Petitioners Brief — Chicago v. International College of Surgeons

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF CHICAGO, et al.,

Petitioners,

Vv.

INTERNATIONAL COLLEGE OF SURGEONS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR PETITIONERS

PATRICIA T. BERGESON

Acting Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

ANNE BERLEMAN KEARNEY

Assistant Corporation Counsel

City Hall, Room 610

Chicago, Illinois 60602

(312) 744-5337

Attorneys for Petitioners

** Counsel of Record

WILSON - Eras Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

Wo pP

QUESTION PRESENTED

Whether a lawsuit containing claims that a local ad-

ministrative agency’s decision violates federal law, but also

containing state-law claims that are not reviewed de novo,

is a civil action within the original jurisdiction of the

PARTIES TO THE PROCEEDING

Petitioners are the City of Chicago, the Commission on

* One petitioner—Christopher R. Hill—was not named as a peti-

tioner in the petition for certiorari, but has since succeeded peti-

tioner Joseph F. Boyle, Jr., in office and accordingly is automatically

substituted as a petitioner by virtue of this Court’s Rule 35.3.

TABLE OF CONTENTS

QUESTION PRESENTED .............----------c-ceseecemrenevenees

PARTIES TO THE PROCEEDING ...........

TABLE OF AUTHORITIES .................--.----.--ec-cceceeeeeoee

I Eee

FUN cersnecenseenenasscnemessemenessetmnnreseesenmsemmnsnseeanenannnt

CE RPO UPCEED cxtscesnmasssccesssecusasnccempemeumasemensas

ITS ceenesetnemecnnensgsemmcemomeceees can seumpasentamuseedmns

Il.

ICS’S COMPLAINTS ALLEGE FEDERAL

QUESTIONS AND WERE THEREFORE

SR cxcrecanpensesecammnecqresersnnccsemessemessecnaseanee

A. A State-Court Complaint Alleging Federal

And State Claims Is Removable ............______.

B. The Complaints At Issue Here Allege Claims

That Arise Under The Federal Constitution..

C. ICS’s Complaints Invoked Federal Juris-

THE PRESENCE OF A STATE ADMINIS-

TRATIVE REVIEW CLAIM IN A STATE-

COURT COMPLAINT DOES NOT DEFEAT

A. ICS’s State Administrative Review Claims

Fall Within Supplemental Jurisdiction ._._...

B. Administrative Review Claims Can Be Heard

By The District Courts ...................................

TABLE OF CONTENTS—Continued

C. Even The Presence Of State-Law Claims Not

Within Original Or Supplemental Jurisdic-

tion Does Not Defeat Removal —....................

D. There Is No Policy Reason To Overcome The

Plain Statutory Language And Its History...

Page

TABLE OF AUTHORITIES

CASES: Page

Agg v. Flanagan, 855 F.2d 336 (6th Cir. 1988) _.... 44

Alabama v. Pugh, 438 U.S. 781 (1978) (per

curiam) . 41-42

Aldinger v. Howard, 427 U.S. 1 (1976) 14

Allegheny Pittsburgh Coal Co. v. County Commis-

sion, 488 U.S. 336 (1989) ............................ 21

American Well Works Co. v. Layne & Bowler Co.,

241 U.S. 257 (1916) _ 20

Ames v. Kansas, 111 U.S. 449 (1884) 36, 37

Ammerman v. Sween, 54 F.3d 423 (7th Cir. 1995) .. 15

Ankenbrandt v. Richards, 504 U.S. 689 (1992)... 43

Armistead v. C & M Traneport, Inc., 49 F.3d 43

(ist Cir. 1995) 39

Barber v. Barber, 62 U.S. (21 How.) 582 (1859)... 43

Barrow v. Hunton, 99 U.S. 80 (1879) —................ 23, 32

Bell v. Hood, 327 U.S. 678 (1946) ........................ 20, 24

Bickerstaff Clay Products Co. v. Harris County, 89

PBd 1481 (11th Cir. 1906) n....ncc-nccnceeneeene-a-- 16

Borough of West Mifflin v. Lancaster, 45 F.3d 780

(3d Cir. 1995) 28

Branson v. Department of Revenue, 168 Ill. 2d 247,

Se 38, 46

Bray v. Alezandria Women’s Health Clinic, 506

SN A SS 23

Burford v. Sun Oil Co., 319 U.S. 315 (1943) __... 44-45, 46

Califano v. Sanders, 430 U.S. 99 (1977) ..11, 29, 30, 39, 48

Camp v. Pitts, 411 U.S. 138 (1973) (per curiam). 11, 29

Carnegie-Mellon University v. Cohill, 484 U.S. 343

(1988) es ea eee 9, 14, 15-16, 28

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)... 13, 19

Chicago, RI. & P.R. Co. v. Stude, 346 U.S. 574

re 7, 10, 11, 31-32, $3, 38

Christianson v. Colt Industries Operating Co., 486

Ff ee ee 18, 22

Citizens to Preserve Overton Park, Inc. v. Volpe,

CK 29

City of Houston v. Hill, 482 U.S. 451 (1987) ._.... 46

Clark v. Barnard, 108 U.S. 436 (1883) .............. 42

TABLE OF AUTHORITIES—Continued

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976) .. a 45

Commissioner v. Lundy, 116 8S. Ct. 647 (1996) ........ 15

Commissioners of Road Improvement District No.

2 v. St. L. Sw. Ry. Co., 257 U.S. 547 (1922) ..23, 33, 38

County of Allegheny v. Frank Mashuda Co., 360

U.S. 185 (1959) -. iin $1

County of Upshur v. Rich, 135 U.S. 467 (1890) ....34-35, 37

Degge v. Hitchcock, 229 U.S. 162 (1913) ~............. 37

Duke Power Co. v. Carolina Environmental Study

Group, Inc., 488 U.S. 59 (1978) —......................~... 23-24

Edelman v. Jordan, 415 U.S. 651 (1974) —............... 41

England v. Louisiana State Board of Medical Ex-

aminers, 375 U.S. 411 (1964) ~............................... 46

Envirite Corp. v. IUinois Environmental Protection

Agency, 158 Ill. 2d 210, 632 N.E.2d 1035 (1994) .. 38

Fairfax County Redevelopment & Housing Author-

ity v. W.M. Schlosser Co., 64 F.3d 155 (4th Cir.

yy ee 39

Federated Department Stores, Inc. v. Moitie, 452

U.S. 394 (1981) scieatnlinct lilt iittala emyicesiliaain 20

Finley v. United States, 490 U.S. 545 (1989) saa 36

First National Bank v. Turnbull, 83 U.S. (16

DF ey 32

Flournoy v. Wiener, 321 U.S. 253 (1944) ............. 21

Frances J. v. Wright, 19 F.3d 337 (7th Cir.), cert.

denied, 115 S. Ct. 204 (1994) —.................... 9, 26, 40, 42

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) ..13, 18, 19, 20-21, 22

Franks v. Smith, 717 F.2d 183 (5th Cir. 1983) ..._... 44

Grubbs v. General Electric Credit Corp., 405 U.S.

699 (1972) 2

Gully v. First National Bank, 299 U.S. 109 (1986) . 18, 21

Gustafson v. Alloyd Co., 115 S. Ct. 1061 (1995) ..... 15

Hagans v. Lavine, 415 US. 528 (1974) -................... 23

Hanrahan v. Williams, 174 Ill. 2d 268, 673 N.E.2d

| _ Se 37

or” ~\enemaamnaatendie Midkiff, 467 U.S. 229

(1984) ............. sczenqutesuscenaunsvenecestIsEseteseaSesenSIsOaa® 46

vii

TABLE OF AUTHORITIES—Continued

Page

Henry v. Metropolitan Sewer District, 922 F.2d

NE eee 42

Hopkins v. Walker, 244 U.S. 486 (1917) .............. 20, 22

Horton v. Liberty Mutual Insurance Co., 367 U.S.

ll RP CETTE 7-8, 11, 32-33, 38, 47

Howard v. Lawton, 22 Ill. 2d 331, 175 N.E.2d 556

TERR AEE ASIEN A AEP eT 19

Hurn v. Oursler, 289 U.S. 238 (193838) 00. 14

Kruse v. Hawai'i, 68 F.3d 331 (9th Cir. 1995)... 42

Landmarks Preservation Council v. City of Chi-

cago, 125 Ill. 2d 164, 581 N.E.2d 9 (1988) ........... 4

Linwood v. Board of Education, 463 F.2d 763 (7th

Cir.), cert. denied, 409 U.S. 1027 (1972) —......... 39

Logan v. Zimmerman Brush Co., 455 U.S. 422

EE ee ee ae ee 21

Louisiana Power & Light Co. v. City of Thibodauz,

ESAT IITA EE 46

Madisonville Traction Co. v. St. Bernard Mining

a I I i 23

Markham v. Allen, 326 U.S. 490 (1946) —..000000... 43

McCartin v. Norton, 674 F.2d 1317 (9th Cir.

EE A eS a Sn 29

McKay v. Boyd Construction Co., 769 F.2d 1084

(5th Cir. 1985) 42

Merrell Dow Pharmaceuticals Inc. v. Thompson,

SE a ae 21,

Mesa v. California, 489 U.S. 121 (1989) 0...

Metropolitan Life Insurance Co. v. Taylor, 481 U.S.

EE 19, 20

Milwaukee County v. M.E. White Co., 296 U.S. 268

EE Ee Se eT ee 35-36

Mississippi and Rum River Boom Co. v. Patterson,

TEE TES A AT OOD 33, 35

Monsanto Co. v. Pollution Control Board, 67 Til.

2d 276, 367 N.E.2d 684 (1977) 2.000. 37-38

Motor Vehicle Manufacturers Association v. State

Farm Mutual Automobile Insurance Co., 463 U.S.

eS ae A TET sa Oe ee 29

viii

TABLE OF AUTHORITIES—Continued

Page

Mount Healthy City School District v. Doyle, 429

FE i yxy 41

New Orleans Public Service, Inc. v. Council of City

of New Orleans, 491 U.S. 350 (1989) ........... 43-44, 48-49

Nollan v. California Coastal Commission, 483 U.S.

ee 21

O’Leary v. Brown-Pacific-Mazon, 340 U.S. 504

) |) ae 29

Ortega Cabrera v. Municipality of Bayamon, 562

FD EEE 16

Pennhurst State School & Hospital v. Halderman,

GE TE, Ge GD coctesenensenteniemninetinitinseitninnsece 40, 42

Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125

I ————————————————————— 18

Quackenbush v. Allstate Insurance Co., 116 8. Ct.

ed ... 45, 46

Railway Commission v. Pullman Co., 312 U.S. 496

CRED. ccciinctsensenscannseenrestenctsiaaniiinigninatnitaditiimemiates 45, 46

Range Oil Supply Co. v. Chicago, RI. & P.R. Co.,

248 F.2d 477 (8th Cir. 1957) .........................-..... 88-39

Ratzlaf v. United States, 510 U.S. 135 (1994)........ 15

Rodriguez v. Pacificare of Texas, Inc., 980 F.2d

1014 (5th Cir.), cert. denied, 508 U.S. 956

OO —————————— ee 15

Schmidt v. Oakland Unified School District, 457

U.S. 594 (1982) (per curiam) ............................. 44

Siler v. Louisville & N.R. Co., 218 U.S. 175 (1909)... 13-14

Smith v. Department of Public Aid, 67 Ill. 2d 529,

Pil ) 2) 7 a 37

Smith v. Kansas City Title & Trust Co., 255 ™'..

|. a ee 22

Stratton v. Wenona Community Unit District No.

1, 133 Til. 2d 413, 551 N.E.2d 640 (1990) ..18, 19, 38, 46

Thermtron Products, Inc. v. Hermansdorfer, 423

FE, ) ee 48

Things Remembered, Inc. v. Petrarca, 116 8. Ct.

en 2

Thomas Jefferson University v. Shalala, 512 U.S.

BBG CIGD ccececessesenccsccncnsscesncscesssssessnsncencsnsannemsessesses 29

TABLE OF AUTHORITIES—Continued

Union Pacific Ry. Co. v. Meyers, 115 U.S. 1 sat

RE enh Ls eS 33

United Mine Workers v. Gibbs, 388 U.S. 715

IE > PE a 14

Weston v. City Council, 27 U.S. (2 Pet.) 449

ARI es pet SR Oe 34

Wilcox v. Consolidated Gas Co., 212 U.S. 19

PRN ERRN S t aa a 49

Winston v. Zoning Board of Appeals, 407 Ill. 588,

96 N.E.2d 864 (1960) 22.0... ccc cc ccccecceecceeeceee 19

Zuniga v. Blue Cross and Blue Shield of Michigan,

52 F.3d 1395 (6th Cir. 1995) 00 28

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES:

i eee 43

ae 5, 17

AT 40, 41, 42

U.S. Const. amend. XIV 0.00. 5,17

TLE TA Se 28

a 29

REE a a 29

CE Cee 2

28 rr ES es 2

Ee a ee

ETE ae a, ee —_ 30

a i 18

EE passim

ES 24, 27

a passim

I 17, 48

iS 25, 41

ES RS ee 2

i 16, 28

Act of Sept. 24, 1789,§ 11,1Stat.78 33-34, 35

Act of Sept. 24, 1789, § 12,1 Stat.79 33-34, 35

Act of March 3, 1875, § 1, 18 Stat.470.... 35

1948 Judicial Code and Judiciary Act, 62 Stat. 930.. 36

1948 Judicial Code and Judiciary Act, 62 Stat. 937. 36

TABLE OF AUTHORITIES—Continued

65 ILCS para. 6/11-48.3-S ...... ...................200....00000200-000

65 ILCS para. 5/11-48.2-4 ......-....---ecceeceecneneenenenennees

735 ILCS paras. 5/3-101 to 5/3-112 .......................-..-.

TE A I BIO sence ccscccnecrcenesnssesesccesssceccusscece

SS EE ee

MISCELLANEOUS:

H.R. Rep. No. 308, at App. 1701 (1947) (Reviser’s

RI wvcsctersinnietenttrenninnincenesemnnnenamagnaniapestanpenenmasingen ;

H.R. Rep. No. 101-374 (1990), reprinted in 1990

EPS f ee

1A James W. Moore, MOoRE’s FEDERAL PRACTICE

{ 0.157 [4.-8] (2d ed. 1996) ...............................:..

14 Charles A. Wright, Arthur R. Miller & Edward

H. Cooper, FEDERAL PRACTICE AND PROCEDURE

QE, ye

14A Charles A. Wright, Arthur R. Miller & Edward

H. Cooper, FEDERAL PRACTICE AND PROCEDURE

TR CED cicccccsesnensnestensttenennncticnnsescsenentiansenrenen

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-910

City OF CHICAGO, et al.,

¥. Petitioners,

INTERNATIONAL COLLEGE OF SURGEONS, ef all,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR PETITIONERS

The City of Chicago, its Commission on Chicago His-

torical and Architectural Landmarks, Peter C.B. Bynoe,

Joseph A. Gonzales, John W. Baird, Kein L. Burton,

Marian Despres, Albert M. Friedman, Seymour Persky,

Larry Parkman, Christopher R. Hill, and Cherryl Thomas

(collectively “the City”) submit this brief as petitioners.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-25a)

is reported at 91 F.3d 981 (7th Cir. 1996). The opinions

of the district court (Pet. App. 26a-96a; J.A. 129-41) are

unreported

JURISDICTION

The judgment of the court of appeals was entered on

August 1, 1996. A timely petition for rehearing was

denied on November 4, 1996. Petitioners’ petition for

writ of certiorari was filed on December 4, 1996. This

Court granted the petition on April 14, 1997. The Court

has jurisdiction under 28 U.S.C. § 1254(1).’

STATUTES INVOLVED

Three statutory grants of jurisdiction to the federal

courts are relevant here. The federal question statute,

28 U.S.C. § 1331, provides:

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

The supplemental jurisdiction statute, 28 U.S.C. § 1367,

provides in pertinent part: )

(a) Except as provided in subsections (b) and

statute, in any civil action of which the district courts

have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that

are so related to claims in the action that they form

part of the same case or controversy under Article III

of the United States Constitution. Such supplemental

jurisdiction shall include claims that involve the

joinder or intervention of additional parties. .. .

supplemental jurisdiction over a claim under subsec-

tion (a) if—

1 Under 28 U.S.C. § 1447(d), orders of a district court remanding

a case to the state court from which it was removed for lack of

federal jurisdiction are not subject to any form of appellate review.

E.g., Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494, 497-98

(1995). In this case, the district court did not remand the consoli-

dated cases before it to state court but instead entered a final

judgment on the merits. See Pet. App. 90a-9la. Accordingly, this

case was properly “in” the court of appeals within the meaning of

Section 1254(1) as an appeal from a final judgment under 28 U.S.C.

§ 1291. This Court, in turn, has consistently exercised jurisdiction

under Section 1254(1) over cases in which the district court did not

order a remand and the court of appeals held that it should have.

See, e.g., Mesa v. California, 489 U.S. 121 (1989); Grubbs v.

General Electric Credit Corp., 405 U.S. 699 (1972).

(1) the claim raises a novel or complex issue of

State law,

(2) the claim substantially predominates over

the claim or claims over which the district court

has original jurisdiction,

(3) the district court has dismissed all claims

over which it has original jurisdiction, or

(4) in exceptional circumstances, there are

other compelling reasons for declining jurisdic-

tion.

The removal statute, 28 U.S.C. § 1441, provides in

pertinent part:

(a) Except as otherwise expressly provided by

Act of Congress, any civil action brought in a State

court of which the district courts of the United States

have original jurisdiction, may be removed by the

defendant or the defendants, to the district court of

the United States for the district and division embrac-

ing the place where such action is pending. . . .

(b) Any civil action of which the district courts

have original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws of the

United States shall be removable without regard to

the citizenship or residence of the parties. . . .

or cause of action within the jurisdiction conferred by

section 1331 of this title is joined with one or more

otherwise non-removable claims or causes of action,

the entire case may be removed and the district court

may determine all issues therein, or, in its discretion,

may remand all matters in which State law predomi-

nates. ...

STATEMENT

The International College of Surgeons and the United

States Section of the International College of Surgeons

(collectively “ICS”), respondents in this Court, own two

parcels of land on North Lake Shore Drive in the City

of Chicago. Pet. App. 2a. One parcel is located at 1516

North Lake Shore Drive and is improved with a four-

story mansion, called the Edward T. Blair House to reflect

its historical significance. Pet. App. 2a. The other parcel

is located at 1524 North Lake Shore Drive and is improved

with a three-story mansion of historical significance, the

Eleanor Robinson Countiss House. Jbid. In July 1988,

the Commission on Chicago Historical and Architectural

Landmarks (the “Landmarks Commission”), an agency

of the City of Chicago created by the Chicago Landmarks

Ordinance, made a preliminary determination that a dis-

trict comprising seven buildings in that area, including the

properties at issue, satisfied the criteria for designation as

a landmark district under the Landmarks Ordinance. Pet.

App. 3a.* In June 1989, the Chicago City Council fol-

lowed this recommendation and enacted an ordinance

creating the landmark district. Ibid.

In February 1989, after the Landmarks Commission’s

preliminary determination, but before the City Council

had acted, ICS signed a contract for the sale and re-

development of the property. Pet. App. 3a. The contract

called for the demolition of all but the facades of the two

2 Under the ordinance, the Commission is empowered to make a

preliminary determination that an area should be designated as

a landmark. J.A. 163. After a public hearing, the Commission

makes its final determination whether to recommend that the area

should be designated. Jd. at 165-67. The Chicago City Council

then acts on the Commission’s recommenda ion. /d. at 167-68.

Once an area has received a preliminary landmark determination

from the Landmarks Commission or a final determination from the

City Council, no permit for any alteration, construction, demolition,

relocation, or other work in the landmarked area may issue without

the approval of the Commission. /d. at 169-70.

3 The State of Illinois has granted authority to its municipalities

to enact ordinances providing for the creation of landmark dis-

tricts. See 65 ILCS para. 5/11-48.2-2. The City of Chicago also

has authority to enact and enforce its Landmarks Ordinance under

the home-rule power granted by the Illinois Constitution. See Land-

marks Preservation Council v. City of Chicago, 125 Ill. 2d 164,

178-81, 531 N.E.2d 9, 15-16 (1988).

mansions and, behind the facades, the construction of a

forty-one story, high-rise building. Pet. App. 3a. The

sale was contingent on ICS’s ability to obtain all necessary

permits and approvals. /bid. Respondent Robin Construc-

tion Corp. acquired the developer's interest in late 1989.

Ibid. ICS applied for demolition permits in late 1990, and

after a public hearing, the Landmarks Commission dis-

approved the demolition permits in January 1991. Pet.

App. 3a; J.A. 20, 148.*

In February 1991, ICS filed suit in the Circuit Court

of Cook County, Illinois, seeking judicial review of the

Landmarks Commission’s decision. Pet. App. 3a; J.A.

17-56." The complaint alleged both state and federal

claims, including claims that the Landmarks Commission’s

decision denied ICS its due process rights under the Fifth

and Fourteenth Amendments, violated its right to equal

protection under the Fourteenth Amendment, and consti-

tuted an uncompensated taking of property in violation

of the Fifth and Fourteenth Amendments. J.A. 24-33.

The complaint also alleged that the Landmarks Ordinance

itself was facially unconstitutional under the Due Process

and Equal Protection Clauses. Id. at 22-24. The City

removed the case to the United States District Court for

the Northern District of Illinois, where it was docketed as

case number 91 C 1587. Id. at 11-16. In August 1991,

the district court denied ICS’s motion to remand the case

to state court, concluding that ICS’s complaint raised fed-

eral constitutional questions cognizable under 28 U.S.C.

§ 1331 and accordingly was within the scope of federal

removal jurisdiction under 28 U.S.C. § 1441. Pet. App.

94a-96a.

Also in February 1991, ICS filed an application with

the Landmarks Commission seeking demolition permits

* The procedures in the Landmarks Ordinance governing permit

applications are found at J.A. 169-74.

5 Under Illinois law, decisions of a municipal landmarks commis-

sion are “subject to judicial review pursuant to the provisions of

the Administrative Review Law... .” 65 ILCS para. 5/11-48.2-4.

on grounds of economic hardship. Pet. App. 4a; J.A. 72.°

Following public hearings, the Landmarks Commission

denied this request. Pet. App. 4a; J.A. 73. ICS then

filed a second action in state court seeking judicial review,

again alleging the same federal constitutional violations

as in its first complaint, along with certain statelaw

claims. J.A. 73-79. The City removed this action as well

to the district court, where it was docketed as case num-

ber 91 C 5564. Id. at 57-64."

After ICS’s two district court actions were consolidated,

the City moved to dismiss the complaints. J.A. 129. The

district court granted the motions in part, dismissing some

of ICS’s federallaw claims with prejudice and some with-

out prejudice, and denied the motions in part. /d. at 129-

41.

In February 1992, ICS filed an amended consolidated

complaint in federal court. J.A. 142. The complaint

alleged that the court had jurisdiction over the consoli-

dated actions because they fell within the district court's

federal-question jurisdiction under 28 U.S.C. § 1331. Id.

6 This procedure was permissible under the Landmarks Ordinance

which provides that if a permit application has been disapproved,

the applicant may then seek an economic hardship exception.

J.A. 174-77.

7ICS also submitted an application for approval of its redevelop-

ment plan by the Chicago Plan Commission, as required under

Chicago’s Lakefront Protection Ordinance, but after a public hear-

ing, the Plan Commission denied the application. Pet. App. 4a,

92a. ICS then sought an amendment to the Chicago Zoning Ordi-

nance permitting the proposed development, but the Chicago City

Council refused to approve the amendment. /d. at 4a. ICS filed

a third suit, this time in federal district court (case number 91 C

7849), seeking review of these determinations under both federal

and state law. Ibid. The district court stayed this third action

pending its disposition of the two actions that had been removed

from state court (ibid.) and later dismissed the case as moot (id.

at 92a-‘8a). This third action is not at issue here.

at 143. The complaint included federal due process, equal

protection, takings, and statelaw claims. /d. at 149-56.

In December 1994, the district court granted summary

judgment for the City. Pet. App. 89a. That court held

that the Landmarks Ordinance was constitutional under

both the United States and Illinois Constitutions and that

the Landmarks Commission's decisions denying ICS’s

demolition permit and economic hardship applications

were lawful under both Constitutions and under the Ordi-

nance itself. Jbid. ICS appealed.

The court of appeals reversed and ordered the case

remanded to the district court with instructions to remand

it to state court. Pet. App. 2a. The court of appeals

any “ ‘civil action brought in a State court of which

district courts of the United States have original jurisdic-

tion.” ” Id. at 6a-7a (quoting 28 U.S.C. § 1441(a)). The

inquiry under Section 1441(a) accordingly depends on

whether “the action originally could have been brought in

the district court.” Jd. at 7a. In this case, the district

court had ruled that ICS’s complaints were within federal-

County and removed to the district court contain facial

attacks [under the United States Constitution and] allega-

tions of unfairness of a federal constitutional dimension

___ The complaints also i State-law claims that were

grounded in the administrative record.” Pet. App. 20a.

The court of appeals recognized that under Chicago, R.I.

& P.R. Co. v. Stude, 346 U.S. 574 (1954), and Horton

v. Liberty Mutual Insurance Co., 367 U.S. 348 (1961),

“a state judicial proceeding to conduct de novo review of

a state administrative decision is a ‘civil action[{] . . . of

which the district court has original jurisdiction’ within

the meaning of 28 U.S.C. § 1441(a).” Pet. App. lla

(brackets and 2!!'psis in original). The court nevertheless

rejected this reswv'. for cases in which “the state administra-

tive review scheme provides for deferential review of a

state agency's decision.” Ibid. As the court of appeals

saw it, in such cases, deferential review “would require

the district court to perform an appellate role.” Jd. at

l4a. This “function . . could {not} be described as a

‘civil action’ within its original jurisdiction,” because “an

appellate function . . . is inconsistent with the character

of a court of original jurisdiction.” Ibid.

To determine whether this case was a “civil action”

within the district court’s “original jurisdiction,” the court

of appeals turned to Illinois law to analyze the type of

review a state court would give to ICS’s claims. Judicial

review of nonconstitutional questions is a statutory proce-

dure under the Illinois Administrative Review Law, which

requires courts to confine their review to the record of

proceedings before the administrative agency and to apply

a “deferential standard of review” to challenged agency

decisions. Pet. App. 18a-19a. In addition, [linois law

recognizes that an action seeking review of an agency's

decision can include “facial attacks on the constitutionality

of a statute or ordinance [that] are not dependent on the

factual record developed at the administrative hearing.”

Id. at 18a. Finally, Ilinois law recognizes that a plaintiff

aggrieved by an administrative decision may attack a

Statute’s constitutionality as applied to his own case and

that “[{s)uch a claim is independent of the administrative

review proceeding and is therefore plenary in its scope;

the court is not confined by the administrative record.”

Id. at 20a.

The court of appeals concluded that this case was a -

hybrid because it presented all of these claims. ICS’s

‘a

HES

case “cannot be termed a ‘civil action . . . of which

district courts . . . have original jurisdiction’ within the

meaning of [S]ection 1441(a).” Jd. at 22a (ellipses in

original ).

SUMMARY OF ARGUMENT

The removal statute permits removal of a state-court

action if it is a “civil action . . . of which the district courts

of the United States have original jurisdiction.” 28 U.S.C.

§ 1441(a). The lawsuits that ICS filed in state court seek-

ing review of decisions of the Landmarks Commission con-

tained claims that ICS’s federal constitutional rights had

been violated—claims that fell within original federal-

question jurisdiction under 28 U.S.C. § 1331—joined with

same transaction or “common nucleus of operative facts”

, a “civil action” within the “original jurisdiction”

of the district courts. E.g., Carnegie-Mellon University v.

_ Cohill, 484 U.S. 343, 349-50 (1988). Congress has codi-

fied this doctrine in the supplemental jurisdiction statute,

which expressly provides that in any “civil action of which

the district courts have original jurisdiction,” the court has

further jurisdiction over state-law claims when the claims

“are so related to claims in the action that they form part

of the same case or controversy under Article III of the

United States Constitution.” 28 U.S.C. § 1367(a).

The court of appeals precluded removal here based on

its conclusion that state-law claims seeking deferential re-

view of decisions of an administrative agency are not “civil

actions” within the district court’s original jurisdiction.

This conclusion shows two critical flaws.

First, state-law claims need not independently qualify

as a “civil action” within the district court’s “original ju-

risdiction” to be cognizable by federal courts. The plain

language of the supplemental jurisdiction statute makes

clear that state-law claims may be heard in federal court

under the district court’s “supplemental jurisdiction” as

long as they are part of the same case or controversy. ICS’s

state-law claims easily satisfy that test because they—like

the federal claims—arose from the same denials of ICS’s

applications for demolition permits.

Second, there is in fact no reason why the district court

lacks jurisdiction over cases containing claims seeking ju-

dicial review of an agency’s decision. Although a proceed-

ing before an administrative agency itself is not a “civil

action” and may not be removed, it has long been settled

that once that proceeding ends and a party to it seeks ju-

dicial review, the resulting judicial proceedings are re-

movable as a “civil action.” In Chicago, RI. & P.R. Co.

v. Stude, 346 U.S. 574 (1954), for example, the railroad

had sought review of an administrative decision in state

court, and this Court wrote that once a party aggrieved by

an administrative decision takes “a perfected appeal and

the jurisdiction of the state district court is invoked, it then

becomes in its nature a civil action and subject to removal

by the defendant to the United States District Court.” /d.

at 578-79. Accord Horton v. Liberty Mutual Insurance

Co., 367 U.S. 348, 354-55 (1961). While the court of ap-

peals endeavored to distinguish Stude and Horton on the

ground that those cases involved de novo review of an

agency’s decision and were for that reason alone “civil

actions” within “original jurisdiction,” this Court in Cali-

fano v. Sanders, 430 U.S. 99, 105-07 (1977), settled that

actions seeking to review the decisions of federal adminis-

trative agencies under the Administrative Procedure Act

(“APA”) are “civil actions” within “original jurisdiction”

under Section 1331; and it is quite clear that APA actions

ordinarily do not permit de novo review. E.g., Camp v.

Pitts, 411 U.S. 138, 141-42 (1973) (per curiam).

There is thus no basis in the text of the pertinent juris-

dictional statutes or in this Court’s precedents for the con-

clusion that the presence of state-law claims seeking on-the-

record review of an agency’s decision renders a case some-

thing other than a “civil action” within “original jurisdic-

tion.” Only creation of some sort of nonstatutory admin-

istrative review exception to federal jurisdiction could sup-

port the decision below. But since, under Califano v.

Sanders, review of federal agency action is a “civil action”

within the “original jurisdiction” of the district courts, the

exception would exist only for federal judicial review of

state or local agency decisions. Generally, such a different

treatment of state and local agency decisions is based on

this Court’s concern for federalism.

Federalism, however, is hardly advanced by permitting

federal courts, under Stude and Horton, to hear de novo

attacks on state and local administrative decisions, but yet

denying those courts the ability to give deference to those

decisions. Nor is federalism served by denying state and

local agencies the forum of their choice when, as here, they

choose to defend their decisions in federal court. Finally,

a special exception to federal jurisdiction for state admin-

istrative review claims is not necessary—for reasons of

federalism or otherwise—to prevent inappropriate federal

intrusion on state law. To the contrary, the abstention cases

make clear that the federal court has jurisdiction over even

sensitive state-law issues, although there will be narrow

circumstances in which the court should decline to exercise

that jurisdiction.

ARGUMENT

One long-settled proposition of law supports the exercise

of federal jurisdiction over the actions ICS filed: actions in

which the plaintiff claims rights under federal law are with-

in federal jurisdiction even when those claims are joined

with claims seeking relief under state law. For decades

it has been settled that federal-question jurisdiction is not

defeated if the complaint also contains state-law claims

arising from the same controversy between the parties.

Here, ICS’s state-court complaints alleged separate federal

and state theories of liability, but they arose from a single

event—the City’s refusal to issue demolition permits for

ICS’s landmarked property. Under the well-established

doctrine of pendent jurisdiction—now codified in the sup-

plemental jurisdiction statute—a federal court has jurisdic-

tion to hear related state-law claims along with the claims

arising under federal law.

The court of appeals concluded that this rule does not

reach state-law claims subject to on-the-record review of an

administrative agency’s decision. There is no support for

this holding in the text of the pertinent jurisdictional stat-

utes, in this Court’s decisions, or in the jurisprudential pol-

icies that govern the ability of the federal courts to hear

state-law claims. In fact, this Court has rejected both prem-

ises underlying the holding below. It has held that a state-

law claim seeking review of an administrative decision may

be removed, and that a district court may hear an attack

on a federal agency’s decision even though applicable law

requires deferential and on-the-record review. Combining

two elements neither of which in itself has ever been

thought to defeat the exercise of federal jurisdiction—state-

law challenges to an agency’s decision and review on a

deferential standard—is surely no basis to erect a new

jurisdictional limitation on the federal courts.

L ICS’S COMPLAINTS ALLEGE FEDERAL QUES-

TIONS AND WERE THEREFORE REMOVABLE.

As the court of appeals acknowledged, ICS’s state-court

complaints contained claims arising under federal law

joined with state administrative review claims. Under the

plain language of the pertinent jurisdictional statutes, this

type of joinder does not defeat removal jurisdiction.

A. A State-Court Complaint Alleging Federal And

State Claims Is Removable.

The removal statute provides for removal of “any civil

action brought in a State court of which the district courts of

the United States have original jurisdiction.” 28 U.S.C.

§ 1441(a). Accordingly, “state court actions that orig-

inally could have been filed in federal court may be re-

moved to federal court by the defendant.” Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987). Here, “as

for many cases . . . the propriety of removal turns on

whether the case falls [into] original ‘federal question’ ju-

risdiction . . . .” Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1, 8 (1983). That

question, in turn; depends on whether ICS’s complaints

were “civil actions arising under the Constitution, laws, or

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

That issue, however, is not controlled by whether ICS

alleged state-law claims in addition to its federal claims.

That much was settled by Siler v. Louisville & N.R. Co.,

213 U.S. 175 (1909). In that case, the railroad filed suit

in federal court to enjoin a rate order issued by a state

railroad commission, and alleged both federal constitutional

and state-law claims. Id. at 176-77. The Court held that

federal-question jurisdiction authorized the federal court

to exercise jurisdiction over both the federal and state-law

grounds. “The Federal questions as to the invalidity of the

state statute because, as alleged, it was in violation of the

Federal Constitution, gave the [federal] circuit court ju-

risdiction, and having properly obtained it, that court had

the right to decide all questions in the case... .” Id. at

191.

In Hurn v. Oursler, 289 U.S. 238 (1933), the Court re-

fined this doctrine by holding that pendent jurisdiction

under Siler over state-law claims extended to all claims that

arise from the same cause of action that gave rise to the

federal claims. See id. at 243-46. In United Mine Workers

v. Gibbs, 383 U.S. 715 (1966), the Court broadened this

pendent jurisdiction to reach all state-law claims joined

with federal claims that arise from “but one constitu-

tional ‘case.’” Id. at 725 (footnote omitted). And that

test is satisfied when “[t]he state and federal claims . . . de-

rive from a common nucleus of operative fact.” bid.

Thus, this Court has construed Section 1331 to require

only that the complaint contain some claim that invokes

federal-question jurisdiction. That, then, is a “civil action”

within “original jurisdiction” as that term is used in the

federal-question statute. The addition of state-law claims

that arise from the same nucleus of fact does not defeat

jurisdiction over that civil action. E.g., Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 349 (1988); Aldinger

v. Howard, 427 US. 1, 9 (1976).

The supplemental jurisdiction statute explicitly recog-

nizes this. It codifies the doctrine of pendent jurisdiction by

providing that “in any civil action of which the district

courts have original jurisdiction, the district courts shall

have supplemental jursdiction over all other claims that are

so related to claims in the action within such original ju-

risdiction that they form part of the same case or contro-

versy.” 28 U.S.C. § 1367(a). Again, all that matters is

the existence of a “civil action” within “original jurisdic-

tion”; state-law claims that arise from the same constitu-

tional “case” are within supplemental jurisdiction and are,

for that reason, also within the jurisdiction of the district

court.* Under this plain language, joinder of state-law

claims arising from the same transaction as the federal

claims does not destroy federal jurisdiction but rather is a

basis for the exercise of supplemental jurisdiction.

For this same eason, joinder of federal and state-law

claims does not defeat removal jurisdiction. The removal

Statute uses the same phrase as the federal-question and

supplemental jurisdictional statutes. It creates removal

jurisdiction for “any civil action . . . of which the district

courts of the United States have original jurisdiction.” 28

U.S.C. § 1441(a). These identical phrases, which arise in

an interrelated statutory scheme, should surely be inter-

preted to have the same meaning. See, e.g., Commissioner

v. Lundy, 116 S. Ct. 647, 655 (1996); Gustafson v.

Alloyd Co., 115 S. Ct. 1061, 1067 (1995); Ratzlaf v.

United States, 510 U.S. 135, 143 (1994). And if a con-

sistent interpretation is given to “civil action” within “orig-

inal jurisdiction,” a complaint is removable even if state-law

claims are joined with federal claims, for the same reason

that such a complaint can be filed in the district court in

the first instance: the district court’s original and supple-

mental jurisdiction reaches all claims arising from a single

transaction.

And because removal is proper whenever the district

court would have had original jurisdiction had the case or-

iginally been brought there, a complaint filed in a state

court containing both federal and state claims is remov-

able. See, e.g., Carnegie-Mellon, 484 U.S. at 350-51

8 The courts of appeals have held that Section 1367 extends the

federal court’s authority to hear such claims to the full corstitu-

tional extent conferred by Article III. See, e.g., Ammerman v.

Sween, 54 F.3d 428, 424 (7th Cir. 1995) ; Rodriguez v. Pacificare of

Texas, Inc., 980 F.2d 1014, 1018 (5th Cir.), cert. denied, 508 U.S.

956 (1998).

(pendent state-law claims properly removed under Sec-

tion 1441).

The legislative history of the supplemental jurisdiction

statute confirms that Congress intended to authorize the

exercise of federal jurisdiction over cases in which federal

and state claims are joined. The House Report explains:

“In federal question cases, [the statute] broadly authorizes

the district courts to exercise supplemental jurisdiction over

additional claims .. . .” H.R. Rep. No. 101-734, at 28

(1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6874.

It is also clear from the legislative history that these addi-

tional claims are ones over which the federal courts would

not otherwise have jurisdiction. See id. at 27, 1990

U.S.C.C.A.N. at 6873. And both before and after the

enactment of the supplemental jurisdiction statute the lower

federal courts have universally held that there is federal

jurisdiction over suits containing federal and state claims,

including state-law challenges to the land-use decisions

of local administrative agencies. See, ¢.g., Bickerstaff

Clay Products Co. v. Harris County, 89 F.3d 1481, 1484-

85 n.4 (llth Cir. 1996) (district court had power to

hear zoning claims under supplemental jurisdiction when

joined with Section 1983 claims alleging takings viola-

tions); Ortega Cabrera v. Municipality of Bayamon, 562

F.2d 91, 96-97 (ist Cir. 1977) (pendent jurisdiction

properly exercised over state-law nuisance and environ-

mental claims joined with Section 1983 claim).

The supplemental jurisdiction statute—using identical

language to the removal statute and unquestionably recog-

nizing federal jurisdiction in cases in which state-law

claims are joined with a federal claim—thus provides

proof positive that a “civil action” within “original juris-

diction” is removable when federal and state claims are

joined. We turn therefore to the question whether ICS’s

complaints fall within original—and hence removal—ju-

risdiction because they alleged claims falling within

federal-question jurisdiction, properly joined with state-law

claims.

B. The Complaints At Issue Here Allege Claims That

Arise Under The Federal Constitution.

The City removed ICS’s state-court complaints from

state to federal court because those complaints contained

claims within federal-question jurisdiction—namely that

the Landmarks Commission’s refusal to issue demolition

permits, as well as the Landmarks Ordinance itself, vio-

lated ICS’s rights under the United States Constitution.

J.A. 22-33, 73-76. The complaints, although not broken

out into separate counts, contain numerous allegations of

federal constitutional violations. The first complaint spe-

cifically alleged that the particular ordinance authorizing

the Landmarks Commission’s preliminary designation of

ICS’s property as a landmark deprived ICS of its right

under the United States Constitution to due process of

law. Id. at 22-23. The complaint further alleged that the

Landmarks Ordinance’s exemption for property used for

religious purposes violated federal due process and equal

protection guarantees. /d. at 23-24. And the complaint

alleged that the ordinance landmarking this particular

property was a taking of property without the payment of

just compensation in violation of the Takings Clause of

the Fifth Amendmert and also constituted arbitrary legis-

lative action in violation of due process and equal protec-

tion principles. Jd. at 24-26. The complaint further alleged

that the Landmarks Commission took a variety of steps to

deprive ICS of a fair hearing in violation of the Due

Process Clause. Jd. at 26-32, 33. In ICS’s second state-

court complaint, which challenged the denial of its applica-

tion for an economic hardship exception, there are six as-

signments of error that rest solely on the United States Con-

stitution, and two more that rest cn both the Federal and

the Illinois Constitutions. Jd. at 73-76. In both complaints.

® The removal petitions cited 28 U.S.C. § 1441(b), which provides

for removal! “founded on a claim or right arising under the Constitu-

tion, treaties or laws of the United States .. . without regard to

the citizenship or residence of the parties.”

ICS asked for a declaration that both the Landmarks

Ordinance itself and the particular ordinance landmark-

ing ICS’s property were unconstitution] and that the Land-

marks Commission’s decisions on its applications were

illegal as well. Jd. at 35, 78.”

A case “arise[s] under” federal law, within the meaning

of Section 1331, when “a right or immunity created by the

Constitution or laws of the United States [is] an element,

and an essential one, of the plaintiff's cause of action.”

Gully v. First National Bank, 299 U.S. 109, 112 (1936).

Accord, e.g., Christianson v. Colt Industries Operating Co.,

486 U.S. 800, 808 (1988); Franchise Tax Board, 463

U.S. at 10-11; Phillips Petroleum Co. v. Texaco, Inc., 415

U.S. 125, 127 (1974) (per curiam).” Here, ICS for-

warded claims that had, as an essential element, a right or

immunity created by the Constitution.

ICS styled its complaints as complaints for administra-

tive relief pursuant to the Illinois Administrative Review

Act, 735 ILCS paras. 5/3-101 to 5/3-112. Such actions

are proceedings in which the record before the agency is

reviewed to ensure its compliance with all applicable law.

See Stratton v. Wenona Community Unit District No. 1,

132 Ill. 2d 413, 427, 551 N.E.2d 640, 645 (1990). As

the court of appeals acknowledged (Pet. App. 17a-20a),

administrative review complaints properly include claims

1° Indeed, when ICS filed an amended complaint in the district

court, it acknowledged that its lawsuit raised federal claims that

arose under federal law within the meaning of Section 1331. See

J.A. 148.

11 In addition to federal-question jurisdiction under Section 1331,

the district courts have original jurisdiction over any action “[t]o

redress the deprivation, under color of any State law, statute, ordi-

nance, regulation, custom or usage, of any right, privilege, or im-

munity secured by the Constitution of the United States... .”

28 U.S.C. § 13843(3). We do not separately discuss Section 1348 (3),

since the jurisdictional inquiry under that Section does not differ

meaningfully from the inquiry under Section 1331.

that the administrative decision violates a federal consti-

tutional right of the aggrieved party. See Howard v. Law-

ten, 22 Ill. 2d 331, 333, 175 N.E.2d 556, 557 (1961);

Winston v. Zoning Board of Appeals, 407 Ill. 588, 591-

92, 95 N.E.2d 864, 867-68 (1950). On constitutional

claims, the reviewing court may admit evidence beyond

the administrative record. See Stratton, 133 Ill. 2d at

428-30, 551 N.E.2d at 646. And when such claims are

“an integral part of review” of a local agency’s decision

applying a local ordinance, they do “not have to be

pleaded in a separate count.” Howard, 22 Ill. 2d at 333;

175 N.E.2d at 557.”

The federal constitutional claims alleged in the admin-

istrative review complaints arose under federal law. ICS

straightforwardly claimed that the United States Constitu-

tion granted it a right to have the Landmarks Commis-

sion’s decisions set aside. These claims were in no way

dependent on state law. Rather, to obtain relief, ICS

would have to establish a violation of its federal constitu-

tional rights—no more and no less. Thus it asserted a fed-

eral “right or immunity.” This is the same principle that

governs the “complete preemption” cases, which “arise un-

der” federal law within the meaning of Section 1331 even

when a complaint purports to plead only a state-law claim.

If the state-law theory advanced in such a complaint falls

within an area that is completely prcempted by federal law,

the action is within federal-question jurisdiction, and there-

fore is removable, because there simply is no state law to

apply. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. at

393; Metropolitan Life Insurance Co. v. Taylor, 481 U.S.

58, 63-67 (1987); Franchise Tax Board, 463 U.S. at 24.

Here, ICS’s federal constitutional claims that it was en-

titled to demolition permits regardless of any state or local

statute, ordinance, or rule of law arose under federal law

12In fact, under Illinois practice it is always proper to plead

an equitable action in a single count. See Ill. Sup. Ct. R. 135(a).

for this same reason. On those claims, there is simply no

state law to apply.

For this reason, ICS’s election to use its state statutory

adininistrative review remedy—and to plead in a single

count—does not mean that it failed to raise claims under

federal law. ICS chose to plead numerous federal consti-

tutional claims and thereby to invoke its federal rights.

ICS’s desire to litigate claims arising under federal law

in state court cannot defeat the statutory right of removal.

As the Court explained in Federated Department Stores,

Inc. v. Moitie, 452 U.S. 394 (1981), the federal “courts

‘will not permit plaintiff to use artful pleading to close off

defendant’s right to a federal forum.’” /d. at 397 n.2

(quoting 14 Charles A. Wright, Arthur R. Miller & Ed-

ward H. Cooper, FEDERAL PRACTICE AND PROCEDURE

§ 3722 at 564-66 (1976)). See also Metropolitan Life In-

surance, 481 U.S. at 63-67 (a plaintiff's decision to plead

a state claim will not defeat removal when federal law gov-

erns the plaintiff's rights). Instead, the courts will “deter-

mine whether the real nature of the claim is federal, regard-

less of plaintiffs characterization.” Federated Depart-

ment Stores, 452 U.S. at 397 n.2 (citation omitted). See

also, e.g., Bell v. Hood, 327 U.S. 678, 681-82 (1946)

(complaint need not spell out federal constitutional claims

specifically to sustain federal-question jurisdiction); Hop-

kins v. Walker, 244 U.S. 486, 489-91 (1917) (where

“form and substance” of plaintiffs’ complaint states a claim

under the laws of the United States, federal jurisdiction

exists).

To be sure, the administrative review procedure invoked

by ICS was created by state statute, and it is frequently the

case, as Justice Holmes wrote, that “[a] suit arises under

the law that creates the cause of action.” American Well

Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260

(1916). The Court acknowledged in Franchise Tax

Board, however, that “it is well settled that Justice Holmes’

test is more useful for describing the vast majority of cases

that come within the district court’s original jurisdiction

than it is for describing which cases are beyond district

court jurisdiction.” 463 U.S. at 9. The Court added that

“even the most ardent proponent of the Holmes test has

admitted that it has been rejected as an exclusionary prin-

ciple.” Ibid. (citing Flournoy v. Wiener, 321 U.S. 253,

270-72 (1944) (Frankfurter, J., dissenting)). Here, al-

though a state statute authorized the proceeding by which

ICS sought review of the refusal to issue it demolition per-

mits, its complaints plainly alleged that it was entitled to

those permits as a matter of federal constitutional right.

Such a claim arises under federal law precisely because it

is based on a “right or immunity created by the Constitu-

tion or laws of the United States ... .” Franchise Tax

Board, 463 U.S. at 10-11 (quoting Gully, 299 U.S. at

112).”

Of course, even if ICS’s federal constitutional claims

were deemed to arise under the state administrative review

Statute rather than federal law, that would not defeat

federal-question jurisdiction here because they could not

be adjudicated without a determination whether federal

law granted ICS the rights it asserted. In Franchise Tax

Board, the Court wrote that it has “often held that a case

‘arose under’ federal law where the vindication of a right

under state law necessarily turned on some construction

18 When a plaintiff alleges a violation of federal law, but federal

law grants it no right of action to seek relief, the claim does not

arise under federal law. That was the holding in Merrell Dow

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817 (1986). Here,

ICS alleged that the refusal to approve its applications for demoli-

tion permits denied it due process and constituted a taking of its

property without payment of just compensation; and the existence

of a right of action for a violation of these federal rights by the

decision of a state or local agency is clear. See, ¢g., Allegheny

Pittsburgh Coal Co. v. County Commission, 488 U.S. 366 (1989)

(Equal Protection Clause); Nollan v. California Coastal Commis-

sion, 483 U.S. 825 (1987) (Takings Clause) ; Logan v. Zimmerman

Brush Co., 455 U.S. 422 (1982) (Due Process Clause).

of federal law.” 463 U.S. at 9. Thus, federal-question

jurisdiction extends to “ ‘those cases in which a well-

pleaded complaint establishes either that federal law cre-

ates the cause of action or that the plaintiff's right to relief

necessarily on resolution of a substantial question

of federal law.’” Christianson, 486 U.S. at 808 (quoting

Franchise Tax Board, 463 U.S. at 27-28 (emphasis

added) ).

For example, in Smith v. Kansas City Title & Trust Co.,

255 U.S. 180 (1921), a shareholder brought suit to en-

join officers of the trust company from investing in fed-

eral loan bonds because, the shareholder alleged, such an

investment was beyond the bank’s powers, and the acts of

Congress authorizing the bond sale were unconstitutional.

See id. at 195-96, 198. As the Court explained, “(t]he

general rule is that, where it appears . . . that the right to

relief depends upon the construction or application of the

Constitution or laws of the United States, and that such

Federal claim is not merely colorable, and rests upon a

reasonable foundation, the district court has jurisdiction

_...” Id. at 199. On this basis, the Court determined that

the federal court had jurisdiction over Smith’s suit, pur-

portedly brought under state law, because “[t}he decision

depends upon the determination of this [federal constitu-

tional] issue.” Jd. at 201. Accord Hopkins, 244 U.S. at

489 (case “aris[es] under” laws of the United States

“where an appropriate statement of the plaintiff's cause

of action . . . discloses that it really and substantially in-

volves a dispute or controversy respecting the validity, con-

struction, or effect of a law of Congress”). Thus, although

the case may not arise under federal law when federal law

is merely one element of a state-law theory of liability, it

does arise under federal law when the plaintiff's claims

depend solely on the existence of a constitutional right.

Cf. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478

U.S. 804, 814 n.12 (1986) (jurisdictional inquiry turns

on whether federal or state-law issues predominate).

Under this test, even if ICS’s complaints read

predicated solely on a state-created right to obtain judicial

review of an administrative decision, they still assert a

right arising under federal law. ICS explicitly alleged that

not be used to adjudicate these claims.”

Accordingly, ICS’s federal constitutional allegations, al-

though advanced in the framework of administrative re-

view complaints, turned solely on issues of federal law.

These complaints arose under federal law within mean-

ing of Section 1331. z= =

C. ICS’s Complaints Invoked Federal Jurisdiction.

ICS’s complaints properly invoked federal jurisdiction

over this action. A complaint that makes claim to rights

arising under federal law, even if those claims prove merit-

less, supports federal jurisdiction as long as those claims

are not “frivolous or so insubstantial as to be beyond the

jurisdiction of the District Court.” Hagans v. Lavine, 415

U.S. 528, 539 (1974); accord, e.g., Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 285 (1993); Duke

District No. 2 v. St. L. Sw. Ry. Co., 257 US.

. . Ry. Co., 547

example, the Court allowed removal even though state procedures

Power Co. v. Carolina Environmental Study Group, Inc.,

438 U.S. 59, 70-71 (1978); Bell v. Hood, 327 US. at

683-84. ICS’s claims challenging the constitutionality of

the Landmarks Commission’s decisions and seeking a

declaration to that effect were sufficiently substantial to

avoid that difficulty. While we agree with the district court

that those claims are in fact without merit, the district

court’s opinions make clear that these claims were not

wholly illusory or frivolous. See Pet. App. 33a-46a; J.A.

134-39. Indeed the court of appeals agreed that this case

includes “claims that, if brought alone would be removable

to federal court.” Pet. App. 20a.

That should have been enough to sustain removal ju-

risdiction. As we explain above, as long as a complaint

contains some claims that invoke federal-question jurisdic-

tion, it constitutes a “civil action” within the district court’s

“original jurisdiction” even if those claims are joined with

state-law claims. Related state-law claims can be heard

under the district court’s supplemental jurisdiction. Under

that statute, when there is a “civil action” within the dis-

trict court’s “original jurisdiction,” that court “shall have

supplemental jurisdiction over all other claims that are so

related to claims in the action . . . that they form part

of the same case or controversy.” 28 U.S.C. § 1367(a).

Here, ICS’s state-law claims arise from the same nucleus

of operative fact as its federal claims—its inability to ob-

tain demolition permits for its landmarked property. And

in such cases, under the supplemental jurisdiction statute,

the district court “shall have supplemental jurisdiction.” “

Even if ICS’s state-law claims were deemed to be sep-

arate from its federal claims and hence not within the dis-

trict court’s supplemental jurisdiction, that would not de-

** At most, the statute permits a district court to decline to

exercise supplemental jurisdiction when there are novel or complex

issues of state law, when state-law claims predominate over federal

claims, or in other exceptional circumstances. See 28 U.S.C.

§ 1367(c). None of these exceptions applies here.

feat removal. That is because the removal statute also pro-

vides: “Whenever a separate and independent claim or

cause of action within the jurisdiction conferred by section

1331 of this title is joined with one or more otherwise non-

removable claims or causes of action, the entire case may

be removed... .” 28 U.S.C. § 1441(c). Thus, it hardly

matters whether ICS’s state-law claims are considered suf-

ficiently related to its federal claims to fall within sup-

plemental jurisdiction; in either case removal was proper

here.

Of course, the court of appeals did not hold that ICS’s

complaints were non-removable because they contained no

claims arising under federal law, nor did it hold that the

complaints were non-removable merely because they con-

tained state-law claims. Rather the court below held that

when state-law claims that seek deferential review of an

administrative decision based on the record before the

agency are present in a complaint, such claims defeat re-

moval. It is to that question that we next turn.

Il. THE PRESENCE OF A STATE ADMINISTRATIVE

REVIEW CLAIM IN A STATE-COURT COMPLAINT

DOES NOT DEFEAT REMOVABILITY.

The court of appeals’ holding that the inclusion in ICS’s

complaints of state-law administrative review claims over

which a court would not exercise de novo review made the

lawsuit something other than a “civil action” within “orig-

inal jurisdiction” and hence non-removable is erroneous

for three reasons. First, under the plain language of the

supplemental jurisdiction statute, such state-law claims

need not independently qualify as a “civil action” within

the federal court's “original jurisdiction” as long as they

constitute “claims” that are sufficiently “related to” a “civil

action” within “original jurisdiction.” Second, there is

"* Under this statute, at most, a district court “may remand all

matters in which State law predominates.” 28 U.S.C. § 1441(c).

nothing about actions seeking on-the-record judicial review

of an administrative decision that renders them beyond

the jurisdictional competence of the district courts. Third,

even if a state-court complaint contains some claims not

within any form of federal jurisdiction, that does not de-

feat removal of the claims that are within federal juris-

diction.

A. ICS’s State Administrative Review Claims Fall

Within Supplemental Jurisdiction.

The court of appeals concluded “if even one claim in an

action is jurisdictionally barred from federal court. . .

or does not fit within the original or supplemental (see 28

U.S.C. § 1367) jurisdiction of the federal courts, then, as

a consequence of § 1441(a), the whole action cannot be

removed to federal court.” Pet. App. 21a (quoting

Frances J. v. Wright, 19 F.3d 337, 341 (7th Cir.), cert.

denied, 115 S. Ct. 204 (1994)). The court of appeals

failed to recognize, however, that all of ICS’s claims fall

within federal jurisdiction—the federal claims within orig-

inal jurisdiction and the state claims within supplemental

jurisdiction.

The plain language of the supplemental jurisdiction

Statute, as we explain above, makes clear that when a com-

plaint contains claims falling within federal-question juris-

diction, the district court also has supplemental jurisdiction

over “all other claims” that form part of the same case or

controversy. As we also explain above, ICS’s state-court

complaints contained claims falling within federal-question

jurisdiction, and its state-law claims derived from the same

nucleus of operative fact. For just these reasons, the dis-

trict court determined that the requirements of supple-

mental jurisdiction were satisfied, and the court exercised

that jurisdiction here. See Pet. App. 45a-46a.

The court of appeals explained at some length why it

believed that ICS’s state-law administrative review claims

did not constitute a “civil action” within “original juris-

diction” (see Pet. App. 7a-19a), but apparently failed to

consider whether these were “claims” within the meaning

of the supplemental jurisdiction statute. Whether or not

these claims independently qualify as a “civil action”

within “original jurisdiction,” surely these statelaw bases

for challenging the Landmarks Commission’s decisions are

“claims,” as the court of appeals appears to have acknowl-

edged. See id. at 4a, 20a, 23a (referring to ICS’s admin-

istrative review claims as “claims”). And the whole point

of the supplemental jurisdiction statute is, of course, that

the federal court need not have original jurisdiction over

the claims falling within its supplemental jurisdiction.

Rather, as we explain above, the doctrines of pendent,

and now supplemental, jurisdiction were created precisely

to provide jurisdiction for claims that did not independ-

ently meet federal jurisdictional requirements, but that

were joined with a claim that did.

To the extent that the court of appeals addressed this

portion of our submission, the court appears to have re-

jected reliance on Section 1367(a) not because ICS’s

State-law claims were not “claims” sufficiently “related to”

its federal claims within the meaning of the supplemental

jurisdiction statute, but instead because it considered

claims seeking deferential review based on an agency

record to be a forin of “appellate review {that] can hardly

be characterized as a ‘claim’ in an ‘original action.’” Pet.

App. 22a. But a requirement that supplemental claims

be an “original action” involving de novo review appears

nowhere in the text of Section 1367—the statute refers

only to “claims” that are “related to” the “civil action”

within “original jurisdiction.” And the statute plainly con-

tains no exemption to supplemental jurisdiction for state

administrative review claims, nor for claims involving local

land-use issues, as we explain above. At most the statute

authorizes a district court to decline to exercise supple-

mental jurisdiction over state-law issues in certain narrow

circumstances (see 28 U.S.C. § 1367(c)) and plainly does

not contain the blanket administrative-review exception to

federal jurisdiction announced by the court below.

Accordingly, whether or not ICS’s statelaw claims

could be considered a “civil action” within “original jur-

isdiction,” they were within the district court’s supple-

mental jursdiction because they were joined with non-

frivolous, related federal-law claims. And when all the

claims in a complaint are within either original or supple-

mental jurisdiction, the entire case is removable. See,

e.g., Zuniga v. Blue Cross and Blue Shield of Michigan,

52 F.3d 1395, 1399 (6th Cir. 1995) (action removable

where due process claim provided federal question juris-

diction and state-law contract and statutory claims fell

within supplemental jurisdiction); Borough of West

Mifflin v. Lancaster, 45 F.3d 780, 785-87 (3d Cir. 1995)

(action that included Section 1983 claims and supple-

mental state-law tort claims properly removed under Sec-

tion 1441(a)). See also Carnegie-Mellon, 484 U.S. at

350-51 (removal of pendent claims prior to enactment of

supplemental jurisdictional statute proper ).

B. Administrative Review Claims Can Be Heard By

The District Courts.

In any event, the court of appeals was incorrect that an

action seeking deferential review on the record of pro-

ceedings before a state or local administrative agency is

not removable because “removal to federal court would re-

quire the district court to perform an appellate role . . . that

could {not] be described as a ‘civil action’ within its orig-

inal jurisdiction.” Pet. App. 14a. This conclusion is

squarely inconsistent with the scope of the district court’s

jurisdiction to review federal agency decisions.

The Administrative Procedure Act (“APA”) grants a

right of judicial review to persons aggrieved by a decision

of a federal administrative agency. See 5 U.S.C. §§ 701-

706. Yet the APA ordinarily does not permit trial de

novo in the district court. See Camp v. Pitts, 411 US.

138, 141-42 (1973) (per curiam). The statute also re-

quires courts to gramt a substantial measure of deference

to an agency's decision; an agency's decision will be set

aside only where “arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law” upon

review of the “whole record.” 5 U.S.C. § 706." And

this is a narrow form of review. As the Court explained

in Motor Vehicle Manufacturers Association v. State

Farm Mutual Automobile Insurance Co., 463 US. 29

(1983), “the ‘arbitrary and capricious’ standard is narrow

and a court is not to substitute its judgment for that of

the agency.” Jd. at 43. The APA thus requires courts to

grant substantial deference to the decision of the agency.

See, e.g., Thomas Jefferson University v. Shalala, 512

U.S. 504, 512 (1994). Indeed this point was settled

as early as O'Leary v. Brown-Pacific-Maxon, 340 US.

504 (1951), in which the Court upheld an agency’s

decision as supported by the record because the Court

found that the testimony before the agency was “con-

sistent and credible” and its finding was a rational one.

See id. at 508.

Despite the deferential review of federal agency actions,

this Court, in Califano v. Sanders, 430 U.S. 99 (1977),

held that the district courts have original federal-question

jurisdiction under Section 1331 over actions seeking re-

view of decisions under the APA. See id. at 105-07. See

also McCartin v. Norton, 674 F.2d 1317, 1320 (9th Cir.

1982) (“{w]hile the Administrative Procedure Act does

not confer jurisdiction on the federal courts to review

agency action, it is now clear that 28 U.S.C. § 1331{]

does”). Thus the very form of review that the court of

appeals here deemed inconsistent with a district court’s

removal jurisdiction—deferential review based on the

17 In certain circumstances, the agency decision also can be set

aside where it is not supported by substantia] evidence. See 5 U.S.C.

§ 706(2) (E); Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 414 (1971).

agency record rather than de novo review in the district

court—was held to qualify as a “civil action” within

“original jurisdiction” in Califano v. Sanders. And, as

we explain in Part IA above, if an actior falls within

federal-question jurisdiction under Section 1331, it is also

removable under Section 1441.

The holding below can be reconciled with federal-

question jurisdiction over APA actions only if district courts

are considered jurisdictionally competent to provide defer-

ential review of federal but not state or local adminis-

trative decisions. Yet, there is nothing in the text of the

pertinent jurisdictional statutes to suggest that a district

court can perform what the court of appeals branded an

“appellate role” when it reviews the decision of a federal

agency under federal law, but not when it reviews the

decision of a state agency under state law. The plain

meaning of the phrase “civil action” would seem to in-

clude all administrative review claims—administrative

review claims are “civil” in character and involve an

“action” seeking judicial redress for an alleged violation

of law. And in fact, this Court has not recognized any

special jurisdictional rules governing state-law challenges

to an administrative decision. To the contrary, the Court

has acknowledged at least twice that actions seeking to

review the decision of an administrative agency on state-

law grounds qualify as “civil actions” within “original

jurisdiction” under the diversity jurisdiction statute, which

uses the same terminology found in the federal-question

and removal statutes.”

18 The diversity jurisdiction statute provides, in pertinent part:

(a) The district courts shall have original jurisdiction of all

civil actions where the matter in controversy exceeds the sum

or value of $50,000, exclusive of interest and costs, and is

between—

(1) citizens of different States....

28 U.S.C. § 1832.

In the first of those cases, Chicago R.I. & P.R. Co. v.

Stude, 346 U.S. 574 (1954), the railroad filed suit in

State court challenging the amount of the condemnation

damages that a county commission had assessed against

it for the acquisition of certain land, and then removed

the action to federal court because the parties were of

diverse citizenship. See id. at 576. The Court acknowl-

edged that a proceeding before an administrative agency

is not a “civil action,” but that once judicial review is

sought in state court, the proceeding becomes a removable

civil action:

[t]he proceeding before the [commission appoin

by the) sheriff fs administrative until the arsbal hes

been taken to the district court of the county. Then

the proceeding becomes a civil action pending before

those exercising judicial functions” for the purpose

of reviewing the question of damages. When the pro-

ceeding has reached the stage of a perfected appeal

and the jurisdiction of the state district court is in-

voked, it then becomes in its nature a civil action and

subject to removal by the defendant to the United

States District Court.

Id. at 578-79 (citation omitted). In the the Court

determined that removal was improper tame because

the case had been removed by the railroad, which, as the

plaintiff in state court, was not entitled to remove the

case. See id. at 579-80. See also County of Allegheny v.

Frank Mashuda Co., 360 U.S. 185, 195 (1959) (“fa}l-

though holding {in Stude] that the [railroad] could not

remove a state condemnation case to the Federal District

Court on diversity grounds because {it] was the plaintiff

in the state proceeding, the Court clearly recognized that

Se enn at ip cock 2 peocesding could remove in ac-

cordance with § 1441 and obtain a judicati

of the issues involved”). nee

The railroad had also filed a second action, this one in

federal district court. See 346 U.S. at 576. In the portion

of the Stude opinion upon which the court of appeals relied

here, this Court ordered that action dismissed because it

challenged only one portion of the proceedings—the

amount of the condemnation damages award—while the

judgment underlying that award relating to the landown-

er’s substantive right to damages and the railroad’s emi-

nent domain powers was contested elsewhere. See id. at

582. Thus, the railroad was attempting to “separate the

question of damages and try it apart from the substantive

right from which the claim for damages arose.” Ibid. It

was in that context that the Court wrote that a district

court “does not sit to review on appeal action taken ad-

ministratively or judicially in a state proceeding.” Jd. at

581. That, then, is the type of “appellate” proceeding to

which the Court objected—one in which the plaintiff

seeks to review only a particular finding of an agency

even though the rest of the “case,” in the constitutional

sense, is pending elsewhere.” Indeed, the Court sug-

gested that if the suit had been properly brought as an

action seeking condemnation of property, then the Court

would have had jurisdiction over the matter. See id. at

582.

In the secwed case, Horton v. Liberty Mutual Insurance

Co., 367 U.S. 348 (1961), the dicta in Stude, acknowl-

edging that an action contesting the decision of an admin-

istrative agency was removable, was turned into a hold-

1° That conclusion is consistent with the Court’s holding in

Barrow v. Hunton that a proceeding related to another suit in such

a way that it is merely a “supplementary proceeding so connected

with the original suit as to form an incident to it, and substan-

tially a continuation of it” will not be considered a “suit” for

purposes of original federal jurisdiction or removal. 99 U.S. at

82-88. In Barrow, the Court concluded that a proceeding to obtain

the nullity of a judgment, which had to be brought in the same

court that rendered the judgment, was too much a supplemental

proceeding and therefore was not a suit. See id. at 85. See also

First National Bank v. Turnbull, 88 U.S. (16 Wall.) 190 (1873)

(action to recover property in judgment-debtor’s possession consid-

ered an “auxiliary to the original action”). This consideration is

not at issue here.

Ing. Horton was a diversity action filed in federal court

by Liberty, an insurance company, challenging under state

law a workers’ compensation award made to Horton by

the Texas Industrial Accident Board. See id. at 349-50.

The Court concluded that the action was a civil action,

capable of beirz heard in the first instance in district

court “as any other suit” because when it was filed, the

case was withdrawn from Board. See id. at 354.

Thus, under Horton an action to review

a state administrative agency constitutes a “civil action”

within the court's “original jurisdiction” under the diver-

sity jurisdiction statute. See id. at 355.

Horton and the dicta in Stude are joined by numerous

other cases in which this Court has recognized that there

is federal jurisdiction over actions to review the decision

of a state agency on state-law grounds. See, e.g., Com-

missioners of Road Improvement District No. 2 v. St. L.

Sw. Ry. Co., 257 U.S. 547, 560-62 (1922) (appeal

of assessors’ proceeding to state county court to set dam-

ages arising from road improvement was properly re-

moved to federal court on diversity grounds); Siler, 213

US. at 193-98 (action to enjoin rate order properly heard

under pendent jurisdiction); Union Pacific Ry. Co. vy.

Meyers, 115 U.S. 1, 18-23 (1885) (appeal of valuation

of property tried before mayor was properly removed to

federal court under federal-question jurisdiction); Missis-

sippi and Rum River Boom Co. v. Patterson, 98 US.

403, 406-07 (1879) (diversity action to value condemned

property properly removed to federal court). There is

thus plainly no rule forbidding federal courts from review-

ing administrative decisions of state or local officials.

The historical understanding of the authority

federal courts to review sialon pa By A

makes clear that administrative review cases are “civil

actions” within “original jurisdiction” regardless of the

scope of review exercised. The Judiciary Act of 1789

gave federal courts jurisdiction, as a matter of “original

cognizance” and as a matter of removal, over a “suit of

a civil nature at common law or in equity” where those

suits met requirements such as diversity between the par-

ties. See Act of Sept. 24, 1789, §§ 11, 12, 1 Stat. 73,

78-80. It is thus appropriate to begin the historical in-

quiry with the most basic denominator: the term “suit.”

Early on, this Court found that the term “suit” has a

“comprehensive” definition such that it “appl[ies] to any

proceeding in a court of justice, by which an individual

of the court is sought, is a suit.” Weston v. City Council,

27 US. (2 Pet.) 449, 464 (1829).

Since administrative agencies were not easily classified

as “courts,” the inquiry for purposes of removal jurisdic-

tion turned on the nature of the proceeding and the func-

tion of the administrative body. When the proceeding

and the function of the administrative body were wholly

administrative in nature, the proceeding was not consid-

ered a suit. See, e.g., County of Upshur v. Rich, 135 U.S.

467 (1890) (county court not permitted duties of a judi-

cial nature and thus assessment not a suit removable to

federal court). But where the proceeding was brought

before a body that exercised judicial functions, by appeal

or otherwise, it became a suit over which the courts had

cognizance. In Upshur, the Court explained the distinc-

tion:

[A] proceeding, not in a court of justice, but carried

on by executive officers in the exercise of their proper

functions, as in the valuation of property for the just

distribution of taxes or assessments, is purely admin-

istrative in its character and cannot, in any just sense,

be called a suit; [and] an appeal, in such a case, to

a board of assessors or commissioners having no judi-

cial powers and only authorized to determine ques-

tions of quantity, proportion, and value, is not a suit,

[but] such an appeal may become a suit if made to a

court or tribunal having power to determine questions

of law and fact, either with or without a jury, and

there are parties litigant to contest the case on the

one side and the other.

135 U.S. at 477.” Mississippi and Rum River Boom Co.

reflects the same distinction. That case grew out of a

“proceeding [before] commissioners appointed to appraise

[certain] land,” which the Court acknowledged “was in

the nature of an inquest to ascertain its value, and not a

suit at law in the ordinary sense of those terms.” 98 U.S.

at 406. The Court then observed: “But when it was

transferred to the [state] District Court by appeal from

the award of the Commissioners, it took, under the statute

of the State, the form of a suit at law and was thenceforth

subject to its ordinary rules and incidents. .. .” Id. at

406-07. At that point, the suit could be removed to

federal court. See ibid.

As for the “civil” component of the phrase “suit of a

civil nature,” in both the Judiciary Act of 1789 (Act of

Sept. 24, 1789, §§ 11-12, 1 Stat. 73, 78-80) and the later

federal-question statute (Act of March 3, 1875, § 1, 18

Stat. 470), that term designates simply a suit “in con-

tradistinction to one involving ‘crimes and offenses.’ ”

Milwaukee County v. M.E. White Co., 296 U.S. 268, 270

(1935). As the Court explained in Milwaukee County,

2° The Court added:

At the same time we do not lose sight of the fact, presented

by every day’s experience, that the legality and constitutionality

of taxes and assessments may be subjected to judicial examina-

tion in various ways, —by an action against the collecting

officer, by a bill for injunction, by certiorari and by other modes

of proceeding. Then, indeed, a suit arises which may come

within the cognizance of the federal courts, either by removal

thereto, or by writ of error from this court, according to the

nature and circumstances of the case. Even an appeal from an

assessment, if referred to a court and jury, or merely a court,

to be proceeded in according to judicial methods, may become

a suit within the Act of Congress.

135 U.S. at 473.

“suits of a civil nature . . . are those which do not involve

criminal prosecution or punishment, and which are of a

law or equity.” Id. at 271. It was on this same under-

standing that the Court in Ames v. Kansas, 111 U.S. 449

(1884), concluded that a quo warranto action could be

removed, for it was civil rather than criminal in e.

Id. at 460-61. See also id. at 460 (stating that, under

public offense, for the punishment thereof. Every other

action is a civil action.” (citations omitted) (emphasis in

original) ).

The phrase “suit of a civil nature in law and equity”

remained in the statutory provisions conferring federal-

question jurisdiction and removal jurisdiction until the

recodification of the Judicial Code in 1948. Sections 1331

and 1441 were then amended with the substitution of

the now-familiar term “civil action.” 1948 Judicial Code

and Judiciary Act, 62 Stat. 930; 62 Stat. 937-38; see

Finley v. United States, 490 U.S. 545, 554 (1989). The

change made them consistent with Rule 2 of the Federal

Rules of Civil Procedure, which provides that “(there

shall be one form of action to be known as civil action.”

See H.R. Rep. No. 308, at App. 1701, 1833, 1854 (1947)

(Reviser’s notes) (explaining that the term “civil action”

was substituted in both Sections 1331 and 1441 to be in

harmony with Fed. R. Civ. P. 2). And Rule 2 in turn

makes clear that the phrase “civil action” has the broadest

squarely present a “civil action” within the meaning of

Sections 1331 and 1441. The decisionmaking responsi-

bilities to be exercised by the state court in which the

Landmarks Commission. The proceeding was civil rather

than criminal. In fact, the particular statutory procedure

at issue here—the statutory equivalent of a common-law

All told, ICS’s complaints were civil actions within

original jurisdiction and could therefore be removed. In-

deed, the court of appeals doubted this conclusion for

only one reason: some—although not all—of the state-

law claims pleaded in ICS’s complaints require the re-

viewing court to give deference to the Landmarks Com-

mission’s decisions. See Pet. App. lla, 19a.“ While the

*! Under Illinois law, the “substantial differences that at one ti

existed [between certiorari and statutory administrative vache

have been all but obliterated.” Smith v. Department of Public Aid

67 Ill. 2d 529, 541, 367 N.E.2d 1286, 1298 (1977).

** Under Illinois law, the court determines whether the agency’s

determination was “arbitrary, unreasonable or capricious.” Mon-

santo Co. v. Pollution Control Board, 67 Ill. 2d 276, 289, 867 N.E.2d

684, 689 (1977). See also Hanrahan v. Williams, 174 Ill. 2d 268,

272-73, 673 N.E.2d 251, 2563-54 (1996). Findings of fact are re-

court of appeals was correct about the standard of review

for some of the claims, it erred in finding that the scope

of review is determinative of removal jurisdiction.

This Court, in prior decisions considering whether

federal jurisdiction existed, has not worried about whether

review of a state administrative proceeding under state

law was de novo or deferential. For example, in Com-

misioners of Road Improvement District No. 2, the Court

noted that the assessment suit was “to declare and enforce

a liability of lands and their owners as it stands on pres-

ent and past facts under a law and rules already made

by the legislature and administrative officers.” 257 U.S.

at 554. Thus the Court allowed removal of an action

challenging the decision of a county assessment board

without inquiry into whether deference to the board’s

judgment was required. And the Court’s opinion in Stude

does not even mention the standard of review of the

valuation proceeding. The courts of appeals also have

not, until recently, been concerned about this issue. In

the leading case, Range Oil Supply Co. v. Chicago, R.l.

& P.R. Co., 248 F.2d 477 (8th Cir. 1957), the court

held that Range Oil’s state action seeking to set aside a

state railroad commission’s order as unlawful and unrea-

sonable was removable as a “civil action” within the dis-

N.E.2d at 689. Questions of law are reviewed de novo. See Branson

v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961, 965

(1996) ; Envirite Corp. v. Ilinois Environmental Protection Agency,

158 Ill. 2d 210, 214, 632 N.E.2d 1085, 1087 (1994). And on con-

stitutional claims, no deference need be given even on the facts

since additional evidence can be proffered to the reviewing court.

See Stratton, 188 Ill. 2d at 428-30, 551 N.E.2d at 646.

28 Stude was a de novo proceding, since lowa law provided that

the action was one that would be “ ‘tried as in an action by ordinary

proceedings.”” 346 U.S. at 576 (quoting Iowa Code § 472.21).

For this reason as well, the language in the opinion concern-

ing “appellate review” of a state agency’s findings has nothing

to do with a deferential scope of review. In any event, if Stude

could be read to bar even de novo review of administrative decisions,

it would have been overruled by Horton.

trict court’s “original jurisdiction.” See id. at 478-79.

See also Linwood v. Board of Education, 463 F.2d 763,

770 (7th Cir.), cert. denied, 409 U.S. 1027 (1972).

Indeed the commentators have taken the holding of Range

Oil Supply as settled law. See 1A James W. Moore,

Moore’s FEDERAL PRACTICE § 0.157 {4.-3] at 73-74 (2d

ed. 1996); 14A Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE

§ 3721 at 206-07 (1985) .™

County Redevelopment & Housing Authority v.

64 F.3d 155 (4th Cir. 1995) ; Armistead v.

49 F.3d 43 (1st Cir. 1995).

—

a state or local agency is to be reviewed under state law.

A case seeking on-the-record administrative review, thus,

does not seek the type of judicial review that federal

courts are not competent to provide.

C. Even The Presence Of State-Law Claims Not Within

‘riginal Or Supplemental Jurisdiction Does Not

Defeat Removal.

Even if federal courts are forbidden to provide on-the-

record review of agency decisions under state law, that

does not explain why the court of appeals could properly

order the entire case—including ICS’s constitutional

claims seeking de novo review—remanded to state court.

No decision of this Court—and nothing in any statute—

suggests that joining claims that are not within original

federal jurisdiction to claims that are defeats removal. To

the contrary, as we explain above, both the removal and

supplemental jurisdiction statutes permit federal jurisdic-

tion to be exercised when state and federal claims are

joined, and authorize, at most, remand to state court of

only those claims on which state law predominates.

To reach the result that it did, the court of appeals

relied on its prior opinion in Frances J. v. Wright, 19

F.3d 337 (7th Cir.), cert. denied, 115 S. Ct. 204 (1994),

in which the court had held that a case containing claims

barred by the Eleventh Amendment is non-removable be-

cause the removal statute “‘only authorizes the removal

of actions that are within the original jurisdiction of the

federal courts.’” Pet. App. 21a (emphasis in original)

(quoting Frances J., 19 F.3d at 340). But the applicable

jurisdictional framework here is much different from that

in cases in which the removed case contains claims barred

by the Eleventh Amendment. The Eleventh Amendment

is an affirmative jurisdictional bar to the exercise of fed-

eral jurisdiction over claims against States, and it thus

limits the exercise of pendent (and now supplemental ju-

risdiction) no less than any other type of federal jurisdic-

tion. See Pennhurst State School & Hospital v. Halder-

man, 465 U.S. 89, 117-21 (1984). Here, there is no

not apply here; this case involves only a decision of a

local government agency. See, e.g., Mount Healthy City

School District v. Doyle, 429 U.S. 274, 280 (1977). Far

from erecting any jurisdictional bar, Congress, in Section

13é7(a), has affirmatively authorized the exercise of fed-

eral jurisdiction over nonfederal claims that arise from

the same nucleus of fact. Indeed, in Section 1441(c),

Moreover, the judgment below—requiring remand of

the entire case rather than only ICS's on-the-record admin-

istrative review claims—misconstrues the jurisdictional

Statutes applicable to this case. The court of appeals held

that removal is proper only if the action as a whole falls

within federal jurisdiction, and that this requirement ap-

plies to both Sections 1441(a) and 1441(c). See Pet.

App. 21la-23a. But as we explain in Part I.A above, the

phrase “civil action” within “original jurisdiction” under

both the federal-question and removal statutes has long

been construed to require only that some claims in the

action fall within original federal jurisdiction, not that all

claims do. The doctrines of pendent and supplemental

jurisdiction are based on just this point.

667-71. Similarly, in Alabama v. Pugh, 438 U.S. 781

(1978) (per curiam), the Court held that claims

the State and its board of corrections were barred by the

Eleventh Amendment and should have been

it did not disturb the balance of the judgment awarding

prospective relief against state officials. See id. at 782.”

These decisions preclude the court of appeals’ view that

if some claims in a complaint are jurisdictionally barred,

federal jurisdiction over the entire action is defeated.”

D. There Is No Policy Reason To Overcome The Plain

Statutory Language And Its History.

Because there is nothing in the jurisdictional statutes

to justify an exception from federal jurisdiction for state-

law administrative review claims that are reviewed on

the record—much less any basis for remanding an entire

case in which such a claim is presented—such an excep-

tion can only be based on some nonstatutory policy

sufficiently powerful to defeat the plain language of the

statutes.

To date, this Court has recognized only two blanket

domestic relations and probate—exist because the Court

has hewed to venerable precedents rendering those types

25 For just these reasons, the rule announced in Frances J. has

not received universal support. While one circuit has reached the

same result, see McKay v. Boyd Construction Co., 769 F.2d 1084,

1086-87 (5th Cir. 1985), two other circuits have rejected that ap-

proach, see Kruse v. Hawai'i, 68 F.3d 331, 334-35 (9th Cir. 1995) ;

Henry v. Metropolitan Sewer District, 922 F.2d 332, 336-39 (6th

Cir. 1990).

2 Even apart from this error of statutory construction, it is

doubtful that Frances J. was correctly decided. In that case as in

all others in which this question will arise, the State itself removed

the case to federal court. Despite the Eleventh Amendment, “the

Court consistently has held that a State may consent to suit against

it in federal court.” Pennhurst, 465 U.S. at 99. In particular, when

a State chooses to prosecute a claim in federal court, it waives

Eleventh Amendment immunity. See Clark v. Barnard, 108 U.S.

486, 447-48 (1888). It is quite unclear why a State’s decision to

remove a case against it to federal court should not fall within this

rule.

of cases outside federal jurisdiction. See Ankenbrandt v.

Richards, 504 U.S. 689, 693-94 (1992); Markham vy.

Allen, 326 U.S. 490, 494 (1946). In Ankenbrandt, the

Court explained that the domestic relations exception was

grounded in Barber v. Barber, 62 U.S. (21 How.) 582

(1859), the Court’s “longstanding and well-known con-

struction” of the diversity jurisdiction statute as excluding

cases involving the issuance of decrees of divorce, alimony,

and child custody, and Congress’s acquiescence in that

construction. See 504 U.S. at 700-01, 703. As for the

probate exception, it comes from an equally old line of

cases in which the Court concluded that it had no juris-

diction over cases alleging claims of a purely probate

nature, such as probating a will or administering an es-

tate. See Markham, 326 U.S. at 494. Both exceptions

are construed narrowly. The domestic relations exception

bars actions seeking issuance of divorce, alimony, or

custody decrees, but permits suits involving related mat-

ters (see Akenbrandt, 504 U.S. at 701-04); the probate

exception bars only actions involving the administration

of an estate, but permits claims to be made “in favor of

creditors, legatees and heirs” against an estate as long as

there is no interference with probate proceedings (see

Markham, 326 U.S. at 493-95).”

There surely is no similar rule that prohibits the exten-

sion of federal jurisdiction to cases challenging the deci-

sions of state administrative agencies. In New Orleans

Public Service, Inc. v. Council of City of New Orleans,

27 And oven these exceptions are applied not to federal question

jurisdiction, but to diversity jurisdiction. In cases where these

exceptions ordinarily might foreclose jurisdiction over state-law

claims, the lower federal courts have still heard constitutional claims

under federal-question jurisdiction. See, ¢.g., Agg v. Flanagan, 855

F.2d 336, 339 (6th Cir. 1988) (court had jurisdiction to hear civil

rights claims challenging State’s method of determining and enforc-

ing child custody payments) ; Franks v. Smith, 717 F.2d 188, 185-

86 (5th Cir. 1988) (court could decide Fourth Amendment claim

arising in child custody context).

491 U.S. 350 (1989) (“NOPSI”’), the Court took pains

to point out that federal jurisdiction existed over an action

challenging a ratemaking decision of the council, since

the pertinent jurisdictional statutes contained no excep-

tion to federal jurisdiction for such cases. See id. at 358-

59, 372-73. Indeed, we explain in Part II.B above that

this Court has repeatedly upheld the exercise of federal

jurisdiction in cases in which the decisions of state agen-

cies were challenged on state-law grounds.

The only conceivable basis for a nonstatutory exception

to federal jurisdiction over a case seeking review on-the-

record of a decision of a state or local agency is some

federalism-based policy that endeavors to avoid entangling

the federal courts in sensitive issues of state law. But this

Court has never recognized such an exception to federal

jurisdiction. In fact, in Schmidt v. Oakland Unified School

District, 457 U.S. 594 (1982) (per curiam), the Court

held that it was an “abuse of discretion” to refuse to

exercise pendent jurisdiction over a state-law challenge

to a contract-bidding program based on the court's per-

ception that the statelaw question was “sensitive.” Jd. at

594-95.

To be sure, there are circumstances where the federal

courts should abstain from exercising jurisdiction over a

state-law issue presented to them. But the Court’s absten-

tion jurisprudence in fact demonstrates the impropriety

of the administrative law exception to federal jurisdiction

recognized by the court of appeals here. In its cases con-

sidering when federal courts should refrain from hearing

cases involving state-law questions, the Court has never

recognized an exception to federal jurisdiction, But in-

stead permitted abstention from the exercise of jurisdic-

tion under certain demanding tests.

Burford v. Sun Oil Co., 319 US. 315 (1943), for

example, involved a challenge to an award by the Texas

Railroad Commission of a permit to drill oil wells. See

id. at 317. The Court assumed that it had federal juris-

agency decision). See id. at 317-18. The question

framed by the Court was not whether federal jurisdiction

existed, but whether, assuming federal jurisdiction did

where

designed

tablish a coherent policy with respect to a matter of sub-

stantial public concern.’” Quackenbush v. Allstate In- |

The other type of abstention applicable when a federal

court is asked to decide a question of state law makes

should a state tribunal construe it in the iff's favor.

See id. at 499-502. Pullman abstention yy

-—_ =~

proper only when the state or local enactment is fairly

susceptible to a limiting construction that would elimi-

nate the federal constitutional claim. See, e.g., City of

Houston v. Hill, 482 U.S. 451, 468 (1987); Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 236-37 &

n.4 (1984). But even when Pullman abstention is ap-

propriate, the federal court may still exercise its juris-

diction since a plaintiff who withholds his federal claims

during state-court procedings is entitled to return with

them to federal court should he need to do so. See Eng-

land v. Louisiana State Board of Medical Examiners, 375

U.S. 411, 417-18 (1964).

Thus, even when quite sensitive issues of state law are

present, the Burford and Pullman abstention cases make

clear that there is no exception to the existence of fed-

eral jurisdiction, but only a rule against its exercise in

carefully circumscribed circumstances. And the sensitive

elements justifying either type of abstention simply will

not be present in many—if not most—state administra-

tive review claims that are reviewed on the record. As

we explain above, because Illinois law provides for de

novo review of questions of law— including constitutional

issues—deferential review is limited to questions of fact.

See, e.g., Branson v. Department of Revenue, 168 Ill.

2d 247, 254, 659 N.E.2d 961, 965 (1995); Stratton,

133 Ill. 2d at 429-300, 551 N.E.2d at 646-47. Such

factual issues will rarely present circumstances that would

lead a court to conclude that the issue was too sensitive

for decision by a federal court.

28 In a related abstention doctrine, the Court has announced that

abstention may be appropriate in eminent domain proceedings that

involve sensitive city-state relationships or an uninterpreted state

statute of questionable constitutionality. See Louisiana Power &

Light Co. v. City of Thibodaux, 360 U.S. 25, 28 (1959). But this

doctrine, like Pullman abstention, merely provides for staying the

exercise of federal jurisdiction until uncertain state-law issues are

resolved in state court; there is no abdication of jurisdiction. See

Quackenbush, 116 S. Ct. at 1722-23.

In short, nothing inherent in the removal of state ad-

ministrative review claims to federal court provides any

basis for creating a new exclusion from federal jurisdic-

tion for all such claims that are reviewed deferentially.

pine abstenti ay . - F

s ion, but surely do not justi

holding below. a : m~

Indeed, viewed through the lens of federalism, the ex-

ception to federal jurisdiction recognized by the court

of appeals is especially unjustified. Excluding state and

local government defendants from federal court whenever

the plaintiff asserts a state-law claim that is reviewed on

the record would be anomalous, at best. A federal plain-

tiff willing to forgo its deferential claims would still be

welcome in federal court. This option—not available to

defendants—means a plaintiff such as ICS wishing a

federal forum to litigate the federal questions that arise

from an administrative review decision could obtain it

by filing a civil rights action within federal-question ju-

risdiction containing only de novo attacks on an agency's

decision. It is surely a strange brand of federalism that

would limit only the ability of state and local agencies

to obtain a federal forum when that is where they choose

to defend their administrative actions, while providing

those who wish to undermine those decisions with greater

ability to select a federal forum. And it is even a stranger

brand of federalism that permits federal courts to review

the decisions of state and local agencies de novo—as in

Horton—but prohibits federal courts from giving those

decisions the deference that principles of federalism

would seem to support.

The decision below also gives rise to anomalous re-

sults for plaintiffs who wish a federal forum. Because

the court of appeals has concluded that a district court

may not hear on-the-record review claims, plaintiffs can

preserve their right to a federal forum only by initiating

parallel federal and state litigation, in which only their

de novo claims can be adjudicated in the federal pro-

ceeding. Surely this Court should not encourage such

wasteful duplication. Moreover, in diversity cases, when

the agency seeks on-the-record review in state court, non-

resident defendants will lose the right to remove and will

be left to the mercy of the state court system in situations

where Congress has granted them a right to remove as

protection against local prejudices. See 28 U.S.C. § 1441

although there is no policy reason to refuse federal ju-

risdiction over federal claims merely because they are

joined with state-law claims. No decision of this Court

suggests that the right to removal can be defeated merely

because applicable state law does not provide for de novo

review. Nor has any decision of this Court or any statute

ever suggested that the district courts are not competent

to provide on-the-record and deferential review of agency

decisions—indeed Califano v. Sanders is squarely incon-

sistent with any such suggestion.

“Congress [has] [nJever intended to extend carte

blanche authority to the district courts to revise the fed-

eral statutes governing removal by remanding cases on

grounds that seem justifiable to them but which are not

recognized by the controlling statute.” Thermtron Prod-

ucts, Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976).

That is because “Congress, and not the judiciary, defines

29 In fact, the two decisions on which the court of appeals pri-

marily relied here were diversity cases in which the right of an

out-of-state defendant to remove was defeated by this administra-

tive review exception. See Pet. App. 11la-13a.

the scope of federal jurisdiction within the constitution-

ally permissible bounds.” NOPSI, 491 U.S. at 359. As

this Court has explained:

CONCLUSION

Respectfully submitted,

June 12, 1997 * Counsel of Record

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