# Amicus Curiae Brief — Chicago v. International College of Surgeons

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0043%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 156

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0043%3A09. Public record. Not legal advice.