Opposition Brief — Ohana Military Communities, LLC, et al., Petitioners v. Kenneth Lake, et al.

No. 21-1223

IN THE

Supreme Court of the United States

OHANA MILITARY COMMUNITIES, LLC, ET AL.,

Petitioners,

v.

KENNETH LAKE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

P. Kyle Smith

Law Office of Kyle Smith

604 Ilimano Street

Kailua, HI 96734

(808) 799-5175

Adina H. Rosenbaum

Counsel of Record

Anna Dorman

Public Citizen

Litigation Group

1600 20th Street NW

Terrance M. Revere

Washington, DC 20009

Revere & Associates LLLC (202) 588-1000

970 N. Kalaheo Avenue

arosenbaum@citizen.org

Suite A301

Kailua, HI 96734

(808) 791-9550

Counsel for Respondents

May 2022

i

QUESTIONS PRESENTED

Under the Hawaii Admission Act, Hawaii and the

United States possess concurrent legislative authority

over federal enclaves in Hawaii. In the decision below,

the Ninth Circuit held that federal-question jurisdiction does not lie over Respondents’ Hawaii-law

claims against the companies that own and manage

the housing they leased on Marine Corps Base Hawaii

(MCBH), one of those enclaves. The court explained

that where the United States has exclusive legislative

jurisdiction over an enclave, state laws within the

enclave lose their character as state law and become

federal law that can serve as the basis for federalquestion jurisdiction. Where a state has concurrent

legislative jurisdiction over an enclave, however, state

laws retain their character as state law, and claims

arising under those laws do not arise under federal

law for the purpose of federal-question jurisdiction.

The court also rejected Petitioners’ argument that

federal-question jurisdiction lies over the claims

under Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing, 545 U.S. 308, 314

(2005), because Petitioners did not show that the

claims “necessarily raise” a federal issue.

The questions presented are:

1. Whether federal-question jurisdiction lies over

all Hawaii-law claims that arise on MCBH despite

Hawaii’s concurrent legislative jurisdiction over the

enclave.

2. Whether federal-question jurisdiction lies over

state-law claims that do not necessarily raise any

question of federal law.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE.................................... 3

REASONS FOR DENYING THE WRIT .................... 9

I. The First Question Presented Does Not Warrant

Review. ................................................................... 9

A. There is no circuit split concerning federalquestion jurisdiction over state-law claims

arising on a federal enclave over which a state

exercises concurrent legislative jurisdiction. .. 9

B. The Ninth Circuit correctly rejected the

argument that federal-question jurisdiction

lies over state-law claims whenever the claims

arise on a federal enclave over which a state

exercises concurrent legislative jurisdiction.. 14

C. The question of federal-question jurisdiction

over state-law claims arising on concurrent

legislative jurisdiction enclaves does not

require this Court’s attention. ....................... 18

II. The Second Question Presented Does Not

Warrant Review. ............................................... 19

CONCLUSION.......................................................... 24

iii

TABLE OF AUTHORITIES

Pages

Cases

Akin v. Ashland Chemical Co.,

156 F.3d 1030 (10th Cir. 1998) ..................... 11, 12

Celli v. Shoell,

40 F.3d 324 (10th Cir. 1994) ..................... 7, 12, 15

County of San Mateo v. Chevron Corp.,

__ F.4th __, 2022 WL 1151275

(9th Cir. Apr. 19, 2022) ....................................... 11

Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006) ............................. 13

Empire Health Care Assurance, Inc. v. McVeigh,

547 U.S. 677 (2006) ....................................... 20, 24

Evergreen Square of Cudahy v. Wisconsin

Housing & Economic Development Authority,

776 F.3d 463 (7th Cir. 2015) ............................... 23

Federico v. Lincoln Military Housing,

901 F. Supp. 2d 654 (E.D. Va. 2012) ................... 24

Fort Leavenworth R. Co. v. Lowe,

114 U.S. 525 (1885) ............................................. 17

Franchise Tax Board of California v. Construction

Laborers Vacation Trust for Southern California,

463 U.S. 1 (1983) ................................................. 20

Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing,

545 U.S. 308 (2005) .......................... i, 3, 19, 20, 21

iv

Gulf Offshore Co. v. Mobil Oil Corp.,

453 U.S. 473 (1981) ............................................. 11

Gully v. First National Bank in Meridian,

299 U.S. 109 (1936) ............................................. 19

Gunn v. Minton,

568 U.S. 251 (2013) ................... 3, 8, 19, 21, 23, 24

James Stewart & Co. v. Sadrakula,

309 U.S. 94 (1940) ................................................. 1

James v. Dravo Contracting Co.,

302 U.S. 134 (1937) ............................................... 1

Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369 (2004) ............................................. 19

Mater v. Holley,

200 F.2d 123 (5th Cir. 1952) ..... 1, 9, 10, 11, 12, 15

Mims v. Arrow Financial Services, LLC,

565 U.S. 368 (2012) ............................................. 21

Offutt Housing Co. v. Sarpy County,

351 U.S. 253 (1956) ............................................... 1

One & Ken Valley Housing Group v. Maine State

Housing Authority,

716 F.3d 218 (1st Cir. 2013) ................................ 22

Ortiz-Bonilla v. Federacion de Ajedrez de Puerto

Rico, Inc.,

734 F.3d 28 (1st Cir. 2013) ............................ 22, 23

Pratt v. Kelly,

585 F.2d 692 (4th Cir. 1978) ................................. 1

v

Shulthis v. McDougal,

225 U.S. 561 (1912) ............................................. 20

Stokes v. Adair,

265 F.2d 662 (4th Cir. 1959) ................................. 7

Tafflin v. Levitt,

493 U.S. 455 (1990) ............................................. 17

United States v. Burton,

888 F.2d 682 (10th Cir. 1989) ............................. 12

Webb v. Financial Industry Regulatory Authority,

Inc.,

889 F.3d 853 (7th Cir. 2018) ......................... 23, 24

Willis v. Craig,

555 F.2d 724 (9th Cir. 1977) ............................... 13

Constitutional Provision

Enclave Clause, U.S. Const. Art. I, § 8, cl. 17...... 1, 12

Statutes and Laws

28 U.S.C. § 1331 .................................................... 6, 15

28 U.S.C. § 1442(a)(1) ................................................. 6

An Act to Provide for the Admission of the State of

Hawaii into the Union,

Pub. L. No. 86-3, 73 Stat. 4 (1959) .............. 3, 4, 17

INTRODUCTION

Under the Enclave Clause, U.S. Const. Art. I, § 8,

cl. 17, the United States has the power to “exercise

exclusive Legislation” over lands purchased with

consent from a state for certain purposes. When the

United States exercises exclusive legislative jurisdiction over a federal enclave, the laws of the state

generally remain in force until abrogated. James

Stewart & Co. v. Sadrakula, 309 U.S. 94, 99–100

(1940). Because the state no longer has legislative

authority, however, these carried-over laws lose their

character as state law and “remain[] effective” as laws

“of the United States.” Id. at 97. Because these laws

become federal law, courts have recognized federalquestion jurisdiction over claims arising under them.

See, e.g., Mater v. Holley, 200 F.2d 123, 125 (5th Cir.

1952).

In certain circumstances, a state possesses concurrent legislative jurisdiction over a federal enclave.

See, e.g., Offutt Hous. Co. v. Sarpy Cty., 351 U.S. 253,

260–61 (1956); James v. Dravo Contracting Co., 302

U.S. 134, 148–49 (1937). In that situation, “there is no

reason to treat the resulting state laws as … federal

law.” Pet. App. 13; see also Pratt v. Kelly, 585 F.2d 692,

695 (4th Cir. 1978). The “federalization of thenexisting state-law rules upon the creation of a federal

enclave rests on the premise that, precisely because

Congress has excluded all exercise of state jurisdiction, the only laws that can apply are federal.” Pet.

App. 13. “This rationale has no application when …

Congress has expressly allowed concurrent state

legislative jurisdiction[.]” Id.

Respondents here are members of military families

who leased residential housing at Marine Corps Base

2

Hawaii (MCBH), a federal enclave over which Hawaii

has concurrent legislative jurisdiction. Respondents

filed suit in Hawaii state court alleging Hawaii-law

claims against the companies that own and manage

housing at MCBH, based on the companies’ failure to

disclose pesticide contamination. Because Hawaii has

concurrent legislative jurisdiction over MCBH, the

court of appeals determined that the Hawaii law

governing Respondents’ claims was not transformed

into federal law. And because the claims arise under

Hawaii law rather than under federal law, the court

held that the federal courts lack federal-question

jurisdiction over them.

Petitioners seek review of this decision, contending

that it creates a circuit split regarding federal jurisdiction over claims arising on federal enclaves. None

of the circuit court cases on which Petitioners rely for

their claim of a split, however, addresses federal

jurisdiction over state-law claims that arise on

enclaves over which a state exercises concurrent

legislative jurisdiction. And the decision below agrees

with those cases that federal-question jurisdiction lies

over claims arising on enclaves over which the United

States exercises exclusive legislative jurisdiction. The

Ninth Circuit carefully analyzed whether the

rationale for holding that federal courts have jurisdiction over claims arising on exclusive jurisdiction

enclaves applies to concurrent jurisdiction enclaves

and correctly determined that it does not. Its wellreasoned decision does not warrant review.

Review is likewise unwarranted of the court of

appeals’ determination that this case does not fall

within the “‘special and small category’ of state law

cases [that] may be brought in federal court.” Pet.

3

App. 23 (quoting Gunn v. Minton, 568 U.S. 251, 258

(2013)); see generally Grable & Sons Metal Prods., Inc.

v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). The Ninth

Circuit correctly concluded that, because “Defendants

allege only that a policy interest … is implicated, and

they point to no question of federal law,” Pet. App. 24,

“no federal issue was ‘necessarily raised,’” as required

for federal-question jurisdiction on this basis, id. at 8

(quoting Gunn, 568 U.S. at 258). Petitioners identify

no circuit split on that issue, and the holding below is

fully consistent with this Court’s precedent.

Federal courts are courts of limited jurisdiction

that have federal-question jurisdiction over cases

exclusively raising state-law claims in only narrow

circumstances. This case is not one of them, and the

petition for certiorari should be denied.

STATEMENT OF THE CASE

A. In 1959, Hawaii was admitted into the Union as

a state. See An Act to Provide for the Admission of the

State of Hawaii into the Union, Pub. L. No. 86-3, 73

Stat. 4 (“Admission Act”). In the Admission Act, the

United States reserved “the power of exclusive jurisdiction,” as provided by the Enclave Clause, over land

that was controlled or owned by the United States

immediately prior to Hawaii’s admission and that was

held for Defense or Coast Guard purposes. Admission

Act § 16(b).

This reservation of authority is subject to certain

provisos. One of those provisos is that the reservation

“shall not … prevent [Hawaii] from exercising over or

upon such lands, concurrently with the United States,

any jurisdiction whatsoever which it would have in

the absence of such reservation of authority [by the

federal government] and which is consistent with the

4

laws hereafter enacted by the Congress pursuant to

such reservation of authority.” Id. Hawaii thus exercises broad concurrent legislative jurisdiction over the

enclaves discussed in section 16(b) of the Admission

Act. See Pet. App. 10–12.

At the same time, the Act provides a means for the

United States to exercise exclusive jurisdiction over a

military installation when the United States believes

it to be necessary: The Act states that “the United

States shall continue to have sole and exclusive jurisdiction over such military installations as have been

heretofore or hereafter determined to be critical areas

as delineated by the President of the United States

and/or the Secretary of Defense.” Admission Act

§ 16(b).

MCBH was owned by the United States and used

for military purposes at the time Hawaii became a

state, and it has not been deemed a critical area by the

President or Secretary of Defense. See Pet. App. 3–4,

9. Accordingly, as Petitioners agree, Pet. 5, Hawaii

exercises concurrent legislative jurisdiction over the

base. See Pet. App. 9.

B. Under the Military Housing Privatization

Initiative (MHPI), the Navy may enter into contracts

with private companies to own and operate on-base

family housing. See id. at 4. Military servicemembers

who do not receive government housing receive a

housing allowance that they may use for private

housing off base or privatized housing on base. See id.

In 2004, Hawai’i Military Communities, LLC

(HMC) and the Navy formed Petitioner Ohana

Military Communities, LLC as a public private

venture over which HMC has exclusive management

and control as the managing member. See id. at 5.

5

Ohana has a 50-year lease at MCBH, governed by

agreements that convey ownership of the residential

units and future improvements to Ohana for the lease

term. See id. Petitioner Forest City Residential

Management leases and manages residential housing

at MCBH on Ohana’s behalf. See id. at 32. Ohana’s

leases with its tenants provide that they are governed

exclusively by Hawaii state law. See id. at 44.

Before Ohana and Forest City (collectively, Ohana)

took over the residential housing at MCBH, they were

informed that soil at MCBH had been found to be

contaminated with pesticides, including chlordane

and heptachlor, both of which have been classified as

probable human carcinogens. See ER 153–154.1

Ohana subsequently confirmed the presence of widespread pesticide contamination at MCBH and created

a Pesticide Soils Management Plan that set

acceptable exposure thresholds for residents, called

for certain remedial actions to be taken, and required

written notice to residents who may be exposed to

pesticide-contaminated soil. See id. at 154–55.

Despite Ohana’s knowledge of the pesticide

contamination and its creation of a multi-year

remediation plan, it did not tell potential or existing

tenants about the contamination, the plan, or its

remedial actions. See Pet. App. 5. The Residential

Community Handbook given to tenants stated only

generally that chlordane and other pesticides “may be

found in soils under and around housing constructed

in both military and civilian communities”—not that

______________________________________________________________________

1 “ER” refers to Plaintiffs-Appellants’ Excerpts of Record in

the court of appeals. “SER” refers to Defendants-Appellees’

Supplemental Excerpts of Record in the court of appeals.

6

pesticides had been found at MCBH—and it originally

told families that they “can safely work and play in

their yards.” Id.; ER 389. After lawsuits were brought,

Ohana changed its recommendation to warn that

children and pets should not be allowed to play in the

yards near old house foundations and that families

should not grow fruits and vegetables in the yards

near old house foundations. See Pet. App. 6.

C. Respondents are members of military families

that leased housing at MCBH after 2006. In 2016,

they filed this action in Hawaii state court based on

Ohana’s failure to disclose the pesticide contamination. The complaint alleged eleven causes of action

under Hawaii state law, including breach of contract,

breach of the implied warranty of habitability, violation of the Hawaii Landlord Tenant Code, unfair and

deceptive trade practices, fraud, infliction of emotional distress, negligent misrepresentation, unfair

competition, trespass, and nuisance. See id. at 6.

Ohana removed the case to federal court, contending that the claims presented a federal question under

28 U.S.C. § 1331 because they arose on a federal

enclave. See Pet. App. 31; SER 409. Ohana also

argued that removal was proper under 28 U.S.C.

§ 1442(a)(1) because it was a United States agency or

was acting under a federal officer. See Pet. App. 31.

The district court denied the families’ motion to

remand, holding that federal-question jurisdiction lies

over state-law claims arising on a federal enclave,

including a concurrent legislative jurisdiction enclave,

if the claims involve “substantial federal interests.”

Id. at. 62. The district court subsequently dismissed

or granted summary judgment to Ohana on all of the

families’ claims as they related to pesticides, leaving

7

only claims related to construction dust. See id. at 6;

ER 146. The parties stipulated to dismissal of those

dust claims, and the families appealed. See Pet. App.

6.

D. The court of appeals reversed the district court’s

order denying the motion to remand, vacated all

subsequent district court decisions for lack of

jurisdiction, and remanded to the district court with

instructions to remand the case to state court. Id. at

24.

The court explained that when “the United States

acquires exclusive jurisdiction under the Enclave

Clause and does not permit any exercise of state

concurrent jurisdiction,” state laws that governed at

the time of the transfer of sovereignty will generally

continue to govern on the enclave. Id. at 12. “In such

circumstances,” the court continued, “‘those state laws

which are effective within the enclave ‘lose their

character as laws of the state and become laws of the

Union.’’” Id. at 12–13 (quoting Celli v. Shoell, 40 F.3d

324, 328 n.4 (10th Cir. 1994) (quoting Stokes v. Adair,

265 F.2d 662, 665 (4th Cir. 1959))). This

“federalization” of state law “rests on the premise”

that, “because Congress has excluded all exercise of

state jurisdiction” on the enclave, “the only laws that

can apply are federal.” Id. at 13.

In contrast, the court explained, “when, as here,

Congress has expressly allowed concurrent state

legislative jurisdiction,” “there is no reason to treat

the resulting state laws as if they were assimilated

into federal law.” Id. “Hawaii’s concurrent jurisdiction

means state law governing Plaintiffs’ state claims is

still Hawaii law—not federal law.” Id. Because the

claims arose under state law and that state law was

8

not “transmut[ed] … into federal law,” id., the court

held that “federal question jurisdiction is lacking.” Id.

at 14.

The court rejected the district court’s “novel

ground for subject matter jurisdiction,” id. at 8,

explaining that it was based on a misreading of Ninth

Circuit precedent, which “only found federal question

jurisdiction in enclaves in which Congress has not

permitted concurrent jurisdiction” and had “not

extended that rule to federal land that is subject to

broad state concurrent jurisdiction,” id. at 14–15.2

Finally, the court of appeals held that this case

does not fall within the “‘special and small category’ of

state law cases [that] may be brought in federal

court.” Id. at 23 (quoting Gunn, 568 U.S. at 258). The

court of appeals explained that, in Gunn, this Court

clarified that “federal jurisdiction over a state law

claim will lie if a federal issue is: (1) necessarily

raised, (2) actually disputed, (3) substantial, and (4)

capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”

Id. (quoting Gunn, 568 U.S. at 258). The court of

appeals concluded that the state-law claims in this

case do not meet the first prong of the Gunn test. The

court rejected Ohana’s arguments that federal

jurisdiction requires only a “substantial federal

interest” and that a “federal issue is necessarily raised

because Plaintiffs’ causes of action turn on the safety

of military housing.” Id. “For jurisdiction to exist

under the Gunn test,” the court explained, a “right or

immunity created by the Constitution or laws of the

______________________________________________________________________

2 The court also rejected Ohana’s argument that federal

officer or agency jurisdiction existed. Pet. App. 16–23. Ohana

does not raise those issues in this Court.

9

United States must be an element, and an essential

one, of the plaintiff’s cause of action.” Id. (citation

omitted). Ohana, however, alleged “only that a policy

interest—the safety of military housing—is implicated, and [it] point[ed] to no question of federal law.”

Id.

Ohana filed a petition for rehearing en banc, which

was denied without any judge requesting a vote. Id. at

63.

REASONS FOR DENYING THE WRIT

I. The First Question Presented Does Not

Warrant Review.

A. There is no circuit split concerning

federal-question jurisdiction over statelaw claims arising on a federal enclave

over which a state exercises concurrent

legislative jurisdiction.

Ohana bases its petition primarily on the assertion

that the decision below created a circuit split over the

“[i]mportance of the Enclave Clause” on federal courts’

jurisdiction. Pet. 17. No such circuit split exists. None

of the decisions on which Ohana’s claim of a circuit

split relies addresses the issue decided by the court

below: whether courts have federal-question jurisdiction over state-law claims that arise on enclaves

over which the United States and a state exercise

concurrent legislative jurisdiction. And the Ninth

Circuit agrees with those courts on the issue that they

do address: federal-question jurisdiction over claims

arising on federal enclaves over which the United

States exercises exclusive legislative jurisdiction.

Ohana first claims that the decision below conflicts

with Mater v. Holley, 200 F.2d 123 (5th Cir. 1952),

10

which arose out of conduct occurring on Fort

McPherson in Georgia. Fort McPherson was a federal

enclave over which the United States had exclusive

legislative jurisdiction, with Georgia retaining concurrent jurisdiction only for the service of state

process and the regulation of public utilities. Id. at

123. Stating that exclusive legislation meant

exclusive sovereignty, the Fifth Circuit found it

“indubitable that any law existing in territory over

which the United States has ‘exclusive’ sovereignty

must derive its authority and force from the United

States and is for that reason federal law, even though

having its origin in the law of the state within the

exterior boundaries of which the federal area is

situate[d].” Id. at 124. Because “Georgia law as such”

ceased to exist when the United States’ sovereignty

over the land became exclusive, and the law at issue

only “remained operative as federal law,” id., the court

held that the action arose “under the laws of the

United States, within the meaning of 28 U.S.C.A.

§ 1331,” id. at 125.

Thus, the Fifth Circuit’s holding was based on the

fact that the United States’ legislative jurisdiction

over Fort McPherson was exclusive, with only very

limited exceptions. The Fifth Circuit did not address

enclaves over which a state exercises legislative

authority concurrently with the United States, and its

reasoning would not apply to claims arising on such

enclaves. Below, the Ninth Circuit agreed that, in

circumstances such as those in Mater, in which federal

legislative jurisdiction is exclusive, “state laws which

are effective within the enclave lose their character as

laws of the state and become laws of the Union,” and

federal courts may exercise federal-question jurisdiction over claims arising under them. Pet. App. 13

11

(internal quotation marks and citation omitted); see

also Cty. of San Mateo v. Chevron Corp., __ F.4th __,

2022 WL 1151275, at *7 & nn.3, 4 (9th Cir. Apr. 19,

2022) (Ninth Circuit decision post-dating the decision

below, citing Mater as having the best reasoning on

federal enclave jurisdiction and explaining that,

where a state does not have concurrent legislative

jurisdiction, laws existing on an enclave are federal

law and federal-question jurisdiction lies over claims

arising under them).

Ohana notes that Mater stated that “[e]xisting

federal jurisdiction is not affected by concurrent

jurisdiction in state courts.” 200 F.2d at 125.

Concurrent jurisdiction by federal and state courts,

however, is different from concurrent legislative

jurisdiction by the United States and a state. See Pet.

App. 9 (noting that it “is important not to ‘confuse[]

the political jurisdiction of a State with its judicial

jurisdiction’” (quoting Gulf Offshore Co. v. Mobil Oil

Corp., 453 U.S. 473, 482 (1981))). Accordingly, the

Fifth Circuit’s statement that concurrent jurisdiction

in state courts does not affect federal jurisdiction does

not speak to whether federal courts would have had

jurisdiction if Georgia had exercised concurrent

legislative jurisdiction over Fort McPherson. In short,

Mater and the decision below are fully consistent.

The decision below is likewise consistent with the

Tenth Circuit’s caselaw. Ohana relies on Akin v.

Ashland Chemical Co., 156 F.3d 1030 (10th Cir. 1998),

but that case, like Mater, addressed only federal

enclaves “within which the United States has

exclusive jurisdiction.” Id. at 1034. Citing Mater, the

court stated that the power to exercise exclusive

legislation “has been construed to mean exclusive

12

jurisdiction under 28 U.S.C. § 1331” and that federal

courts should have jurisdiction where “the United

States has exclusive sovereignty.” Id. at 1034 n.1

(citing Mater, 200 F.3d at 124–25).

Akin seems to assume that the United States has

exclusive jurisdiction over all federal enclaves, indeed,

over all places purchased by the government “for the

erection of Forts, Magazines, Arsenals, Dock-Yards,

and other needful Buildings.” Id. at 1034 (quoting the

Enclave Clause). The Tenth Circuit has recognized

elsewhere, however, that the United States and a

state can exercise concurrent legislative jurisdiction

over a federal enclave. See, e.g., United States v.

Burton, 888 F.2d 682, 684 & n.3 (10th Cir. 1989). Akin

does not address whether federal courts have jurisdiction where the United States and a state exercise

such concurrent jurisdiction.

Moreover, the Tenth Circuit has recognized that

whether “federal enclave jurisdiction, a form of federal

question jurisdiction, exists … rest[s] on such factors

as whether the federal government exercises

exclusive, concurrent or proprietarial jurisdiction over

the property.” Celli, 40 F.3d at 328 (expressing no

opinion over whether enclave jurisdiction applied over

the claims at issue, even though “at least some of the

incidents complained of appear[ed] to have taken

place within a federal enclave”). Celli’s statement that

“federal enclave jurisdiction” depends on factors such

as whether the federal government exercises exclusive

or concurrent jurisdiction disproves Ohana’s contention that the Tenth Circuit looks only at whether the

events giving rise to the action occurred on a federal

enclave “regardless of concurrent state legislative

jurisdiction.” Pet. 17 (capitalizations removed).

13

Finally, Ohana is incorrect in suggesting that the

decision below creates an intra-circuit conflict with

the Ninth Circuit’s decisions in Durham v. Lockheed

Martin Corp., 445 F.3d 1247 (9th Cir. 2006), and

Willis v. Craig, 555 F.2d 724 (9th Cir. 1977). Below,

the court of appeals directly addressed both of those

cases and explained that they both “dealt with

exclusive jurisdiction federal enclaves.” Pet. App. 15.

“[T]he broad concurrent legislative jurisdiction over

MCBH distinguishes this case,” the court explained.

Id. “We have only found federal question jurisdiction

in enclaves in which Congress has not permitted

concurrent jurisdiction, and we have not extended

that rule to federal land that is subject to broad state

concurrent jurisdiction.” Id. Although Ohana

challenges the Ninth Circuit’s interpretation of

Durham and Willis, that court is in the best position

to interpret its own precedent. And the fact that no

judge requested a vote on Ohana’s petition for rehearing en banc, which made this argument, confirms the

lack of an intra-circuit conflict. See id. at 63.

In short, there is no disagreement among the

courts of appeals over whether federal courts have

federal-question jurisdiction over state-law claims

that arise on enclaves over which a state exercises

concurrent legislative jurisdiction, such as Hawaii

exercises over MCBH.

14

B. The Ninth Circuit correctly rejected the

argument that federal-question jurisdiction lies over state-law claims whenever

the claims arise on a federal enclave over

which a state exercises concurrent

legislative jurisdiction.

The court of appeals correctly rejected the

argument that federal-question jurisdiction lies over

all Hawaii-law claims that arise on MCBH. As the

court explained, the “federalization of then-existing

state-law rules upon the creation of a federal enclave

rests on the premise that, precisely because Congress

has excluded all exercise of state jurisdiction, the only

laws that can apply are federal.” Pet. App. 13. “This

rationale has no application when, as here, Congress

has expressly allowed concurrent state legislative

jurisdiction subject to Congress’s reservation of

ultimate authority.” Id. Because Hawaii has

concurrent legislative jurisdiction over MCBH, the

court of appeals correctly concluded that “state law

governing Plaintiffs’ state law claims is still Hawaii

law—not federal law.” Id. And because the claims

arise under Hawaii law rather than under federal law,

the court of appeals correctly held that federal courts

do not have federal-question jurisdiction.

Ohana criticizes the court for tying the question

whether federal courts have federal-question

jurisdiction over claims that arise on federal enclaves

to the question whether the claims can be “said to

have arisen under federal law.” Pet. 22. According to

Ohana, “[e]nclave jurisdiction” exists “separate and

apart from the federal question jurisdiction that is

otherwise applicable.” Id. at 21. But Ohana removed

the case to federal court based on federal-question

15

jurisdiction, see Pet. App. 6; SER 409, and the

requirement for such jurisdiction is that the claims

arise “under the Constitution, laws, or treaties of the

United States,” 28 U.S.C. § 1331. Accordingly, the

court of appeals was correct in asking whether

Respondents’ claims arose under federal law. And its

approach is consistent with court of appeals precedent

on federal jurisdiction over cases arising on federal

enclaves. See, e.g., Celli, 40 F.3d at 328 n.4 (“[I]f

federal enclave jurisdiction applies, it is by virtue of

the fact that those state laws which are effective

within the enclave ‘lose their character as laws of the

state and become laws of the Union.’” (quoting Stokes,

265 F.2d at 665)); Mater, 200 F.2d at 125 (holding that

federal courts had jurisdiction over action that arose

on an exclusive jurisdiction enclave because it arose

“under the laws of the United States, within the

meaning of 28 U.S.C.A. § 1331”).

Contrary to Ohana’s contentions, the Ninth Circuit

did not render the Enclave Clause “of virtually no

relevance to judicial jurisdiction,” Pet. 15, or hold that

federal courts only have jurisdiction over claims

arising on federal enclaves if they would have had

jurisdiction over the claims if they “had not arisen

from events which occurred on a federal enclave,” id.

at 22 (citation omitted). The court of appeals simply

recognized that the fact that the events took place on

an enclave does not end the analysis. Rather, for

federal courts to have federal-question jurisdiction,

the nature of the United States’ and state’s authority

over the enclave must be such that the claims can be

said to arise “under the Constitution, laws, or treaties

of the United States.” 28 U.S.C. § 1331.

16

Raising an MCBH-specific argument, Ohana

asserts that decision below is incorrect because “the

area that would become MCBH appears to have been

made the exclusive jurisdiction of the United States”

in 1918 by Executive Order 2900—an order that

Ohana did not cite below and cannot locate. Pet. 23 &

n.3. As an initial matter, although Ohana’s discussion

of Hawaii history indicates that “MCBH was both

owned by the United States and used for military

purposes” prior to the Admission Act, Pet. App. 3–4, it

does not demonstrate that the federal government had

exclusive legislative jurisdiction over the land at that

time. See Pet. 23 n.3. Even assuming that the federal

government had exclusive legislative jurisdiction

prior to the Admission Act, however, Ohana’s argument does not affect the correctness of the decision

below. Ohana concedes that Hawaii and the United

States have exercised concurrent legislative authority

over MCBH since Hawaii was admitted into the Union

in 1959. See, e.g., Pet. 5 (stating that, “as a result of

the Admission Act,” the United States and Hawaii

exercise “concurrent legislative jurisdiction” over the

base); SER 412. A Hawaii state law that Hawaii was

permissibly applying to MCBH at the time of the

events in question is not transformed into a federal

law simply because the federal government used to

exercise sole legislative authority over the land.3

Ohana contends that its position is in line with the

Enclave Clause’s purpose of ensuring that public

______________________________________________________________________

3 Given Ohana’s concessions about concurrent legislative

jurisdiction over MCBH, Respondents do not understand Ohana

to be arguing that Hawaii does not in fact have such concurrent

legislative jurisdiction. To the extent that Ohana is making that

argument, its concessions about concurrent legislative jurisdiction make this case an inappropriate vehicle for considering it.

17

lands are “exempt from the authority of the particular

state.” Pet. 24 (quoting Ft. Leavenworth R. Co. v.

Lowe, 114 U.S. 525, 530 (1885)). In enacting the

Admission Act, however, the United States and

Hawaii determined that Hawaii would exercise

authority over the enclaves discussed in section 16(b)

of the Act in the form of concurrent jurisdiction. The

decision below reflects and respects that determination. And if the United States determines that

concurrent jurisdiction is no longer acceptable and

that the United States needs to assert “sole and

exclusive jurisdiction” over MCBH, it can designate

MCBH as a “critical area[].” Admission Act § 16(b); see

Pet. App. 9 (explaining that the Admission Act

“reserv[ed] the United States’ right to exercise

exclusive jurisdiction over areas it designates as

critical”). The United States has not done so. See id.

Finally, Ohana suggests that Hawaii courts may

be too busy to properly decide cases on the merits.

This Court, however, has “full faith in the ability of

state courts” to handle even federal-law cases and has

recognized that, if anything, state courts “have

greater expertise” than federal courts in applying

state law. Tafflin v. Levitt, 493 U.S. 455, 465 (1990).

The Hawaii state courts can competently resolve the

Hawaii-law claims at issue here, and the court of

appeals correctly concluded that the fact that the

underlying events occurred on MCBH did not give the

district court federal-question jurisdiction.

18

C. The

question

of

federal-question

jurisdiction over state-law claims arising

on concurrent legislative jurisdiction

enclaves does not require this Court’s

attention.

Ohana claims that the Court should grant review

because the “application of enclave jurisdiction in the

district courts has been inconsistent.” Pet. 32

(emphasis added). The majority of the district court

cases Ohana cites, however, are from courts within

the Ninth Circuit. The decision below provides

binding direction to those courts. If a disagreement

among the courts of appeals develops, this Court can

then consider whether that disagreement requires

resolution. That the Ninth Circuit’s decision does not

agree with every district court decision that predated

it, however, is not a reason to grant review.

Ohana also contends that this Court’s guidance is

needed in light of the MHPI’s privatization of military

housing. But the MHPI was established more than 25

years ago, and Ohana has shown no “proliferat[ion]”

of cases involving concurrent jurisdiction federal

enclaves. Pet. 35. Moreover, although Ohana emphasizes the extent to which military family housing has

been privatized, it provides no information about how

much of that housing is located on a federal enclave

over which a state exercises concurrent legislative

jurisdiction similar to that exercised by Hawaii over

MCBH. Likewise, Ohana provides no information

about whether any such other enclaves are subject to

provisions similar to the one in the Admission Act that

allows the President or Secretary of Defense to

“revoke Hawaii’s concurrent jurisdiction” if they deem

it necessary. Pet. App. 10.

19

Federal courts are courts of limited jurisdiction

that generally do not have federal-question jurisdiction over state-law claims, such as the Hawaii-law

claims at issue here. The Ninth Circuit’s determination that federal-question jurisdiction does not

lie over all state-law claims based on events occurring

at MCBH does not require this Court’s review.

II. The Second Question Presented Does Not

Warrant Review.

Review is also unwarranted of the Ninth Circuit’s

holding that this case does not fall within the “special

and small category” of cases in which federal courts

have federal-question jurisdiction over state-law

claims. Gunn, 568 U.S. at 258 (citation omitted).

Under the test set out in Grable, claims fall within

that small category “if a federal issue is: (1)

necessarily raised, (2) actually disputed, (3)

substantial, and (4) capable of resolution in federal

court without disrupting the federal-state balance

approved by Congress.” Gunn, 568 U.S. at 258 (citing

Grable, 545 U.S. at 313–14). Below, the court of

appeals explained that, to meet the first prong of this

test, a “right or immunity created by the Constitution

or laws of the United States must be an [essential]

element … of the plaintiff’s cause of action.” Gully v.

First Nat’l Bank in Meridian, 299 U.S. 109, 112

(1936); see also, e.g., Jones v. R.R. Donnelley & Sons

Co., 541 U.S. 369, 376 & n.6 (2004). Because Ohana

“allege[d] only that a policy interest … is implicated”

and pointed “to no question of federal law,” the Ninth

Circuit held that Ohana had not met its burden to

20

demonstrate that the state-law claims “necessarily

raised” a federal issue. Pet. App. 24.

The decision below is fully consistent with this

Court’s precedent. This Court has explained that a

“case ‘aris[es] under’ federal law within the meaning

of § 1331 … if ‘a well-pleaded complaint establishes

either that federal law creates the cause of action or

that the plaintiff’s right to relief necessarily depends

on resolution of a substantial question of federal law.’”

Empire Health Care Assur., Inc. v. McVeigh, 547 U.S.

677, 690 (2006) (quoting Franchise Tax Bd. of Cal. v.

Constr. Laborers Vacation Trust for S. Cal., 463 U.S.

1, 27–28 (1983)). Because federal law does not create

the claims at issue here, the court of appeals properly

followed this Court’s lead in considering whether the

claims necessarily depend on the resolution of

substantial issues of federal law.

Grable and Gunn did not replace the requirement

that the claim depend on the resolution of a question

of federal law with a standard requiring that the

claims only “implicate significant federal issues.” Pet.

16 (emphases removed). Ohana takes this language

from a sentence in Grable noting that the Court had

“recognized for nearly 100 years that in certain cases

federal-question jurisdiction will lie over state-law

claims that implicate significant federal issues.” 545

U.S. at 312 (emphasis added). Grable then explained

that, as “early as 1912, this Court had confined

federal-question jurisdiction over state-law claims to

those that ‘really and substantially involv[e] a dispute

or controversy respecting the validity, construction or

effect of [federal] law.’” Id. at 313 (quoting Shulthis v.

McDougal, 225 U.S. 561, 569 (1912); alterations in

Grable); see also id. at 312 (“The doctrine captures the

21

commonsense notion that a federal court ought to be

able to hear claims recognized under state law that

nonetheless turn on substantial questions of federal

law[.]”). Neither Grable’s observation that the Court

had long recognized federal-question jurisdiction over

some cases implicating significant federal issues, nor

its general use of the term “federal issue” as shorthand, overturned the longstanding requirement that

the federal issue be a question of federal law. See, e.g.,

Gunn, 568 U.S. at 259 (finding that state-law claim

met first two parts of Grable test where it involved

“just the sort of dispute respecting the effect of federal

law that Grable envisioned” (internal quotation

marks, citation, and alterations omitted)); Grable, 545

U.S. at 315 (holding that federal-question jurisdiction

existed over a state-law quiet-title claim where

whether the plaintiff “was given notice within the

meaning of [a] federal statute” was “an essential

element” of the claim, and explaining that its holding

would not disrupt the division of labor between federal

and state courts because “it will be the rare state title

case that raises a contested matter of federal law”).

Likewise, Grable did not hold that federal-question

jurisdiction lies whenever a significant federal

interest might be “implicated.” The state-law claim

must “necessarily raise” the federal issue. Grable, 545

U.S. at 314.

Thus, after Grable, federal-question jurisdiction

continues to “require[] resolution of significant issues

of federal law.” Mims v. Arrow Fin. Servs., LLC, 565

U.S. 368, 379 n.9 (2012) (citing Grable, 545 U.S. at

312). Here, although Ohana contends that

Respondents’ state-law claims implicate various

federal interests, it points to no issue of federal law

that is necessarily raised by those claims.

22

Contrary to Ohana’s claims, the federal interests it

asserts would not be sufficient for the First and

Seventh Circuits to find federal-question jurisdiction.

See Pet. 28. Ohana first cites to One & Ken Valley

Housing Group v. Maine State Housing Authority, 716

F.3d 218 (1st Cir. 2013), in which the First Circuit

held that federal-question jurisdiction existed over

certain breach of contract claims related to Section 8

housing. There, the First Circuit explained that,

although the general rule is that federal courts do not

have jurisdiction over state-law contract claims

between non-diverse parties, an exception exists “in

the rare instance” in which “a federal issue is decisive

to the dispute and the federal ingredient ... is

sufficiently substantial to confer the arising under

jurisdiction.” Id. at 224 (internal quotation marks and

citation omitted). Ohana quotes statements later in

the opinion that “the federal ingredients of the case

predominate” and that although each of the “federal

ingredients” the court identified would be insufficient

on its own to establish jurisdiction, “the scope of

federal ingredient jurisdiction is determined by the

totality of the circumstances.” Id. But those statements, which go to whether the federal ingredient is

sufficiently substantial, do not erase the requirement

that the federal issue be “decisive.” Id. Thus, in a later

case, the First Circuit explained that, to determine

whether a court has federal-question jurisdiction over

state-law claims, the court “must inquire into whether

some element of the [plaintiff’s] claim depends on the

resolution of a substantial, disputed question of

federal law.” Ortiz-Bonilla v. Federacion de Ajedrez de

Puerto Rico, Inc., 734 F.3d 28, 34 (1st Cir. 2013)

(citation omitted); see id. at 34–35 (equating this

standard with the one in One & Ken). Ortiz-Bonilla

23

belies Ohana’s contention that the First Circuit has

eliminated the requirement that, for federal-question

jurisdiction to lie over state-law claims, the “state-law

cause of action [must] necessarily turn[] on some

construction of federal law.” Id. at 34.

Ohana is likewise incorrect that this case would

meet the Seventh Circuit’s standards for federalquestion jurisdiction. For that proposition, Ohana

relies on Evergreen Square of Cudahy v. Wisconsin

Housing & Economic Development Authority, 776 F.3d

463 (7th Cir. 2015), a case involving claims similar to

those at issue in One & Ken. In holding that federalquestion jurisdiction existed there, the Seventh Circuit determined that the “resolution of th[e] case turns

on issues of federal law” and that those issues were

“necessarily raised, actually disputed, and substantial.” Id. at 467; see also id. (“While state law may

create the breach-of-contract causes of action, the only

disputed issues involve the proper interpretation of

Section 8 and HUD’s implementing guidance.”).

Ohana quotes Evergreen’s statement that cases like

that one, in the aggregate, “have the potential to

substantially influence the scope and success of the

Section 8 program” such that “the federal government

has a strong interest in these issues being decided

according to uniform principles.” Pet. 28 (quoting

Evergreen, 776 F.3d at 468). That statement, however,

was part of the Seventh Circuit’s explanation of why

the issues in Evergreen were “capable of resolution in

federal court without disrupting the federal-state

balance approved by Congress,” that is, why they met

the fourth prong of the Grable/Gunn test. 776 F.3d at

467 (quoting Gunn, 568 U.S. at 258). It did not

eliminate the requirement that the case raise a

question of federal law. See Webb v. Fin. Indus. Regul.

24

Auth., Inc., 889 F.3d 853, 860 (7th Cir. 2018) (holding

that case did not “make it past the first factor” of the

Grable test where the removing defendant “fail[ed] to

identify a single provision of federal law that [the

court] would have to interpret to resolve th[e] case”).

Finally, Ohana devotes significant space to

arguing that the federal interests implicated here are

similar to those that were implicated in a 2012 district

court decision, Federico v. Lincoln Military Housing,

901 F. Supp. 2d 654 (E.D. Va. 2012). The decision in

Federico, however, was not based on the doctrine

described in Grable and Gunn, but on the fact that the

case arose on an enclave. See id. at 663 n.2. And to the

extent that Federico held that federal-question

jurisdiction exists where federal law does not create

the cause of action and the state-law claim does not

meet the test described in Grable and Gunn, that

decision conflicts with this Court’s precedents. See

Gunn, 568 U.S. at 257.

As this Court has emphasized, it “takes more than

a federal element ‘to open the ‘arising under’ door.’”

Empire Healthcare, 547 U.S. at 701 (quoting Grable,

545 U.S. at 313). The court of appeals correctly

concluded that this case does not fall within the “slim

category” of cases in which federal-question jurisdiction lies over state-law claims, and this Court’s

review is unwarranted. Gunn, 568 U.S. at 258.

CONCLUSION

The petition for a writ of certiorari should be

denied.

25

Respectfully submitted,

P. Kyle Smith

Law Office of Kyle Smith

604 Ilimano Street

Kailua, HI 96734

(808) 799-5175

Adina H. Rosenbaum

Counsel of Record

Anna Dorman

Public Citizen

Litigation Group

1600 20th Street NW

Terrance M. Revere

Washington, DC 20009

Revere & Associates LLLC (202) 588-1000

970 N. Kalaheo Avenue

arosenbaum@citizen.org

Suite A301

Kailua, HI 96734

(808) 791-9550

Counsel for Respondents

May 2022