U.S. Supreme Court Merrell Dow Pharmaceuticals v.
Thompson, 478
U.S. 804 (1986) Merrell Dow Pharmaceuticals, Inc. v.
Thompson No. 85-619 Argued April 28, 1986 Decided July 7, 1986 478
U.S. 804 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus Respondent residents of Canada and respondent residents of
Scotland filed separate complaints in an Ohio state court against
petitioner Ohio corporation, the manufacturer and distributor of
the drug Bendectin, alleging that children were born with
deformities as a result of their mothers' ingestion of the drug
during pregnancy. Damages were sought on common law theories of
negligence, breach of warranty, strict liability, fraud, and gross
negligence, and also on the ground that the alleged "misbranding"
of the drug in violation of the Federal Food, Drug, and Cosmetic
Act (FDCA) represented a "rebuttable presumption" of negligence and
the "proximate cause" of the injuries. Petitioner filed a petition
for removal of the actions to Federal District Court, alleging that
they were founded, in part, on a claim "arising under the laws of
the United States." After removal, the cases were consolidated, and
the Federal District Court denied respondents' motion to remand to
the state court and granted petitioner's motion to dismiss on forum non conveniens grounds. The Court of Appeals
reversed. Noting that the FDCA does not create or imply a private
right of action, the court held that the causes of action did not
arise under federal law, and therefore were improperly removed to
federal court. Held: A violation of a federal statute as an element of
a state cause of action, when Congress has determined that there
should be no private federal cause of action for the violation,
does not state a claim "arising under the Constitution, laws, or
treaties of the United States" within the meaning of 28 U.S.C. §
1331. Thus, here, determining the question of removal jurisdiction
by reference to the "well-pleaded complaint," and assuming that
there is no federal cause of action for FDCA violations, the cases
were improperly removed to the Federal District Court. The assumed
congressional determination to preclude federal private remedies
for violations of the FDCA is tantamount to a congressional
conclusion that a claimed violation of the statute as an element of
a state cause of action is insufficiently "substantial" to confer
federal question jurisdiction. The asserted federal interest in
federal review and the novelty of the question whether the FDCA
applies to sales in Canada Page 478 U. S. 805 and Scotland are not sufficient to give a state-based FDCA claim
status as a jurisdiction-triggering federal question. 766 F.2d
1005, affirmed. Pp. 478 U. S.
807 -817.

															STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL,
and BLACKMUN, JJ., joined, post, p. 478 U. S.
818 .

															JUSTICE STEVENS delivered the opinion of the Court.

															The question presented is whether the incorporation of a federal
standard in a state law private action, when Congress has intended
that there not be a federal private action for violations of that
federal standard, makes the action one "arising under the
Constitution, laws, or treaties of the United States," 28 U.S.C. §
1331. I The Thompson respondents are residents of Canada, and the
MacTavishes reside in Scotland. They filed virtually identical
complaints against petitioner, a corporation, that manufactures and
distributes the drug Bendectin. The complaints were filed in the
Court of Common Pleas in Hamilton County, Ohio. Each complaint
alleged that a child was born with multiple deformities as a result
of the mother's ingestion of Bendectin during pregnancy. In five of
the six counts, the recovery of substantial damages was requested
on common law theories of negligence, breach of warranty, strict
liability, fraud, and gross negligence. In Count IV, respondents
alleged that the drug Bendectin was "misbranded" in violation of
the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. (1982 ed. and
Supp. III), because its labeling did not provide adequate Page 478 U. S. 806 warning that its use was potentially dangerous. Paragraph 26
alleged that the violation of the FDCA "in the promotion" of
Bendectin "constitutes a rebuttable presumption of negligence."
Paragraph 27 alleged that the "violation of said federal statutes
directly and proximately caused the injuries suffered" by the two
infants. App. 22, 32.

															Petitioner filed a timely petition for removal from the state
court to the Federal District Court, alleging that the action was
"founded, in part, on an alleged claim arising under the laws of
the United States." [ Footnote
1 ] After removal, the two cases were consolidated. Respondents
filed a motion to remand to the state forum on the ground that the
federal court lacked subject matter jurisdiction. Relying on our
decision in Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), the District Court held that Count IV of the complaint
alleged a cause of action arising under federal law, and denied the
motion to remand. It then granted petitioner's motion to dismiss on forum non conveniens grounds.

															The Court of Appeals for the Sixth Circuit reversed. 766 F.2d
1005 (1985). After quoting one sentence from the concluding
paragraph in our recent opinion in Franchise Tax Board v.
Construction Laborers Vacation Trust, 463 U. S.
1 (1983), [ Footnote
2 ] and noting "that the FDCA does not create or imply Page 478 U. S. 807 a private right of action for individuals injured as a result of
violations of the Act," it explained:

															"Federal question jurisdiction would, thus, exist only if
plaintiffs' right to relief depended necessarily on a substantial
question of federal law. Plaintiffs' causes of action referred to
the FDCA merely as one available criterion for determining whether
Merrell Dow was negligent. Because the jury could find negligence
on the part of Merrell Dow without finding a violation of the FDCA,
the plaintiffs' causes of action did not depend necessarily upon a
question of federal law. Consequently, the causes of action did not
arise under federal law and, therefore, were improperly removed to
federal court."

															766 F.2d at 1006.

															We granted certiorari, 474 U.S. 1004 (1985), and we now
affirm. II Article III of the Constitution gives the federal courts power
to hear cases "arising under" federal statutes. [ Footnote 3 ] That grant of power, however, is
not self-executing, and it was not until the Judiciary Act of 1875
that Congress gave the federal courts general federal question
jurisdiction. [ Footnote 4 ]
Although the constitutional meaning of "arising under" may extend
to all cases in which a federal question is "an ingredient" of the
action, Osborn v. Bank of the United
States , 9 Wheat. 738, 22 U. S. 823 (1824), we have long construed the statutory grant of federal
question Jurisdiction as conferring a more limited power. Page 478 U. S. 808 Verlinden B.V. v. Central Bank of Nigeria, 461 U.
S. 480 , 461 U. S.
494 -495 (1983); Romero v. International Terminal
Operating Co., 358 U. S. 354 , 358 U. S. 379 (1959).

															Under our longstanding interpretation of the current statutory
scheme, the question whether a claim "arises under" federal law
must be determined by reference to the "well-pleaded complaint." Franchise Tax Board, 463 U.S. at 463 U. S. 9 -10. A
defense that raises a federal question is inadequate to confer
federal jurisdiction. Louisville & Nashville R. Co. v.
Mottley, 211 U. S. 149 (1908). Since a defendant may remove a case only if the claim could
have been brought in federal court, 28 U.S.C. § 1441(b), moreover,
the question for removal jurisdiction must also be determined by
reference to the "well-pleaded complaint."

															As was true in Franchise Tax Board, supra, the
propriety of the removal in this case thus turns on whether the
case falls within the original "federal question" jurisdiction of
the federal courts. There is no "single, precise definition" of
that concept; rather,

															"the phrase 'arising under' masks a welter of issues regarding
the interrelation of federal and state authority and the proper
management of the federal judicial system." Id. at 463 U. S. 8 .

															This much, however, is clear. The "vast majority" of cases that
come within this grant of jurisdiction are covered by Justice
Holmes' statement that a " suit arises under the law that
creates the cause of action.'" Id. at 463 U. S. 8 -9,
quoting American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257 , 241 U. S. 260 (1916). Thus, the vast majority of cases brought under the general
federal question jurisdiction of the federal courts are those in
which federal law creates the cause of action. We have, however, also noted that a case may arise under federal
law "where the vindication of a right under state law necessarily
turned on some construction of federal law." Page 478 U. S. 809 Franchise Tax Board, 463 U.S. at 463 U. S. 9 .
[ Footnote 5 ] Our actual holding
in Franchise Tax Board demonstrates that this statement
must be read with caution; the central issue presented in that case
turned on the meaning of the Employee Retirement Income Security
Act of 1974, 29 U.S.C. § 1001 et seq. (1982 ed. and Supp.
III), but we nevertheless concluded that federal jurisdiction was
lacking.

															This case does not pose a federal question of the first kind;
respondents do not allege that federal law creates any of the
causes of action that they have asserted. [ Footnote 6 ] This case thus poses what Justice
Frankfurter called the "litigation-provoking problem," Textile Workers v. Lincoln
Mills , 353 Page 478 U. S. 810 U.S. 448, 353 U. S. 470 (1957) (dissenting opinion) -- the presence of a federal issue in a
state-created cause of action.

															In undertaking this inquiry into whether jurisdiction may lie
for the presence of a federal issue in a nonfederal cause of
action, it is, of course, appropriate to begin by referring to our
understanding of the statute conferring federal question
jurisdiction. We have consistently emphasized that, in exploring
the outer reaches of § 1331, determinations about federal
jurisdiction require sensitive judgments about congressional
intent, judicial power, and the federal system.

															"If the history of the interpretation of judiciary legislation
teaches us anything, it teaches the duty to reject treating such
statutes as a wooden set of self-sufficient words. The Act of 1875
is broadly phrased, but it has been continuously construed and
limited in the light of the history that produced it, the demands
of reason and coherence, and the dictates of sound judicial policy
which have emerged from the Act's function as a provision in the
mosaic of federal judiciary legislation." Romero v. International Terminal Operating Co., 358
U.S. at 358 U. S. 379 .
In Franchise Tax Board, we forcefully reiterated this need
for prudence and restraint in the jurisdictional inquiry:

															"We have always interpreted what Skelly Oil [Co. v. Phillips
Petroleum Co., 339 U. S. 667 , 339 U. S.
673 (1950)] called 'the current of jurisdictional
legislation since the Act of March 3, 1875' . . . with an eye to
practicality and necessity."

															463 U.S. at 463 U. S. 20 .

															In this case, both parties agree with the Court of Appeals'
conclusion that there is no federal cause of action for FDCA
violations. For purposes of our decision, we assume that this is a
correct interpretation of the FDCA. Thus, as the case comes to us,
it is appropriate to assume that, under the settled framework for
evaluating whether a federal cause of action lies, some combination
of the following factors is present: (1) the plaintiffs are not
part of the class for whose special benefit the statute was passed;
(2) the indicia of legislative Page 478 U. S. 811 intent reveal no congressional purpose to provide a private
cause of action; (3) a federal cause of action would not further
the underlying purposes of the legislative scheme; and (4) the
respondents' cause of action is a subject traditionally relegated
to state law. [ Footnote 7 ] In
short, Congress did not intend a private federal remedy for
violations of the statute that it enacted.

															This is the first case in which we have reviewed this type of
jurisdictional claim in light of these factors. That this is so is
not surprising. The development of our framework for determining
whether a private cause of action exists has proceeded only in the
last 11 years, and its inception represented a significant change
in our approach to congressional silence on the provision of
federal remedies. [ Footnote
8 ]

															The recent character of that development does not, however,
diminish its importance. Indeed, the very reasons for the
development of the modern implied remedy doctrine -- the "increased
complexity of federal legislation and the increased volume of
federal litigation," as well as "the desirability of a more careful
scrutiny of legislative intent," Merrell Lynch, Pierce, Fenner
& Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 377 (1982) (footnote omitted) -- are precisely the kind of
considerations that should inform the concern for "practicality and
necessity" that Franchise Tax Board advised for the
construction of § 1331 when jurisdiction is asserted Page 478 U. S. 812 because of the presence of a federal issue in a state cause of
action.

															The significance of the necessary assumption that there is no
federal private cause of action thus cannot be overstated. For the
ultimate import of such a conclusion, as we have repeatedly
emphasized, is that it would flout congressional intent to provide
a private federal remedy for the violation of the federal statute.
[ Footnote 9 ] We think it would
similarly flout, or at least undermine, congressional intent to
conclude that the federal courts might nevertheless exercise
federal question jurisdiction and provide remedies for violations
of that federal statute solely because the violation of the federal
statute is said to be a "rebuttable presumption" or a "proximate
cause" under state law, rather than a federal action under federal
law. [ Footnote 10 ] Page 478 U. S. 813 III Petitioner advances three arguments to support its position
that, even in the face of this congressional preclusion of a
federal cause of action for a violation of the federal statute,
federal question jurisdiction may lie for the violation of the
federal statute as an element of a state cause of action.

															First, petitioner contends that the case represents a
straightforward application of the statement in Franchise Tax Board
that federal question jurisdiction is appropriate when "it appears
that some substantial, disputed question of federal law is a
necessary element of one of the well-pleaded state claims." 463
U.S. at 463 U. S. 13 . Franchise Tax Board, however, did not purport to disturb
the long-settled understanding that the mere presence of a federal
issue in a state cause of action does not automatically confer
federal question jurisdiction. [ Footnote 11 ] Indeed, in determining that federal question
jurisdiction was not appropriate in the case before us, we stressed
Justice Cardozo's emphasis on principled, pragmatic
distinctions:

															"'What is needed is something of that common-sense accommodation
of judgment to kaleidoscopic situations which characterizes the law
in its treatment of causation . . . , a selective process which
picks the substantial causes out of the web Page 478 U. S. 814 and lays the other ones aside.'" Id. at 463 U. S. 20 -21
(quoting Gully v. First National Bank, 299 U.
S. 109 , 299 U. S.
117 -118 (1936)).

															Far from creating some kind of automatic test, Franchise Tax
Board thus candidly recognized the need for careful judgments
about the exercise of federal judicial power in an area of
uncertain jurisdiction. Given the significance of the assumed
congressional determination to preclude federal private remedies,
the presence of the federal issue as an element of the state tort
is not the kind of adjudication for which jurisdiction would serve
congressional purposes and the federal system. This conclusion is
fully consistent with the very sentence relied on so heavily by
petitioner. We simply conclude that the congressional determination
that there should be no federal remedy for the violation of this
federal statute is tantamount to a congressional conclusion that
the presence of a claimed violation of the statute as an element of
a state cause of action is insufficiently "substantial" to confer
federal question jurisdiction. [ Footnote 12 ] Page 478 U. S. 815 Second, petitioner contends that there is a powerful federal
interest in seeing that the federal statute is given uniform
interpretations, and that federal review is the best way of
insuring such uniformity. In addition to the significance of the
congressional decision to preclude a federal remedy, we do Page 478 U. S. 816 not agree with petitioner's characterization of the federal
interest and its implications for federal question jurisdiction. To
the extent that petitioner is arguing that state use and
interpretation of the FDCA pose a threat to the order and stability
of the FDCA regime, petitioner should be arguing not that federal
courts should be able to review and enforce state FDCA-based causes
of action as an aspect of federal question jurisdiction, but that
the FDCA preempts state court jurisdiction over the issue in
dispute. [ Footnote 13 ]
Petitioner's concern about the uniformity of interpretation,
moreover, is considerably mitigated by the fact that, even if there
is no original district court jurisdiction for these kinds of
action, this Court retains power to review the decision of a
federal issue in a state cause of action. [ Footnote 14 ]

															Finally, petitioner argues that, whatever the general rule,
there are special circumstances that justify federal question
jurisdiction in this case. Petitioner emphasizes that it is unclear
whether the FDCA applies to sales in Canada and Scotland; there is,
therefore, a special reason for having a federal Page 478 U. S. 817 court answer the novel federal question relating to the
extraterritorial meaning of the Act. We reject this argument. We do
not believe the question whether a particular claim arises under
federal law depends on the novelty of the federal issue. Although
it is true that federal jurisdiction cannot be based on a frivolous
or insubstantial federal question, "the interrelation of federal
and state authority and the proper management of the federal
judicial system," Franchise Tax Board, 463 U.S. at 463 U. S. 8 , would
be ill-served by a rule that made the existence of federal question
jurisdiction depend on the district court's case-by-case appraisal
of the novelty of the federal question asserted as an element of
the state tort. The novelty of an FDCA issue is not sufficient to
give it status as a federal cause of action; nor should it be
sufficient to give a state-based FDCA claim status as a
jurisdiction-triggering federal question. [ Footnote 15 ] IV We conclude that a complaint alleging a violation of a federal
statute as an element of a state cause of action, when Congress has
determined that there should be no private, federal cause of action
for the violation, does not state a claim "arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. §
1331.

															The judgment of the Court of Appeals is affirmed. It is so ordered. Page 478 U. S. 818 [ Footnote 1 ]

															App. 36-37. The petition also alleged that the action "is
between citizens of a State and citizens or subjects of a foreign
state." Id. at 36. Because petitioner is a corporation
with its principal place of business in Ohio, however, the removal
was not proper unless the action was founded on a claim arising
under federal law. Title 28 U.S.C. § 1441(b) provides:

															"(b) Any civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none of
the parties in interest properly joined and served as defendants is
a citizen of the State in which such action is brought."

															[ Footnote 2 ]

															"'Under our interpretations, Congress has given the lower courts
jurisdiction to hear, originally or by removal from a state court,
only those cases in which a well-pleaded complaint establishes
either that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on resolution of a
substantial question of federal law.'"

															766 F.2d at 1006 (quoting Franchise Tax Board, 463 U.S.
at 463 U. S.
28 ).

															[ Footnote 3 ] See Art. III, § 2 ("The judicial Power shall extend to
all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which shall be
made, under their Authority. . . .").

															[ Footnote 4 ]

															Act of Mar. 3, 1875, § 1, 18 Stat. 470. As currently codified,
the statute provides:

															"The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws or treaties of
the United States."

															28 U.S.C. § 1331.

															[ Footnote 5 ]

															The case most frequently cited for that proposition is Smith
v. Kansas City Title & Trust Co., 255 U.
S. 180 (1921). In that case, the Court upheld federal
jurisdiction of a shareholder's bill to enjoin the corporation from
purchasing bonds issued by the federal land banks under the
authority of the Federal Farm Loan Act on the ground that the
federal statute that authorized the issuance of the bonds was
unconstitutional. The Court stated:

															"The general rule is that, where it appears from the bill or
statement of the plaintiff that the right to relief depends upon
the construction or application of the Constitution or laws of the
United States, and that such federal claim is not merely colorable,
and rests upon a reasonable foundation, the District Court has
jurisdiction under this provision." Id. at 255 U. S.
199 .

															The effect of this view, expressed over Justice Holmes' vigorous
dissent in his American Well Works formulation, has been
often noted. See, e.g., Franchise Tax Board, 463 U.S. at 463 U. S. 9 ("[I]t
is well settled that Justice Holmes' test is more useful for
describing the vast majority of cases that come within the district
courts' original jurisdiction than it is for describing which cases
are beyond district court jurisdiction"); T. B. Harms Co. v.
Eliscu, 339 F.2d 823, 827 (CA2 1964) (Friendly, J.) ("It has
come to be realized that Mr. Justice Holmes' formula is more useful
for inclusion than for the exclusion for which it was
intended").

															[ Footnote 6 ]

															Jurisdiction may not be sustained on a theory that the plaintiff
has not advanced. See Healy v. Sea Gull Specialty Co., 237 U. S. 479 , 237 U. S. 480 (1915) ("[T]he plaintiff is absolute master of what jurisdiction he
will appeal to"); The Fair v. Kohler Die & Specialty
Co., 228 U. S. 22 , 228 U. S. 25 (1913) ("[T]he party who brings a suit is master to decide what law
he will rely upon"). See also United States v Mottaz, 476 U. S. 834 , 476 U. S. 850 (1986).

															[ Footnote 7 ] See California v. Sierra Club, 451 U.
S. 287 , 451 U. S. 293 (1981); Cannon v. University of Chicago, 441 U.
S. 677 , 441 U. S.
689 -709 (1979); Cort v. Ash, 422 U. S.
66 , 422 U. S. 78 (1975).

															[ Footnote 8 ] See Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Curran, 456 U. S. 353 , 456 U. S. 377 (1982) ("In 1975, the Court unanimously decided to modify its
approach to the question whether a federal statute includes a
private right of action"). Cf. Middlesex County Sewerage
Authority v. National Sea Clammers Assn., 453 U. S.
1 , 453 U. S. 25 (1981) (STEVENS, J., concurring in judgment in part and dissenting
in part) ("In 1975, in Cort v. Ash, 422 U. S.
66 , the Court cut back on the simple common law
presumption by fashioning a four-factor formula that led to the
denial of relief in that case").

															[ Footnote 9 ] See, e.g., Daily Income Fund, Inc. v. Fox, 464 U.
S. 523 , 464 U. S.
535 -536 (1984) ("In evaluating such a claim, our focus
must be on the intent of Congress when it enacted the statute in
question"); Middlesex County Sewerage Authority v. National Sea
Clammers Assn., 453 U.S. at 453 U. S. 13 ("The key to the inquiry is the intent of the Legislature"); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 , 451 U. S. 639 (1981) ("Our focus, as it is in any case involving the implication
of a right of action, is on the intent of Congress"); California v. Sierra Club, 451 U.S. at 451 U. S. 293 ("[T]he ultimate issue is whether Congress intended to create a
private right of action"); Northwest Airlines, Inc. v.
Transport Workers, 451 U. S. 77 , 451 U. S. 91 (1981) ("The ultimate question in cases such as this is whether
Congress intended to create the private remedy"); Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U. S.
11 , 444 U. S. 15 (1979) ("The question whether a statute creates a cause of action,
either expressly or by implication, is basically a matter of
statutory construction"); Touche Ross & Co. v.
Redington, 442 U. S. 560 , 442 U. S. 568 (1979) ("The question of the existence of a statutory cause of
action is of course, one of statutory construction").

															[ Footnote 10 ]

															When we conclude that Congress has decided not to provide a
particular federal remedy, we are not free to "supplement" that
decision in a way that makes it "meaningless." Cf. Mobil Oil
Corp. v. Higginbotham, 436 U. S. 618 , 436 U. S. 625 (1978) (When Congress "does speak directly to a question, the
courts are not free to supplement' Congress' answer so
thoroughly that the Act becomes meaningless"). See also
California v. Sierra Club, 451 U.S. at 451 U. S. 297 ("The federal judiciary will not engraft a remedy on a statute, no
matter how salutary, that Congress did not intend to
provide"). [ Footnote 11 ] See, e.g., Textile Workers v. Lincoln Mills, 353 U. S. 448 , 353 U. S. 470 (1957) (Frankfurter, J., dissenting) (defining inquiry as "the
degree to which federal law must be in the forefront of the case
and not collateral, peripheral or remote"); Gully v. First
National Bank, 299 U. S. 109 , 299 U. S. 115 (1936) ("Not every question of federal law emerging in a suit is
proof that a federal law is the basis of the suit"); id. at 299 U. S. 118 ("If we follow the ascent far enough, countless claims of right can
be discovered to have their source or their operative limits in the
provisions of a federal statute or in the Constitution itself, with
its circumambient restrictions upon legislative power. To set
bounds to the pursuit, the courts have formulated the distinction
between controversies that are basic and those that are collateral,
between disputes that are necessary and those that are merely
possible. We shall be lost in a maze if we put that compass
by").

															[ Footnote 12 ]

															Several commentators have suggested that our § 1331 decisions
can best be understood as an evaluation of the nature of
the federal interest at stake. See, e.g., Shapiro,
Jurisdiction and Discretion, 60 N.Y.U.L.Rev. 543, 668 (1985); C.
Wright, Federal Courts 96 (4th ed.1983); Cohen, The Broken Compass:
The Requirement That a Case Arise "Directly" Under Federal Law, 115
U.PaL.Rev. 890, 916 (1967). Cf. Kravitz v. Homeowners Warranty
Corp., 542 F.
Supp. 317 , 320 (ED Pa.1982) (Pollak, J.) ("I cannot identify
any compelling reasons of federal judicial policy for embracing a
case of this kind as a federal question case. The essential
Pennsylvania elements of plaintiffs' suit for rescission would be
more appropriately dealt with by a Court of Common Pleas than by
this court; and, with respect to the lesser-included issue of
federal law, Pennsylvania's courts are fully competent to interpret
the Magnuson-Moss Warranty Act and the relevant F.T.C. regulations,
subject to review by the United States Supreme Court").

															Focusing on the nature of the federal interest, moreover,
suggests that the widely perceived "irreconcilable" conflict
between the finding of federal jurisdiction in Smith v. Kansas
City Title & Trust Co., 255 U. S. 180 (1921), and the finding of no jurisdiction in Moore v.
Chesapeake & Ohio R. Co., 291 U.
S. 205 (1934), see, e.g, M. Redish, Federal
Jurisdiction: Tensions in the Allocation of Judicial Power 67
(1980), is far from clear. For the difference in results can be
seen as manifestations of the differences in the nature of the
federal issues at stake. In Smith, as the Court
emphasized, the issue was the constitutionality of an important
federal statute. See 255 U.S. at 255 U. S. 201 ("It is . . . apparent that the controversy concerns the
constitutional validity of an act of Congress which is directly
drawn in question. The decision depends upon the determination of
this issue"). In Moore, in contrast, the Court emphasized
that the violation of the federal standard as an element of state
tort recovery did not fundamentally change the state tort nature of
the action. See 291 U.S. at 291 U. S.
216 -217 (" The action fell within the familiar
category of cases involving the duty of a master to his servant.
This duty is defined by the common law, except as it may be
modified by legislation. The federal statute, in the present case,
touched the duty of the master at a single point and, save as
provided in the statute, the right of the plaintiff to recover was
left to be determined by the law of the State'") (quoting Minneapolis, St. P. & S.S.M. R. Co. v. Popplar, 237 U. S. 369 , 237 U. S. 372 (1915)). The importance of the nature of the federal issue in federal
question jurisdiction is highlighted by the fact that, despite the
usual reliability of the Holmes test as an inclusionary principle,
this Court has sometimes found that formally federal causes of
action were not properly brought under federal question
jurisdiction because of the overwhelming predominance of state law
issues. See Shulthis v. McDougal, 225 U.
S. 561 , 225 U. S.
569 -570 (1912) ("A suit to enforce a right which takes
its origin in the laws of the United States is not necessarily, or
for that reason alone, one arising under those laws, for a suit
does not so arise unless it really and substantially involves a
dispute or controversy respecting the validity, construction or
effect of such a law, upon the determination of which the result
depends. This is especially so of a suit involving rights to land
acquired under a law of the United States. If it were not, every
suit to establish title to land in the central and western States
would so arise, as all titles in those States are traceable back to
those laws"); Shoshone Mining Co. v. Rutter, 177 U.
S. 505 , 177 U. S. 507 (1900) ("We pointed out in the former opinion that it was well
settled that a suit to enforce a right which takes its origin in
the laws of the United States is not necessarily one arising under
the Constitution or laws of the United States, within the meaning
of the jurisdiction clauses, for, if it did, every action to
establish title to real estate (at least in the newer States) would
be such a one, as all titles in those States come from the United
States or by virtue of its laws").

															[ Footnote 13 ] Cf. Longshoremen v. Davis, 476 U.
S. 380 , 476 U. S. 391 (1986) ("[O]ur decisions describing the nature of Garmon preemption and defining its boundaries have rested on a
determination that, in enacting the [National Labor Relations Act],
Congress intended for the [National Labor Relations] Board
generally to exercise exclusive jurisdiction in this area").

															[ Footnote 14 ] See Moore v. Chesapeake & Ohio R. Co., 291 U.S. at 291 U. S. 214 215 ("Questions arising in actions in state courts to recover for
injuries sustained by employees in intrastate commerce and relating
to the scope or construction of the Federal Safety Appliance Acts
are, of course, federal questions which may appropriately be
reviewed in this Court. But it does not follow that a suit brought
under the state statute which defines liability to employees who
are injured while engaged in intrastate commerce, and brings within
the purview of the statute a breach of the duty imposed by the
federal statute, should be regarded as a suit arising under the
laws of the United States and cognizable in the federal court in
the absence of diversity of citizenship"). Cf. Franchise Tax
Board, 463 U.S. at 463 U. S. 12 , n.
12 ("[T]he absence of original jurisdiction does not mean that
there is no federal forum in which a preemption defense may be
heard. If the state courts reject a claim of federal preemption,
that decision may ultimately be reviewed on appeal by this
Court").

															[ Footnote 15 ]

															Petitioner also contends that the Court of Appeals opinion rests
on a view that federal question jurisdiction was inappropriate
because, whatever the role of the federal issue in the FDCA-related
count, the plaintiff could recover on other, strictly state law,
claims. See 766 F.2d at 1006 (noting that "the jury could
find negligence on the part of Merrell Dow without finding a
violation of the FDCA"). To the extent that the opinion can be read
to express such a view, we agree that it was erroneous. If the
FDCA-related count presented a sufficient federal question, its
relationship to the other, state law, claims would be determined by
the ordinary principles of pendent jurisdiction described in Mine Workers v. Gibbs, 383 U. S. 715 (1966). For the reasons that we have stated, however, there is no
federal question jurisdiction even with that possible error
corrected.

															JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE MARSHALL, and
JUSTICE BLACKMUN join, dissenting.

															Article III, § 2, of the Constitution provides that the federal
judicial power shall extend to

															"all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall be
made, under their Authority."

															We have long recognized the great breadth of this grant of
jurisdiction, holding that there is federal jurisdiction whenever a
federal question is an "ingredient" of the action, Osborn v.
Bank of the United States , 9 Wheat. 738, 22 U. S. 823 (1824), and suggesting that there may even be jurisdiction simply
because a case involves "potential federal questions," Textile
Workers v. Lincoln Mills, 353 U. S. 448 , 353 U. S. 471 (1957) (Frankfurter, J., dissenting); see also Osborn,
supra, at 22 U. S. 824 ; Martin v. Hunter's
Lessee , 1 Wheat. 304 (1816); Pacific Railroad
Removal Cases, 115 U. S. 1 (1885); Verlinden B.V. v. Central Bank of Nigeria, 461 U.
S. 480 , 461 U. S.
492 -493 (1983).

															Title 28 U.S.C. § 1331 provides, in language that parrots the
language of Article III, that the district courts shall have
original jurisdiction "of all civil actions arising under the
Constitution, laws, or treaties of the United States." Although
this language suggests that Congress intended in § 1331 to confer
upon federal courts the full breadth of permissible "federal
question" jurisdiction (an inference that is supported by the
contemporary evidence, see Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U. S. 1 , 463 U. S. 8 , n. 8
(1983); Forrester, The Nature of a "Federal Question," 16 Tulane
L.Rev. 362, 374 376 (1942); Shapiro, Jurisdiction and Discretion,
60 N.Y.U.L.Rev. 543, 568 (1985)), § 1331 has been construed more
narrowly than its constitutional counterpart. See Verlinden
B.V., supra, at 461 U. S.
494 -495; Romero v. International Terminal Operating
Co., 358 U. S. 354 , 358 U. S. 379 (1959). Nonetheless, given the language of the statute and its
close relation to the constitutional grant of federal question
jurisdiction, limitations on federal question jurisdiction under §
1331 must be justified by careful consideration of the reasons Page 478 U. S. 819 underlying the grant of jurisdiction and the need for federal
review. Ibid. I believe that the limitation on federal
jurisdiction recognized by the Court today is inconsistent with the
purposes of § 1331. Therefore, I respectfully dissent. I While the majority of cases covered by § 1331 may well be
described by Justice Holmes' adage that "[a] suit arises under the
law that creates the cause of action," American Well Works Co.
v. Layne & Bowler Co., 241 U. S. 257 , 241 U. S. 260 (1916), it is firmly settled that there may be federal question
jurisdiction even though both the right asserted and the remedy
sought by the plaintiff are state created. See C. Wright,
Federal Courts § 17, pp. 95-96 (4th ed.1983) (hereinafter Wright);
M. Redish, Federal Jurisdiction: Tensions in the Allocation of
Judicial Power 64-71 (1980) (hereinafter Redish). The rule as to
such cases was stated in what Judge Friendly described as "[t]he
path-breaking opinion" in Smith v. Kansas City Title &
Trust Co., 255 U. S. 180 (1921). T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (CA2
1964). In Smith, a shareholder of the defendant
corporation brought suit in the federal court to enjoin the
defendant from investing corporate funds in bonds issued under the
authority of the Federal Farm Loan Act. The plaintiff alleged that
Missouri law imposed a fiduciary duty on the corporation to invest
only in bonds that were authorized by a valid law, and argued that,
because the Farm Loan Act was unconstitutional, the defendant could
not purchase bonds issued under its authority. Although the cause
of action was wholly state-created, the Court held that there was
original federal jurisdiction over the case:

															"The general rule is that, where it appears from the bill or
statement of the plaintiff that the right to relief depends upon
the construction or application of the Constitution or laws of the
United States, and that such federal claim is not merely colorable,
and rests upon a reasonable foundation, the District Court has
jurisdiction Page 478 U. S. 820 under [the statute granting federal question jurisdiction]."

															255 U.S. at 255 U. S.
199 .

															The continuing vitality of Smith is beyond challenge.
We have cited it approvingly on numerous occasions, and reaffirmed
its holding several times -- most recently just three Terms ago by
a unanimous Court in Franchise Tax Board v. Construction
Laborers Vacation Trust, supra, at 463 U. S. 9 . See American Bank & Trust Co. v. Federal Reserve Bank of
Atlanta, 256 U. S. 350 , 256 U. S. 357 (1921); Bell v. Hood, 327 U. S. 678 , 327 U. S. 685 (1946); Association of Westinghouse Salaried Employees v.
Westinghouse Electric Corp., 348 U. S. 437 , 348 U. S. 450 ,
and n. 18 (1955) (plurality opinion); Machinists v. Central
Airlines, Inc., 372 U. S. 682 , 372 U. S. 696 (1963); Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U. S. 59 , 438 U. S. 70 (1978). See also Ashwander v. TVA, 297 U.
S. 288 , 297 U. S. 356 (1936) (separate opinion of McReynolds, J.); Textile Workers v.
Lincoln Mills, supra, at 353 U. S. 470 (Frankfurter, J., dissenting); Wheeldin v. Wheeler, 373 U. S. 647 , 373 U. S. 659 (1963) (BRENNAN, J., dissenting). Cf. Gully v. First National
Bank, 299 U. S. 109 , 299 U. S. 112 (1936) ("To bring a case within [§ 1331], a right or immunity
created by the Constitution or laws of the United States must be an
element, and an essential one, of the plaintiff's cause of
action"). Moreover, in addition to Judge Friendly's authoritative
opinion in T.B. Harms Co. v. Eliscu, supra, at 827, Smith has been widely cited and followed in the lower
federal courts. See, e.g., Hanes Corp. v. Millard, 174
U.S.App.D.C. 253, 263, n. 8, 531 F.2d 585, 595 n. 8 (1976); Mungin v. Florida East Coast R. Co., 416 F.2d 1169,
1176-1177 (CA5 1969); Ivy Broadcasting Co. v. American Tel.
& Tel. Co., 391 F.2d 486, 492 (CA2 1968); Warrington
Sewer Co. v. Tracy, 463 F.2d 771, 772 (CA3 1972) (per curiam); New York by Abrams v. Citibank, N.A. 537 F.
Supp. 1192 , 1196 (SDNY 1982); Kravitz v. Homeowners
Warranty Corp., 542 F.
Supp. 317 , 319 (ED Pa.1982). See also Stone & Webster
Engineering Corp. v. Ilsley, 690 F.2d 323 (CA2 1982); Christopher v. Cavallo, 662 F.2d 1082 (CA4 1981); Mountain Fuel Supply Co. v. Johnson oil Co., 586 F.2d 1375
(CA10 1978), Page 478 U. S. 821 cert. denied, 441 U.S. 952 (1979); Garrett v.
Time-D.C., Inc., 502 F.2d 627 (CA9 1974), cert.
denied, 421 U.S. 913 (1975); Sweeney v.
Abramovitz, 449 F.
Supp. 213 (Conn.1978). Furthermore, the principle of the Smith case has been recognized and endorsed by most
commentators, as well. Redish 67, 69; American Law Institute, Study
of the Division of Jurisdiction Between State and Federal Courts
178 (1969) (hereinafter ALI); Wright § 17, at 96; P. Bator, P.
Mistakin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The
Federal Courts and the Federal System 889 (2d ed., 1973); Mistakin,
The Federal "Question" in the District Courts, 53 Colum.L.Rev. 157,
166 (1953); Wechsler, Federal Jurisdiction and the Revision of the
Judicial Code, 13 Law & Contemp.Prob. 216, 225 (1948).
[ Footnote 2/1 ] Page 478 U. S. 822 There is, to my mind, no question that there is federal
jurisdiction over the respondents' fourth cause of action under the
rule set forth in Smith and reaffirmed in Franchise
Tax Page 478 U. S. 823 Board. Respondents pleaded that petitioner's labeling
of the drug Bendectin constituted "misbranding" in violation of §§
201 and 502(f)(2) and (j) of the Federal Food, Drug, and Cosmetic
Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. (1982 ed. and Supp. III), and that this violation
"directly and proximately caused" their injuries. App. 21-22
(Thompson complaint), 31-32 (MacTavish complaint). Respondents
asserted in the complaint that this violation established
petitioner's negligence per se, and entitled them to
recover damages without more. Ibid. No other basis for
finding petitioner negligent was asserted in connection with this
claim. As pleaded, then, respondents' "right to relief depend[ed]
upon the construction or application of the Constitution or laws of
the United States." Smith, 255 U.S. at 255 U. S. 199 ; see also Franchise Tax Board, 463 U.S. at 463 U. S. 28 (there is federal jurisdiction under § 1331 where the plaintiff's
right to relief "necessarily depends" upon resolution of a federal
question). [ Footnote 2/2 ]
Furthermore, although petitioner disputes its liability under the
FDCA, it concedes that respondents' claim that petitioner violated
the FDCA is "colorable, and rests upon a reasonable foundation." Smith, supra, at 255 U. S. 199 .
[ Footnote 2/3 ] Page 478 U. S. 824 Of course, since petitioner must make this concession to prevail
in this Court, it need not be accepted at face value. However,
independent examination of respondents' claim substantiates the
conclusion that it is neither frivolous nor meritless. As stated in
the complaint, a drug is "misbranded" under the FDCA if

															"the labeling or advertising fails to reveal facts material . .
. with respect to consequences which may result from the use of the
article to which the labeling or advertising relates. . . ."

															21 U.S.C. § 321(n). Obviously, the possibility that a mother's
ingestion of Bendectin during pregnancy could produce malformed
children is material. Petitioner's principal defense is that the
Act does not govern the branding of drugs that are sold in foreign
countries. It is certainly not immediately obvious whether this
argument is correct. Thus, the statutory question is one which
"discloses a need for determining the meaning or application of
[the FDCA]," T. B. Harms Co. v. Eliscu, 339 F.2d at 827,
and the claim raised by the fourth cause of action is one "arising
under" federal law within the meaning of § 1331. II The Court apparently does not disagree with any of this --
except, of course, for the conclusion. According to the Court, if
we assume that Congress did not intend that there be a private
federal cause of action under a particular federal law (and,
presumably, a fortiori, if Congress' decision not to
create a private remedy is express), we must also assume that
Congress did not intend that there be federal jurisdiction over a
state cause of action that is determined by that federal law.
Therefore, assuming---only because the parties Page 478 U. S. 825 have made a similar assumption -- that there is no private cause
of action under the FDCA, [ Footnote
2/4 ] the Court holds that there is no federal jurisdiction over
the plaintiffs' claim:

															"The significance of the necessary assumption that there is no
federal private cause of action thus cannot be overstated. For the
ultimate import of such a conclusion, as we have repeatedly
emphasized, is that it would flout congressional intent to provide
a private federal remedy for the violation of the federal statute.
We think it would similarly flout, or at least undermine,
congressional intent to conclude that the federal courts might
nevertheless exercise federal question jurisdiction and provide
remedies for violations of that federal statute solely because the
violation of the federal statute is said to be a 'rebuttable
presumption' or a 'proximate cause' under state law, rather than a
federal action under federal law." Ante at 478 U. S. 812 (footnotes omitted).

															The Court nowhere explains the basis for this conclusion. Yet it
is hardly self-evident. Why should the fact that Congress chose not
to create a private federal remedy mean that Congress
would not want there to be federal jurisdiction to
adjudicate a state claim that imposes liability for violating the
federal law? Clearly, the decision not to provide a private federal
remedy should not affect federal jurisdiction unless the reasons
Congress withholds a federal remedy are also reasons for
withholding federal jurisdiction. Thus, it is necessary Page 478 U. S. 826 to examine the reasons for Congress' decisions to grant or
withhold both federal jurisdiction and private remedies, something
the Court has not done. A In the early days of our Republic, Congress was content to leave
the task of interpreting and applying federal laws in the first
instance to the state courts; with one short-lived exception,
[ Footnote 2/5 ] Congress did not
grant the inferior federal courts original jurisdiction over cases
arising under federal law until 1875. Judiciary Act of 1875, ch.
137, § 1, 18 Stat. 470. The reasons Congress found it necessary to
add this jurisdiction to the district courts are well known. First,
Congress recognized

															"the importance, and even necessity, of uniformity of decisions
throughout the whole United States, upon all subjects within the
purview of the constitution." Martin v. Hunter's Lessee, 1 Wheat. at 347-348 (Story,
J.) (emphasis in original). See also Comment, Federal
Preemption, Removal Jurisdiction, and the Well-Pleaded Complaint
Rule, 51 U.Chi.L.Rev. 634, 636 (1984) (hereinafter Comment); D.
Currie, Federal Courts 160 (3d ed.1982) (hereinafter Currie).
Concededly, because federal jurisdiction is not always exclusive
and because federal courts may disagree with one another, absolute
uniformity has not been obtained even under § 1331. However, while
perfect uniformity may not have been achieved, experience indicates
that the availability of a federal forum in federal question cases
has done much to advance that goal. This, in fact, was the
conclusion of the American Law Institute's Study of the Division of
Jurisdiction Between State and Federal Courts. ALI 164-168.

															In addition, § 1331 has provided for adjudication in a forum
that specializes in federal law, and that is therefore more likely
to apply that law correctly. Because federal question Page 478 U. S. 827 cases constitute the basic grist for federal tribunals, "[t]he
federal courts have acquired a considerable expertness in the
interpretation and application of federal law." Id.. at
164-165. By contrast, "it is apparent that federal question cases
must form a very small part of the business of [state] courts." Id. at 165. As a result, the federal courts are
comparatively more skilled at interpreting and applying federal
law, and are much more likely correctly to divine Congress' intent
in enacting legislation. [ Footnote
2/6 ] See ibid.; Redish 71; Currie 160; Comment 636;
Hornstein, Federalism, Judicial Power and the "Arising Under"
Jurisdiction of the Federal Courts: A Hierarchical Analysis, 56
Ind.L.J. 563, 564-565 (1981).

															These reasons for having original federal question jurisdiction
explain why cases like this one and Smith, cases where the
cause of action is a creature of state law, but an Page 478 U. S. 828 essential element of the claim is federal -- "arise under"
federal law within the meaning of § 1331. Congress passes laws in
order to shape behavior; a federal law expresses Congress'
determination that there is a federal interest in having
individuals or other entities conform their actions to a particular
norm established by that law. Because all laws are imprecise to
some degree, disputes inevitably arise over what specifically
Congress intended to require or permit. It is the duty of courts to
interpret these laws and apply them in such a way that the
congressional purpose is realized. As noted above, Congress granted
the district courts power to hear cases "arising under" federal law
in order to enhance the likelihood that federal laws would be
interpreted more correctly and applied more uniformly. In other
words, Congress determined that the availability of a federal forum
to adjudicate cases involving federal questions would make it more
likely that federal laws would shape behavior in the way that
Congress intended.

															By making federal law an essential element of a state law claim,
the State places the federal law into a context where it will
operate to shape behavior: the threat of liability will force
individuals to conform their conduct to interpretations of the
federal law made by courts adjudicating the state law claim. It
will not matter to an individual found liable whether the officer
who arrives at his door to execute judgment is wearing a state or a
federal uniform; all he cares about is the fact that a sanction is
being imposed, and may be imposed again in the future -- because he
failed to comply with the federal law. Consequently, the
possibility that the federal law will be incorrectly interpreted in
the context of adjudicating the state law claim implicates the
concerns that led Congress to grant the district courts power to
adjudicate cases involving federal questions in precisely the same
way as if it was federal law that "created" the cause of action. It
therefore follows that there is federal jurisdiction under §
1331. Page 478 U. S. 829 B The only remaining question is whether the assumption that
Congress decided not to create a private cause of action alters
this analysis in a way that makes it inappropriate to exercise
original federal jurisdiction. According to the Court, "the very
reasons for the development of the modern implied remedy doctrine"
support the conclusion that, where the legislative history of a
particular law shows (whether expressly or by inference) that
Congress intended that there be no private federal remedy, it must
also mean that Congress would not want federal courts to exercise
jurisdiction over a state law claim making violations of that
federal law actionable. Ante at 478 U. S. 811 .
These reasons are " the increased complexity of federal
legislation,'" "`the increased volume of federal litigation,'" and
"`the desirability of a more careful scrutiny of legislative
intent.'" Ibid. (quoting Merrill Lynch, Pierce, Fenner
& Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 377 (1982)). These reasons simply do not justify the Court's holding. Given
the relative expertise of the federal courts in interpreting
federal law, supra, at 478 U. S.
826 -827, the increased complexity of federal legislation
argues rather strongly in favor of recognizing federal
jurisdiction. And, while the increased volume of litigation may
appropriately be considered in connection with reasoned arguments
that justify limiting the reach of § 1331, I do not believe that
the day has yet arrived when this Court may trim a statute solely
because it thinks that Congress made it too broad. [ Footnote 2/7 ] Page 478 U. S. 830 This leaves only the third reason: " the desirability of a
more careful scrutiny of legislative intent.'" Ante at 478 U. S. 811 .
I certainly subscribe to the proposition that the Court should
consider legislative intent in determining whether or not there is
jurisdiction under § 1331. But the Court has not examined the
purposes underlying either the FDCA or § 1331 in reaching its
conclusion that Congress' presumed decision not to provide a
private federal remedy under the FDCA must be taken to withdraw
federal jurisdiction over a private state remedy that imposes
liability for violating the FDCA. Moreover, such an examination
demonstrates not only that it is consistent with legislative intent
to find that there is federal jurisdiction over such a claim, but,
indeed, that it is the Court's contrary conclusion that is
inconsistent with congressional intent. The enforcement scheme established by the FDCA is typical of
other, similarly broad regulatory schemes. Primary responsibility
for overseeing implementation of the Act has been conferred upon a
specialized administrative agency, here, the Food and Drug
Administration (FDA). [ Footnote
2/8 ] Congress has provided the FDA with a wide-ranging arsenal
of weapons to combat violations of the FDCA, including authority to
obtain an ex parte court order for the seizure of goods
subject to the Act, see 21 U.S.C. § 334, authority to
initiate proceedings in a federal district court to enjoin
continuing violations of the FDCA, see § 332, and
authority to request a United States Attorney to bring criminal
proceedings against violators, see § 333. See
generally 1 J. O'Reilly, Food and Drug Administration, chs.
6-10 (1979 and Supp.1985). Significantly, the FDA has no
independent enforcement authority; final enforcement must come from
the federal courts, Page 478 U. S. 831 which have exclusive jurisdiction over actions under the FDCA. See §§ 332(a), 333, 334(a)(1). Thus, while the initial
interpretive function has been delegated to an expert
administrative body whose interpretations are entitled to
considerable deference, final responsibility for interpreting the
statute in order to carry out the legislative mandate belongs to
the federal courts. Cf. 467 U. S. S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.
S. 837 , 8 467 U. S. 43 , n.
9 (1984) ("The judiciary is the final authority on issues of
statutory construction, and must reject administrative
constructions which are contrary to clear congressional
intent").

															Given that Congress structured the FDCA so that all express
remedies are provided by the federal courts, it seems rather
strange to conclude that it either "flout[s]" or "undermine[s]"
congressional intent for the federal courts to adjudicate a private
state law remedy that is based upon violating the FDCA. See
ante at 478 U. S. 812 .
That is, assuming that a state cause of action based on the FDCA is
not preempted, it is entirely consistent with the FDCA to find that
it "arises under" federal law within the meaning of § 1331. Indeed,
it is the Court's conclusion that such a state cause of action must
be kept out of the federal courts that appears contrary to
legislative intent, inasmuch as the enforcement provisions of the
FDCA quite clearly express a preference for having federal courts
interpret the FDCA and provide remedies for its violation.

															It may be that a decision by Congress not to create a private
remedy is intended to preclude all private enforcement. If that is
so, then a state cause of action that makes relief available to
private individuals for violations of the FDCA is preempted. But if
Congress' decision not to provide a private federal remedy does not preempt such a state remedy, then, in light of the
FDCA's clear policy of relying on the federal courts for
enforcement, it also should not foreclose federal jurisdiction over
that state remedy. Both § 1331 and the enforcement provisions of
the FDCA reflect Congress' strong Page 478 U. S. 832 desire to utilize the federal courts to interpret and enforce
the FDCA, and it is therefore at odds with both these statutes to
recognize a private state law remedy for violating the FDCA, but to
hold that this remedy cannot be adjudicated in the federal
courts.

															The Court's contrary conclusion requires inferring from
Congress' decision not to create a private federal remedy that,
while some private enforcement is permissible in state courts, it
is "bad" if that enforcement comes from the federal courts. But
that is simply illogical. Congress' decision to withhold a private
right of action and to rely instead on public enforcement reflects
congressional concern with obtaining more accurate implementation
and more coordinated enforcement of a regulatory scheme. See
National Railroad Passenger Corporation v. National Assn. of
Railroad Passengers, 414 U. S. 453 , 414 U. S.
462 -465 (1974); Holloway v. Bristol-Myers
Corp., 158 U.S.App.D.C. 207, 218-220, 485 F.2d 986, 997-999
(1973); Stewart & Sunstein, Public Programs and Private Rights,
95 Harv.L.Rev. 1193, 1208-1209 (1982). These reasons are closely
related to the Congress' reasons for giving federal courts original
federal question jurisdiction. Thus, if anything, Congress'
decision not to create a private remedy strengthens the
argument in favor of finding federal jurisdiction over a state
remedy that is not preempted.

															[ Footnote 2/1 ]

															Some commentators have argued that the result in Smith conflicts with our decision in Moore v. Chesapeake & Ohio
R. Co., 291 U. S. 205 (1934). See, e.g., Greene, Hybrid State Law in the Federal
Courts, 83 Harv.L.Rev. 289, 323 (1969). In Moore, the
plaintiff brought an action under Kentucky's Employer Liability
Act, which provided that a plaintiff could not be held responsible
for contributory negligence or assumption of risk where his injury
resulted from the violation of any state or federal statute enacted
for the safety of employees. The plaintiff in Moore alleged that his injury was due to the defendant's failure to
comply with the Federal Safety Appliance Act; therefore, an
important issue in the adjudication of the state cause of action
was whether the terms of the federal law had been violated. The
Court could have dismissed the complaint on the ground that the
federal issue would arise only in response to a defense of
contributory negligence or assumption of risk, and that, therefore,
there was no jurisdiction under the well-pleaded complaint rule.
Instead, the Court held that

															"a suit brought under the state statute which defines liability
to employees who are injured while engaged in intrastate commerce,
and brings within the purview of the statute a breach of the duty
imposed by the federal statute, should [not] be regarded as a suit
arising under the laws of the United States and cognizable in the
federal court in the absence of diversity of citizenship."

															291 U.S. at 291 U. S.
214 -215.

															The Court suggests that Smith and Moore may be
reconciled if one views the question whether there is jurisdiction
under § 1331 as turning upon "an evaluation of the nature of the federal interest at stake." Ante at 478 U. S. 814 ,
n. 12 (emphasis in original). Thus, the Court explains, while in Smith the issue was the constitutionality of "an important
federal statute," in Moore, the federal interest was less
significant, in that "the violation of the federal standard as an
element of state tort recovery did not fundamentally change the
state tort nature of the action." Ante at 478 U. S. 815 ,
n. 12.

															In one sense, the Court is correct in asserting that we can
reconcile Smith and Moore on the ground that the
"nature" of the federal interest was more significant in Smith than in Moore. Indeed, as the Court appears
to believe, ante at 478 U. S.
814 -815, n. 12, we could reconcile many of the seemingly
inconsistent results that have been reached under § 1331 with such
a test. But this is so only because a test based upon an ad
hoc evaluation of the importance of the federal issue is
infinitely malleable: at what point does a federal interest become
strong enough to create jurisdiction? What principles guide the
determination whether a statute is "important" or not? Why, for
instance, was the statute in Smith so "important" that
direct review of a state court decision (under our mandatory
appellate jurisdiction) would have been inadequate? Would the
result in Moore have been different if the federal issue
had been a more important element of the tort claim? The point is
that, if one makes the test sufficiently vague and general,
virtually any set of results can be "reconciled." However, the
inevitable -- and undesirable -- result of a test such as that
suggested in the Court's footnote 12 is that federal jurisdiction
turns in every case on an appraisal of the federal issue, its
importance and its relation to state law issues. Yet it is
precisely because the Court believes that federal jurisdiction
would be "ill-served" by such a case-by-case appraisal that it
rejects petitioner's claim that the difficulty and importance of
the statutory issue presented by its claim suffices to confer
jurisdiction under § 1331. Ante at 478 U. S. 817 .
The Court cannot have it both ways.

															My own view is in accord with those commentators who view the
results in Smith and Moore as irreconcilable. See, e.g., Redish 67; D. Currie, Federal Jurisdiction in a
Nutshell 109 (2d ed.1981). That fact does not trouble me greatly,
however, for I view Moore as having been a "sport" at the
time it was decided, and having long been in a state of innocuous
desuetude. Unlike the jurisdictional holding in Smith, the
jurisdictional holding in Moore has never been relied upon
or even cited by this Court. Moore has similarly borne little fruit
in the lower courts, leading Professor Redish to conclude, after
comparing the vitality of Smith and Moore, that
"the principle enunciated in Smith is the one widely
followed by modern lower federal courts." Redish 67. Finally, as
noted in text, the commentators have also preferred Smith. Supra at 478 U. S. 821 . Moore simply has not survived the test of time; it is
presently moribund, and, to the extent that it is inconsistent with
the well-established rule of the Smith case, it ought to
be overruled.

															[ Footnote 2/2 ]

															As the Court correctly notes, the Court of Appeals erred in
holding that respondents' right to relief did not depend upon the
resolution of a federal question because respondents might prevail
on one of their other, wholly state law, claims. The fourth cause
of action presents an independent and independently sufficient
claim for relief. Whether it "arises under" federal law within the
meaning of § 1331 must therefore be determined without reference to
any other claims, as if only that claim was asserted. If, after
such consideration, it is determined that there is jurisdiction,
the plaintiff may join additional state law claims meeting the test
for pendent jurisdiction set forth in Mine Workers v.
Gibbs, 383 U. S. 715 (1966). See ante at 478 U. S. 817 ,
n. 15.

															[ Footnote 2/3 ] Franchise Tax Board states that the plaintiff's right
to relief must necessarily depend upon resolution of a
"substantial" federal question. 463 U.S. at 463 U. S. 28 . In
context, however, it is clear that this was simply another way of
stating that the federal question must be colorable and have a
reasonable foundation. This understanding is consistent with the
manner in which the Smith test has always been applied, as
well as with the way we have used the concept of a "substantial"
federal question in other cases concerning federal jurisdiction. See, e.g., Hagans v. Lavine, 415 U.
S. 528 , 415 U. S.
536 -537 (1974); Bell v. Hood, 327 U.
S. 678 , 327 U. S. 682 (1946).

															[ Footnote 2/4 ]

															It bears emphasizing that the Court does not hold that
there is no private cause of action under the FDCA. Rather, it
expressly states that, "[f]or purposes of our decision, we assume
that this is a correct interpretation of the FDCA." Ante at 478 U.S. 810 . The Court
simply holds petitioner to its concession that the FDCA provides no
private remedy, and decides petitioner's claim on the basis of this
concession. I shall do the same. Under the Court's analysis,
however, if a party persuaded a court that there is a private cause
of action under the FDCA, there would be federal jurisdiction under Smith and Franchise Tax Board over a state cause
of action making violations of the FDCA actionable. Such
jurisdiction would apparently exist even if the plaintiff did not
seek the federal remedy.

															[ Footnote 2/5 ]

															Congress granted original federal question jurisdiction briefly
in the Midnight Judges Act, ch. 4, § 11, 2 Stat. 92 (1801), which
was repealed in 1802, Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat.
132.

															[ Footnote 2/6 ]

															Another reason Congress conferred original federal question
jurisdiction on the district courts was its belief that state
courts are hostile to assertions of federal rights. See Hornstein, Federalism, Judicial Power and the "Arising Under"
Jurisdiction of the Federal Courts: A Hierarchical Analysis, 56
Ind.L.J. 563, 564-565 (1981); Comment 636; Redish 71. Although this
concern may be less compelling today than it once was, the American
Law Institute reported as recently as 1969 that "it is difficult to
avoid concluding that federal courts are more likely to apply
federal law sympathetically and understandingly than are state
courts." ALI 166. In any event, this rationale is, like the
rationale based on the expertise of the federal courts, simply an
expression of Congress' belief that federal courts are more likely
to interpret federal law correctly.

															One might argue that this Court's appellate jurisdiction over
state court judgments in cases arising under federal law can be
depended upon to correct erroneous state court decisions and to
insure that federal law is interpreted and applied uniformly.
However, as any experienced observer of this Court can attest,

															"Supreme Court review of state courts, limited by docket
pressures, narrow review of the facts, the debilitating
possibilities of delay, and the necessity of deferring to adequate
state grounds of decision, cannot do the whole job."

															Currie 160. Indeed, having served on this Court for 30 years, it
is clear to me that, realistically, it cannot even come close to
"doing the whole job" and that §1331 is essential if federal rights
are to be adequately protected.

															[ Footnote 2/7 ] Cf. 19 U. S. Virginia, 6 Wheat. 264, 19 U. S. 404 (1821) (Marshall, C.J.) ("It is most true that this Court will not
take jurisdiction if it should not; but it is equally true that it
must take jurisdiction if it should. . . . We have no more right to
decline the exercise of jurisdiction which is given than to usurp
that which is not given"). The narrow exceptions we have recognized
to Chief Justice Marshall's famous dictum have all been justified
by compelling judicial concerns of comity and federalism. See,
e.g., Younger v. Harris, 401 U. S. 37 (1971); Burford v. Sun Oil Co., 319 U.
S. 315 (1943). It would be wholly illegitimate, however,
for this Court to determine that there was no jurisdiction over a
class of cases simply because the Court thought that there were too
many cases in the federal courts.

															[ Footnote 2/8 ]

															The Federal Trade Commission retains regulatory and enforcement
authority over the advertising (as opposed to the labeling) of
foods. drugs, and cosmetics. See 15 U.S.C. §§ 52-55.