BARBARA FINLEY, PETITIONER V. UNITED STATES OF AMERICA No. 87-1973 In the Supreme Court of the United States October Term, 1988 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States PARTIES TO THE PROCEEDING Pursuant to the district court's order, which was reversed by the court of appeals, the City of San Diego and the San Diego Gas & Electric Company were added as defendants in this proceeding. TABLE OF CONTENTS Questions Presented Parties To The Proceeding Opinions below Jurisdiction Statute involved Statement Discussion Conclusion OPINIONS BELOW The order of the district court (Pet. App. A5-A10) granting petitioner's motion to add the City of San Diego and the San Diego Gas & Electric Company as defendants in this action and certifying the question for interlocutory appeal is not reported. The order of the court of appeals (Pet. App. A3-A4) granting the government's petition for permission to take an interlocutory appeal and ordering the plaintiff to show cause why the district court's decision should not be summarily reversed is not reported. The order of the court of appeals (Pet. App. A1-A2) summarily reversing the district court's decision is not reported. JURISDICTION The judgment of the court of appeals was entered on March 4, 1988. The petition for a writ of certiorari was filed on June 2, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The jurisdictional provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), provides in pertinent part: Subject to the provisions of (28 U.S.C. 2671-2680), the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. QUESTION PRESENTED Whether, in an action brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, a district court may exercise "pendent party jurisdiction" over the plaintiff's claims against other persons, where there exists no independent basis for federal-court jurisdiction over the claims against those persons. STATEMENT 1. Petitioner's husband and two daughters were killed in a plane crash at Montgomery Field, an airport near San Diego, California, in November 1983, after the plane carrying them struck electric power lines (Pet. App. A6). Petitioner filed suit in the California courts against the City of San Diego (the City) and the San Diego Gas & Electric Company (the Utility). She claimed (1) that the City had negligently failed to maintain and operate the runway approach lights, which allegedly were not working at the time of the crash, and (2) that the Utility had negligently placed the transmission lines near the runway and failed to place warning lights on the poles supporting the lines. Id. at A6-A7. After some discovery in the state-court suit, petitioner filed a federal-court action against the United States under the FTCA. She alleged that the Federal Aviation Administration (FAA) was responsible for maintaining and operating the runway lights and that the FAA had been negligent in carrying out that responsibility. Id. at A7. She also alleged that FAA air-traffic-control personnel had been negligent in giving landing instructions to the plane's pilot (ibid.). 2. Petitioner subsequently sought to consolidate the two suits in federal court. She filed a motion in the FTCA action to amend her complaint to add new claims against new defendants -- her tort claims under state law against the City and the Utility. With respect to those claims and parties, as petitioner acknowledges (Pet. 3), "(n)o federal question is presented, and the parties are not diverse." Lacking any independent basis for alleging federal-court jurisdiction over the claims against the City and Utility, petitioner asked the district court to accept jurisdiction over those claims and parties under the doctrine of "pendent-party jurisdiction." Aldinger v. Howard, 427 U.S. 1, 18 (1976). /1/ The district court granted petitioner's motion (Pet. App. A5-A10). The court reasoned (id. at A8) that "from the perspective of judicial economy and efficiency * * * all of these actions ought to be tried together." Borrowing from the leading decision on "pendent-claim" jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715 (1966), the district court observed (Pet. App. A8) that the FTCA claim against the government and the state-law claims against the City and the Utility "arise from a common nucleus of operative facts." /2/ The court added (ibid.) that, in its view, "(n)o significant additional burden would be placed upon any party by having the entire matter tried in federal court, in one trial." Accordingly, noting that "all of the parties but for the UNITED STATES want to consolidate (the matters) for a single trial" (id. at A8-A9), the court concluded that it would "accept() the invitation of plaintiff to assert pendent party jurisdiction over (the City and the Utility)" (id. at A9). The court recognized, however, that its ruling might be inconsistent with the Ninth Circuit decision in Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977) (rejecting pendent-party jurisdiction in an FTCA case), cert. dismissed, 435 U.S. 982 (1978), and it therefore certified its ruling for interlocutory appeal under 28 U.S.C. (& Supp. IV) 1292(b). Pet. App. A9-A10. 3. As provided by 28 U.S.C. (& Supp. IV) 1292(b), the government petitioned the court of appeals to permit the interlocutory appeal. By order dated July 7, 1987, the court of appeals granted the government's petition and directed the plaintiff to "show cause why the district court's order should not be summarily reversed under Ayala." Pet. App. A3-A4. On March 4, 1988, the court of appeals summarily reversed the district court's decision (id. at A1-A2). /3/ DISCUSSION This case squarely presents the question whether federal district courts may exercise pendent-party jurisdiction in actions brought against the United States under the Federal Tort Claims Act. The question is recurring, the courts of appeals have given different answers to it, and this Court has not addressed it. In Ayala, the Ninth Circuit decision on which the court of appeals relied in this case, this Court granted certiorari on the question, but certiorari was ultimately dismissed. /4/ This case presents a suitable vehicle for the Court to address and to resolve the issue. Although, unlike petitioner, we think that the court of appeals correctly ruled that there is no pendent-party jurisdiction in FTCA cases, we agree with petitioner that the petition for a writ of certiorari should be granted in this case. 1. There is a clear and persistent conflict among the circuits on the question whether district courts may exercise pendent-party jurisdiction in FTCA cases. The Ninth Circuit has long answered that question in the negative, requiring an independent basis of jurisdiction over any party other than the United States in an FTCA case. Idaho v. United States Dep't of the Army, Corps of Engineers, 666 F.2d 444, 446, cert. denied, 459 U.S. 823 (1982); Ayala, 550 F.2d at 1198; Williams v. United States, 405 F.2d 951, 954 (1969). Indeed, the Ninth Circuit has rejected the doctrine of pendent-party jurisdiction not only in FTCA cases but in several other contexts as well, relying at bottom on the view that the doctrine is inconsistent with the limited grant of jurisdiction to the federal courts in Article III of the Constitution. E.g., Carpenters Southern Cal. Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999, 1000 (1984) (ERISA, 29 U.S.C. 1132); Safeco Ins. Co. v. Guyton, 692 F.2d 551, 555 & n.5 (1982) (diversity); Munoz v. Small Business Admin., 644 F.2d 1361, 1365 (1981) (15 U.S.C. 634(b)(1)); Ayala, 550 F.2d at 1198-1201 & n.8 (emphasis in original) "our difficulty with pendent party jurisdiction is a constitutional one under Artile III"). In contrast, the Tenth and the Eleventh Circuits have held that the district courts have the power to exercise pendent-party jurisdiction in FTCA actions against the United States. Stewart v. United States, 716 F.2d 755, 757-759 (10th Cir. 1982), cert. denied, 469 U.S. 1018 (1984); Lykins v. Pointer, Inc., 725 F.2d 645, 647-649 (11th Cir. 1984); see Brown v. United States, 838 F.2d 1157, 1159 n.5 (11th Cir. 1988). Those circuits have concluded, first, that Article III permits the exercise of pendent-party jurisdiction in appropriate cases and, second, that Congress intended, at least implicitly, to allow such jurisdiction when it enacted the FTCA. See, e.g., Stewart, 716 F.2d at 757-759; Lykins, 725 F.2d at 647-649. /5/ 2. It has been settled since this Court's decision in United Mine Workers v. Gibbs, supra, that federal courts have the power under Article III of the Constitution to exercise pendent-claim jurisdiction over "additional claims between parties with respect to whom there is federal jurisdiction" (Aldinger, 427 U.S. at 6 (emphasis in original)). By contrast, this Court has not resolved the general question whether the federal courts may exercise pendent-party jurisdiction, i.e., jurisdiction over "additional parties with respect to whom there is no independent basis of federal jurisdiction" (ibid. (emphasis in original)). The Court has repeatedly made clear, however, that "there is a significant difference between" pendent-party jurisdiction and pendent-claim jurisdiction because the former "require(s) (the court) to bring an entirely new party -- a new defendant -- into (the) litigation." Moor v. County of Alameda, 411 U.S. 693, 713 (1973). See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978) ("(t)he Gibbs case differed from this one in that it involved * * * the resolution of a plaintiff's federal- and state-law claims against a single defendant"); Aldinger, 427 U.S. at 14. /6/ The Court also has several times admonished that the general question whether federal courts may exercise pendent-party jurisdiction consistent with Article III is "a subtle and complex question with far-reaching implications." Moor, 411 U.S. at 715; see Aldinger, 427 U.S. at 715; see Aldinger, 427 U.S. at 2, 18. /7/ In Aldinger, the leading decision on the subject of pendent-party jurisdiction, the Court avoided that difficult question by directing its inquiry to the particular statutes under which the case was brought to federal court in the first place. That approach followed from the fundamental principle that "federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress" (427 U.S. at 15). /8/ If a claim against a pendent party is outside the jurisdiction contemplated in the relevant statutes, the Court concluded, neither the constitutional question nor questions about whether pendent-party jurisdictional is generally available need be reached. Thus, the Court explained, whether pendent-party jurisdiction exists in a particular case "turns initially, not on the general contours of the language in Art. III, * * * 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" (427 U.S. at 16-17). "Resolution of a claim of pendent-party jurisdiction * * * calls for careful attention to the relevant statutory language" (id. at 17); and "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" (ibid. (emphasis in original)). The key question, the Court concluded, is "whether by virtue of the statutory grant of subject-matter jurisdiction, upon which (the plaintiff's) principal claim * * * rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought" (id. at 16 (emphasis in original)). Applying those principles, the Aldinger Court rejected the particular claim of pendent-party jurisdiction that was before it. The plaintiff, upon bringing suit against various county officials under 42 U.S.C. 1983 and establishing jurisdiction under 28 U.S.C. 1343(3), asserted pendent-party jurisdiction over related state-law claims against the county, which at the time could not be sued under Section 1983. /9/ The Court held that, under the relevant statutes, the claims against the counties were "without the statutory jurisdiction of the district court" (427 U.S. at 17 (footnote omitted)). The Court reasoned that, because Congress did not intend counties to be subject to suit under Section 1983 would have the effect of circumventing congressional intent. As the Court explained, "(p)arties such as counties, whom Congress excluded from liability in Section 1983, * * * can argue with great 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" (427 U.S. at 17 (emphasis in original)). The Aldinger Court emphasized: "we decide here only the issue of so-called 'pendent-party' jurisdiction with respect to a claim brought under Sections 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result." 427 U.S. at 18. In particular, having previously noted the judicial-economy policy argument in favor of pendent-party jurisdiction (id. at 14-15), the Court observed that "(w)hen the grant of jurisdiction to a federal court is exclusive, * * * as in the prosecution of tort claims against the United States under 28 U.S.C. Section 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" (427 U.S. at 18 (footnote omitted; emphasis in original)). The Court declined to consider any statute not before it, however, declaring that "it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise or (pendent-party) jurisdiction" (ibid.). The Court concluded by reiterating that, in any particular case, "(b)efore 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" (ibid.). 3. In this case as in Aldinger, the constitutional question of pendent-party jurisdiction need not and should not be reached. In fact, to the extent that the Article III foundation for FTCA jurisdiction is not the grant of jurisdiction over "all Cases * * * arising under" federal law (as in Aldinger), but instead the grant of jurisdiction over "Controversies to which the United States shall be a Party," the constitutional difficulty here may be greater than it was in Aldinger: it may be that a non-federal claim against a new party can more readily be deemed within the "Case()" arising under federal law against a person other than the United States can be deemed within the "Controvers(y) to which the United States (is) a Party." Of course, statutes should be construed, if possible, to avoid raising serious constitutional questions. See, e.g., Webster v. Doe, No. 86-1294 (June 15, 1988), slip op. 10. In any event, even apart from that principle, the approach set forth in Aldinger leads in this case to the conclusion that recognizing pendent-party jurisdiction over parties other than the United States would be inconsistent with the careful limits on the jurisdiction granted by Congress in the FTCA. The answer in the FTCA context to the fundamental question whether "Congress has addressed itself to the claim is sought" (Aldinger, 427 U.S. at 16 (emphasis in original)) is clear. Here, as in Aldinger itself, Congress "undoubtedly has done so" (ibid.). The FTCA confers upon the federal courts jurisdiction to hear certain suits "against the United States." 28 U.S.C. 1346(b) (emphasis added). It does so, moreover, in language that refers only to the specific claim against the government, conferring jurisdiction over "civil actions on claims against the United States (ibid. (emphasis added)). Thus, Congress expressly limited FTCA jurisdiction to a single party, the United States. Petitioner's only response on the merits is a policy argument (Pet. 9-10). She notes (Pet. 6, 7), as Aldinger did (427 U.S. at 18), that there is exclusive federal jurisdiction over FTCA suits under 28 U.S.C. 1346(b). /10/ Hence, "only in a federal court may all of the (plaintiff's) claims be tried together" (Aldinger, 427 U.S. at' 18 (footnote omitted; emphasis in original)). Based on the simple theory that one suit is better than two, petitioner thus argues that fairness to her and considerations of judicial economy weigh in favor of recognizing pendent-party jurisdiction under the FTCA. Although that argument might have a legitimate bearing on the application of a jurisdiction-granting statute that made no reference to the range of parties that may be brought into federal court, the FTCA is not such a statute. Rather, the FTCA explicitly specifies the party defendant over whom the statute confers jurisdiction. As this Court has several times held, a pure policy argument such as petitioner's cannot justify expanding jurisdiction beyond the limits deliberately set by Congress. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 377 (rejecting argument based on "the convenience of litigants (and) considerations of judicial economy," holding that court has no jurisdiction over claim by plaintiff in diversity action against impleaded third-party defendant, where there is no independent basis of federal jurisdiction over that claim); Aldinger v. Howard, supra (rejecting judicial-economy argument for pendent-party jurisdiction where allowing such jurisdiction would violate limits on federal suits set by 42 U.S.C. 1983 and 28 U.S.C. 1343(3)). In any event, an assessment of gains in efficiency from allowing pendent-party jurisdiction, and the relevance of such gains to determining whether such jurisdiction is permissible notwithstanding the express language of 28 U.S.C. 1346(b), must be far less simplistic than petitioner's one-suit-rather-than-two analysis. It must take account of the numerous special rules that Congress has established for FTCA litigation. For example, an FTCA claim against the government must be tried without a jury (28 U.S.C. 2402), whereas any pendent state-law claims would generally be subject to trial by jury under the Seventh Amendment. (Petitioner requested a jury trial here.) The government can be held liable only for negligent or wrongful conduct, not on a strict-liability theory (28 U.S.C. 1346(b), 2680(a); Laird v. Nelms, 406 U.S. 797 (1972)), and cannot be liable for punitive damages (28 U.S.C. 2674). A claimant must file an administrative claim within two years of accrual and cannot file suit beyond six months after the claim has been denied or not acted on (28 U.S.C. 2401(b), 2675(a)). The amount requested in the administrative claim sets a presumptive cap on the damages in the suit (28 U.S.C. 2675(b)). The government may claim any of numerous defenses, exemptions, and immunities, including those for discretionary functions (28 U.S.C. 2680(a)), specified intentional torts (28 U.S.C. 2680(h)), and activities incident to military service (Feres v. United States, 340 U.S. 135 (1950)). Those rules are significant, first, because they evince a deliberate effort by Congress carefully to circumscribe the nature and extent of FTCA litigation. That congressional approach underscores the importance of respecting the single-party limit on the jurisdictional grant of 28 U.S.C. 1346(b). The rules are also significant because they make clear that recognizing pendent-party jurisdiction over nongovernment alleged tortfeasors would not in fact produce much of the efficiency petitioner alleges. Thus, the government would not have to proceed to trial in many cases in which nongovernment defendants would; both in discovery and at trial, different issues would often be presented against different defendants; and different fact-finders (judge and jury) frequently would have to try the issues. /11/ Further, even if pendent-party jurisdiction produced some gains in efficiency, only state courts would benefit, because the alleged gains in efficiency would derive from a one-way shifting of state-court suits into federal court. Also, recognizing pendent-party jurisdiction under the FTCA would undoubtedly encourage some plaintiffs to file FTCA actions against the government that would not otherwise be filed, for the sole purpose of obtaining a federal forum for their ordinary state-law tort claims against others. Cf. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 374 & n.17. Because of the wide array of activities in which the government is involved and the difficulty of identifying such improperly filed cases early in the litigation, the potential increased burden on the government and the federal courts might be significant even if the exercise of pendent-party jurisdiction, like the exercise of pendent-claim jurisdiction, is discretionary. In sum, petitioner's judicial-efficiency argument is no justification for ignoring Congress's express decision to restrict the jurisdiction created by the FTCA to claims against the government. Recognizing pendent-party jurisdiction in this case would effect an evasion of the FTCA's limits. The decision of the court of appeals is therefore correct. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General JOHN F. CORDES THOMAS M. BONDY Attorneys JULY 1988 /1/ "Pendent party" jurisdiction is claimed where, as here, the plaintiff in an action in federal court seeks "the addition of a party which is implicated in the litigation only with respect to (a) pendent state law claim andd not also with respect to any claim as to which there is an independent basis of federal jurisdiction." Moor v. County of Alameda, 411 U.S. 693, 713 (1973). See Aldinger, 427 U.S. at 6, 15. "Pendent claim" jurisdiction, by contrast, is claimed where a federal-court plaintiff seeks to include a state-law claim against defendants who are already in the suit by virtue of claims that give rise to federal jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715 (1966). /2/ In Gibbs, this Court held that, when a plaintiff has brought suit on a claim arising under federal law, a district court has the power to exercise jurisdiction over state-law claims against the same defendants where the state- and federal-law claims arise out of a "common nucleus of operative fact" and the "plaintiff's claims are such that he would ordinarily be expected to try them all in one juridical proceeding" (383 U.S. at 725). See Carnegie-Mellon Univ. v. Cohill, No. 86-1021 (Jan. 20, 1988), slip op. 5-6. /3/ In response to the court of appeals' show-cause order, petitioner included a request for hearing en banc. Presumably because the request was not responsive to the court's order, the court of appeals did not comment on it in summarily reversing the district court decision (Pet. App. A1-A2). Petitioner did not seek rehearing after the summary reversal, but instead filed the instant petition to this Court. /4/ Certiorari was dismissed by stipulation after the Court was informed that, subsequent to the court of appeals' decision, the government had impleaded the party that the plaintiff had sought to bring into the case under a claim of pendent-party jurisdiction. The impleader brought that party into the case under the independent grant of jurisdiction in 28 U.S.C. 1345, thereby altering the question before the Court. /5/ Contrary to petitioner's suggestion (Pet. 8 & n.4), the First Circuit's decision in Ortiz v. United States Gov't, 595 F.2d 65 (1979), does not squarely conflict with the Ninth Circuit's position. In Ortiz, the party against whom the plaintiff's state-law claims were made was already in the lawsuit and subject to the court's jurisdiction, because the United States had filed a third-party complaint against that party (id. at 70), a complaint over which the court had jurisdiction under 28 U.S.C. 1345. As the First Circuit noted (595 F.2d at 71 n.8), that was not so in Ayala at the time of the Ninth Circuit decision. As this Court has made clear, "there is a (less) serious obstacle to the exercise of pendent (party) jurisdiction" when the state-law claim is to be litigated between "parties already before the court" (Aldinger, 427 U.S. at 18; see Ortiz, 595 F.2d at 72). In fact, in Ayala, the filing of a third-party complaint after the court of appeals' decision transformed the original Ayala question into an Ortiz question and thereby led to the dismissal of certiorari. Here, the City and the Utility have not been impleaded and are not "already before the court." /6/ The Aldinger Court stated (427 U.S. at 14): The situation with respect to the joining of a new party * * * 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." /7/ In a case like Aldinger, the constitutional question posed by a claim of pendent-party jurisdiction is whether a non-federal claim against a new party may be brought within the "Case() * * * arising under (federal law)" that the federal-law claim against the principal defendants creates. /8/ See, e.g., Christianson v. Colt Indus. Operating Corp., No. 87-499 (June 17, 1988), slip op. 15 ("'Courts created by statute can have no jurisdiction but such as the statute confers.' Sheldon v. Sill, (49 U.S.) 8 How. 441, 449 (1850). See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-380 (1981)."). /9/ This Court had ruled in Moor, 411 U.S. at 698-710, that counties are not subject to suit under 42 U.S.C. 1983. See also Monroe v. Pape, 365 U.S. 167 (1961). That holding was overruled in Monell v. Department of Social Services, 436 U.S. 658 (1978). But "Monell in no way qualifies the holding of Aldinger that the jurisdictional questions * * * are statutory as well as constitutional." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 n.12 (1978). Nor does it undermine Aldinger's approach in analyzing the statute to determine whether pendent-party jurisdiction is permissible. /10/ Contrary to petitioner's statement (Pet. 6) and the apparent views of the Tenth Circuit (Stewart, 716 F.2d at 758) and the Eleventh Circuit (Lykins, 725 F.2d at 648), the Aldinger Court's reference to the FTCA was in no way an approval of pendent-party jurisdiction under the FTCA. The reference was by its terms merely an illustration that different statutes raise different problems, and it was made in the course of the Court's explanation of why it was expressly declining to rule on any case not squarely before it. See pages 10-11, supra. /11/ In Moor v. County of Alameda, 411 U.S. 693, 715-717 (1973), this Court upheld a district court's decision not to exercise pendent-party jurisdiction in a particular case based in part on the fact that different rules would apply to the principal defendant and the "pendent" defendant. In FTCA suits, there are always such differences.