Colorable Federal Claims

Colorable Federal Claims

A plaintiff who pleads a federal claim has not necessarily pleaded a good one, and § 1331 does not say how good the claim must be. The statute gives the district courts original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.¹ The federal law the plaintiff invokes may not reach the plaintiff's facts, the plaintiff may be unable to prove them, or the law may leave open whether a private person can recover damages at all. Each doubt hands the defendant an argument that the case is not really a federal one and that the court has no power to hear it.

That argument raises a problem of sequence. A court must know it has power before it decides anything, yet deciding whether a claim is truly federal seems to require deciding whether the claim is any good. A court that settles the second question first decides the merits in order to learn whether it may decide them.

Bell v. Hood resolved the problem for a claim pleaded directly under the Constitution. The plaintiffs sued FBI agents for damages, alleging unreasonable searches and deprivations of liberty without due process in violation of the Fourth and Fifth Amendments. The district judge dismissed on his own motion for want of federal jurisdiction, and the Circuit Court of Appeals affirmed. The Supreme Court held that the district court had jurisdiction. A complaint drawn to seek recovery directly under the Constitution or laws of the United States invokes federal jurisdiction, and whether the plaintiff is entitled to recover is a question the court answers after it has taken the case.²

The rule has two parts. A failure to state a claim under federal law produces a judgment on the merits and leaves jurisdiction intact. A court may dismiss a pleaded federal claim for want of jurisdiction only in two narrow cases: the claim is immaterial and made solely to obtain jurisdiction, or it is wholly insubstantial and frivolous. The two subsections below take these parts in order. Because a court that determines at any time that it lacks subject-matter jurisdiction must dismiss, the exceptions remain available at every stage of the case.³

Jurisdiction Versus Merits

Rule 12(b) lists lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted as separate grounds for dismissal, because the two ask different questions.⁴ The first asks whether the court has power to hear the case. The second asks whether the plaintiff's allegations, taken as true, entitle the plaintiff to relief.

In a federal-question case the two questions blur, because a defendant who thinks the plaintiff's federal theory is weak is tempted to call the weakness jurisdictional. Bell shut that door. Whether a complaint states a cause of action on which relief could be granted is a question of law, and like issues of fact it must be decided after, not before, the court has assumed jurisdiction over the controversy. If the court later decides that the allegations state no ground for relief, the dismissal is on the merits, not for want of jurisdiction.⁵

The sequence follows from what a merits ruling requires. A court must assume jurisdiction to decide whether the allegations state a cause of action on which it can grant relief, just as it must assume jurisdiction to determine the issues of fact in the controversy.⁶ If a defendant could defeat jurisdiction simply by denying that the plaintiff is entitled to win on the federal claim, federal courts would seldom have arising-under jurisdiction. The crucial difference lies between a defendant who argues that the plaintiff has asserted no federal claim, which challenges jurisdiction, and one who argues that the plaintiff cannot prove the federal right asserted, which does not.⁷

The court examines the complaint to decide which kind of argument it faces. Before it concludes that jurisdiction is lacking, the court looks to the way the complaint is drawn to see whether it claims a right to recover under the Constitution and laws of the United States. The party who brings a suit is master to decide what law he will rely upon, and so decides whether to bring a suit arising under federal law. Where the complaint is drawn to seek recovery directly under federal law, the federal court, but for two exceptions taken up below, must entertain the suit.⁸

The Bell petitioners pleaded that kind of complaint. They alleged violations of the Fourth and Fifth Amendments and sought damages for them. After hearing motions, the district judge ruled on neither and instead held on his own that the action did not arise under the Constitution or laws of the United States. The Court of Appeals affirmed, and it refused to direct that the petitioners be given leave to amend their complaint to show still more clearly that the action rested directly on those Amendments.⁹ Both courts had treated the question whether the petitioners could recover as a question whether the court could hear the case.

The Supreme Court reversed. Whether the petitioners were entitled to recover depended on the scope of the Fourth and Fifth Amendments' protection against unreasonable searches and deprivations of liberty without due process, together with the arising-under statute then in force, 28 U.S.C. § 41(1). Their right to recover would be sustained under one construction of the Constitution and laws of the United States and defeated under another, and for that reason the district court had jurisdiction.¹⁰ Because success turned on the meaning of federal law, the case arose under federal law, and the question of remedy was left for the merits. The Court added that where federally protected rights have been invaded, courts have been alert from the beginning to adjust their remedies to grant the necessary relief, and that where a federal statute provides a general right to sue, federal courts may use any available remedy to make good the wrong.¹¹ The Court later recognized an implied federal right of action for damages against federal officers for certain constitutional torts in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, and a claim of that kind arises under federal law for jurisdictional purposes.¹²

Chief Justice Stone and Justice Burton dissented. In their view a district court lacks jurisdiction unless the complaint states a cause of action arising under the Constitution or laws of the United States, and whether it does is for the court, not the pleader, to say. They agreed that when a provision affords a remedy that some plaintiffs may use, a plaintiff whose pleading does not bring him within that class has a defect of sufficiency, not of jurisdiction. But where neither the constitutional provision nor any act of Congress affords a remedy to any person, they concluded that the plaintiff's bare assertion of entitlement cannot satisfy the jurisdictional requirement.¹³ The two opinions disagree about where the existence of a remedy belongs. The dissent made it a condition of jurisdiction. The majority treated it as the legal question the suit presents, to be answered only after the court has taken the case, and the majority's view governs.

The Court repeated the point in Baker v. Carr, quoting Bell: "For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction."¹⁴

The line between attacking the claim and attacking the court is easiest to see in ordinary statutory litigation.

Changing what the plaintiff pleads changes the answer.

The deputy's search and the agents' searches in Bell could be described in nearly the same words. What separates the cases is the law each complaint asks the court to apply, and the strength of the claims plays no part. The Bell petitioners sought recovery under the Constitution, and the landowner sought it under state law, so Bell cannot supply a federal claim the landowner chose not to plead.¹⁵

Exam stems that show a defendant moving to dismiss a federal claim are asking which rule the defendant's argument invokes. An argument that the right does not exist, does not reach these facts, or carries no damages remedy goes to the merits and belongs under Rule 12(b)(6). An argument that the complaint seeks nothing under federal law is jurisdictional and belongs under Rule 12(b)(1).¹⁶

Insubstantial Claims

Bell preserved two exceptions to the rule that a federal court must hear a suit drawn to recover directly under federal law. A court may dismiss a pleaded federal claim for want of jurisdiction where the claim clearly appears to be immaterial and made solely to obtain jurisdiction, or where it is wholly insubstantial and frivolous.¹⁸ The Court itself added that the accuracy of calling these dismissals jurisdictional has been questioned.¹⁹

The exceptions guard against pretext. Because the party who brings a suit is master to decide what law he will rely upon, a pleader could try to reach federal court by attaching a federal label to a dispute that is really about something else.²⁰ The exceptions let a court look past the label.

The bar is high because a looser screen would swallow the rule of Bell. A court must assume jurisdiction to decide whether a complaint states a claim on which relief can be granted, so doubt about whether the plaintiff will win is resolved after the court has taken the case.²¹ If doubt about the merits also counted as doubt about power, the court would have to weigh the merits to learn whether it could decide them, and the line between a Rule 12(b)(1) dismissal and a merits dismissal would disappear.²²

The two exceptions test different things. The first looks at how the federal allegation relates to the relief demanded, and asks whether it is only a pretext for being in federal court. The second looks at the legal substance of the claim, and asks whether it is so empty that no one could take it seriously.

The claim in Bell stands on the other side of that line. The Fourth and Fifth Amendments were not immaterial there, because they were the sole basis of the relief the petitioners sought. Nor was the claim frivolous: the petitioners' right to recover would be sustained under one construction of those Amendments and defeated under another, and the lower courts could decide that question only by assuming jurisdiction.²³

Baker applied the same screen. The district court there had not found the federal constitutional claim unsubstantial and frivolous, so it should not have dismissed the complaint for want of jurisdiction of the subject matter. The Court added that no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter.²⁴ More recently, Arbaugh v. Y & H Corp. restated the rule in terms of colorability. A claim invoking § 1331 may be dismissed for want of subject-matter jurisdiction if it is not colorable, that is, if it is "immaterial and made solely for the purpose of obtaining jurisdiction" or is "wholly insubstantial and frivolous."²⁵ A federal claim that clears both exceptions is colorable, and a colorable claim supports jurisdiction however weak it proves to be.

An ordinary unsuccessful federal claim falls outside both exceptions. If Gould's overtime suit against Rambler fails because Gould is not a covered employee, the court has decided a federal claim against the plaintiff, and the dismissal is on the merits.²⁶ Weak, losing, and novel claims receive the same treatment. Only a claim with no connection to the relief demanded, or one with no substance at all, loses its place in federal court for want of power.

On an exam, classify the defendant's argument. An argument that the plaintiff will probably lose, that the right is narrow, or that the remedy is uncertain goes to the merits, and the court takes the case first. An argument that the federal allegation is unrelated to the relief and was added to obtain jurisdiction, or that the claim is wholly insubstantial and frivolous, invokes the exceptions, and a court that accepts it may dismiss under Rule 12(b)(1).²⁷