Concept
The Arising-Under Grant
Federal question jurisdiction
Claims Arising Under Federal Law
The Arising-Under Grant
Federal-question jurisdiction starts with one sentence in Title 28: the district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.1 “Original” means a plaintiff may file such a case directly in a federal trial court rather than starting in state court. The sentence sets no minimum dollar amount and says nothing about the parties' citizenship. It asks only whether the action “arises under” federal law, and most of the doctrine in this chapter is an effort to say what those two words cover.
Article III uses the same words, so two texts raise two questions. The Constitution marks the outer limit of federal judicial power, and Congress decides how much of that power the district courts receive. A plaintiff must satisfy the statute, 28 U.S.C. § 1331, and so the statute is where nearly every dispute is fought. The doctrines that follow all try to say when a complaint's reliance on federal law is enough.
Getting the statute wrong is costly. A court that determines at any time that it lacks subject-matter jurisdiction must dismiss the action,2 so the parties' silence cannot save a case, and a defect that slips through discovery and trial can still end it.
Section 1331
Applying § 1331 starts with a sorting question about each claim: which body of law created it?3 A claim that federal law creates falls inside the grant. A claim that state law creates generally falls outside it, even when the surrounding facts have a federal flavor. The paradigm federal claim draws both the underlying right and the right to sue from federal law, and no one doubts that such a claim arises under the Constitution and laws of the United States.4 The harder cases sit between those poles, and each later doctrine in this chapter tries to say when a claim with a foot in both systems counts as federal.
Rodney King, beaten by Los Angeles police officers, had two routes to recovery for the same event. A state-law battery claim would draw both the right to be free from the bodily invasion and the right to sue from state law, so it would arise under state law and stay in state court unless the parties were diverse. A claim under 42 U.S.C. § 1983 for an unreasonable seizure draws the right from the Fourth Amendment and the right to sue from a federal statute. Federal law creates both, so the claim arises under federal law and no one would doubt federal jurisdiction.5 The events were identical. The source of law decided whether § 1331 applied.
The grant exists so that the federal judiciary can hear and decide disputes that turn on the meaning of federal law.6 It has not always done so broadly. Before 1875 most cases arising under federal law were litigated in the state courts, subject to review in the Supreme Court, and Congress opened the lower federal courts widely to them only after Reconstruction, fearing that state courts would not vigorously enforce the federal civil rights statutes enacted then.7 Section 1331 sets no amount in controversy.8 The diversity statute, by contrast, carries a floor that has risen over time to $75,000, which Congress has used as a form of docket control.9 When a federal source creates the claim, neither the parties' citizenship nor the dollar value enters the analysis.
A federal setting is not a federal claim, and treating it as one is the usual way students lose this point. A federal road under the wheels, a federal license on the wall, or a federal grant behind the defendant adds federal flavor without adding a federal claim.
The highway case and the age discrimination case differ in one respect: whether a federal source created the claim being pleaded.10 The location of the accident is background, and the statute does not look at it.
State-created claims that touch federal law stay mostly outside § 1331. It is normally not enough that a plaintiff asserts a state-created claim that requires interpretation of federal law.11 The Court has nevertheless sustained § 1331 jurisdiction over a state-law theory of recovery where the plaintiff's cause of action necessarily required the court to pass upon the constitutionality of a federal act.12 Those embedded-federal-issue cases receive their own treatment later in this chapter. For now, treat them as the exception the rule leaves open.
The plaintiff who wants a federal forum must plead it. When jurisdiction rests on a federal question, the jurisdictional allegation should state that the action arises under a particular statute or a specific provision of the Constitution, and the body of the complaint must state facts showing that the case does in fact arise under federal law.14 The test looks at what the plaintiff asserts, not at whether she will win. If a defendant could defeat federal jurisdiction merely by denying that the plaintiff is entitled to prevail on her federal claim, the federal court would seldom have any arising-under jurisdiction.15 The statute's words set the boundary, and courts read them in neither direction beyond the text. In Exxon Mobil Corp. v. Allapattah Services, Inc., which applied the supplemental-jurisdiction statute, § 1367, the Court wrote that jurisdictional statutes must not receive a more expansive interpretation than their text warrants, but that it is just as important not to adopt an artificial construction narrower than what the text provides.16
Section 1331 gives the district courts original jurisdiction. It does not make that jurisdiction exclusive. In the main, federal jurisdiction is concurrent with the state courts, so the existence of federal jurisdiction in most instances does not strip the state courts of jurisdiction over the same matter.17 The Court presumes that state courts may exercise concurrent jurisdiction over all federal rights of action unless Congress otherwise provides, and it has applied that presumption in cases such as Claflin v. Houseman and Tafflin v. Levitt.18 The presumption traces to Hamilton's analysis in Federalist No. 82. He explained that the Constitution generally assumed the states would keep every power not expressly ceded to the federal government, and he did not read Article III's authorization of federal judicial power as a delegation of exclusive power.19 Section 1331 therefore adds a federal forum to the places a plaintiff may sue and removes no state one, so a worker fired in violation of a federal statute may sue in either unless Congress has made federal jurisdiction exclusive. Lawyers still fight over the forum, but their motive is the strategic advantage the federal forum affords, not high-minded thoughts about federalism.20
The Constitutional Ceiling
Section 1331 borrows its key phrase from Article III, which extends the judicial power 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.”22 That grant does not put cases in the district courts by its own force. The Convention divided over whether the Constitution should itself create lower federal courts, and a compromise offered by Wilson and Madison empowered the national legislature to institute them or not, as it saw fit.23 Because Congress decides, a litigant needs two things: a case within the constitutional boundaries and a statute that confers jurisdiction.24 The constitutional text is the ceiling, and § 1331 is the room Congress chose to build beneath it.
Chief Justice Marshall read the constitutional phrase generously in Osborn v. Bank of the United States. The Bank sought an injunction directing Ohio officers to return money they had seized to satisfy the Bank's state tax obligations, and the Court found jurisdiction in the terms of the Bank's federal charter, which gave it the right to sue or be sued in the courts of the United States.25 Marshall justified jurisdiction over claims that contain federal ingredients by emphasizing that Article III sought to make the judicial power of the federal courts co-extensive with the legislative power of Congress.26 The charter was enough even for a pure contract dispute, he reasoned, because the Bank's capacity to be a litigant and its power to contract were always potential questions of federal law, whether or not any party raised them. It did not matter that the parties might argue only offer, acceptance, breach, and damages.27 The Court applied the same reasoning to a companion suit by the Bank against a state-chartered bank in Georgia. No contested federal issue apparently arose, yet the federal charter still supplied an original federal ingredient.28 The test asks whether federal law is a potential part of the case, not whether anything federal is actually in dispute.
Section 1331 repeats the words of the constitutional clause almost exactly, and its two-sentence legislative history includes a statement that Congress meant the statute to embrace all of the constitutionally permissible territory. Yet the Court has never read the statute that broadly.29 In Franchise Tax Board of California v. Construction Laborers Vacation Trust, the Court observed that since the first version of the statute in 1875, the phrase “arising under” has resisted every attempt at a single, precise definition and masks a welter of issues about the interrelation of federal and state authority and the proper management of the federal judicial system.30 In practice the statute demands more than a federal ingredient. Every invocation of § 1331 must satisfy the well-pleaded complaint rule, and it must also satisfy either the Holmes test or the Smith test, with the Holmes test by far the more often used.31 The sections that follow take up each requirement.
The gap has a consequence for how you analyze a problem. The ingredient test answers only the constitutional question, so using it to decide whether § 1331 applies is an error.32 The reasons for the narrower reading also help predict how the statutory tests come out. One is federalism: when the delicate balance of a federal system is at stake, and every expansion of the federal courts' jurisdiction diminishes the power of the states, efficiency cannot be the sole or the controlling consideration.33 The other is notice. The test the next section develops looks to the state of affairs when the plaintiff starts the action, and both sides need to know then whether the case qualifies for federal court: plaintiffs to decide where to file, and defendants to decide whether to remove or to challenge the federal forum.34
Louisville & Nashville Railroad v. Mottley shows both layers working on one set of facts. The Mottleys sued a railroad for breach of contract after it refused to renew their passes, and the railroad gave a federal statute as its reason.35 Their complaint anticipated the railroad's defense, which presented two substantial federal questions: the interpretation of the federal statute and its constitutionality. Each is an ingredient of the kind Osborn described, so the case fits within Article III.36 No party questioned jurisdiction in the trial court or on appeal to the Supreme Court. The Supreme Court nonetheless raised the defect itself and concluded that the lower federal court had lacked jurisdiction.37 It could do so because a court must dismiss whenever it determines that it lacks subject-matter jurisdiction, even after everyone has proceeded as though all were well.38
The explanation lies in the source of the Mottleys' right to relief. They could win by proving that the railroad had agreed to renew the passes and then refused, without proving any proposition of federal law.39 The federal statute entered the case as the railroad's defense. As Franchise Tax Board later quoted Mottley, allegations showing that a constitutional question will very likely arise in the course of the litigation “do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution.”40 The same rule governs removal, because a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case arises under federal law.41 The Mottleys' case therefore passes the constitutional test and fails the statutory one.
Picture two circles, one inside the other. The outer circle is Article III's arising-under power, marked by the ingredient test, and the inner circle is § 1331 as the Court reads it. A claim that federal law itself creates, such as the § 1983 action discussed earlier, sits in the inner circle. The Mottleys' contract claim sits in the ring between the two. A third kind of case lies outside both circles.
Failing the ingredient test ends the inquiry, because Congress cannot give a federal court authority beyond what the Constitution confers.42 Passing it ends nothing, because it shows only that Congress could have conferred jurisdiction, and the question is whether § 1331 does. The gap is also a product of statutory construction, not a limit that Article III itself imposes. Congress has the power to let defendants remove on the strength of a federal defense, and it has done so for a few categories, such as federal officers.43