Finley v. United States, 490 U.S. 545 (1989)

Author: Justice Scalia

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Finley v. United States, 490 U.S. 545 (1989)

JUSTICE SCALIA delivered the opinion of the Court.

On the night of November 11, 1983, a twin-engine plane carrying petitioner’s husband and two of her children struck electric transmission lines during its approach to a San Diego, California, airfield. No one survived the resulting crash. Petitioner brought a tort action in state court, claiming that San Diego Gas and Electric Company had negligently positioned and inadequately illuminated the transmission lines, and that the city of San Diego’s negligent maintenance of the airport’s runway lights had rendered them inoperative the night of the crash. When she later discovered that the Federal Aviation Administration (FAA) was in fact the party responsible for the runway lights, petitioner filed the present action against the United States in the United States District Court for the Southern District of California. The complaint based jurisdiction upon the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging negligence in the FAA’s operation and maintenance of the runway lights and performance of air traffic control functions. Almost a year later, she moved to amend the federal complaint to include claims against the original state court defendants, as to which no independent basis for federal jurisdiction existed. The District Court granted petitioner’s motion and asserted "pendent" jurisdiction under Mine Workers v. Gibbs, 383 U.S. 715 (1966), finding it "clear" that "judicial economy and efficiency" favored trying the actions together, and concluding that they arose "from a common nucleus of operative facts." App. to Pet. for Cert. A-8 to A-9. The District Court certified an interlocutory appeal to the Court of Appeals for the Ninth Circuit under 28 U.S.C. § 1292(b). That court summarily reversed on the basis of its earlier opinion in Ayala v. United States, 550 F.2d 1196 (1977), cert. dism’d, 435 U.S. 982 (1978), which had categorically rejected pendent party jurisdiction under the FTCA. We granted certiorari, 488 U.S. 815 (1988), to resolve a split among the Circuits on whether the FTCA permits an assertion of pendent jurisdiction over additional parties. Compare, e.g., Ayala v. United States, supra, with Lykins v. Pointer, Inc., 725 F.2d 645 (CA11 1984), and Stewart v. United States, 716 F.2d 755 (CA10 1982), cert. denied, 469 U.S. 1018 (1984).

The FTCA provides that "the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States" for certain torts of federal employees acting within the scope of their employment. 28 U.S.C. § 1346(b). Petitioner seeks to append her claims against the city and the utility to her FTCA action against the United States, even though this would require the District Court to extend its authority to additional parties for whom an independent jurisdictional base -- such as diversity of citizenship, 28 U.S.C. § 1332(a)(1) -- is lacking.

In 1807, Chief Justice Marshall wrote for the Court that

courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied.

Ex parte Bollman, 4 Cranch 75, 93 (1807). It remains rudimentary law that

[a]s regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. . . . To the extent that such action is not taken, the power lies dormant.

The Mayor v. Cooper, 6 Wall. 247, 252 (1868) (emphasis added); accord, Christianson v. Colt Industries Operating Co., 486 U.S. 800, 818 (1988); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-380 (1981); Kline v. Burke Construction Co., 260 U.S. 226, 233-234 (1922); Case of the Sewing Machine Companies, 18 Wall. 553, 577-578, 586-587 (1874); Sheldon v. Sill, 8 How. 441, 449 (1850); Cary v. Curtis, 3 How. 236, 245 (1845); McIntire v. Wood, 7 Cranch 504, 506 (1813).

Despite this principle, in a line of cases by now no less well established, we have held, without specific examination of jurisdictional statutes, that federal courts have "pendent" claim jurisdiction -- that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court -- to the full extent permitted by the Constitution. Mine Workers v. Gibbs, supra; Hurn v. Oursler, 289 U.S. 238 (1933); Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909).{1} Gibbs, which has come to stand for the principle in question, held that

[p]endent jurisdiction, in the sense of judicial power, exists whenever there is a claim "arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ," U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case."

383 U.S. at 725 (emphasis in original). The requisite relationship exists, Gibbs said, when the federal and nonfederal claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them in one judicial proceeding." Ibid. Petitioner contends that the same criterion applies here, leading to the result that her state law claims against San Diego Gas and Electric Company and the city of San Diego may be heard in conjunction with her FTCA action against the United States.

Analytically, petitioner’s case is fundamentally different from Gibbs in that it brings into question what has become known as pendent party jurisdiction, that is, jurisdiction over parties not named in any claim that is independently cognizable by the federal court.{2} We may assume, without deciding, that the constitutional criterion for pendent party jurisdiction is analogous to the constitutional criterion for pendent claim jurisdiction, and that petitioner’s state law claims pass that test. Our cases show, however, that, with respect to the addition of parties, as opposed to the addition of only claims, we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly. In Zahn v. International Paper Co., 414 U.S. 291, 301 (1973), we refused to allow a plaintiff pursuing a diversity action worth less than the jurisdictional minimum of $10,000 to append his claim to the jurisdictionally adequate diversity claims of other members of a plaintiff class -- even though all of the claims would together have amounted to a single "case" under Gibbs, see Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372 (1978). We based this holding upon "the statutes defining the jurisdiction of the District Court," 414 U.S. at 292, and did not so much as mention Gibbs.

Two years later, the nontransferability of Gibbs to pendent party claims was made explicit. In Aldinger v. Howard, 427 U.S. 1 (1976), the plaintiff brought federal claims under 42 U.S.C. § 1983 against individual defendants, and sought to append to them a related state claim against Spokane County, Washington. (A federal § 1983 claim was unavailable against the county because of this Court’s decision in Monroe v. Pape, 365 U.S. 167 (1961).){3} We specifically disapproved application of the Gibbs mode of analysis, finding a "significant legal difference." 427 U.S. at 15. "[T]he addition of a completely new party," we said, "would run counter to the well-established principle that federal courts . . . are courts of limited jurisdiction marked out by Congress." Ibid. "Resolution of a claim of pendent party jurisdiction . . . calls for careful attention to the relevant statutory language." Id. at 17. We held in Aldinger that the jurisdictional statute under which suit was brought, 28 U.S.C. § 1343, which conferred district court jurisdiction over civil actions of certain types "authorized by law to be commenced," did not mean to include as "authorized by law" a state law claim against a party that had been statutorily insulated from similar federal suit. The county had been "excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3)." Ibid. (emphasis in original).

We reaffirmed and further refined our approach to pendent party jurisdiction in Owen Equipment & Erection Co. v. Kroger, supra, at 372-375 -- a case, like Zahn, involving the diversity statute, 28 U.S.C. § 1332(a)(1), but focusing on the requirement that the suit be "between . . . citizens of differentstates," rather than the requirement that it "excee[d] the sum or value of $10,000." We held that the jurisdiction which § 1332(a)(1) confers over a "matter in controversy" between a plaintiff and defendant of diverse citizenship cannot be read to confer pendent jurisdiction over a different, nondiverse defendant, even if the claim involving that other defendant meets the Gibbs test. "Gibbs," we said,

does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim,

437 U.S. at 373.

The most significant element of "posture" or of "context," id. at 376, in the present case (as in Zahn, Aldinger, and Kroger) is precisely that the added claims involve added parties over whom no independent basis of jurisdiction exists. While in a narrow class of cases a federal court may assert authority over such a claim "ancillary" to jurisdiction otherwise properly vested -- for example, when an additional party has a claim upon contested assets within the court’s exclusive control, see, e.g., Krippendorf v. Hyde, 110 U.S. 276 (1884); Freeman v. Howe, 24 How. 450, 460 (1861), or when necessary to give effect to the court’s judgment, see, e.g., Local Loan Co. v. Hunt, 292 U.S. 234, 239 (1934); Julian v. Central Trust Co., 193 U.S. 93, 112-114 (1904) -- we have never reached such a result solely on the basis that the Gibbs test has been met.{4} And little more basis than that can be relied upon by petitioner here. As in Kroger, the relationship between petitioner’s added claims and the original complaint is one of "mere factual similarity," which is of no consequence, since

neither the convenience of the litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction,

437 U.S. at 376-377. It is true that here, unlike in Kroger, see id. at 376, the party seeking to bring the added claims had little choice but to be in federal rather than state court, since the FTCA permits the Federal Government to be sued only there. But that alone is not enough, since we have held that suits against the United States under the Tucker Act, 24 Stat. 505 (which can of course be brought only in federal court, see 28 U.S.C. §§ 1346(a)(2), 1491(a)(1)), cannot include private defendants. United States v. Sherwood, 312 U.S. 584 (1941).

The second factor invoked by Kroger, the text of the jurisdictional statute at issue, likewise fails to establish petitioner’s case. The FTCA, § 1346(b), confers jurisdiction over "civil actions on claims against the United States." It does not say "civil actions on claims that include requested relief against the United States," nor "civil actions in which there is a claim against the United States" -- formulations one might expect if the presence of a claim against the United States constituted merely a minimum jurisdictional requirement, rather than a definition of the permissible scope of FTCA actions. Just as the statutory provision "between . . . citizens of different States" has been held to mean citizens of different States and no one else, see Kroger, supra, so also here we conclude that "against the United States" means against the United States and no one else.{5}

Due regard for the rightful independence of state governments . . . requires that [federal courts] scrupulously confine their own jurisdiction to the precise limits which the statute has defined.

Healy v. Ratta, 292 U.S. 263, 270 (1934); accord, Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 272-273 (1972); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941). The statute here defines jurisdiction in a manner that does not reach defendants other than the United States.{6}

Petitioner contends, however, that an affirmative grant of pendent party jurisdiction is suggested by changes made to the jurisdictional grant of the FTCA as part of the comprehensive 1948 revision of the Judicial Code. See Pub.L. 773, 62 Stat. 869. In its earlier form, the FTCA had conferred upon district courts "exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States" for specified torts. 28 U.S.C. § 931 (1946 ed.) (emphasis added). In the 1948 revision, this provision was changed to "exclusive jurisdiction of civil actions on claims against the United States." 28 U.S.C. § 1346(b) (1952 ed.) (emphasis added). Petitioner argues that this broadened the scope of the statute, permitting the assertion of jurisdiction over any "civil action," so long as that action includes a claim against the United States. We disagree.

Under established canons of statutory construction,

it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed.

Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199 (1912); see United States v. Ryder, 110 U.S. 729, 740 (1884). Concerning the 1948 recodification of the Judicial Code in particular, we have stated that

no changes in law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed.

Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227 (1957); see Tidewater Oil Co. v. United States, 409 U.S. 151, 162 (1972). We have found no suggestion, much less a clear expression, that the minor rewording at issue here imported a substantive change.

The change from "claim against the United States" to "civil actions on claims against the United States" would be a strange way to express the substantive revision asserted by petitioner -- but a perfectly understandable way to achieve another objective. The 1948 recodification came relatively soon after the adoption of the Federal Rules of Civil Procedure, which provide that "[t]here shall be one form of action to be known as `civil action.’" Fed.Rule Civ.Proc. 2. Consistent with this new terminology, the 1948 revision inserted the expression "civil action" throughout the provisions governing district court jurisdiction. See H.R.Rep. No. 308, 80th Cong., 1st Sess., App. A114-A125 (1947) (Reviser’s Notes).

Reliance upon the 1948 recodification also ignores the fact that the concept of pendent party jurisdiction was not considered remotely viable until Gibbs liberalized the concept of pendent claim jurisdiction -- nearly 20 years later. See 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3567.2, pp. 146-148 (2d ed.1984); Miller, Ancillary and Pendent Jurisdiction, 26 S.Tex.L.J. 1, 11 (1985). Indeed, in 1948, even a relatively limited substantive expansion of pendent claim jurisdiction with respect to unfair competition actions provoked considerable discussion, see Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 232 (1948); Note, The Proposed Revision of the Federal Judicial Code, 60 Harv.L.Rev. 424, 430-431 (1947), and was described by the chief reviser as one of a dozen "major changes of law" effected by his handiwork, W. Barron, The Judicial Code 1948 Revision, 8 F.R.D. 439, 441-445 (1949). That change, in the already accepted realm of pendent claim jurisdiction, was accomplished by wording that could not be mistaken, referring to

any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, or trademark laws.

§ 1338(b), 62 Stat. 931. It is inconceivable that the much more radical change of adopting pendent party jurisdiction would have been effected by the minor and obscure change of wording at issue here -- especially when that revision is more naturally understood as stylistic.

Because the FTCA permits the Government to be sued only in federal court, our holding that parties to related claims cannot necessarily be sued there means that the efficiency and convenience of a consolidated action will sometimes have to be forgone in favor of separate actions in state and federal courts. We acknowledged this potential consideration in Aldinger, 427 U.S. at 18, but now conclude that the present statute permits no other result.

* * * *

As we noted at the outset, our cases do not display an entirely consistent approach with respect to the necessity that jurisdiction be explicitly conferred. The Gibbs line of cases was a departure from prior practice, and a departure that we have no intent to limit or impair. But Aldinger indicated that the Gibbs approach would not be extended to the pendent party field, and we decide today to retain that line. Whatever we say regarding the scope of jurisdiction conferred by a particular statute can, of course, be changed by Congress. What is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts. All our cases -- Zahn, Aldinger, and Kroger -- have held that a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties. Our decision today reaffirms that interpretive rule; the opposite would sow confusion.

For the foregoing reasons, the judgment of the Court of Appeals is


1. JUSTICE STEVENS apparently does not acknowledge the divergence in these lines of authority. Nothing else can explain the belief expressed in his dissent that there is force in the argument that,

[i]f the Court’s demonstration [of lack of statutory authority] were controlling, Gibbs, Hurn, and Moore, as well as a good many other cases, were incorrectly decided.

Post at 572. For that is entirely canceled by the equally valid argument that, if lack of statutory authority were not controlling, Christianson, Firestone, Sewing Machine Companies, and McIntire, as well as a good many other cases, were incorrectly decided.

2. JUSTICE STEVENS is thus mistaken to rely upon, post at 559-560, n. 6, this Court’s decision in Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). That case involved jurisdiction over a counterclaim brought by and against parties who were already properly before the court on other, federal question, grounds. His dissent generally ignores this distinction -- a central distinction, as we shall later discuss -- between new parties and parties already before the court.

3. Monroe v. Pape was later overruled by Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978).

4. This Court’s decision in Dewey v. West Fairmont Gas Coal Co., 123 U.S. 329 (1887), which JUSTICE STEVENS cites in his dissent, see post at 560, n. 6, explicitly rested upon "ancillary" jurisdiction, citing Krippendorf v. Hyde, 110 U.S. 276 (1884), in support of its holding that "[t]he suit in equity was an exercise of jurisdiction . . . ancillary to that which it had already acquired in the action at law." 123 U.S. at 333. In Dewey, the new defendant added in the equitable counterclaim was asserted to have been the recipient of a fraudulent conveyance from the insolvent plaintiff, and the counterclaim was brought under a West Virginia statute authorizing suits to set aside such conveyances in assistance of an anticipated judgment or decree against the conveying debtor. Any decree on the counterclaim would presumably have been worthless if the fraudulent conveyance could not have been recaptured.

5. JUSTICE STEVENS would distinguish Kroger (and Zahn v. International Paper Co., 414 U.S. 291 (1973)) from the present case on the ground that, where Congress

has unequivocally indicated its intent that the federal right be litigated in a federal forum, there is reason to believe that Congress did not intend that the substance of the federal right be diminished by the increased costs in efficiency and convenience of litigation in two forums.

Post at 577. It seems to us, however, that one could say precisely the same thing about the diversity jurisdiction involved in Kroger and Zahn: when Congress has unequivocally indicated its intent that a plaintiff have a right to bring a diversity action in federal court, there is reason to believe that Congress did not intend that the substance of that right be diminished, etc. We simply do not agree with the inference in either context.

6. JUSTICE STEVENS says that "it is perfectly clear that the District Court has . . . statutory power to decide this case," post at 560 -- which is true if one means this case against the United States. His dissent then continues, however, "[i]t is also undisputed that this power will not be defeated by the joinder of two private defendants," ibid., supporting that statement by references to Federal Rules of Civil Procedure 14(a) and 20(a), which permit the impleader and joinder of parties, post at 560-561. Unfortunately, the proposition in that second sentence is disputed. Indeed, it is what this case is all about. More precisely, it is not that the "statutory power to decide this case" is defeated by the joinder of a private party for purposes of a claim over which the District Court has no independent jurisdiction, but that the statutory power to decide a case including such a claim simply does not exist, since the FTCA provides jurisdiction only for claims against the United States. Rules 14(a) and 20(a) in no way alter that reality, since the Federal Rules explicitly provide that they "shall not be construed to extend . . . the jurisdiction of the United States district courts," Fed.Rule Civ.Proc. 82.


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Chicago: Scalia, "Scalia, J., Lead Opinion," Finley v. United States, 490 U.S. 545 (1989) in 490 U.S. 545 490 U.S. 547–490 U.S. 556. Original Sources, accessed February 6, 2023,

MLA: Scalia. "Scalia, J., Lead Opinion." Finley v. United States, 490 U.S. 545 (1989), in 490 U.S. 545, pp. 490 U.S. 547–490 U.S. 556. Original Sources. 6 Feb. 2023.

Harvard: Scalia, 'Scalia, J., Lead Opinion' in Finley v. United States, 490 U.S. 545 (1989). cited in 1989, 490 U.S. 545, pp.490 U.S. 547–490 U.S. 556. Original Sources, retrieved 6 February 2023, from