Federal Question Jurisdiction: The Compass, the Maze and the Trap

Abstract

On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result. The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the Court’s most recent decisions. Here I examine the fundamental-principles compass that was developed by the Court in foundational arising-under cases, and synthesized succinctly by Justice Cardozo in Gully v. First Nat. Bank in Meridian. There the Court endorsed a unified jurisdictional theory that focused on the role of the federal issue in the case, asking whether the case was truly about federal law, for if the case was truly about federal law, the exercise of jurisdiction would be inherently consistent with congressional intent to provide a forum for federal question cases.With this fundamental-principles model as my foundation, I then examine more recent arising-under cases and show that, beginning in the 1980s, the compass got lost and was replaced by a maze of increasingly complex doctrinal tests disconnected from logical and well-established jurisdictional principles. Here the focus shifted from the federal nature of the controversy to a policy-driven model weighted heavily toward case-management concerns.Gunn offered the Supreme Court an opportunity to recapture the compass or, at the very least, to provide a comprehensible map that would assist lower federal courts in navigating the judicially created maze. The Court, however, missed that opportunity. Instead, the Court continued along a meandering doctrinal path that diverges from the fundamental principles of jurisdiction and often leads to results inconsistent with the congressionally mandated goal of providing a federal forum for the interpretation and application of the principles of federal law.