Amicus Curiae Brief — Chicago v. International College of Surgeons

OCTOBER TERM, 1996

CITY OF CHICAGO, ef al.,

Petitioners,

vs.

INTERNATIONAL COLLEGE OF SURGEONS, et ai.,

Respondents.

On Writ of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF OF AMICI CURIAE NATIONAL TRUST FOR

HISTORIC PRESERVATION, NATIONAL ALLIANCE

OF PRESERVATION COMMISSIONS, AND

LANDMARKS PRESERVATION COUNCIL OF

ILLINOIS SUPPORTING PETITIONERS

PAUL W. EDMUNDSON PAUL M. SMITH *

ELIZABETH S. MERRITT DOUGLAS H. HSIAO

LAURA S. NELSON JENNER & BLOCK

EDITH M. SHINE 601 Thirteenth Street, N.W.

NATIONAL TRUST FOR Washington, D.C. 20005

HISTORIC PRESERVATION (202) 639-6000

1785 Massachusetts Avenue, N.W

Washington, D.C. 20036 *Counsel of Record

(202) 588-6035 :

Counsel for All Amici

PRESERVATION BOARDS AND

OTHER LOCAL ADMINISTRATIVE AGENCIES

HAVE A SUBSTANTIAL INTEREST IN ACCESS

TO A FEDERAL FORUM TO DEFEND FEDERAL

CONSTITUTIONAL CLAIMS. .............. 5

A. Removal Jurisdiction Reflects Congress’s

Recognition of the Important Policy Reasons Why

A Federal Forum Should be

B. Removal Jurisdiction Is Especially Important in

Historic Preservation and Land Use Regulation

Cases.

. A LAWSUIT THAT INCLUDES BOTH FEDERAL

CLAIMS AND STATE LAW CLAIMS SEEKING

ON-THE-RECORD REVIEW OF _ STATE

ADMINISTRATIVE ACTION IS A “CIVIL

ACTION” OVER WHICH THE FEDERAL

DISTRICT COURTS HAVE ORIGINAL

JURISDICTION FOR PURPOSES OF

inh deeeiaitiad wath pein. oo mh e.a 13

A. The Entire Case Is a “Civil Action” That Can

Appropriately Be Heard in Federal Court. ... 14

B. At a Minimum, the District Court Had the

Authority to Retain Jurisdiction Over the Federal

Claims. ..... Mh SeONkis eee smoyed kee kes 20

CONCLUSION

TABLE OF AUTHORITIES

CASES

383 Madison Assocs. v. City of New York, 598 N.Y.S.2d

180 (App. Div. 1993), cert. denied, 511 U.S.

fe GB pA nk as ae 12

Alabama v. Pugh, 438 U.S. 781 (1978) ............. 22

Alger v. City of Chicago, 748 F. Supp. 617 (N_D. Ill.

cone EES EO ee ll

Amelia County Sch. Bd. v. Virginia Bd. of Educ.; 661

F. Supp. $89 (E.D. Va. 1987) ................. 18

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ........ 19

Barber v. Barber, 21 How. 582 (1858) .............. 19

Board of Education v. Rowley, 458 U.S. 176 (1982) .... 17

Brewster Realty, Inc. v. City of Dallas, 703 F. Supp.

Fee ET cla aie 1]

Burke v. City of Charleston, 893 F. Supp. 589 (D.S.C.

ESR OR 1]

Ex Parte Burrus, 136 U.S. 586 (1890) .............. 19

Byers v. McAuley, 149 U.S. 608 (1893) ............. 19

Califano v. Sanders, 430 U.S.99(1977) ............ 15

Camp v. Pitts, 411 U.S. 138 (1973) ................ 15

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ....... 6

Chicago, Rock Island & Pacific Railroad v. Stude,

oe a ny le 15,16

City of Boerne v. Flores, 73 F.3d 1352 (Sth Cir. 1996).

cert. granted, 117 S. Ct. 293 (1996).............. 1]

Colin K. v. Schmidt, 528 F. Supp. 355 (D.R.1. 1981) _.. 18

Consumer Prod. Safety Comm'n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980) ......... aS 19

De La Rama v. De La Rama, 201 U.S. 303 (1906) ..... 19

Edelman v. Jordan, 415 U.S. 651 (1974) ............ 22

Fayetteville Perry Local Sch. Dist. v. Reckers, 892

F. Supp. 193 (S.D. Ohio 1995) ................ 18

First Covenant Church v. City of Seattle, 787 P.2d

1352 (Wash. 1990),

vacated and remanded, 499 U.S. 901 (1991) ........ 8

First Covenant Church v. City of Seattle, 840 P.2d 174

AER? OS oe ee 8

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

denied, $13 U.S. 876 (1994) ............... 20, 21

Globe Newspaper Co. v. Beacon Hill Architectural

Comm'n, 100 F.3d 175 (1st Cir. 1996) ........... ll

Great N. Ry. Co. v. Alexander, 246 U.S. 276 (1918) ..... 6

Gully v. First Nat'l. Bank, 299 U.S. 109 (1936) ........ 6

Haring v. Prosise, 462 U.S. 306 (1983) .............. 8

Henry v. Metropolitan Sewer Dist., 922 F.2d 332

ee ae ae CO eee 22

Horton v. Liberty Mut. Ins. Co., 367 U.S. 348 (1967) ... 16

Kruse v. State of Hawaii, 68 F.3d 331 (9th Cir. 1995) ... 22

Lincoln County v. Luning, 133 U.S. 529 (1890) ....... 21

Louisville & Nashville R.R. v. Mottley, 211 U.S.

POS de huis ure amds eddie sccc. 6

Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir.

1975), cert. denied, 426 U.S. 905 (1976) ..... 10, 11

Markham vy. Allen, 326 U.S. 490 (1946) ............. 19

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816) 7

Mayes v. City of Dallas, 747 F.2d 323 (Sth Cir. 1984) _. 10

Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir.

1992), cert. denied, 113 S. Ct. 2395 (1993)........ ll

Metropolitan Dade County v. P.J. Birds, Inc., 654

So. 2d 170 (Fla. App. 1995) .................. ll

Michigan v. Long, 463 U.S. 1032 (1983) ............. s

Milwaukee County v. ME. White Co., 296 U.S. 268

ea ee ge 14

Iv

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

ae) eee 21

Nadelson v. Township of Millburn, 688 A.2d 672

(N.J. Super. Ct. Law Div. 1996) ............... 10

Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930) .... 19

Palmore v. United States, 411 U.S. 389 (1973) ........ 18

Patsy v. Board of Regents, 457 U.S. 496 (1982) ........ 8

Penn Central Transp. Co. v. New York City, 438 U.S.

RE te 7 Se Pee 10

Pennhurst State Sch. & Hosp. v. Halderman, 465

Ch tk ou Soca dveee dev ut 21, 22

Quackenbush v. Allstate Ins. Co., 16 S. Ct. 1712 (1996) 22

Rector, Wardens,and Members of the Vestry of

St. Bartholomew's Church v. City of New York,

728 F. Supp. 958 (S.D.N.Y. 1989), affd 914 F.2d

348 (2d Cir. 1990), cert. denied, 499 U.S. 905

oo ee ee es ee 22

Rector, Wardens, and Members of the Vestry of

St. Bartholomew's Church v. City of New York,

914 F.2d 348 (2d Cir. 1990), cert. denied, 499

Re eee 10

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............. 22

Sciarrino v. City of Key West; 83 F.3d 364 (11th Cir),

cert. denied, 117 S. Ct. 768 (1996) ............. 11

Second Baptist Church v. Little Rock Historic Dist.

Comm'n, 732 S.W.2d 483 (Ark. 1987) ........... ll

Stone v. Powell, 428 U.S. 465 (1976) ............... 20

Teachers Ins. & Annuity Ass'n v. City of New York,

GED Pe ee BOOP WOW nee iwws...... 12

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

| PSR ee ea ee 8

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) 15

Estate of Tippett v. City of Miami, 645 So. 24 533

es oa 10, 12

v

U-Haul Co. of Eastern Missouri, Inc. v. City of St.

Louis, 855 S.W.2d 424

IIE Gn, WGC. Wa seme oe. ces. 10

United Artists Theater Circuit v. City of Philadelphia,

I 12

Waterman v. Canal-Louisiana Bank & Trust Co.,

SSS eee 19

STATUTES

pp reer reer tee 15

I tend oi o's, wed onic cedSbodSebee 2

ST 16,17

TE EE ee eS ee Pm 14

ta RN I ein al ae TS 13,15

En on on 0 an anne dete da dbae d60¥bs 19

ES So Can nos dons nh ace nsahanee 13

es Sn oe ewees passim

ea, 5 ub iuk sb teehee 18

SUE Oe mae .i i... . «2.5 eee. 1

SS TS 15

EE Ee ee ty ee eee 18

MISCELLANEOUS

Paul M. Bator, et al., Hart & Wechsler’s The Federal

Courts and The Federal System 1456 (3d ed.

acl ig AR OS i 19

Eleventh Amendment: The Case for District Court

Remand Discretion to Avoid a Bifurcated Suit, 92

sl 22

Erwin Chermerinsky, Federal Jurisdiction § 5.5 (1989) .. 6

vi

Walter Gellhorn, Clark Byse, et al, Administrative Law

Se ee 15

Neal Miller, An Empirical Study of Forum Choices in

Removal Cases Under Diversity and Federal

Question Jurisdiction, 41 Am. U. L. Rev. 369

GED Sei IW ATRARIIRS. oo. 7,8,9

Paul J. Mishkin, The Federal "Question" in the District

Courts, 53 Colum. L. Rev. 157 (1953) ........... 7

Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev.

ect ne ee ee ee 7,12

Edward F. Sherman, A Process Model and Agenda for

Civil Justice Reforms in the States, 46 Stan. L. Rev.

SO CAI ASR EE k o ov sees 9

Herbert Wechsler, Federal Jurisdiction and the Revision

of the Judicial Code, 13 Law & Contemp.

EOE RRA AA is oe

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-910

CITY OF CHICAGO, et al.,

Petitioners,

VS.

INTERNATIONAL COLLEGE OF SURGEONS, et ai.,

Respondents.

On Writ of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF OF AMICI CURIAE NATIONAL TRUST FOR

INTEREST OF AMICI CURIAE’

Amici Curiae have a direct interest in the Court’s

filed against them in state court, will have the option of

removing those cases to federal court.

‘The parties have consented to the filing of this brief Their letters of

consent have been filed with the Clerk Pursuant to Rule 37.6, amici state that

no counsel for any party authored this brief in whole or part and that no person

or entity, other than amici, their members, and their counse! made a monetary

contribution to the preparation or submission of the brief.

2

The National Trust for Historic Preservation in the United

States is a private, non-profit organization chartered by

Congress in 1949 to promote public participation in the

preservation of our nation’s heritage, and to further the historic

preservation policy of the United States. See 16 U.S.C. §§ 461,

468. With the support of its 275,000 members, the National

Trust works to protect significant historic sites and to advocate

historic preservation as a fundamental value in programs and

policies at all levels of government. The National Trust has

seven regional and field offices around the country.

The National Trust’s expertise in historic preservation law is

widely known; the Trust has participated in more than one

hundred historic preservation cases during the past twenty-five

years. Through its Legal Defense Fund, the National Trust

decisions that uphold the validity and effectiveness of regulatory

protections for historic properties and land-use regulations in

general. The National Trust has participated as amicus curiae

in ten Supreme Court cases involving challenges to local

government land use regulatory authority under the United

States Constitution. In addition, the National Trust has

participated in a number of federal and state court cases around

the country in which local historic preservation board decisions

have been challenged on constitutional grounds. The National

Trust is also active in historic preservation litigation where state

administrative law claims are heard in federal and state courts.

The National Alliance of Preservation Commissions

(“Alliance”) is a non-profit public interest corporation

established by a network of local preservation commissions in

1983. The Alliance’s mission is to encourage architectural,

cultural, and historic preservation in the United States by

providing technical assistance to and advocating for local

preservation commissions. The Alliance has 682 members in all

50 States, Puerto Rico, and the Virgin Islands, including 289

preservation commissions. In addition to its membership, the

Tg

——__—as ee

——

3

Alliance regularly communicates with more than 2,000

preservation commissions nationwide.

The Landmarks Preservation Council of Illinois (“LPCI”) is

an Ilinois not-for-profit corporation and voluntary membership

organization founded in 1971. LPCI is located in the city of

Chicago and has approximately 2,000 members throughout the

state of Illinois. LPCI’s members pay dues which go toward

supporting LPCI’s efforts to encourage landmark preservation

throughout the state. LPCI’s primary purpose is to promote

public appreciation and continued use of landmark buildings

through various means, including active participation in public

hearings on landmark designation issues and other efforts to

increase the public awareness of landmark preservation.

Because of its efforts to support landmark preservation in the

state of Illinois, LPCI has an interest in the outcome of this

particular litigation and in its implications for landmarks

litigation in general.

Amici believe they can assist the Court’s consideration of the

nature and scope of the removal statute. Amici have direct

experience in helping local governments to defend cases,

brought in state courts against local administrative boards

claims. Amici can therefore provide a national perspective on

the importance of preserving access to a federal forum for local

administrative board defendants.

SUMMARY OF ARGUMENT

The Seventh Circuit’s decision, in effect, prevents defendants

in state administrative law cases that require on-the-record

review from ever having the opportunity to have federal claims

heard in federal court. That decision does not comport with the

plain language of the removal statute. Nor is it consistent with

4

Congress’s intent and policy choice in enacting that provision.

In reaching this extraordinary result, the court of appeals

disregarded the fundamental premise underlying the removal

Statute: that defendants should have the same opportunity as

plaintiffs to choose to have federal claims heard in a federal

forum.

1. Strong policies underlie Congress’s decision to create

removal jurisdiction: The federal forum often is the best place

to have federal claims heard because federal courts offer the

advantage of federal law expertise, uniformity and consistency

in decision making, insulation from local influence, and have

greater resources at their disposal. These considerations are

especially pertinent in cases involving challenges to historic

raise novel, complicated federal constitutional questions that

benefit from the expertise, knowledge, and resources of federal

courts.

2. The court of appeals was wrong in concluding that

actions involving on-the-record review of state administrative

agency decisions are not “civil actions” within the plain

meaning of the removal statute. The plain meaning of “civil

action” clearly encompasses review of state agency action. The

Administrative Procedure Act confirms that Congress intended

that review of administrative actions belongs within the federal

question jurisdiction of federal courts. Thus, a garden-variety

federal administrative law case plainly is a “civil action” even

though it requires the court to show deference to the agency

record. There is no legal basis for the conclusion that removal

jurisdiction should turn on whether the federal court’s review is

of a state, rather than a federal, agency’s action. Congress

weighed in on this question by enacting the Individuals with

Disabilities Education Act, which provides for deferential

review of state administrative agency action in federal court.

This enactment confirms that Congress intended the term “civil

5

action” to include deferential review of state administrative

action.

Congress created no exception to removal jurisdiction for

state administrative law claims, as it has done expressly for

other types of claims. Nor would there be any basis for judicial

creation of such an exception. It is axiomatic that when

Congress has chosen not to create an express exception to a

particular rule, the courts are not free to create one themselves.

Even if the court of appeals were correct that the state

administrative law claims could not be heard in federal court,

there would be no justification for its ruling that the entire case,

including the federal law claims, could not be heard in federal

court. The court relied on dicta from an Eleventh Amendment

case that had no application to this case and was itself wrongly

decided. Nothing in this Court’s jurisprudence compelled the

Seventh Circuit’s conclusion that federal jurisdiction over

federal claims is destroyed when the federal claims are

combined with state law claims that cannot themselves be heard

in federal court. To the contrary, federal courts have a

fundamental obligation to exercise federal jurisdiction over

federal claims.

The Seventh Circuit’s decision should be reversed.

ARGUMENT

L HISTORIC PRESERVATION BOARDS AND

OTHER LOCAL ADMINISTRATIVE AGENCIES

HAVE A SUBSTANTIAL INTEREST IN ACCESS

TO A FEDERAL FORUM TO DEFEND FEDERAL

CONSTITUTIONAL CLAIMS.

It is important at the outset to be clear about what is at stake

in this case. The Seventh Circuit held that the City had no right

to remove to federal court a state-court lawsuit, which included

6

claims that two municipal ordinances, on their face and as

applied to respondents, violated the takings, equal protection,

and due process clauses of the Fourteenth Amendment. The

court reasoned that respondents had immunized these federal

constitutional claims from adjudication in federal court by

including in their complaint a request for administrative review

under state law of the actions of Chicago’s Landmarks

Commission. In so doing, the court ruled in effect that one

category of defendants -- state and local agencies involved in

cases that include “deferential” state administrative review

claims -- should be denied the right to choose to litigate related

federal claims in federal court.

A. Removal Jurisdiction Reflects Congress’s

Recognition of the Important Policy Reasons

Why A Federal Forum Should be Available to

Defendants.

Fundamental to the laws governing federal jurisdiction is the

principle that either party in a case may choose to litigate a

federal claim in a federal forum. A plaintiff, of course, can

choose to file a case in federal court, as long as at least some of

the claims are based on federal law. A defendant, in turn, can

remove a federal case to federal court even where the plaintiff

has chosen to file in state court. 28 U.S.C. § 1441.?

? See Erwin Chermerinsky, Federal Jurisdiction § 5.5, at 286 (1989)

(“The existence of removal jurisdiction reflects the belief that both the plaintiff

and the defendant should have the opportunity to benefit from the availability

of a federal forum.”). A non-diverse plaintiff, of course, can choose to

preclude federal jurisdiction by raising no claims that arise under federal law.

See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908); Gully v.

First Nat'l Bank, 299 U.S. 109, 112-13 (1936); see also Great N. Ry. Co. v.

Alexander, 246 U.S. 276, 282 (1918) (“[T]he plaintiff may by the allegations

of his complaint determine the :‘atus with respect to removability.”);

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The [well-pleaded

complaint] rule makes the plaintiff the master of the claim; he or she may avoid

federal jurisdiction by exclusive reliance on state law.”) (footnote omitted).

7

Congress gave defendants the right to remove cases to

federal court when such cases include federal claims because, in

advantages of judicial expertise, economy, uniformity, and

expediency in decision making. For these reasons, a defendant

facing federal claims will often have a real interest in being able

to bring the case into a federal tribunal. See Burt Neuborne,

The Myth of Parity, 90 Harv. L. Rev. 1105 (1977).

First, federal courts have greater expertise in handling

questions of federal law. Their familiarity with federal legal

issues increases the likelihood that they will render a correct

decision. See Paul J. Mishkin, The Federal “Question” in the

District Courts, 53 Colum. L. Rev. 157, 159 (1953); see also

Neuborne, supra, at 1121-24.

Second, and related to the issue of expertise, is the ability of

federal courts to ensure uniformity and consistency in their

decision making. Congress designed the federal court system

to create greater uniformity in interpretation of federal law than

would be provided by a multiplicity of state court systems. See

Neal Miller, An Empirical Study of Forum Choices in Removal

Cases Under Diversity and Federal Question Jurisdiction, 41

Am. U. L. Rev. 369, 373 & n.9 (1992) (one rationale for federal

application of federal law”) (citing J. Friedenthal, M. Kane & A.

Miller, Civil Procedure § 2.3, at 15 (1985)); cf Martin v.

Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816)

(consistency and uniformity is a compelling justification for

supremacy of federal law).

Because state courts hear fewer actions raising claims of

federal statutory or constitutional law, they are more likely to

adopt an approach that is out of step with holdings on

comparable issues decided elsewhere. Moreover, when state

courts do address federal questions, the only mechanism

ensuring uniformity and consistency is this Court’s certiorari

jurisdiction. Given the number of state court cases applying

federal law and the independent and adequate state ground

doctrine, which can insulate state court interpretations of federal

law from further review,’ this Court’s appellate review of state

decisions cannot ensure uniformity among the fifty state

supreme courts in the same way that federal circuit courts can

ensure that federal law is correctly and consistently applied in

Third, the option of removing an action to federal court

protects the litigants’ rights to have cases heard free from local

creation of federal question jurisdiction was motivated by a

desire to protect federal rights from the vagaries of some state

courts. See Haring v. Prosise, 462 U.S. 306, 323 (1983); Patsy

v. Board of Regents, 457 U.S. 496, 505 (1982). Such concerns

also informed Congress’s creation of the removal statute. See,

e.g., Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336,

341 (1976) (noting the accepted belief that Congress enacted

the removal statute to “prevent prejudice in local courts”); see

generally Neal Miller, supra, at 409-10.

® See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). Because state

supreme courts can rest their decisions on adequate and independent state law

grounds, state courts are free to construe federal law while still shielding their

decisions from appellate review. This anomilous situation is illustrated by the

case of First Covenant Church v. City of Seattle, 787 P.2d 1352 (Wash.

1990), vacated and remanded, 499 U.S. 901 (1991). In First Covenant, the

Washington Supreme Court decision held that a landmarks preservation statute

violated the Free Exercise Clause as applied to a church. This ruling was

vacated and remanded by this Court in light of an intervening decision. On

remand, the court went to great lengths to distinguish the federal law

precedent, but it ultimately rested its decision to reinstate its prior decision on

an adequate and independent state constitutional ground, even though it clearly

conflicted with binding federal precedent. First Covenant Church v. City of

Seattle (First Covenant II), 840 P.2d 174, 228 (Wash. 1992) (en banc). In

such cases, where a complaint on its face pleads violations of federal law,

allowing a plaintiff's case to retreat to state law nullifies federal review and

frustrates efforts to bring uniformity to interpretations of federal law.

9

The federal courts, being more insulated from such local

interests by lifetime tenure and presidential appointment, can

rights protected by federal law. See Herbert Wechsler, Federal

Jurisdiction and the Revision of the Judicial Code, 13 Law &

Contemp. Probs. 216, 234 (1948) (“[T]he reason for providing

the initial federal forum is the fear that state courts will view the

federal right ungenerously.”); cf. Neal Miller, supra, 41 Am. U.

L. Rev. at 435 (empirical findings that fear of local bias is a

significant factor when attorneys choose to remove federal

questions to federal court). In contrast, state court judges are

often elected, meaning that they tend to be more responsive to

Fourth, the federal courts may be more expeditious in

courts in developing and applying comprehensive programs for

increasing the speed and efficient administration of their civil

dockets. See Edward F. Sherman, A Process Model and

Agenda for Civil Justice Reforms in the States, 46 Stan. L. Rev.

1553, 1553 (1994) (citing differences in the resources federal

courts have at their disposal in comparison with state court

systems).

B. Removal Jurisdiction Is Especially Important in

Historic Preservation and Land Use Regulation

Cases.

These policy considerations are particularly important in

cases where the defendant is a historic preservation board, since

the law in this area is specialized and the potential for

: oe Ms a one tal may be

stronger than in other types of cases. Thus, defendants in this

category of cases have a special interest in preserving access to

federal courts to adjudicate federal claims.

10

Because historic preservation has emerged as an area of local

land use regulation primarily in the last three decades, there is

less than the usual amount of authoritative guidance for state

courts on how to decide constitutional issues of major

consequence. Not until after 1978, when this Court upheld the

constitutionality of New York City’s historic preservation law

against a regulatory takings claim in Penn Central

Transportation Co. v. New York City, 438 U.S. 104 (1978), did

historic preservation laws become as widespread as they are

today.* As a result, reviewing courts often find there is little

binding precedent in the context of historic preservation claims

applying the takings clause,* vagueness doctrine,*® the equal

protection clause,’ procedural and substantive due process,* the

* At that time, all 50 states and more than 500 municipalities had enacted

historic preservation laws. Penn Central, 438 U.S. at 107 n.1 (citing National

Trust for Historic Preservation, A Guide to State Historic Preservation

Programs (19"6)). In the wake of Penn Central, the number of local historic

preservation ordinances doubled by 1986 to more than 1,000, see Tersh

Boasberg, Thomas A. Coughlin & Julia Hatch Miller, 1 Historic Preservation

Law & Taxation § 7.01 (1986), and tripled by 1989 to 1,500. See American

Planning Ass’n, Responding to the Takings Challenge, Planning Advisory

Service Report No. 416, at 23 (R. Roddewig & C. Duerkson eds. 1989).

Today that number has quadrupled to approximately 2,000. Survey by

National Alliance of Preservation Comm’ns, U.S. Preservation Comm’n

Identification Project Data Base, maintained by the Office of Preservation

Servs., School of Envtl. Design, Univ. of Georgia (May 1996).

* See, e.g., Penn Central, Maher v. City of New Orleans, 516 F.2d 1051

(Sth Cir. 1975), cert. denied, 426 U.S. 905 (1976); Rector, Wardens, and

Members of the Vestry of St. Bartholomew's Church v. City of New York,

914 F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991).

‘See, e.g., Maher, 516 F.2d at 1062; Mayes v. City of Dallas, 747 F.2d

323, 325 (Sth Cir. 1984), Nadelson v. Township of Millburn, 688 A.2d 672

(N.J. Super. Ct. Law Div. 1996), U-Haul Co. of Eastern Missouri, Inc. v. City

of St. Louis, 85S S.W.2d 424 (Mo. Ct. App. 1993).

’See, e.g., Estate of Tippett v. City of Miami, 645 So. 2d 53, 537 (Fla.

App. 1994) (Gersten, J., concurring), Second Baptist Church v. Little Rock

1]

free exercise,” establishment’ and/or free speech" clauses of

the First Amendment, and federal statutes such as the Religious

Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4.

Because federal courts are more familiar with federal

constitutional law, they may be better equipped to resolve such

difficult federal claims when they arise in preservation disputes.

Moreover, this familiarity makes it more likely that uniform and

consistent decisions will be made, thereby helping to develop a

coherent body of law in histuric preservation that can be relied

upon by other courts in i:dividual cases.

Finally, concerus about local influence are particularly

relevant to historic preservation and local land use regulation.

The decisions of local historic preservation boards and other

land use regulatory agencies by their nature can have a

significant impact on particular parcels of real property. Thus,

powerful local real estate and development interests, and

political groups such as property rights organizations, may be

Historic Dist. Comm'n, 732 S.W.2d 483, 486-87 (Ark. 1987).

* See ¢.g., Maher, 516 F.2d at 1059-62; Metropolitan Dade County v.

PJ. Birds, Inc., 654 So. 24.170 (Fla. App. 1995).

* See, e.g., St Bartholomew's, 914 F.2d at 354, First Covenant I], 840

P.2d 174 (Wash. 1992).

" See, e.g., Alger v. City of Chicago, 748 F. Supp. 617 (N_D. Ill. 1990).

"See, e.g., Globe Newspaper Co. v. Beacon Hill Architectural Comm'n,

100 F.3d 175 (1st Cir. 1996), Sciarrino v. City of Key West, 83 F.3d 364

(llth Cir), cert. denied, 117 S. Ct. 768 (1996); Messer v. City of

Douglasville, 975 F.2d 1505 (1 ith Cir. 1992), cert. denied, 113 S. Ct. 2395

(1993); Burke v. City of Charleston, 893 F. Supp. 589 (D.S.C. 1995) .

"See, ¢.g., City of Boerne v. Flores, 73 F 34 1352 (Sth Cir. 1996), cert

granted, \\7 S. Ct. 293 (1996) (argued Feb. 19, 1997).

12

example, a real estate developer entered into a partnership with

the International College of Surgeons tc develop historic

lakefront property into luxury condominiums. At stake are tens

of millions of dollars. Pet. App. 28a-29a. In such a case, there

is a potential for a local elected judge to feel pressure to find a

way to allow the project to go forward. While it is not the case

that state courts will necessarily succumb to such influences, it

remains true that the federal court system was designed to

protect against just this kind of risk. See Neuborne, supra, at

1127-28.

This does not mean, of course, that historic preservation

boards and other similar defendants would always choose to

remove cases including federal claims. In many cases, they may

decide that there is no reason to bypass state court adjudication

of the case, particularly in view of the state courts’ familiarity

with local law. Certainly, in cases where only state law is at

issue, the state court is the correct and only forum. See, e.g.,

United Artists Theater Circuit v. City of Philadelphia, 635

A.2d 612 (Pa. 1993) (state constitution construed in accordance

with federal constitution presented only state law claims). And

examples abound of state court decisions where issues of state

and federal law were effectively and correctly resolved in state

court. See, e.g., Teachers Ins. & Annuity Ass'n v. City of New

York, 623 N.E.2d 526 (N.Y. 1993); 383 Madison Assocs. v.

City of New York, 598 N.Y.S.2d 180 (App. Div. 1993), cert.

denied, 511 U.S. 1081 (1994), Estate of Tippett v. City of

Miami, 645 So. 2d 533 (Fla. App. 1994).

Petitioners, like other defendants, should have the choice of

the federal forum. As we show in the next section, there is no

13

I. A LAWSUIT THAT INCLUDES BOTH FEDERAL

CLAIMS AND STATE LAW CLAIMS SEEKING

ON-THE-RECORD REVIEW OF STATE

ADMINISTRATIVE ACTION IS A “CIVIL

ACTION” OVER WHICH THE FEDERAL

DISTRICT COURTS HAVE ORIGINAL

JURISDICTION FOR PURPOSES OF REMOVAL.

Under 28 U.S.C. § 1441(a), a defendant may remove to

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

the district courts of the United States have original

“urisdiction.” The S h Circuit held that this ‘sion did

not apply to this case, because the complaint filed in state court

based solely on the administrative record, and thus did not

constitute a “civil action.” That conclusion was plainly wrong.

It is useful to begin by noting what the Seventh Circuit did

not hold. The court of appeals did not dispute that a “civil

jurisdiction” can include an action in which federal claims are

paired with related state-law claims. Nor could it. The federal

claims in such a case are covered by the grant of “federal

question” jurisdiction in 28 U.S.C. § 1331, while the state

claims are also cognizable in federal court under the grant of

“supplemental” jurisdiction in 28 U:S.C. § 1367.

The Seventh Circuit also acknowledged that the term “civil

jeriedicticn” con inchede ¢ ott afiention Gn

actions of a state or local administrative agency, as long as there

is some basis for federal jurisdiction, such as diversity of

citizenship or a federal question. Pet. App. lla (citing

Chicago, Rock Island & Pacific Railroad v. Stude, 346 U.S.

574 (1954), and Horton v. Liberty Mutual Insurance Co., 367

U.S. 348 (1967)). This, too, is an entirely uncontroversial

proposition. Indeed, it is one of the principal functions of

14

federal courts to bring state and local agencies into conformity

The sole basis for the Seventh Circuit’s ruling was the

specific nature of the state-law claims pled in the original state-

court actions -- the fact that they constituted requests for

review of administrative actions based on the administrative

record. Focusing on the fact that the trial court could not

receive new evidence and make its own findings of fact, the

court characterized this kind of action as one involving

“appellate” review. This conclusion is wrong for several

reasons.

A. The Entire Case Is a “Civil Action” That Can

Appropriately Be Heard in Federal Court.

First, Congress had no intention of barring any part of this

type of case -- including the state administrative review claims

filed under state law and requiring deference to the agency

action -- from being heard in federal court. It used a statutory

term, “civil action,” that is very broad and inclusive. “Civil

action,” in turn, was derived from the terms “suit of a civil

nature” and “civil suit,” which appeared in the predecessor

removal statute. “Suits of a civil nature, at law or in equity”

referred to any kind of suit that was not criminal. See

Milwaukee County v. M_E. White Co., 296 U.S. 268, 270-71

(1935) (phrase “suits of a civil nature” in original jurisdiction

statute, 28 U.S.C. § 41(1) (1940), “is used in contradistinction

to ‘crimes and offenses”). There is thus every reason, based on

the statutory language alone, to conclude that Congress

intended the scope of the removal statute to be broadly

interpreted.

"See 28 U.S.C. §1441 note (“Phrases [in § 1441) such as ‘in suits of a

civil nature, at law or in equity,’ and the words, ‘case,’ ‘cause,’ ‘suit,’ and the

like have been omitted and the words ‘civil action’ substituted in harmony with

.. . the Federal Rules of Civil Procedure.”).

15

More specifically, use of the same term elsewhere in the

United States Code undermines any suggestion that Congress

did not consider suits seeking on-the-record administrative

review to be “civil actions.” In Califano v. Sanders, 430 U.S.

99 (1977), for example, this Court analyzed the jurisdictional

basis of administrative review claims filed in federal court

against federal agencies. The Court held that the

Administrative Procedure Act is not a separate grant of federal

jurisdiction and that jurisdiction over such claims instead is

based on the general federal-question provision, 28 U.S.C.

§ 1331, which applies only to “civil actions arising under the

Constitution, laws, or treaties of the United States.” See 430

U.S. at 106 (stating that the “expansion of § 1331,” coupled

with a separate provision limiting review of agency action,

“apparently expresses Congress’ view of the desired contours

of federal-qustion jurisdicticn over agency action”). Califano

v. Sanders thus stands for the proposition that lawsuits seeking

review of administrative agency actions are “civil actions.”

This is particularly significant because federal district court

by a deferential standard of review requiring the court to look

only at the administrative record’* — precisely the characteristic

that led the Seventh Circuit to exclude this case from the

category of “civil actions.”

“See Camp v. Pitts, 411 U.S. 138, 141-42 (1973) (per curiam); Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). A number of other

federal statutes, like section 205(g) of the Social Security Act at issue in

Califano v. Sanders, premise district court review of federal agency actions

on deference to the agency record. See 49 U.S.C. § 11705(d) (interstate

Commerce Commission reparation orders), 7 U.S.C. §§ 210(f), 499g(b)

(Secretary of Agnculture decisions under the Packers and Stockyards Act and

the Perishable Commodities Act). This “group of federal statutes provides for

enforcement in an original--as distinguished from an appellate--action in a

United States district court” Walter Gellhorn, Clark Byse, er al,

Administrative Law 986 (8th ed. 1987).

16

In reaching that conclusion, the Seventh Circuit relied

primarily on language in this Court’s decisions in Stude and

Horton. In both of those cases, however, the Court upheld

of state agency actions. See Stude, 346 U.S. at 578-79 (a

perfected appeal of a state administrative decision is “in its

nature a civil action and subject to removal by the defendant to

the United States District Court” (citing Mississippi & Rum

River Boom Co. v. Patterson, 98 U.S. 403, 407 (1878)).

Moreover, since state law in both cases called for de novo

review, the Court had no occasion to determine whether a more

deferential standard of review would have changed the

outcome. The statements cited by the Seventh Circuit are thus

pure dicta, and furthe;mcre do not explain why a deferential

standard of review could prevent the treatment of state

administrative review actions as “civil actions,” when precisely

the opposite rule applies to comparable actions seeking review

of federal agency decisions.

Certainly it is hard to see how the identity of the agency

defendant -- local, state or federal -- is relevant to whether a

case is a “civil action.” Indeed, here again, Congress has taken

the opposite view in another statute. In the Individuals with

Disabilities Education Act (hereinafter “IDEA”), Congress

authorized on-the-record administrativi review of state agency

action, in federal court, as a “civil action” within federal

jurisdiction. 20 U.S.C. § 1415(e).

Under the IDEA, the federal government funds state efforts

to give individualized educational opportunities to students with

disabilities in public schools. The Act provides that parents and

school officials should work together to determine how best to

further the student’s educational development through an

“individualized educational program” (hereinafter “IEP”). If

parents are dissatisfied with the program developed by those

officials, they may petition the school for a due process hearing

and may appeal that decision to the state educational agency.

17

Id § 1415(c). Thereafter, “[aJny party aggrieved by the

findings and decision” made by the state agency “shall have the

right to bring a civil action . . . in any State court of competent

jurisdiction or in a district court of the United States without

regard to the amount in controversy.” Jd § 1415(e)(2)

(emphasis added).

With respect to the standard of review, the IDEA provides:

“In any action brought under this paragraph the court shall

receive the records of the administrative proceedings, shall hear

additional evidence at the request of a party, and, basing its

decision on the preponderance of the evidence, shall grant such

relief as the court determines is appropriate.” Jd In Board of

Education v. Rowley, 458 U.S. 176 (1982), this Court

interpreted the statute as requiring reviewing courts to give

substantial deference to the state agency’s prior action:

[TJhe provision that a reviewing court base its

decision on the “preponderance of the evidence” is by

no means an invitation to the courts to substitute

their own notions of sound educational policy for

those of the school authorities which they review.

The very importance which Congress has attached to

the compliance with certain procedures in the

preparation of an IEP would be frustrated if a court

were permitted simply to set state decisions at

nought. The fact that § 1415(e) requires that the

reviewing court “receive the records of the [state]

administrative proceedings” carries with it the

implied requirement that due weight shall be given to

these proceedings.

Id. at 206. The Court held that a state decision must be upheld

if it is “reasonably calculated to enable the child to receive

educational benefits.” Jd. at 206-07.

18

Since Congress, in the IDEA itself, labeled such

administrative review actions involving a deferential standard as

“civil actions,” it is not surprising that several courts have held

that section 1441 authorizes removal of an IDEA administrative

review action from state to federal court. See Fayetteville

Perry Local Sch. Dist. v. Reckers, 892 F. Supp. 193, 199 (S.D.

Ohio 1995); Colin K. v. Schmidt, 528 F. Supp. 355, 359 (D.R.I.

1981); of. Amelia County Sch. Bd. v. Virginia Bd. of Educ., 661

F. Supp. 889, 895 (E.D. Va. 1987) (case remanded because

challenge to IEP arose under state, not federal law). There is

no reason to adopt a different interpretation of section 1441

here, where the federal claims asserted against a local agency

are based on the U.S. Constitution.

To the extent that the decision below was based on some

perception, albeit unexplained, that it would be inappropriate to

allow defendants to bring on-the-record state administrative

review claims into federal court even when they are intertwined

with federal claims,’* that is a determination that should be left

to Congress. It is, of course, the province of Congress to

control the boundaries of federal court jurisdiction. U.S. Const.

art. III, § 1; see Palmore v. United States, 411 U.S. 389, 401

(1973). And Congress cértainly has acted to limit removal

jurisdiction for specific types of claims when it has seen a need

to do so. See 28 U.S.C. § 1445 (nonremovable actions include:

involving shipments; workmen’s compensation cases; and civil

actions arising under the Violence Against Women Act of

1994.); id § 1341 (barring removal of civil actions to enjoin

state tax determinations); id § 1342 (barring removal of civil

actions to enjoin state rates and tariffs). This is thus an

appropriate case for application of the principle that, when

'SSuch a perception would be difficult to defend in light of the fact that

federal courts are authorized to give deferential review of federal agency

actions and de novo review of state agency actions. See pp. 14-17 supra.

_ pe ot a

19

Congress has spoken, its intent is “conclusive.” Consumer Prod.

Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980).

There are, to be sure, non-statutory limitations on federal

jurisdiction that this Court has recognized. But the list of

recognized exceptions numbers only two: probate cases, see

Byers v. McAuley, 149 U.S. 608, 615 (1893); Waterman v.

Canal-Louisiana Bank & Trust Co., 215 U.S. 33 (1909);

Markham v. Allen, 326 U.S. 490 (1946), and domestic relations

cases. See Barber v. Barber, 21 How. 582, 584 (1858); Ex

Parte Burrus, 136 U.S. 586, 593-94 (1890); Ohio ex rel.

Popovici v. Agler, 280 U.S. 379, 383 (1930)."* These historical

exceptions were based on the belief that the English courts of

chancery -- the English analog to American courts’ equity

jurisdiction -—- did not have jurisdiction over probate, which was

“the distinctive function[{[] of the ecclesiastical courts in

England.” Paul M. Bator, et al, Hart & Wechsler'’s The

Federal Courts and The Federal System 1456 (3d ed. 1988).

The exceptions arose during a time when the language of the

diversity statute limited federal jurisdiction to “suits of a civil

nature in law or in equity.” See Judiciary Act of 1789, 1 Stat.

73 (codified at 28 U.S.C. § 41(1), recodified at 28 U.S.C.

§ 1345).

Moreover, it is essential to recognize that the domestic

relations and probate exceptions apply only to the federal

courts’ diversity jurisdiction. See De La Rama v. De La Rama,

201 U.S. 303, 307 (1906) (basing the domestic relations

exception on the lack of diversity, because husband and wife by

law cannot be diverse from one another). No exceptions can

“And even those categories have been circumscribed and their place in

federal jurisdiction juriapred ioned by this Court in years.

Ankenbrandt v. Richards, 504 U.S. 689 (1992), makes crystal clear that the

domestic relations exception to federal court jurisdiction is not found in either

Article III of the Constitution or in an Act of Congress. /d. at 697.

20

Congress, and not the common law, defines the scope of federal

question jurisdiction. See Stone v. Powell, 428 U.S. 465, 493

n.35 (1976).

In sum, there is no basis for the argument that the federal

courts lack the authority to take cognizance of an entire case

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B. At a Minimum, the District Court Had the

Authority to Retain Jurisdiction Over the Federal

Claims.

Even if there were some reason to foreclose federal courts

from hearing “deferential” state administrative review claims, it

still would make no sense to incorporate such a limitation into

the definition of a civil action subject to removal under section

1441. The effect of such an interpretation, as this case

illustrates, would be to prevent even the federal claims filed in

a state court action from being brought into federal court.

Congress cannot have so intended.

In deciding to remand the entire case -- including the federal

claims -- back to the state courts, the court of appeals resorted

to a questionable application of dicta from its own Eleventh

Amendment jurisprudence. The court drew an analogy to

Frances J. v. Wright, 19 F.3d 337 (7th Cir.), cert. denied, 513

U.S. 876 (1994), a case where the plaintiffs had brought suit in

relief against state officials in their official capacity. When the

case was removed to federal court, the Seventh Circuit held that

removal was not authorized by section 1441 because part of the

case — the claim for damages -- was barred from being heard in

federal court under the Eleventh Amendment. It reasoned that

““f even one claim in an action is jurisdictionally barred from the

federal court by a state’s sovereign immunity, or does not fit

21

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., 19 F.3d at 341)

(emphasis added).

Here, the Seventh Circuit extended the logic of Frances J. to

Having held that the state-law claims could not be heard in

federal court, it concluded that the entire case was not a “civil

action” within the original jurisdiction of the federal courts and

that even the federal claims were not removable. Whatever the

merits of the Frances J. decision, the court of appeals was

clearly wrong to extend the logic of that ruling to cases where,

as here, the Eleventh Amendment is not implicated.”’

If it reaches this issue, the Court should hold that Frances J.

is wrong -- i.e., that the removal statute authorizes removal of

federal claims even when they are combined in a state court

complaint with state-law claims that cannot be heard in federal

court. This Court has recognized that, when a single federal

complaint combines claims that are barred by the Eleventh

Amendment with claims that are not, the federal court has

jurisdiction and should only dismiss the barred claims.

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,

120-21 (1984). As the Court put it in Pennhurst, “[a] federal

"The court of appeals conceded, as it had to, that the Eleventh

Amendment was not implicated in this case. It has long been settled by this

and thus cases can be brought against them without violating the Eleventh

Amendment. Mt Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977), Lincoln County v. Luning, 133 U.S. 529 (1890).

22

court must examine each claim in a case to see if the couri's

jurisdiction over that claim is barred by the Eleventh

Amendment.” Jd at 121."

There is no reason to interpret section 1441 any differently.

See Kruse v. State of Hawaii, 68 F.3d 331, 335 (9th Cir. 1995)

(proper course is to remand barred claims to state court and

retain non-barred claims); Henry v. Metropolitan Sewer

District, 922 F.2d 332, 338 (6th Cir. 1990) (same); see

generally Mitchell N. Berman, Note, Removal and the Eleventh

Amendment: The Case for District Court Remand Discretion

to Avoid a Bifurcated Suit, 92 Mich. L. Rev. 683, 707 (1993)

(criticizing rationale of remanding all claims to state court).

It follows that, even accepting the Seventh Circuit’s

unsupported notion that the state claims in this case were not

cognizable in federal court, the district court was right to retain

the federal claims." The court of appeals provided no real

justification for ignoring one of the fundamental obligations of

federal courts -- their “strict duty to exercise the jurisdiction

"This is in accord with this Court’s routine practice of allowing federal

courts to hear federal question claims not barred by the Eleventh Amendment

after barred claims are dismissed. See Alabama v. Pugh, 438 U.S. 781 (1978)

(per curiam), Scheuer v. Rhodes, 416 U.S. 232 (1974), Edelman v. Jordan,

415 US. 651 (1974).

"See Rector, Wardens, and Members of the Vestry of St. Bartholomew's

Church v. City of New York, 728 F. Supp. 958 (S.D.N.Y. 1989), aff'd, 914

F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991). In St

Bartholomew's, state law administrative claims challenging a landmarks

decision were filed in federal court along with federal constitutional claims

under the takings and free exercise clauses. In St. Bartholomew's, the court

barred from federal court (a conclusion the court did not reach) there was no

reason not to exercise jurisdiction over the federal constitutional claims. 728

F. Supp. at 964 & n.12, 965 n.15.

23

that is conferred upon them by Congress.” Quackenbush v.

Allstate Insurance Co., 116 S. Ct. 1712, 1720 (1996) (citing

Colorado River Water Conservation District v. United States,

424 U.S. 800, 821 (1976); England v. Louisiana Board of

Medical Examiners, 375 U.S. 411, 415 (1964); Cohens v.

Virginia, 6 Wheat. 264, 5 L. Ed. 257 (1821)). There is no

reason to think Congress intended to exclude the federal claims

at issue here from resolution in a federal tribunal. That choice

should be respected.

CONCLUSION

For the foregoing reasons, the Seventh Circuit’s decision

should be reversed.

Respectfully submitted,

PAUL W. EDMUNDSON PAUL M. SMITH *

ELIZABETH S. MERRITT DOUGLAS H. HSIAO

LAURA S. NELSON JENNER & BLOCK

EDITH M. SHINE 601 Thirteenth Street, N.W.

NATIONAL TRUST FOR Washington D.C. 20005

HISTORIC PRESERVATION (202) 639-6000

1785 Massachusetts Avenue, N.W.

Washington, D.C. 20036 *Counsel of Record

(202) 588-6035

Counsel for All Amici