Okay so basically the 1331 limitation only applies when Congress is seeking to grant jurisdiction under 1331. That makes sense and lines up with what I thought. Thanks so much for that.

I guess where I'm still confused is why would Congress not create a separate jurisdictional statute, broader than 1331, every time it wanted to make sure its jurisdictional grant would stick? I know this is probably an elementary question, and the answer is probably something like "because Congress can't just add jurisdictional provisions to statutes, it's not that easy." But I wonder if someone can just help me see this right.

Not sure I completely understand your question, but I'll try (I need to review too).

What do you mean by "create a separate jurisdictional statute broader than 1331", you mean like outright tell the trial courts in order to make sure it's clear that the jurisdictional authorization sticks that "for this specific federal issues [civil rights, or employment stuff, or patent ownership disputes], plaintiffs have a right to be heard in the trial courts AKA there is a federal cause of action." Is that what you're thinking of in terms of congress "creating a separate jurisdictional statute, broader than 1331?"

That happens all the time, and, if I understand your point correctly, I think SCOTUS agrees with you. They're saying in a case like Merrell Dow, "look the fact that Congress hasn't explicitly granted a private right of action in federal courts for failure to comply with drug labeling standards is evidence that they didn't mean to give trial courts the authorization to hear this kind of claim. It would be very easy for them to do, but they didnt. So don't bring that noise to the federal courts. This is a state commonlaw negligence per se tort action you're trying to dress up as arising under federal law because the statute that makes it negligence per se happens to be a federal statute. But this ambiguity is an accidental intersection of a state cause of action colored by federal subject matter. So get thee to the state courts."