Aldinger v. Howard
427 U.S. 1 (1976)

Annotate this Case

U.S. Supreme Court

Aldinger v. Howard, 427 U.S. 1 (1976)

Aldinger v. Howard

No. 74-6521

Argued March 24, 1976

Decided June 24, 1976

427 U.S. 1

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

After petitioner had been discharged without a hearing by respondent county treasurer from her job in his office, she brought suit against the treasurer, the respondent county, and other county officers in Federal District Court under 42 U.S.C. § 1983, claiming that her discharge violated her federal constitutional rights and seeking injunctive relief and damages. Jurisdiction over the federal claim was asserted under 28 U.S.C. § 1343(3), which gives federal district courts jurisdiction over "any civil action authorized by law to be commenced by any person" to redress the deprivation, under color of state law, of federal constitutional rights, and pendent jurisdiction was alleged to lie over a state law claim against the county. The District Court dismissed the action as to the county on the ground that, since the county was not suable as a "person" under § 1983, there was no independent basis of jurisdiction over it, and that thus the court had no power to exercise pendent jurisdiction over the claim against the county. On an appeal from this dismissal, the Court of Appeals affirmed.

Held: A fair reading of the language used in § 1343(3), together with the scope of § 1983, under which counties are excluded from the "person[s] " answerable to the

Page 427 U. S. 2

plaintiff "in an action at law [or] suit in equity" to redress the enumerated deprivations, requires a holding that the joinder of a municipal corporation, like the county here, for purposes of asserting a state law claim not within federal jurisdiction, is without the District Court's statutory jurisdiction. While, with respect to litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, there is nothing in Art. III's grant of judicial power that prevents adjudication of the nonfederal portions of the parties' dispute, it is quite another thing to permit a nonfederal claim, in turn, to be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim derives from the "common nucleus of operative fact," giving rise to the dispute between the parties to the federal claim. Mine Workers v. Gibbs,383 U. S. 715, distinguished. The addition of a completely new party under such circumstances would run counter to the well established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress. Pp. 427 U. S. 6-19.

513 F.2d 1257, affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 427 U. S. 19.

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

This case presents the "subtle and complex question with far-reaching implications," alluded to but not answered in Moor v County of Alameda,411 U. S. 693, 411 U. S. 715 (1973), and Philbrook v. Glodgett,421 U. S. 707, 421 U. S. 720 (1975): whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom

Page 427 U. S. 3

no independent basis of federal jurisdiction exists. In this action, where jurisdiction over the main, federal claim against various officials of Spokane County, Wash., was grounded in 28 U.S.C. § 1343(3), the Court of Appeals for the Ninth Circuit held that pendent jurisdiction was not available to adjudicate petitioner's state law claims against Spokane County, over which party federal jurisdiction was otherwise nonexistent. While noting that its previous holdings to this effect were left undisturbed by Moor, which arose from that Circuit, the Court of Appeals was "not unaware of the widespread rejection" of its position in almost all other Federal Circuits. 513 F.2d 1257, 1261 (1975). We granted certiorari to resolve the conflict on this important question. 423 U.S. 823 (1975). We affirm.

I

This case arises at the pleading stage, and the allegations in petitioner's complaint are straightforward. Petitioner was hired in 1971 by respondent Howard, the Spokane County treasurer, for clerical work in that office. Two months later, Howard informed petitioner by letter that, although her job performance was "excellent," she would be dismissed, effective two weeks hence, because she was allegedly "living with [her] boy friend." Howard's action, petitioner alleged, was taken pursuant to a state statute which provides that the appointing county officer "may revoke each appointment at pleasure." [Footnote 1] Though a hearing was requested, none was held before or after the effective date of the discharge.

Petitioner's action in the United States District Court for the Eastern District of Washington, as embodied in her second amended complaint, claimed principally under

Page 427 U. S. 4

the Civil Rights Act of 1871, 42 U.S.C. § 1983, [Footnote 2] that the discharge violated her substantive constitutional rights under the First, Ninth, and Fourteenth Amendments, and was procedurally defective under the latter's Due Process Clause. An injunction restraining the dismissal and damages for salary loss were sought against Howard, his wife, the named county commissioners, and the county. Jurisdiction over the federal claim was asserted under 28 U.S.C. § 1343(3), [Footnote 3] and pendent jurisdiction was alleged to lie over the "state law claims against the parties." As to the county, the state law

Page 427 U. S. 5

claim was laid to rest on state statutes waiving the county's sovereign immunity and providing for vicarious liability arising out of tortious conduct of its officials. 513 F.2d at 1358. The District Court dismissed the action as to the county on the ground that, since it was not suable as a "person" under § 1983, there was no independent basis of jurisdiction over the county, and thus "this court [has no] power to exercise pendent jurisdiction over the claims against Spokane County." From this final judgment, see Fed.Rule Civ.Proc. 54(b), petitioner appealed.

The Court of Appeals first rejected petitioner's claim that her § 1983 action against the county fell within the District Court's § 1343(3) jurisdiction, as obviously foreclosed by this Court's decisions in Moor, supra, and City of Kenosha v. Bruno,412 U. S. 507 (1973). Turning to petitioner's pendent jurisdiction argument, the Court of Appeals noted, 513 F.2d at 1260, that the District Court had made no alternative ruling on the "suitability of this case for the discretionary exercise of pendent jurisdiction" under the second part of the rule enunciated in Mine Workers v. Gibbs,383 U. S. 715, 383 U. S. 726-727 (1966). But since this Court in Moor had expressly left undisturbed the Ninth Circuit's refusal to apply pendent jurisdiction over a nonfederal party, the instant panel felt free to apply that rule as set out in Hymer v. Chai, 407 F.2d 136 (CA9 1969), and Moor v. Madigan, 458 F.2d 1217 (CA9 1972), aff'd in part, rev'd in part,411 U. S. 693 (1973). This kind of case, the Court of Appeals reasoned, presented the "weakest rationale" for extension of Gibbs to pendent parties: (1) The state claims are pressed against a party who would otherwise not be in federal court; [Footnote 4] (2) diversity cases generally present more

Page 427 U. S. 6

attractive opportunities for exercise of pendent party jurisdiction, since all claims therein, by definition, arise from state law; (3) federal courts should be wary of extending court-created doctrines of jurisdiction to reach parties who are expressly excluded by Congress from liability, and hence federal jurisdiction, in the federal statute sought to be applied to the defendant in the main claim; (4) pendent state law claims arising in a civil rights context will "almost inevitably" involve the federal court in difficult and unsettled questions of state law, with the accompanying potential for jury confusion. 513 F.2d at 1261-1262.

II

The question whether "pendent" federal jurisdiction encompasses not merely the litigation of additional claims between parties with respect to whom there is federal jurisdiction, but also the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction, has been much litigated in other federal courts [Footnote 5] and much discussed by commentators [Footnote 6] since this Court's decision in Gibbs.Gibbs, in turn, is the most recent in a long line of our cases dealing with the relationship between the judicial power of the United States and the actual contours of the cases and controversies to which that power is extended by Art. III.

In Osborn v. Bank of the United States, 9 Wheat. 738

Page 427 U. S. 7

(1824), Mr. Chief Justice Marshall, in his opinion for the Court, addressed the argument that the presence in a federal lawsuit of questions which were not dependent on the construction of a law of the United States prevented the federal court from exercising Art. III jurisdiction, even in a case in which the plaintiff had been authorized by Congress to sue in federal court. Noting that "[t]here is scarcely any case, every part of which depends" upon federal law, id. at 22 U. S. 820, the Chief Justice rejected the contention:

"If it be a sufficient foundation for jurisdiction that the title or right set up by the party may be defeated by one construction of the constitution or law of the United States and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. . . ."

"We think, then, that when a question to which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is in the power of congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it."

Id. at 22 U. S. 822-823.

This doctrine was later applied in Siler v. Louisville & Nashville R. Co.,213 U. S. 175 (1909), to hold that, where federal jurisdiction is properly based on a colorable federal claim, the court has the

"right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only."

Id. at 213 U. S. 191. In Moore v. N.Y. Cotton Exchange,270 U. S. 593, 270 U. S. 609-610 (1926),

Page 427 U. S. 8

the Court in similar fashion sustained jurisdiction over a defendant's compulsory counterclaim arising out of the same transaction upon which the plaintiff's federal antitrust claim was grounded, although the latter had been dismissed for failure to state a claim, and the former had no independent federal jurisdictional basis. A few years later, in Hurn v. Oursler,289 U. S. 238 (1933), the Court drew upon the foregoing cases to establish federal jurisdiction to decide a state law claim joined with a federal copyright infringement claim, where both were considered "two distinct grounds in support of a single cause of action," although the federal ground had proved unsuccessful. Id. at 289 U. S. 246.

In Gibbs, the respondent brought an action in federal court against petitioner UMW, asserting parallel claims -- a federal statutory claim and a claim under the common law of Tennessee -- arising out of alleged concerted union efforts to deprive him of contractual and employment relationships with the coal mine's owners. Though the federal claim was ultimately dismissed after trial, and though diversity was absent, the lower courts sustained jurisdiction over the state law claim and affirmed the damages award based thereon. Before reaching the merits (on which the lower courts were reversed), this Court addressed the argument that, under the rule of pendent jurisdiction as set out in Hurn v. Oursler, supra, at 289 U. S. 245-246, Gibbs had merely stated "two separate and distinct causes of action," as opposed to "two distinct grounds in support of a single cause of action," in which former case the federal court lacked the power to "retain and dispose" of the "non-federal cause of action." The Court stated that, since the Hurn test was formulated before the unification of law and equity by the Federal Rules of Civil Procedure, it was therefore unnecessarily tied to the outmoded concept of a "cause of

Page 427 U. S. 9

action" developed under code pleading rules. Recognizing that the Federal Rules themselves cannot expand federal court jurisdiction, the Court nevertheless found in them a sufficient basis to go beyond Hurn's "unnecessarily grudging" approach to parallel claims, and to adopt a more flexible treatment within the contours of Art. III, § 2. Thus, in a federal question case, where the federal claim is of sufficient substance, and the factual relationship between "that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional case,'" pendent jurisdiction extends to the state claim. 383 U.S. at 383 U. S. 725. The Court, in the second aspect of the Gibbs formulation, went on to enumerate the various factors bearing on a district court's discretionary decision whether the power should be exercised in a given parallel claims case, emphasizing that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id. at 383 U. S. 726.

These cases, from Osborn to Gibbs, show that, in treating litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, this Court has found nothing in Art. III's grant of judicial power which prevented adjudication of the nonfederal portions of the parties' dispute. None of them, however, adverted to the separate question, involved in the instant case, of whether a nonfederal claim could, in turn, be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim could be derived from the "common nucleus of operative fact" giving rise to the dispute between the parties to the federal claim.

But while none of the foregoing line of cases discussed the joining of additional parties, other decisions of this Court have developed a doctrine of "ancillary jurisdiction,"

Page 427 U. S. 10

and it is in part upon this development -- and its relationship to Gibbs -- that petitioner relies to support "pendent party" jurisdiction here. Under this doctrine, the Court has identified certain considerations which justified the joining of parties with respect to whom there was no independent basis of federal jurisdiction. In Freeman v. Howe, 24 How. 450 (1861), the Court held that the state court had no jurisdiction over a replevin action brought by creditor claimants to property that had already been attached by the federal marshal in a federal diversity action. The claimants argued that a want of state court jurisdiction would leave them without a remedy, since diversity between them and the marshal was lacking. This Court stated that an equitable action in federal court by those claimants, seeking to prevent injustice in the diversity suit, would not have been "an original suit, but ancillary and dependent, supplementary merely to the original suit," and thus maintainable irrespective of diversity of citizenship. Id. at 65 U. S. 460. A similar approach was taken in Stewart v. Dunham,115 U. S. 61 (1885), where, after a creditors' suit to set aside an allegedly fraudulent conveyance was removed to federal court on grounds of diversity, other nondiverse creditors were permitted to intervene to assert an identical interest. Since it was merely a matter of form whether the latter appeared as parties or came in later under a final decree to prove their claims before a master, the federal court

"could incidentally decree in favor of [the nondiverse] creditors[, and s]uch a proceeding would be ancillary to the jurisdiction acquired between the original parties. . . ."

Id. at 115 U. S. 64. Dunham was, in turn, held controlling in Supreme Tribe of Ben-Hur v. Cauble,255 U. S. 356 (1921). There, suing in diversity, out-of-state "Class A" members of an Indiana fraternal benefit society had sought a decree adjudicating their common interests in the control and disposition of

Page 427 U. S. 11

the society's funds. After successfully defending that action, the society brought a second suit in federal court seeking to protect that judgment as against an identical state court action brought by members of "Class A" who were of Indiana citizenship. Since, under Dunham, "intervention of the Indiana citizens in the [original] suit would not have defeated the jurisdiction already acquired," 255 U.S. at 255 U. S. 366, the earlier judgment was binding against them, and the federal court had ancillary jurisdiction over the society's suit to enjoin the later state action, irrespective of diversity.

The doctrine of ancillary jurisdiction developed in the foregoing cases is bottomed on the notion that, since federal jurisdiction in the principal suit effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, without regard to jurisdiction. [Footnote 7] As this Court stated in Fulton Bank v. Hozier,267 U. S. 276, 267 U. S. 280 (1925):

"The general rule is that, when a federal court has properly acquired jurisdiction over a cause, it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relating

Page 427 U. S. 12

to property or assets actually or constructively drawn into the court's possession or control by the principal suit."

The decisional bridge between these two relatively discrete lines of cases appears to be this Court's decision in Moore. Since the defendant's nonfederal counterclaim in Moore arose out of the same transaction giving rise to the antitrust dispute between the parties, and federal jurisdiction was sustained over the former, the Court in Hurn, though faced with a plaintiff's assertion of pendent jurisdiction over an additional nonfederal claim, thought the two cases, "in principle, cannot be distinguished." Hurn, 289 U.S. at 289 U. S. 242. It was Hurn's "unnecessarily grudging" test of pendent jurisdiction, of course, which the Court expanded in Gibbs. On the other hand, because Moore was a suit in equity, the jurisdiction sustained there has been rationalized as falling under the umbrella of ancillary jurisdiction, [Footnote 8] though Moore neither used that term nor cited to Fulton Bank, supra. Petitioner thus suggests that, since Moore, read as an "ancillary" case, adopted a "transactional" test of jurisdiction quite similar to that set out in Gibbs, there is presently no "principled" distinction between the two doctrines. Since, under the Federal Rules, "joinder of claims, parties and remedies is strongly encouraged," Gibbs, 383 U.S. at 383 U. S. 724, her use of the Rules here is as a matter of jurisdictional power assertedly limited only by whether the claim against the county "derive[s] from a common nucleus of operative fact." Id. at 383 U. S. 725. Hence, petitioner concludes, based on Gibbs' treatment of pendent claims, and the use of ancillary jurisdiction to

Page 427 U. S. 13

bring in additional parties, that her nonfederal claim against a nonfederal defendant falls within pendent jurisdiction since it satisfies Gibbs' test on its face.

For purposes of addressing the jurisdictional question in this case, however, we think it quite unnecessary to formulate any general, all-encompassing jurisdictional rule. Given the complexities of the many manifestations of federal jurisdiction, together with the countless factual permutations possible under the Federal Rules, there is little profit in attempting to decide, for example, whether there are any "principled" differences between pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences. Since it is upon Gibbs' language that the lower federal courts have relied in extending the kind of pendent party jurisdiction urged by petitioner here, we think the better approach is to determine what Gibbs did and did not decide, and to identify what we deem are important differences between the jurisdiction sustained in Gibbs and that asserted here.

Gibbs and its lineal ancestor, Osborn, were couched in terms of Art. III's grant of judicial power in "Cases . . . arising under this Constitution, the Laws of the United States, and [its] Treaties," since they (and implicitly the cases which linked them) represented inquiries into the scope of Art. III jurisdiction in litigation where the "common nucleus of operative fact" gave rise to nonfederal questions or claims between the parties. None of them posed the need for a further inquiry into the underlying statutory grant of federal jurisdiction or a flexible analysis of concepts such as "question," "claim," and "cause of action," because Congress had not addressed itself by statute to this matter. In short, Congress had said nothing about the scope of the word "Cases" in Art. III which would offer guidance on the

Page 427 U. S. 14

kind of elusive question addressed in Osborn and Gibbs: whether and to what extent jurisdiction extended to a parallel state claim against the existing federal defendant.

Thus, it was perfectly consistent with Art. III, and the particular grant of subject matter jurisdiction upon which the federal claim against the defendant in those cases was grounded, to require that defendant to answer as well to a second claim deriving from the "common nucleus" of fact, though it be of state law vintage. This would not be an "unfair" use of federal power by the suing party, he already having placed the defendant properly in federal court for a substantial federal cause of action. Judicial economy would also be served because the plaintiff's claims were "such that he would ordinarily be expected to try them all in one judicial proceeding. . . ." Gibbs, 383 U.S. at 383 U. S. 725.

The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant "derive from a common nucleus of operative fact." Ibid. True, the same considerations of judicial economy would be served

Page 427 U. S. 15

insofar as plaintiff's claims "are such that he would ordinarily be expected to try them all in one judicial proceeding. . . ." Ibid. But the addition of a completely new party would run counter to the well established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress. We think there is much sense in the observation of Judge Sobeloff, writing for the Court of Appeals in Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA4 1972):

"The value of efficiency in the disposition of lawsuits by avoiding multiplicity may be readily conceded, but that is not the only consideration a federal court should take into account in assessing the presence or absence of jurisdiction. Especially is this true where, as here, the efficiency plaintiff seeks so avidly is available without question in the state courts."

There is also a significant legal difference. In Osborn and Gibbs, Congress was silent on the extent to which the defendant, already properly in federal court under a statute, might be called upon to answer nonfederal questions or claims; the way was thus left open for the Court to fashion its own rules under the general language of Art. III. But the extension of Gibbs to this kind of "pendent party" jurisdiction -- bringing in an additional defendant at the behest of the plaintiff -- presents rather different statutory jurisdictional considerations. Petitioner's contention that she should be entitled to sue Spokane County as a new third party, and then to try a wholly state law claim against the county, all of which would be "pendent" to her federal claim against respondent county treasurer, must be decided not in the context of congressional silence or tacit encouragement, but in

Page 427 U. S. 16

quite the opposite context. The question here, which it was not necessary to address in Gibbs or Osborn, is whether, by virtue of the statutory grant of subject matter jurisdiction, upon which petitioner's principal claim against the treasurer rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought. And it undoubtedly has done so.

III

Congress has, in specific terms, conferred Art. III jurisdiction on the district courts to decide actions brought to redress deprivations of civil rights. Under the opening language of § 1343, [Footnote 9] those courts "shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . ." (emphasis added). The civil rights action set out in § 1983 [Footnote 10] is, of course, included within the jurisdictional grant of subsection (3) of § 1343. Yet petitioner does not, and indeed could not, contest the fact that, as to § 1983, counties are excluded from the "person[s]" answerable to the plaintiff "in an action at law [or] suit in equity" to redress the enumerated deprivations. [Footnote 11] Petitioner must necessarily argue that, in spite of the language emphasized above, Congress left it open for the federal courts to fashion a jurisdictional doctrine under the general language of Art. III enabling them to circumvent this exclusion as long as the civil rights action and the state law claim arise from a "common nucleus of operative fact." But the question whether jurisdiction over the instant lawsuit extends not only to a related state law claim, but to the defendant against whom that claim is made, turns initially not on the general

Page 427 U. S. 17

contours of the language in Art. III, i.e., "Cases . . . arising under," but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties, whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff's claim of additional power over a "pendent party," the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress.

Resolution of a claim of pendent party jurisdiction, therefore, calls for careful attention to the relevant statutory language. As we have indicated, we think a fair reading of the language used in § 1343, together with the scope of § 1983, requires a holding that the joinder of a municipal corporation, like the county here, for purposes of asserting a state law claim not within federal diversity jurisdiction, is without the statutory jurisdiction of the district court. [Footnote 12]

Page 427 U. S. 18

There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called "pendent party" jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. [Footnote 13] As we indicated at the outset of this opinion, the question of pendent party jurisdiction is "subtle and complex," and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be joined is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.

Page 427 U. S. 19

We conclude that, in this case, Congress has, by implication, declined to extend federal jurisdiction over a party such as Spokane County. The judgment of the Court of Appeals for the Ninth Circuit is therefore

Affirmed.

[Footnote 1]

Wash.Rev.Code § 36.16.070 (1974).

[Footnote 2]

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

[Footnote 3]

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:"

"* * * *"

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . . ."

The Court of Appeals also noted that petitioner's complaint alleged that jurisdiction lay under 28 U.S.C. § 1331, and that the amount in controversy exceeded $10,000. This was apparently an attempt to plead a cause of action directly under the Fourteenth Amendment, irrespective of the implementing civil rights legislation. The Court of Appeals, however, stated that petitioner had "consistently chosen to rely upon" 42 U.S.C. § 1983, together with 28 U.S.C. § 1343(3), and pendent jurisdiction as the bases for her action against Spokane County. Thus, neither the District Court nor the Court of Appeals reached the question whether the complaint stated a cause of action over which § 1331 jurisdiction would lie. Petitioner did not raise the question in her petition for certiorari, and it is therefore not before us.

[Footnote 4]

There is no diversity of citizenship under 28 U.S.C. § 1332 among the parties here, since all are citizens of the State of Washington.

[Footnote 5]

See, e.g., cases cited in Moor v. County of Alameda,411 U. S. 693, 411 U. S. 713-714, nn. 29-30 (1973).

[Footnote 6]

See, e.g., 3A J. Moore, Federal Practice 18.07[1.-4] (2d ed.1974); P. Bator, p. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 921-926 (2d ed.1973); C. Wright, Law of Federal Courts § 19 (2d ed.1970); Fortune, Pendent Jurisdiction -- The Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1 (1972); Shakman, The New Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262 (1968).

[Footnote 7]

As one commentator has stated:

"Once it is agreed that a state court cannot interfere with property in the control of the federal court, the notion of ancillary jurisdiction put forward in Freeman v. Howe cannot be avoided. Unless the federal court has ancillary jurisdiction to hear the claims of all persons to the property, regardless of their citizenship, some persons, with a valid claim to the property, would be deprived of any forum in which to press that claim."

C. Wright, Law of Federal Courts § 9 (2d ed.1970). Ben-Hur sets out a corollary to Howe: ancillary jurisdiction extends to subsequent suits brought to effectuate a federal court's judgment determining the rights to such property.

[Footnote 8]

See Shulman & Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 413 (1936); 3 J. Moore, Federal Practice

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