Khadija sues al-Rahman for tortious interference (state claim) in makiciously inducing Far Horizons to fire her. Can we supplementally jurisdiction this, and survive the discretion of § 1367(c)? Also a claim against him for assault and battery (state again).
There are state law claims against both CBI and Far Horizons having to do with Khadija's vacation pay.
The federal statute only takes effect if the size of the company is a certain number of employees. If the federal claim evaporates, then the court might decide not to hear any of the other claims.
If that claim survives, however, we're back to the Gibbs test (common nucleus of operative fact. Seems like the state discrimination claim will stick around, at the very least.
The tortious interference claim is pretty much just the joinder of another party, who was involved in the situation, so that looks pretty strong too. The complaint had better have a bunch of facts pled about the assault and battery, and the nature of the tortious interference. Does the "common nucleus of operative fact" get the assault and battery claim in? Probably not: it has nothing to do, really with the religious discrimination (the federal claim). This is the difference between the constitutional standard and the FRCP rules of joinder: it might seem convenient (under Rule 20), but for supplemental jurisdiction you also require a common nucleus of operative fact with the federal claim that gives us arising under jurisdiction.
Of course, the court could decide that state law so predominates the claims against al-Rahman, that it would dismiss both of them under § 1367(c).
And the state claims about the vacation pay seem extra-constitutional. It might be proper joinder (same transaction), but there's no common nucleus.
Now, is it a compulaory counterclaim? Althouse says probably not. Now if it's a permissive counterclaim, and not compulsory, do we immediately know that it fails the Gibbs test for § 1367(a) purposes? (i.e., compulsory counterclaim = common nucleus, therefore permissive does not)? That's what Sparrow is about.
So we might say this counterclaim is in Sparrow's middle ground (assuming that the firing wasn't all about the theft of supplies), but still get rid of it under § 1367(c).
So the court reads FRCP 13 sort of narrowly (p. 390) about what's compulsory (same transaction or occurrence).
So is permissive/compulsory counterclaim congruent with meets/doesn't meet § 1367(a)? Maybe there are some counterclaims that are permissive, but also share a common nucleus of operative facts. In other words, if you choose to bring this counterclaim, it does have enough in common with the original claim that it satisfies § 1367's Article III standard. Sparrow sees that middle ground, but gets rid of the claim under § 1367(c). This means that the creditor isn't precluded from bringing the lawsuit later, and we don't chill suits under the FDCPA.
Possibly, beyond just consumer protection policy, this case is motivated by the court's desire to retain some power: the discretion to decide whether a permissive counterclaim can be brought.
Here, plaintiffs have chosen state court. They've got a federal claim, and then a bundle of state claims, and that's fine (under the state equivalent of FRCP 18).
Now under § 1441(a), a defendant can remove the federal claim. But § 1441(c) is a problem. Maybe there's nothing there that isn't already covered by other statutes. But if it serves no constitutional function, what is it doing there? Everything the defendant can remove is something the plaintiff could have brought in federal court-- there's no additional removable material that's constitutional.
One plan: if it's "separate and independent," then it's not a common nucleus of operative fact (i.e., it's not covered by § 1441(a), which is basically § 1331 + § 1367). Well, that would mean there's nothing constitutional covered by § 1441(c), if you want to be black-and-white about it. But maybe what they're trying to say is that there's some stuff that's "kind of" related. So again, is there a middle area for removal jurisdiction?
So, like Sparrow, how do we get anything into that middle category? The editors seem to think that there might be a way to find something that the plaintiff couldn't file in federal court but the defendant can remove. Salei basically seems say the opposite: if § 1441(c) gave any additional jurisdiction, it would be unconstitutional: the statute can;t be "construed in a way that renders the provision both constitutional and serviceable."
So basically we don't want a plaintiff to keep a defendant wholly out of federal court by just piling on lots of state claims that the federal court couldn't hear. On the other hand, if judisdiction is a duty, why all the discretionary language in § 1441(c)? There's a dark side to this, too-- the plaintiff isn't necessarily sandbagging the defendant by bringing additional claims, and it might make sense to hear them together. Allowing the defendant to impose a burden on the plaintiff by removing some of the claims to federal court might not always be so salutatory.
But note Scalia's comment in Finley (p. 376) about the difference between "claim" and "civil action on claim." And Posner's comments on p. 413. There's ambiguity here, and we can't 100% resolve it.
Chisholm (summarized on p. 424) is a suit by a South Carolinean trying to collect a war debt from Georgia. Art III sure seems to cover controversies between a state and a citizen of another state. And this wasn't a case filed in a lower court (where a grant of jurisdiction would have been needed): they had original jurisdiction-- there was no statute that withheld jurisdiction (using the exceptions and regulations clause power in the judiciary act).
Nevertheless (as Hans makes clear), everyone was pretty darn shocked that the court thought a citizen could sue a state. And everyone was motivated to pass 11A nice and quick.
So all the factors are in play here, and he's not within the text of 11A, because he's a citizen of LA. Now the framers were in all branches of government at the time of Chisholm. How come 11A doesn't say what it means with more specificity?
The court cites Federalist 81, and a variety of other framers (Jay, incidentally, was on the Chisholm court). So does the fact that some framers got on SCOTUS and then decide Chisholm, does that undermine the original intent of the consitution? Does the fact that the framers on SCOTUS have different ideas about what Art III mean than other framers mean that we should toss original intent completely out the window? Not likely.
There are instances in history where the government institution that has power can impose the interpretation it wants, and gets away with it in court. We can still argue that the court was wrong, though, and hold them to a higher standard. We shouldn't throw out the idea of whether there are better or worse interpretations just because there are times when raw power prevails.
So anyway, the people who were against ratification of the constitution did object to the citizen-state-diversity clause on the grounds that it would wreck sovereign immunity (this is George Mason and Patrick Henry. But Hamilton (Federalist 81) and others answer this argument: "I hear your argument about the text, but it can't mean what you fear it means, because that's contrary to the very nature of sovereignty." (p. 427). The ratifiers looked at the original text, posited the interpretation that Chisholm actually realized, and assured themselves that it could never actually happen.
There's also the possibility that the ratifiers were lying, and they did want to subordinate the states in this manner, and they sneaked this language into the constitution with the intention of a Chisholm-like result: that's what the framers actually secretly wanted, in spite of the fact that they explicitly disowned that meaning in the debates. In other words, maybe the framers' intent shouldn't be as pertinent a question as what the ratifiers thought: they consented to be governed under the meaning that they understood.
Now some folks might say that the Chisholm court was right, and then 11A changed the world. But maybe that wasn't the case-- maybe Chisholm was wrong, and the citizen-state-diversity clause wasn't meant to grant jurisdiction to citizens suing states, but rather to states suing citizens. So did 11A re-instate the True Interpretation, or did it correct a flaw in the constitution?
That's what makes Hans interesting-- Hans has a federal question: he's not relying on diversity to get into court; the court here has to decide whether a state can be a defendant in our system of laws. So, to what extent was sovereignty conceded by the ratification of the constitution? Well, the response to Chisholm certainly indicates that the states thought they held onto their sovereignty in cases arising out of state law. And then we get Hans: did the states surrender their sovereignty with respect to federal law claims?
The supremacy clause (Art VI § 2) says federal law trumps state law, but what is the federal law with respect to sovereign immunity? SCOTUS in Hans finds sovereign immunity. Federal law does give rise to a claim against the state (the contracts clause, here), so it's upsetting that there is a sovereign immunity that blocks asserting that claim. So where does that come from? Not the plain text of 11A.
The diversity theory: the intent of 11A was to overrule Chisholm-- it just gets rid of the citizen-state-diversity clause. So Hans was wrong, in the sense that it over-reads 11A to extend more immunity than federal law gives. Hans says that Chisholm was wrong, and sovereign immunity survives the constitution, except to the extent that it is surrendered.
Now note that the US can sue the states, and the states can sue each other. Those are not the issue here: all we're saying is that states are safe from suits by individuals. Also note that both Hans and Chisholm are war debt scenarios: there's a good policy reason for not letting citizens bankrupt states. The power to litigate is the power to destroy, in a sense.
The diversity theory is not an explanation of Hans, just to be clear: it's a proposed doctrine to replace Hans.
It's a little bit of a fiction: suing the state actor is really suing the state-- it's only possible to assert a right against that person because he/she is a state actor. The person needs to be the state in order to violate your rights, and also in order for enjoining him/her to have any remedial effect.
So is this merely a pragmatic device for asserting the supremacy of federal law? If we really wanted that, we could just do away with Hans. But the logic here is nicely subtle (see p. 442): the state can keep its immunity, but it can't extend its power to an individual to do something that the state can't have the power to do.
The retrospective/prospective distinction is an attempt to preserve individual rights without allowing awards of damages. The state won't be harmed so much by stopping to do whatever it was doing wrong, but we need to let it off the hook for the accumulated violations of the past.
But some injunctions can cost the states tremendously: bussing, prison reform, etc. The retrospective/prospective distinction doesn't protect against that. So the policy here can't be just about protecting the state's money. On the other hand, we have Milliken v. Bradley which suggests that there are limits on the degree to which an injunction can burden the state.