Enforcing Federal Rights Through 1331/Supremacy Clause Jurisdiction
Keywords
The simplest of course, was where the statute expressly creates a private cause of action. E.g. Title VII employment discrimination cases, 42 U.S.C. § 2000e-5(f). Absent an express provision, attorneys relied upon either an implied private right of action (1) or upon 42 U.S.C. § 1983, (2) which provides a federal claim for violation of "rights, privileges and immunities" under the federal Constitution, laws and, to some extent, regulations.
The ability to enforce federal rights through the latter two routes appears to have been curtailed by the conservative majority on the Supreme Court, (3) In Alexander v. Sandoval, (4) the use of an implied right of action to enforce federal regulations on disparate impact discrimination under Title VI of the Civil Rights Act of 1964 was rejected. In Gonzaga University v. Doe, (5) the Court refused to enforce federal educational privacy requirements in a 1983 case on the ground that they were not "rights" protected by federal law. Although the extent of the curtailment remains to be seen, attorneys for the affected groups must begin to look to other sources of authority to enforce federal rights.
One such possible source is using federal question jurisdiction under 28 U.S.C. § 1331 and a claim of conflict with federal law under the Supremacy Clause. Even if this route is available, there are certain advantages to using Section 1983 which are discussed below, so that 1983 claims should also be included if at all possible.
The Supreme Court has definitively stated that an assertion that federal law preempts a conflicting state law or regulation can be the subject of a suit in federal court under 1331. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96, n.14 (1983) states:
It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. See Ex parte Young, 209 U.S. 123, 160-162, 28 S.Ct. 441, 454-455, 52 L.Ed. 714 (1908). A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. §§ 1331 to resolve. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199-200, 41 S. Ct. 243, 244-245, 65 L.Ed. 577 (1921); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. CT. 42, 43, 53 L.Ed.2d 126 (1908); see also Franchise Tax Board, 463 U.S., at ----, and n. 20, 103 S.Ct., at 2851-2852, and n. 20, 75 L.Ed.2d, at ---, and n. 20; Note, Federal Jurisdiction over Declaratory Suits Challenging State Action, 79 Colum.L.Rev. 983, 996-1000 (1979). This Court, of course, frequently has resolved pre-emption disputes in a similar jurisdictional posture. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Jones v. Rath Packing Co., supra; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941).
Although Shaw and other cases speak in terms of preemption, the recent Supreme Court decision in Verizon (6) illustrates that in some cases what is actually involved in some 1331 Supremacy Clause cases is simply a conflict between federal and state laws or regulations. The Supreme Court treated the case as one involving preemption, but the complaint never mentions preemption. Treating the case as involving a preemption claim allowed the Court to find federal jurisdiction under 28 U.S.C. § 1331, the federal question jurisdiction section.
As the Supreme Court noted, there is ample precedent that a party can sue state officials using 1331/Supremacy Clause under Ex parte Young on a claim that state law is preempted by federal statute. If so, can we simply use 1331 and the Supremacy Clause to obtain declaratory judgments and injunctions requiring a state to adhere to federal law when state laws or regulations or administrative action conflict with federal law? Can poor people do what the telephone company can do? Can we assert a claim that federal law "preempts" state laws, regulations and administrative decisions (7) (which was what was involved in Verizon) which are contrary to federal law (our usual claim) To do this in a Medicaid case, for example, we would plead the federal law, the conflicting state law and assert the federal law preempts the state law and seek an injunction against enforcement of the state law, alleging 1331 jurisdiction. We can rely on the numerous cases that say that once a state opts into the Medicaid program, it is obligated to follow federal law. E.g., Harris v. McRae, 448 U.S. 297, 301 (1980).
It is important to examine the facts of Verizon to see how far the preemption concept extends so we can do the same in benefit or discrimination cases. An examination of the complaint shows that the two Counts in the complaint simply allege that the Commission's order interpreting the connection agreement between Bell Atlantic (later Verizon) and the long distance carriers violates federal law, is arbitrary and capricious, and is not the result of reasoned decision-making.
Not only does the complaint not mention preemption, none of the several briefs filed by Verizon in the Supreme Court mention preemption in connection with Verizon's claims. Verizon's opening brief describes its claims as follows:
Verizon's claim rests on at least two sources of federal rights that the PSC's determination directly invaded. The first is the statutory right to enter into a "binding agreement" without regard to requirements that would otherwise be imposed under federal law. 47 U.S. C. §252(a)(1). The second is the interconnection agreements themselves; the rights and obligations that arise thereunder are intrinsically federal in nature. Either source of rights establishes an independent and sufficient basis for federal court jurisdiction. (8)
The Fourth Circuit supports this view of the complaint. It characterized the complaint as seeking a declaratory judgment that the Maryland Public Service Commission had violated the federal Telecommunications Act by failing to apply and misinterpreting the FCC ruling. (9) It also sought an order requiring the Commission to order the other carriers to refund moneys received from Verizon. (10) There is no mention of preemption here because no one asserted a preemption claim. This was straight and simple a question of interpreting the federal law as to whether it recognized the agreements between the parties that the calls would be considered local calls even though the FCC had now ruled otherwise. What was in dispute was the meaning of the FCC ruling.
The FCC ruled (later vacated by the US Court of Appeals for DC) (11) that calls to the internet were not local calls and hence local telephone companies did not have to pay anything to the long distance carriers for calls to internet connections. However, Verizon and the long distance carriers had signed agreements under which, the Public Service Commission found, Verizon had agreed to make payments for the internet calls. As the Fourth Circuit opinion noted, the FCC had concluded that "[w]here parties have agreed to include this traffic within their . . .interconnection agreements, they are bound by those agreements, as interpreted and enforced by the state commissions. (12)"The Maryland Public Service Commission interpreted the agreements under state law and found that Verizon is bound by the agreements and must continue to make payments on internet calls. This is apparently the basis for the argument that the case is one of preemption: that the Commission applied state law which was contrary to the federal law (actually to the FCC ruling), and the state law is therefore preempted.
The Supreme Court characterized the complaint as follows:
Verizon alleged in its complaint that the Commission violated the Act and the FCC ruling when it ordered payment of reciprocal compensation for ISP-bound calls. Verizon sought a declaratory judgment that the Commission's order was unlawful, and an injunction prohibiting its enforcement.
That much was accurate, but the Court continued:
We have no doubt that federal courts have jurisdiction under § 1331 to entertain such a suit. Verizon seeks relief from the Commission's order 'on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail; and its claim 'thus presents a federal question which the federal court have jurisdiction under 28 U.S.C. § 1331 to resolve.' Shaw v. Delta Air Lines, Inc. 463 U.S. 85, 96, n.14 (1983).
The Verizon case also makes clear that the absence of an express or implied cause of action under the statute or under 1983 does not bar 1331/Supremacy jurisdiction.
It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court's statutory or constitutional power to adjudicate the case." (citation omitted). As we have said, 'the district court has jurisdiction if 'the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction ans will be defeated if they are given another,' unless the claim 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous."
122 S.Ct. At 1758-59.
A recent case illustrates how casually courts use 1331/Supremacy Clause as a basis for resolving conflicts between state and federal laws. In Illinois Assoc. of Mortgage Brokers v. Office of Banks and Real Estate, 308 F. 3d 762 (7th Cir. 2002), mortgage brokers sued a state agency and its Director for a declaratory judgment that a state regulation as to mortgage transactions conflicted with a federal law on the subject. Plaintiffs sued under Section 1983. Although the state is not a "person" under 1983, the suit could be maintained against the Director under Ex parte Young,
The Director claimed that the Supremacy Clause did not of its own force create a right enforceable under 1983. The Court responded:
It is not necessary for us to determine whether the 1982 Act is such a statute, because federal jurisdiction is supported by 28 U.S.C. § 1331 in any event. That statute supplies jurisdiction when he plaintiff seeks declaratory relief against regulation by a state agency and contends that hte agency has violated federal law by adopting particular regulations;
308 F. 3d at 765.
Attorneys' Fees
There is no specific provision for attorneys' fees in 1331 cases, although 42 U.S.C. § 1988(b) would allow fees to a prevailing plaintiff in certain civil rights actions. In contrast, all 1983 cases are eligible for fees under 1988(b).
Notes
1. See, e.g., Cannon v. University of Chicago, 441 U.S. 677 (1979)
2. See, e.g., Maine v. Thiboutot, 448 U.S.1 (1980)
3. Chief Justice Rehnquist, Justices O"Connor, Scalia, Kennedy, and Thomas
6. Verizon Maryland, Inc. v. Public Service Commission of Maryland, 122 S. Ct. 1753 (2002)
7. The expression "state law" will be used in this context to include regulations and administrative determinations as well.
11. All the relevant facts of the case relevant to the jurisdictional issue occurred before the DC Court of Appeals decision, so that opinion does not affect the result in the Verizon case.
12. Bell Atlantic Maryland, Inc. v. MCI Worldcom, Inc., 240 F. 3d 279 (4th Cir. 2001).