# Petitioners Brief — Chicago v. International College of Surgeons > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0043%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1997 - **Citation:** 522 U.S. 156 ## Text 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 ii 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 I, 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 OE A. ICS’s State Administrative Review Claims Fall Within Supplemental Jurisdiction ._._... B. Administrative Review Claims Can Be Heard By The District Courts ................................... 13 17 iv 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... i Page 40 Vv 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 vi 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 22 2 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 ix TABLE OF AUTHORITIES—Continued P 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 ee SS EE ee Ue 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 2 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 (c) or as expressly provided otherwise by Federal 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. .. . (c) The district courts may decline to exercise 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). 3 (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. . . . (c) 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 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 4 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). 5 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. 6 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. 7 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 HH L a He il Tf it ‘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 Gg 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- 10 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 il 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 12 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- 13 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 14 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- 15 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). 16 (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. 17 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.” 18 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. 19 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). 20 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’ 21 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). 22 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). 23 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 24 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. 25 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). 26 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- 27 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 28 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 29 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). 30 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. 31 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 32 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. 33 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 z z 2, 34 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 35 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- 38 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. 39 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). Qe — & Fo 40 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 41 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 42 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. 43 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). 44 491 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 f 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 -—_ =~ 46 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. 47 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 48 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. 49 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0043%3A06. Public record. Not legal advice.