U.S. Supreme Court Aldinger v. Howard, 427 U.S. 1 (1976) Aldinger v. Howard No. 74-6521 Argued March 24, 1976 Decided June 24, 1976 427 U.S.
1 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus After petitioner had been discharged without a hearing by
respondent county treasurer from her job in his office, she brought
suit against the treasurer, the respondent county, and other county
officers in Federal District Court under 42 U.S.C. § 1983, claiming
that her discharge violated her federal constitutional rights and
seeking injunctive relief and damages. Jurisdiction over the
federal claim was asserted under 28 U.S.C. § 1343(3), which gives
federal district courts jurisdiction over "any civil action
authorized by law to be commenced by any person" to redress the
deprivation, under color of state law, of federal constitutional
rights, and pendent jurisdiction was alleged to lie over a state
law claim against the county. The District Court dismissed the
action as to the county on the ground that, since the county was
not suable as a "person" under § 1983, there was no independent
basis of jurisdiction over it, and that thus the court had no power
to exercise pendent jurisdiction over the claim against the county.
On an appeal from this dismissal, the Court of Appeals
affirmed. Held: A fair reading of the language used in § 1343(3),
together with the scope of § 1983, under which counties are
excluded from the "person[s] " answerable to the Page 427 U. S. 2 plaintiff "in an action at law [or] suit in equity" to redress
the enumerated deprivations, requires a holding that the joinder of
a municipal corporation, like the county here, for purposes of
asserting a state law claim not within federal jurisdiction, is
without the District Court's statutory jurisdiction. While, with
respect to litigation where nonfederal questions or claims were
bound up with the federal claim upon which the parties were already
in federal court, there is nothing in Art. III's grant of judicial
power that prevents adjudication of the nonfederal portions of the
parties' dispute, it is quite another thing to permit a nonfederal
claim, in turn, to be the basis for joining a party over whom no
independent federal jurisdiction exists, simply because that claim
derives from the "common nucleus of operative fact," giving rise to
the dispute between the parties to the federal claim. Mine
Workers v. Gibbs, 383 U. S. 715 ,
distinguished. The addition of a completely new party under such
circumstances would run counter to the well established principle
that federal courts, as opposed to state trial courts of general
jurisdiction, are courts of limited jurisdiction marked out by
Congress. Pp. 427 U. S.
6 -19.

															513 F.2d 1257, affirmed.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined, post, p. 427 U. S. 19 .

															MR. JUSTICE REHNQUIST delivered the opinion of the Court.

															This case presents the "subtle and complex question with
far-reaching implications," alluded to but not answered in Moor
v County of Alameda, 411 U. S. 693 , 411 U. S. 715 (1973), and Philbrook v. Glodgett, 421 U.
S. 707 , 421 U. S. 720 (1975): whether the doctrine of pendent jurisdiction extends to
confer jurisdiction over a party as to whom Page 427 U. S. 3 no independent basis of federal jurisdiction exists. In this
action, where jurisdiction over the main, federal claim against
various officials of Spokane County, Wash., was grounded in 28
U.S.C. § 1343(3), the Court of Appeals for the Ninth Circuit held
that pendent jurisdiction was not available to adjudicate
petitioner's state law claims against Spokane County, over which
party federal jurisdiction was otherwise nonexistent. While noting
that its previous holdings to this effect were left undisturbed by Moor, which arose from that Circuit, the Court of Appeals
was "not unaware of the widespread rejection" of its position in
almost all other Federal Circuits. 513 F.2d 1257, 1261 (1975). We
granted certiorari to resolve the conflict on this important
question. 423 U.S. 823 (1975). We affirm. I This case arises at the pleading stage, and the allegations in
petitioner's complaint are straightforward. Petitioner was hired in
1971 by respondent Howard, the Spokane County treasurer, for
clerical work in that office. Two months later, Howard informed
petitioner by letter that, although her job performance was
"excellent," she would be dismissed, effective two weeks hence,
because she was allegedly "living with [her] boy friend." Howard's
action, petitioner alleged, was taken pursuant to a state statute
which provides that the appointing county officer "may revoke each
appointment at pleasure." [ Footnote
1 ] Though a hearing was requested, none was held before or
after the effective date of the discharge.

															Petitioner's action in the United States District Court for the
Eastern District of Washington, as embodied in her second amended
complaint, claimed principally under Page 427 U. S. 4 the Civil Rights Act of 1871, 42 U.S.C. § 1983, [ Footnote 2 ] that the discharge violated her
substantive constitutional rights under the First, Ninth, and
Fourteenth Amendments, and was procedurally defective under the
latter's Due Process Clause. An injunction restraining the
dismissal and damages for salary loss were sought against Howard,
his wife, the named county commissioners, and the county.
Jurisdiction over the federal claim was asserted under 28 U.S.C. §
1343(3), [ Footnote 3 ] and
pendent jurisdiction was alleged to lie over the "state law claims
against the parties." As to the county, the state law Page 427 U. S. 5 claim was laid to rest on state statutes waiving the county's
sovereign immunity and providing for vicarious liability arising
out of tortious conduct of its officials. 513 F.2d at 1358. The
District Court dismissed the action as to the county on the ground
that, since it was not suable as a "person" under § 1983, there was
no independent basis of jurisdiction over the county, and thus
"this court [has no] power to exercise pendent jurisdiction over
the claims against Spokane County." From this final judgment, see Fed.Rule Civ.Proc. 54(b), petitioner appealed.

															The Court of Appeals first rejected petitioner's claim that her
§ 1983 action against the county fell within the District Court's §
1343(3) jurisdiction, as obviously foreclosed by this Court's
decisions in Moor, supra, and City of Kenosha v.
Bruno, 412 U. S. 507 (1973). Turning to petitioner's pendent jurisdiction argument, the
Court of Appeals noted, 513 F.2d at 1260, that the District Court
had made no alternative ruling on the "suitability of this case for
the discretionary exercise of pendent jurisdiction" under the
second part of the rule enunciated in Mine Workers v.
Gibbs, 383 U. S. 715 , 383 U. S.
726 -727 (1966). But since this Court in Moor had expressly left undisturbed the Ninth Circuit's refusal to apply
pendent jurisdiction over a nonfederal party, the instant panel
felt free to apply that rule as set out in Hymer v. Chai, 407 F.2d 136 (CA9 1969), and Moor v. Madigan, 458 F.2d
1217 (CA9 1972), aff'd in part, rev'd in part, 411 U. S. 693 (1973). This kind of case, the Court of Appeals reasoned, presented
the "weakest rationale" for extension of Gibbs to pendent
parties: (1) The state claims are pressed against a party who would
otherwise not be in federal court; [ Footnote 4 ] (2) diversity cases generally present more Page 427 U. S. 6 attractive opportunities for exercise of pendent party
jurisdiction, since all claims therein, by definition, arise from
state law; (3) federal courts should be wary of extending
court-created doctrines of jurisdiction to reach parties who are
expressly excluded by Congress from liability, and hence federal
jurisdiction, in the federal statute sought to be applied to the
defendant in the main claim; (4) pendent state law claims arising
in a civil rights context will "almost inevitably" involve the
federal court in difficult and unsettled questions of state law,
with the accompanying potential for jury confusion. 513 F.2d at
1261-1262. II The question whether "pendent" federal jurisdiction encompasses
not merely the litigation of additional claims between parties with
respect to whom there is federal jurisdiction, but also the joining
of additional parties with respect to whom there is no independent
basis of federal jurisdiction, has been much litigated in other
federal courts [ Footnote 5 ] and
much discussed by commentators [ Footnote 6 ] since this Court's decision in Gibbs. Gibbs, in turn, is the most recent in a long line of our
cases dealing with the relationship between the judicial power of
the United States and the actual contours of the cases and
controversies to which that power is extended by Art. III.

															In Osborn v. Bank of the United
States , 9 Wheat. 738 Page 427 U. S. 7 (1824), Mr. Chief Justice Marshall, in his opinion for the
Court, addressed the argument that the presence in a federal
lawsuit of questions which were not dependent on the construction
of a law of the United States prevented the federal court from
exercising Art. III jurisdiction, even in a case in which the
plaintiff had been authorized by Congress to sue in federal court.
Noting that "[t]here is scarcely any case, every part of which
depends" upon federal law, id. at 22 U. S. 820 ,
the Chief Justice rejected the contention:

															"If it be a sufficient foundation for jurisdiction that the
title or right set up by the party may be defeated by one
construction of the constitution or law of the United States and
sustained by the opposite construction, provided the facts
necessary to support the action be made out, then all the other
questions must be decided as incidental to this, which gives that
jurisdiction. Those other questions cannot arrest the proceedings.
. . ."

															"We think, then, that when a question to which the judicial
power of the Union is extended by the constitution forms an
ingredient of the original cause, it is in the power of congress to
give the Circuit Courts jurisdiction of that cause, although other
questions of fact or of law may be involved in it." Id. at 22 U. S.
822 -823.

															This doctrine was later applied in Siler v. Louisville &
Nashville R. Co., 213 U. S. 175 (1909), to hold that, where federal jurisdiction is properly based
on a colorable federal claim, the court has the

															"right to decide all the questions in the case, even though it
decided the Federal questions adversely to the party raising them,
or even if it omitted to decide them at all, but decided the case
on local or state questions only." Id. at 213 U. S. 191 .
In Moore v. N.Y. Cotton Exchange, 270 U.
S. 593 , 270 U. S.
609 -610 (1926), Page 427 U. S. 8 the Court in similar fashion sustained jurisdiction over a
defendant's compulsory counterclaim arising out of the same
transaction upon which the plaintiff's federal antitrust claim was
grounded, although the latter had been dismissed for failure to
state a claim, and the former had no independent federal
jurisdictional basis. A few years later, in Hurn v.
Oursler, 289 U. S. 238 (1933), the Court drew upon the foregoing cases to establish
federal jurisdiction to decide a state law claim joined with a
federal copyright infringement claim, where both were considered
"two distinct grounds in support of a single cause of action,"
although the federal ground had proved unsuccessful. Id. at 289 U. S.
246 .

															In Gibbs, the respondent brought an action in federal
court against petitioner UMW, asserting parallel claims -- a
federal statutory claim and a claim under the common law of
Tennessee -- arising out of alleged concerted union efforts to
deprive him of contractual and employment relationships with the
coal mine's owners. Though the federal claim was ultimately
dismissed after trial, and though diversity was absent, the lower
courts sustained jurisdiction over the state law claim and affirmed
the damages award based thereon. Before reaching the merits (on
which the lower courts were reversed), this Court addressed the
argument that, under the rule of pendent jurisdiction as set out in Hurn v. Oursler, supra, at 289 U. S.
245 -246, Gibbs had merely stated "two separate
and distinct causes of action," as opposed to "two distinct grounds
in support of a single cause of action," in which former case the
federal court lacked the power to "retain and dispose" of the
"non-federal cause of action." The Court stated that, since the Hurn test was formulated before the unification of law and
equity by the Federal Rules of Civil Procedure, it was therefore
unnecessarily tied to the outmoded concept of a "cause of Page 427 U. S. 9 action" developed under code pleading rules. Recognizing that
the Federal Rules themselves cannot expand federal court
jurisdiction, the Court nevertheless found in them a sufficient
basis to go beyond Hurn's "unnecessarily grudging"
approach to parallel claims, and to adopt a more flexible treatment
within the contours of Art. III, § 2. Thus, in a federal question
case, where the federal claim is of sufficient substance, and the
factual relationship between "that claim and the state claim
permits the conclusion that the entire action before the court
comprises but one constitutional case,'" pendent jurisdiction
extends to the state claim. 383 U.S. at 383 U. S. 725 .
The Court, in the second aspect of the Gibbs formulation,
went on to enumerate the various factors bearing on a district
court's discretionary decision whether the power should be
exercised in a given parallel claims case, emphasizing that
"pendent jurisdiction is a doctrine of discretion, not of
plaintiff's right." Id. at 383 U. S.
726 . These cases, from Osborn to Gibbs, show that,
in treating litigation where nonfederal questions or claims were
bound up with the federal claim upon which the parties were already
in federal court, this Court has found nothing in Art. III's grant
of judicial power which prevented adjudication of the nonfederal
portions of the parties' dispute. None of them, however, adverted
to the separate question, involved in the instant case, of whether
a nonfederal claim could, in turn, be the basis for joining a party
over whom no independent federal jurisdiction exists, simply
because that claim could be derived from the "common nucleus of
operative fact" giving rise to the dispute between the parties to
the federal claim.

															But while none of the foregoing line of cases discussed the
joining of additional parties, other decisions of this Court have
developed a doctrine of "ancillary jurisdiction," Page 427 U. S. 10 and it is in part upon this development -- and its relationship
to Gibbs -- that petitioner relies to support "pendent
party" jurisdiction here. Under this doctrine, the Court has
identified certain considerations which justified the joining of
parties with respect to whom there was no independent basis of
federal jurisdiction. In Freeman v.
Howe , 24 How. 450 (1861), the Court held that the
state court had no jurisdiction over a replevin action brought by
creditor claimants to property that had already been attached by
the federal marshal in a federal diversity action. The claimants
argued that a want of state court jurisdiction would leave them
without a remedy, since diversity between them and the marshal was
lacking. This Court stated that an equitable action in federal
court by those claimants, seeking to prevent injustice in the
diversity suit, would not have been "an original suit, but
ancillary and dependent, supplementary merely to the original
suit," and thus maintainable irrespective of diversity of
citizenship. Id. at 65 U. S. 460 . A
similar approach was taken in Stewart v. Dunham, 115 U. S. 61 (1885), where, after a creditors' suit to set aside an allegedly
fraudulent conveyance was removed to federal court on grounds of
diversity, other nondiverse creditors were permitted to intervene
to assert an identical interest. Since it was merely a matter of
form whether the latter appeared as parties or came in later under
a final decree to prove their claims before a master, the federal
court

															"could incidentally decree in favor of [the nondiverse]
creditors[, and s]uch a proceeding would be ancillary to the
jurisdiction acquired between the original parties. . . ." Id. at 115 U. S. 64 . Dunham was, in turn, held controlling in Supreme Tribe
of Ben-Hur v. Cauble, 255 U. S. 356 (1921). There, suing in diversity, out-of-state "Class A" members
of an Indiana fraternal benefit society had sought a decree
adjudicating their common interests in the control and disposition
of Page 427 U. S. 11 the society's funds. After successfully defending that action,
the society brought a second suit in federal court seeking to
protect that judgment as against an identical state court action
brought by members of "Class A" who were of Indiana citizenship.
Since, under Dunham, "intervention of the Indiana citizens
in the [original] suit would not have defeated the jurisdiction
already acquired," 255 U.S. at 255 U. S. 366 ,
the earlier judgment was binding against them, and the federal
court had ancillary jurisdiction over the society's suit to enjoin
the later state action, irrespective of diversity.

															The doctrine of ancillary jurisdiction developed in the
foregoing cases is bottomed on the notion that, since federal
jurisdiction in the principal suit effectively controls the
property or fund under dispute, other claimants thereto should be
allowed to intervene in order to protect their interests, without
regard to jurisdiction. [ Footnote
7 ] As this Court stated in Fulton Bank v. Hozier, 267 U. S. 276 , 267 U. S. 280 (1925):

															"The general rule is that, when a federal court has properly
acquired jurisdiction over a cause, it may entertain, by
intervention, dependent or ancillary controversies; but no
controversy can be regarded as dependent or ancillary unless it has
direct relating Page 427 U. S. 12 to property or assets actually or constructively drawn into the
court's possession or control by the principal suit."

															The decisional bridge between these two relatively discrete
lines of cases appears to be this Court's decision in Moore. Since the defendant's nonfederal counterclaim in Moore arose out of the same transaction giving rise to the
antitrust dispute between the parties, and federal jurisdiction was
sustained over the former, the Court in Hurn, though faced
with a plaintiff's assertion of pendent jurisdiction over an
additional nonfederal claim, thought the two cases, "in principle,
cannot be distinguished." Hurn, 289 U.S. at 289 U. S. 242 .
It was Hurn's "unnecessarily grudging" test of pendent
jurisdiction, of course, which the Court expanded in Gibbs. On the other hand, because Moore was a
suit in equity, the jurisdiction sustained there has been
rationalized as falling under the umbrella of ancillary
jurisdiction, [ Footnote 8 ]
though Moore neither used that term nor cited to Fulton Bank, supra. Petitioner thus suggests that, since Moore, read as an "ancillary" case, adopted a
"transactional" test of jurisdiction quite similar to that set out
in Gibbs, there is presently no "principled" distinction
between the two doctrines. Since, under the Federal Rules, "joinder
of claims, parties and remedies is strongly encouraged," Gibbs, 383 U.S. at 383 U. S. 724 ,
her use of the Rules here is as a matter of jurisdictional power
assertedly limited only by whether the claim against the county
"derive[s] from a common nucleus of operative fact." Id. at 383 U. S. 725 .
Hence, petitioner concludes, based on Gibbs' treatment of
pendent claims, and the use of ancillary jurisdiction to Page 427 U. S. 13 bring in additional parties, that her nonfederal claim against a
nonfederal defendant falls within pendent jurisdiction since it
satisfies Gibbs' test on its face.

															For purposes of addressing the jurisdictional question in this
case, however, we think it quite unnecessary to formulate any
general, all-encompassing jurisdictional rule. Given the
complexities of the many manifestations of federal jurisdiction,
together with the countless factual permutations possible under the
Federal Rules, there is little profit in attempting to decide, for
example, whether there are any "principled" differences between
pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences. Since it is upon Gibbs' language that the lower federal courts have relied
in extending the kind of pendent party jurisdiction urged by
petitioner here, we think the better approach is to determine what Gibbs did and did not decide, and to identify what we deem
are important differences between the jurisdiction sustained in Gibbs and that asserted here. Gibbs and its lineal ancestor, Osborn, were
couched in terms of Art. III's grant of judicial power in "Cases .
. . arising under this Constitution, the Laws of the United States,
and [its] Treaties," since they (and implicitly the cases which
linked them) represented inquiries into the scope of Art. III
jurisdiction in litigation where the "common nucleus of operative
fact" gave rise to nonfederal questions or claims between the
parties. None of them posed the need for a further inquiry into the
underlying statutory grant of federal jurisdiction or a flexible
analysis of concepts such as "question," "claim," and "cause of
action," because Congress had not addressed itself by statute to
this matter. In short, Congress had said nothing about the scope of
the word "Cases" in Art. III which would offer guidance on the Page 427 U. S. 14 kind of elusive question addressed in Osborn and Gibbs: whether and to what extent jurisdiction extended to
a parallel state claim against the existing federal defendant.

															Thus, it was perfectly consistent with Art. III, and the
particular grant of subject matter jurisdiction upon which the
federal claim against the defendant in those cases was grounded, to
require that defendant to answer as well to a second claim deriving
from the "common nucleus" of fact, though it be of state law
vintage. This would not be an "unfair" use of federal power by the
suing party, he already having placed the defendant properly in
federal court for a substantial federal cause of action. Judicial
economy would also be served because the plaintiff's claims were
"such that he would ordinarily be expected to try them all in one
judicial proceeding. . . ." Gibbs, 383 U.S. at 383 U. S.
725 .

															The situation with respect to the joining of a new party,
however, strikes us as being both factually and legally different
from the situation facing the Court in Gibbs and its
predecessors. From a purely factual point of view, it is one thing
to authorize two parties, already present in federal court by
virtue of a case over which the court has jurisdiction, to litigate
in addition to their federal claim a state law claim over which
there is no independent basis of federal jurisdiction. But it is
quite another thing to permit a plaintiff, who has asserted a claim
against one defendant with respect to which there is federal
jurisdiction, to join an entirely different defendant on the basis
of a state law claim over which there is no independent basis of
federal jurisdiction, simply because his claim against the first
defendant and his claim against the second defendant "derive from a
common nucleus of operative fact." Ibid. True, the same
considerations of judicial economy would be served Page 427 U. S. 15 insofar as plaintiff's claims "are such that he would ordinarily
be expected to try them all in one judicial proceeding. . . ." Ibid. But the addition of a completely new party would run
counter to the well established principle that federal courts, as
opposed to state trial courts of general jurisdiction, are courts
of limited jurisdiction marked out by Congress. We think there is
much sense in the observation of Judge Sobeloff, writing for the
Court of Appeals in Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA4 1972):

															"The value of efficiency in the disposition of lawsuits by
avoiding multiplicity may be readily conceded, but that is not the
only consideration a federal court should take into account in
assessing the presence or absence of jurisdiction. Especially is
this true where, as here, the efficiency plaintiff seeks so avidly
is available without question in the state courts."

															There is also a significant legal difference. In Osborn and Gibbs, Congress was silent on the extent to which the
defendant, already properly in federal court under a statute, might
be called upon to answer nonfederal questions or claims; the way
was thus left open for the Court to fashion its own rules under the
general language of Art. III. But the extension of Gibbs to this kind of "pendent party" jurisdiction -- bringing in an
additional defendant at the behest of the plaintiff -- presents
rather different statutory jurisdictional considerations.
Petitioner's contention that she should be entitled to sue Spokane
County as a new third party, and then to try a wholly state law
claim against the county, all of which would be "pendent" to her
federal claim against respondent county treasurer, must be decided
not in the context of congressional silence or tacit encouragement,
but in Page 427 U. S. 16 quite the opposite context. The question here, which it was not
necessary to address in Gibbs or Osborn, is
whether, by virtue of the statutory grant of subject matter
jurisdiction, upon which petitioner's principal claim against the
treasurer rests, Congress has addressed itself to the party as to
whom jurisdiction pendent to the principal claim is sought. And it
undoubtedly has done so. III Congress has, in specific terms, conferred Art. III jurisdiction
on the district courts to decide actions brought to redress
deprivations of civil rights. Under the opening language of § 1343,
[ Footnote 9 ] those courts
"shall have original jurisdiction of any civil action
authorized by law to be commenced by any person . . ."
(emphasis added). The civil rights action set out in § 1983
[ Footnote 10 ] is, of course,
included within the jurisdictional grant of subsection (3) of §
1343. Yet petitioner does not, and indeed could not, contest the
fact that, as to § 1983, counties are excluded from the "person[s]"
answerable to the plaintiff "in an action at law [or] suit in
equity" to redress the enumerated deprivations. [ Footnote 11 ] Petitioner must necessarily
argue that, in spite of the language emphasized above, Congress
left it open for the federal courts to fashion a jurisdictional
doctrine under the general language of Art. III enabling them to
circumvent this exclusion as long as the civil rights action and
the state law claim arise from a "common nucleus of operative
fact." But the question whether jurisdiction over the instant
lawsuit extends not only to a related state law claim, but to the
defendant against whom that claim is made, turns initially not on
the general Page 427 U. S. 17 contours of the language in Art. III, i.e., "Cases . .
. arising under," but upon the deductions which may be drawn from
congressional statutes as to whether Congress wanted to grant this
sort of jurisdiction to federal courts. Parties such as counties,
whom Congress excluded from liability in § 1983, and therefore by
reference in the grant of jurisdiction under § 1343(3), can argue
with a great deal of force that the scope of that "civil action"
over which the district courts have been given statutory
jurisdiction should not be so broadly read as to bring them back
within that power merely because the facts also give rise to an
ordinary civil action against them under state law. In short, as
against a plaintiff's claim of additional power over a "pendent
party," the reach of the statute conferring jurisdiction should be
construed in light of the scope of the cause of action as to which
federal judicial power has been extended by Congress.

															Resolution of a claim of pendent party jurisdiction, therefore,
calls for careful attention to the relevant statutory language. As
we have indicated, we think a fair reading of the language used in
§ 1343, together with the scope of § 1983, requires a holding that
the joinder of a municipal corporation, like the county here, for
purposes of asserting a state law claim not within federal
diversity jurisdiction, is without the statutory jurisdiction of
the district court. [ Footnote
12 ] Page 427 U. S. 18 There are, of course, many variations in the language which
Congress has employed to confer jurisdiction upon the federal
courts, and we decide here only the issue of so-called "pendent
party" jurisdiction with respect to a claim brought under §§
1343(3) and 1983. Other statutory grants and other alignments of
parties and claims might call for a different result. When the
grant of jurisdiction to a federal court is exclusive, for example,
as in the prosecution of tort claims against the United States
under 28 U.S.C. § 1346, the argument of judicial economy and
convenience can be coupled with the additional argument that only
in a federal court may all of the claims be tried together.
[ Footnote 13 ] As we
indicated at the outset of this opinion, the question of pendent
party jurisdiction is "subtle and complex," and we believe that it
would be as unwise as it would be unnecessary to lay down any
sweeping pronouncement upon the existence or exercise of such
jurisdiction. Two observations suffice for the disposition of the
type of case before us. If the new party sought to be joined is not
otherwise subject to federal jurisdiction, there is a more serious
obstacle to the exercise of pendent jurisdiction than if parties
already before the court are required to litigate a state law
claim. Before it can be concluded that such jurisdiction exists, a
federal court must satisfy itself not only that Art. III permits
it, but that Congress in the statutes conferring jurisdiction has
not expressly or by implication negated its existence. Page 427 U. S. 19 We conclude that, in this case, Congress has, by implication,
declined to extend federal jurisdiction over a party such as
Spokane County. The judgment of the Court of Appeals for the Ninth
Circuit is therefore Affirmed. [ Footnote 1 ]

															Wash.Rev.Code § 36.16.070 (1974).

															[ Footnote 2 ]

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."

															[ Footnote 3 ]

															"The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person:"

															" * * * *" "(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United
States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United
States. . . ."

															The Court of Appeals also noted that petitioner's complaint
alleged that jurisdiction lay under 28 U.S.C. § 1331, and that the
amount in controversy exceeded $10,000. This was apparently an
attempt to plead a cause of action directly under the Fourteenth
Amendment, irrespective of the implementing civil rights
legislation. The Court of Appeals, however, stated that petitioner
had "consistently chosen to rely upon" 42 U.S.C. § 1983, together
with 28 U.S.C. § 1343(3), and pendent jurisdiction as the bases for
her action against Spokane County. Thus, neither the District Court
nor the Court of Appeals reached the question whether the complaint
stated a cause of action over which § 1331 jurisdiction would lie.
Petitioner did not raise the question in her petition for
certiorari, and it is therefore not before us.

															[ Footnote 4 ]

															There is no diversity of citizenship under 28 U.S.C. § 1332
among the parties here, since all are citizens of the State of
Washington.

															[ Footnote 5 ] See, e.g., cases cited in Moor v. County of
Alameda, 411 U. S. 693 , 411 U. S.
713 -714, nn. 29-30 (1973).

															[ Footnote 6 ] See, e.g., 3A J. Moore, Federal Practice 18.07[1.-4]
(2d ed.1974); P. Bator, p. Mishkin, D. Shapiro, & H. Wechsler,
Hart and Wechsler's The Federal Courts and the Federal System
921-926 (2d ed.1973); C. Wright, Law of Federal Courts § 19 (2d
ed.1970); Fortune, Pendent Jurisdiction -- The Problem of
"Pendenting Parties," 34 U.Pitt.L.Rev. 1 (1972); Shakman, The New
Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262
(1968).

															[ Footnote 7 ]

															As one commentator has stated:

															"Once it is agreed that a state court cannot interfere with
property in the control of the federal court, the notion of
ancillary jurisdiction put forward in Freeman v. Howe cannot be avoided. Unless the federal court has ancillary
jurisdiction to hear the claims of all persons to the property,
regardless of their citizenship, some persons, with a valid claim
to the property, would be deprived of any forum in which to press
that claim."

															C. Wright, Law of Federal Courts § 9 (2d ed.1970). Ben-Hur sets out a corollary to Howe: ancillary
jurisdiction extends to subsequent suits brought to effectuate a
federal court's judgment determining the rights to such
property.

															[ Footnote 8 ] See Shulman & Jaegerman, Some Jurisdictional
Limitations on Federal Procedure, 45 Yale L.J. 393, 413 (1936); 3
J. Moore, Federal Practice � 13.15 (2d ed.1974); C. Wright, Law of
Federal Courts § 9 (2d ed.1970).

															[ Footnote 9 ] See n 3, supra. [ Footnote 10 ] See n 2, supra. [ Footnote 11 ] Monroe v. Pape, 365 U. S. 167 , 365 U. S.
187 -191 (1961); City of Kenosha v. Bruno, 412 U. S. 507 , 412 U. S.
511 -513 (1973).

															[ Footnote 12 ]

															The floor debates on the statute which became § 1983, relied
upon by our Brother BRENNAN, insofar as any common understanding
may be distilled from their diverse strains, indicate a recognition
of the authority of United States courts to entertain suits against
municipal corporations under their then-existing diversity
jurisdiction. It is, of course, a fair inference from this theme
that nothing in § 1983 or § 1343 was intended to disturb such
jurisdiction, and it seems scarcely necessary to add that nothing
we say in this opinion disturbs it in the slightest. All that we
hold is that, where the asserted basis of federal jurisdiction over
a municipal corporation is not diversity of citizenship, but is a
claim of jurisdiction pendent to a suit brought against a municipal
officer within § 1343, the refusal of Congress to authorize suits
against municipal corporations under the cognate provisions of §
1983 is sufficient to defeat the asserted claim of pendent party
jurisdiction.

															[ Footnote 13 ] See, e.g., Hipp v. United States, 313 F.
Supp. 1152 (EDNY 1970). Contra, Williams v. United
States, 405 F.2d 951 (CA9 1969).

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE BLACKMUN join, dissenting. Mine Workers v. Gibbs, 383 U.
S. 715 , 383 U. S.
725 -726 (196), held:

															"Pendent jurisdiction, in the sense of judicial power, exists
whenever there is a claim 'arising under [the] Constitution, the
Laws of the United States, and Treaties made, or which shall be
made, under their Authority . . . ,' U.S.Const., Art. III, § 2, and
the relationship between that claim and the state claim permits the
conclusion that the entire action before the court comprises but
one constitutional 'case.' The federal claim must have substance
sufficient to confer subject matter jurisdiction on the court. . .
. The state and federal claims must derive from a common nucleus of
operative fact. But if, considered without regard to their federal
or state character, a plaintiff's claims are such that he would
ordinarily be expected to try them all in one judicial proceeding,
then, assuming substantiality of the federal issues, there is power
in federal courts to hear the whole."

															"That power need not be exercised in every case in which it is
found to exist. It has consistently been recognized that pendent
jurisdiction is a doctrine of discretion, not of plaintiff's right.
Its justification lies in considerations of judicial economy,
convenience and fairness to litigants; if these are not present a
federal court should hesitate to exercise Page 427 U. S. 20 jurisdiction over state claims, even though bound to apply state
law to them."

															(Footnotes omitted.) I Gibbs concerned a state law claim jurisdictionally
pendent to one of federal law, but no reason appears why the
identical principles should not equally apply to pendent state law
claims involving the joinder of additional parties. In either case,
the Art. III question concerns only the subject matter, and not the in personam, jurisdiction of the federal courts. In either
case, the question of Art. III power in the federal judiciary to
exercise subject matter jurisdiction concerns whether the claims
asserted are such as "would ordinarily be expected to [be tried] in
one judicial proceeding," and the question of discretion addresses
"considerations of judicial economy, convenience and fairness to
litigants." [ Footnote 2/1 ]

															To recognize that the addition of parties under the pendent
jurisdiction of the federal courts will sometimes alter the balance
of "judicial economy, convenience and fairness," or sometimes
threaten to embroil federal courts in the resolution of uncertain
questions of state law, and thereby make the exercise of this
discretionary jurisdiction inappropriate, is only to speak to the
question Page 427 U. S. 21 of the proper exercise of judicial discretion in the
circumstances, and does not vitiate the Gibbs analysis or
its application to the question of pendent party jurisdiction. To
fail to recognize the applicability of Gibbs to the
situation of pendent parties, as well as claims, would often compel
a result aptly described by the Court of Appeals for the Eighth
Circuit:

															"'[I] t would be an unjustifiable waste of judicial and
professional time -- indeed, a travesty on sound judicial
administration -- to allow plaintiff to try his [federal and state
claims against certain codefendants] in Federal court, but to
require him to prosecute a claim involving precisely the same facts
against [a codefendant joined pursuant only to the pendent state
law claim] in a State court.'" Schulman v. Huck Finn, Inc., 472 F.2d 864, 866 (1973)
(quoting 350 F.
Supp. 853 , 858 (Minn.1972)). In upholding an exercise of
pendent party jurisdiction under Gibbs principles in that
case, the Court of Appeals reaffirmed, 472 F.2d at 867, an earlier
decision of that court by my Brother BLACKMUN, Hatridge v.
Aetna Cas. & Surety Co., 415 F.2d 809 (1969). Therein, my
Brother BLACKMUN, applying Gibbs principles in finding
appropriate the exercise of federal pendent party jurisdiction, set
forth an analysis with which I am in complete accord:

															"[In] appropriate cases, [pendent party jurisdiction] makes good
sense; it avoids forum shopping and multiple actions; it tends to
reduce costs for litigants; and it avoids the waste of already
heavily burdened judicial time." Id. at 817. II The Court today does not disclaim the applicability of Gibbs to the question of federal pendent party
jurisdiction. Page 427 U. S. 22 Rather, recognizing sub silentio the absurd results it
would create by a disclaimer of the possibility of federal pendent
party jurisdiction -- whether under the label of "ancillary"
jurisdiction or that of "pendent party," see Moor v. County of
Alameda, 411 U. S. 693 , 411 U. S.
714 -715 (1973) -- in a variety of possible contexts
under various jurisdictional statutes and the Federal Rules of
Civil Procedure, [ Footnote 2/2 ] the
Court declines "to lay down any sweeping pronouncement upon the
existence or exercise of such jurisdiction." Ante at 427 U. S. 18 . The
Court instead reaches its result -- the proclamation of a per
se rule forbidding pendent jurisdiction over claims arising
under state law against local governmental units when joined with a
§ 1983 claim even where such claims "derive from a common nucleus
of operative fact" -- by purporting to find that, "in this case,
Congress has, by implication," expressed its disapproval of federal
pendent party jurisdiction "over a party such as Spokane County." Ante at 427 U. S. 19 .
That result is demonstrably untenable.

															The Court seeks to justify its per se rule by analysis
of the congressional will as expressed in the federal statutes
involved -- 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. [ Footnote 2/3 ] The test the Court announces
is

															"whether, by Page 427 U. S. 23 virtue of the statutory grant of subject matter jurisdiction,
upon which petitioner's principal claim . . . rests, Congress has
addressed itself to the party as to whom jurisdiction pendent to
the principal claim is sought." Ante at 427 U. S. 16 . At
one level of analysis, this test is, of course, meaningless, being
capable of application to all cases, because all instances of
asserted pendent party jurisdiction will, by definition, involve a
party as to whom Congress has impliedly "addressed itself" by not
expressly conferring subject matter jurisdiction on the federal
courts. But, the Court says, it is drawing "deductions . . . from
[the] congressional statutes as to whether Congress wanted to grant
this sort of jurisdiction to federal courts," ante at 427 U. S. 17 , and
it "conclude[s] that in this case Congress has by implication
declined." Ante at 427 U. S. 19 . It
is apparent, however, that analysis of the statutory enactments
involved, their legislative history, and the congressional policies
embodied therein belies the Court's assertion that its purported
test for determining the propriety of pendent party jurisdiction
yields the result reached today. A The purely jurisdictional statute involved in this case, 28
U.S.C. § 1343(3), in no way speaks to the issue of pendent party
jurisdiction in respect to joinder of defendants under pendent
state law claims. On its face, that statute speaks only to
jurisdiction over civil actions Page 427 U. S. 24 "authorized by law to be commenced by any person," and plainly
does not address the question of what parties shall be joined as
defendants. Accordingly, the Court necessarily argues its
proposition from "the scope of the cause of action," ante at 427 U. S. 17 ,
created by § 1983. But the legislative history of that enactment
plainly gives no support to the Court's argument that Congress, by
implication, intended to preclude the exercise of federal
jurisdiction over state law claims against local governmental units
where such jurisdiction would otherwise lie under application of
standard principles.

															Our precedents, Monroe v. Pape, 365 U.
S. 167 (1961), and Moor v. County of Alameda,
supra, firmly establish that the sole rationale for construing
the "persons" susceptible of liability under § 1983 as excluding
local units of government lies in the legislative history of the
so-called Sherman Amendment to the Act of April 20, 1871, § 1 of
which enacted into law the first version of the present § 1983.
[ Footnote 2/4 ] The Senate approved
one version of the Amendment proposed by Senator Sherman which
would have expressly provided for local governmental liability,
[ Footnote 2/5 ] and the House
rejected it. [ Footnote 2/6 ] The
Conference Committee reported another version, [ Footnote 2/7 ] and the House rejected the Conference
Report. [ Footnote 2/8 ] Thereafter,
the Senate acceded to the House rejection of the Sherman Amendment,
and both Houses substituted in its place § 6 of the 1871 Act, the
first version of the present 42 U.S.C. § 1986. [ Footnote 2/9 ] The rejection of the Sherman
Amendment, and nothing more, has been the basis upon which we
have Page 427 U. S. 25 construed § 1983 liability as not encompassing local
governmental units. Monroe v. Pape, supra at 365 U. S.
188 -191; Moor v. County of Alameda, 411 U.S. at 411 U. S.
707 -710. But as those cases recognize, the reason for
the House rejection of the Amendment, as stated by Mr. Poland,
House Manager of the Conference Committee Report, was that

															"the House had solemnly decided that, in their judgment,
Congress had no constitutional power to impose any
obligation upon county and town organizations, the mere
instrumentality for the administration of State law."

															Cong.Globe, 42d Cong., 1st Sess., 804 (1871) (emphasis
supplied). See Monroe v. Pape, supra at 365 U. S. 190 ; Moor v. County of Alameda, supra at 411 U. S. 708 .
This judgment of the House respecting its lack of constitutional
power to "impose . . . liability" " as a matter of federal
law, " id. at 411 U. S. 710 n. 27 (emphasis in original), on local
governmental units pervades the legislative history of the aborted
Sherman Amendment. [ Footnote
2/10 ]

															In marked contrast in the legislative history of that proposed
Amendment, however, is the absence of expression of hostility to
federal judicial forums entertaining claims arising under state
law. The opponents of the Sherman Amendment were, as the
legislative history reveals, fully aware of several existing state
laws respecting local government tort liability. [ Footnote 2/11 ] Moreover, the opponents of the
proposed Amendment, who consistently objected to the imposition of
liability upon local governmental units as a matter of substantive
federal law, also consistently expressed their views respecting the
entertainment Page 427 U. S. 26 in federal forums of state law claims against local governmental
units.

															"[M]y colleague on this committee says that it is a common
practice for the courts of the United States, in the exercise of
the judicial powers granted to them in the Constitution, to enforce
the performance of judgments against municipalities of this kind,
such as counties and cities. I answer him that he, as well as any
other intelligent lawyer of this House, well knows that that
proposition is true to this extent only, that the Federal
courts in the exercise of this grant of judicial powers may, where
they have the jurisdiction under the Constitution, compel these
municipalities to execute their contracts, and that is all. To
execute their contracts; but let it be remembered that no decree of
a Federal court has gone to the extent of saying that any one of
these divisions should execute its own contracts except in
precise compliance with the law of the State, in precise accordance
with its own contract and the law upon which it was based, and not
in pursuance of any law dictated to it by Congress. In other words,
the extent of judicial power hitherto exercised in that direction
has been confined to the execution of civil contracts, such as
the payment of corporation and municipal bonds issued under State
authority, where the courts of the United States had
jurisdiction, and then only according to the law of the State
recognizing and enforcing fully and kindly, and in all respects
within the precise letter of the Constitution, the right of the
State to govern itself, to regulate its municipal interests,
to say whether a county or State may subscribe to a railroad, may
issue or put out bonds and securities in a particular way, how
those securities may be made payable and their Page 427 U. S. 27 payment made certain. If any county or city fails to perform
its obligations its contracts can be enforced. "

															Cong.Globe, 42d Cong., 1st ,Sess., 789 (1871) (remarks of Mr.
Kerr) (emphasis supplied).

															"The gentleman from Ohio [Mr. Shellabarger] said this morning
that the Supreme Court has decided in favor of this power on the
part of Congress. It has done no such thing. Where a State has
authorized a city or county to make a contract, and when, under the
law of the State, they have made a contract binding themselves, the
Supreme Court of the United States has said that they were liable
to be sued for the enforcement of that contract. That is all the
Supreme Court of the United States have [ sic ] ever decided
in regard to the liability of municipal corporations. When the
State which created them has authorized them to bind themselves by
a contract, and they have done so, the court has very properly said
that the courts were open for the enforcement of such contracts, as
for enforcing the contracts of other parties. I PRESUME, TOO,
THAT WHERE A STATE HAD IMPOSED A DUTY UPON SUCH MUNICIPALITY, AND
PROVIDED THEY SHOULD BE LIABLE FOR ANY DAMAGES CAUSED BY FAILURE TO
PERFORM SUCH DUTY, THAT AN ACTION WOULD BE ALLOWED TO BE MAINTAINED
AGAINST THEM IN THE COURTS OF THE UNITED STATES UNDER THE ORDINARY
RESTRICTIONS AS TO JURISDICTION. But the enforcing a liability,
existing by their own contract, or by a State law, in the courts,
is a very widely different thing from devolving a new duty or
liability upon them by the national Government, which has no
power either to create or destroy them, Page 427 U. S. 28 and no power or control over them whatever." Id. at 794 (remarks of Mr. Poland) (emphasis
supplied).

															"Congress has never asserted or attempted to assert, so far as I
know, any such authority. That amendment claims the power in the
General Government to go into the States of this Union and lay such
obligations as it may please upon the municipalities, which are the
creations of the States alone. Now, sir, that is an exceedingly
wide and sweeping power. I am unable to find a proper foundation
for it. Though I am not disposed here and now to discuss it very
minutely, I wish to say that, thus far, I am unable to see where
the authority can rest. I listened with the utmost respect, and
with all the attention in my power, to the argument of the
gentleman from Ohio, [Mr. Shellabarger,] the chairman of the
committee of conference, to see if I could ascertain just where he
placed it, and I think I shall do him no wrong when I say that he
wholly failed to show the House where the power resides. He did
undertake to find some parallel in other action of the judiciary of
the United States toward these municipalities, growing out of
contracts; but, sir, when a municipality, under the authority
given by a State, makes a contract, it thereby lays itself liable
to every remedy upon that contract, and it is liable to be sued by
its own consent, and with the consent of the State that created it,
in any court having jurisdiction of the subject matter of that
contract. "

															" This we all understand very well; but here it is proposed
not to carry into effect an obligation which rests upon the
municipality, but to create that obligation, and that is the
provision I am unable Page 427 U. S. 29 to assent to. " Id. at 795 (remarks of Mr. Blair) (emphasis
supplied).

															". . . [I]n the first place, I wish to remark that the decisions
that have been referred to, those of Knox vs. Lee County and the others, go to this extent only, if I understand rightly
their scope: that, where a State imposes a duty upon county
officers or State municipal corporations, the exercise of which is
necessary to give effect to judgments or decrees of the United
States courts, the latter can enforce the performance of that
duty. In other words, where, by the laws of a State, the board
of supervisors of a county or the common council of a city are
authorized to levy a tax and collect funds to pay a judgment, for
the purpose of enforcing satisfaction of the judgment, the United
States court, by mandamus can compel those State officers,
those officers of a municipal corporation, to perform that
duty."

															"But there is no duty imposed by the Constitution of the United
States, or usually by State laws, upon a county to protect the
people of that county against the commission of the offenses herein
enumerated, such as the burning of buildings or any other injury to
property or injury to person. Police powers are not conferred upon
counties as corporations; they are conferred upon cities that have
qualified legislative power. AND SO FAR AS CITIES ARE
CONCERNED, WHERE THE EQUAL PROTECTION REQUIRED TO BE AFFORDED BY A
STATE IS IMPOSED UPON A CITY BY STATE LAWS, PERHAPS THE UNITED
STATES COURTS COULD ENFORCE ITS PERFORMANCE. " Ibid. (remarks of Mr. Burchard) (emphasis supplied).
[ Footnote 2/12 ] Page 427 U. S. 30 It is difficult to imagine a clearer recognition by opponents of
extension of liability under federal law to a "person" of the
difference between the application of federal substantive law to a
given party and the entertainment of state law claims respecting
that party in federal court, or an instance where the legislative
action is more clearly premised upon that distinction. Although the
Court purports to be "deduc[ing]" the expressed congressional will
as manifested in statutes and their legislative history, today's
result is wholly belied by these crystal-clear expressions. B Today's result not only is insupportable under the Court's
purported test for ascertaining the propriety of pendent party
jurisdiction in the federal courts, but, Page 427 U. S. 31 more importantly, it wholly disregards the congressional intent
and policy in enacting the various Civil Rights Acts, including the
present § 1983. For, to an extent perhaps unparalleled in our
history, the post-Civil War Civil Rights Acts had as a focal point
the provision that claims brought under those Acts should be
entertained in federal judicial forums. The Civil Rights Acts were
enacted in an era of "national feeling born of the Civil War.
Nationalism was triumphant; in national administration was sought
its vindication." F. Frankfurter & J. Landis, The Business of
the Supreme Court 64 (1928). Contemporaneous with the passage of
the Civil Rights Acts was the Act of March 3, 1875, which, in
conferring general federal question jurisdiction upon the federal
courts, thereby made those courts "the primary and powerful
reliances for vindicating every right given by the Constitution,
the laws, and treaties of the United States." Id. at 65; Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 247 (1967).

															"In thus expanding federal judicial power, Congress imposed the
duty upon all levels of the federal judiciary to give due respect
to a suitor's choice of a federal forum for the hearing and
decision of his federal constitutional claims." Id. at 389 U. S.
248 .

															Although there has been disagreement among us upon the question
of the precise scope of § 1983, none of us has heretofore denied
"the fact that a powerful impulse behind the creation of [§ 1983] was the purpose that it be available in, and be shaped through,
original federal tribunals, " or has forgotten " how
important providing a federal trial court was among the several
purposes of the Ku Klux Act. " Monroe v. Pape, 365
U.S. at 365 U. S. 252 , 365 U. S. 251 (Frankfurter, J., dissenting) (emphasis supplied). [ Footnote 2/13 ]

															"The predecessor of § 1983 was . . . an important Page 427 U. S. 32 part of the basic alteration in our federal system wrought in
the Reconstruction era through federal legislation and
constitutional amendment. As a Page 427 U. S. 33 result of he new structure of law that emerged in the post-Civil
War era -- and especially of the Fourteenth Amendment, which was
its centerpiece -- the role of the Federal Government as a
guarantor of basic federal rights against state power was clearly
established. . . . Section 1983 opened the federal courts to
private citizens, offering a uniquely federal remedy against
incursions under the claimed authority of state law upon rights
secured by the Constitution and laws of the Nation." Mitchum v. Foster, 407 U. S. 225 , 407 U. S.
238 -239 (1972) (footnotes omitted). An extensive review
of the legislative history of § 1983 in Monroe v. Pape,
supra at 365 U. S.
173 -180, led this Court to conclude:

															"It is abundantly clear that one reason the legislation was
passed was to afford a federal right in federal courts because, by
reason of prejudice, passion, neglect, intolerance or otherwise,
state laws might not be enforced and the claims of citizens to the
enjoyment of rights, privileges, and immunities guaranteed by the
Fourteenth Amendment might be denied by the state agencies."

															365 U.S. at 365 U. S. 180 ; id. at 193 (Harlan, J., concurring). Review of that same
legislative history in Mitchum v. Foster, supra at 407 U. S.
238 -242, [ Footnote
2/14 ] led us to proclaim it Page 427 U. S. 34 "evident that Congress clearly conceived that it was altering
the relationship between the States and the Nation with respect to
the protection of federally created rights; it was concerned that
state instrumentalities could not protect those rights; it realized
that state officers might, in fact, be antipathetic to the
vindication of those rights; and it believed that these failings
extended to the state courts."

															" * * * *" "Section 1983 was thus a product of a vast transformation from
the concepts of federalism that had prevailed in the late 18th
century. . . . The very purpose of § 1983 was to interpose the
federal courts between the States and the people, as guardians of
the people's federal right to protect the people from
unconstitutional action under color of state law, 'whether that
action be executive, legislative, or judicial.'"

															407 U.S. at 407 U. S.
242 .

															But by the announcement of its per se rule today, the
Court undermines past teachings that the availability of a federal
forum for claims brought pursuant to § 1983 is crucially important,
and, in one fell swoop, erases the legislative Page 427 U. S. 35 intent that those teachings reflect. [ Footnote 2/15 ] After today, a suitor seeking redress in
a federal forum under § 1983 and redress for the same wrongs under
state law must split his case, and he is remitted to duplicative
litigation no matter how expensive, wasteful, and needless.
Regardless of the balance of the discretionary factors enunciated
in Gibbs; regardless of the clarity of state law
respecting the pendent claim against the local governmental unit, cf. Wechsler, Federal Jurisdiction and the Revision of the
Judicial Code, 13 Law & Contemp.Prob. 216, 232-233 (1948);
[ Footnote 2/16 ] regardless of the
absolute Page 427 U. S. 36 identity of factual issues between the two claims, see Kates & Kouba, Liability of Public Entities Under Section 1983
of the Civil Rights Act, 45 S.Cal.L.Rev. 131, 162-163 (1972);
regardless of the monetary expense and other disadvantages of
duplicate litigation, see Fortune, Pendent Jurisdiction --
The Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1, 9 (1972);
regardless of the waste of judicial time and the "travesty on sound
judicial administration," supra at 427 U. S. 21 , the
Court, by its per se rule, forces upon a litigant the
indefensible choice of either suffering the costs of duplicate
litigation or forgoing his right, a right emphatically emphasized
in the congressional policy, to a federal forum in which to be
heard on his federal claim. To say that the suitor has available a
state forum in which conveniently to litigate both his claims, ante at 427 U. S. 15 ,
[ Footnote 2/17 ] is patently to
ignore the real issue, for it is painfully obvious that this does
not result in a neutral choice by the suitor among available
forums; rather, it imparts a fundamental bias against utilization
of the federal forum owing to the deterrent effect imposed by the
needless requirement of duplicate litigation if the federal forum
is chosen. P. Bator, p. Mishkin, D. Shapiro & H. Wechsler, Hart
and Wechsler's The Federal Courts and the Federal System 922-923
(2d ed.1973). Accordingly, rather than Page 427 U. S. 37 paying "due respect to a suitor's choice of a federal forum for
the hearing and decision of his federal constitutional claims," Zwickler v. Koota, 389 U.S. at 389 U. S. 248 ,
the Court today rides roughshod over this congressionally imposed
duty and reaches a result that flies in the face of the expressed
congressional intent. I dissent.

															[ Footnote 2/1 ]

															This has been the holding of the Court of Appeals for the Second
Circuit in a series of opinions by Judge Friendly. Almenares v.
Wyman, 453 F.2d 1075 (1971); Leather's Best, Inc. v. S.S.
Mormaclynx, 451 F.2d 800 (1971); Astor-Honor, Inc. v.
Grosset & Dunlap, Inc., 441 F.2d 627 (1971); United
States v. Heyward-Robinson Co., 430 F.2d 1077 (1970)
(concurring opinion). See also 7 C. Wright & A.
Miller, Federal Practice and Procedure § 1659 (1972); Fortune,
Pendent Jurisdiction -- The Problem of "Pendenting Parties," 34
U.Pitt.L.Rev. 1 (1972); Note, UMW v. Gibbs and Pendent
Jurisdiction, 81 Harv.L.Rev. 657 (1968); Comment, Pendent and
Ancillary Jurisdiction: Towards a Synthesis of Two Doctrines, 22
U.C.L.A.L.Rev. 1263 (1975).

															[ Footnote 2/2 ]

															As, for example, where a defendant seeks to join under Fed.Rule
Civ.Proc. 14 a third-party defendant over whom there is no
independent subject matter jurisdiction. The analysis in Gibbs placed emphasis on the fact that the Federal
Rules

															"embody 'the whole tendency of our decisions . . . to require a
plaintiff to try his . . . whole case at one time,' . . . and, to
that extent, emphasize the basis of pendent jurisdiction."

															383 U.S. at 383 U. S. 725 n. 13. The Federal Rules directly encourage the joinder of parties,
as well as claims. E.g., Fed.Rules Civ.Proc. 13(h), 14,
19, 20, 22, 24, and 25.

															[ Footnote 2/3 ]

															I agree, of course, that Congress may preclude the exercise of
pendent party jurisdiction as to particular parties or particular
types of claims, and that congressional determination would be
binding on this Court. It is worthy of note, however, that Congress
has not in the past expressed disapproval of our developments in
the law of pendent and ancillary jurisdiction, and

															"[t]he only congressional enactments on this subject have, in
fact, extended, rather than restricted, ancillary jurisdiction in a
number of situations."

															Baker, Toward a Relaxed View of Federal Ancillary and Pendent
Jurisdiction, 33 U.Pitt.L.Rev. 759, 763 (1972).

															[ Footnote 2/4 ]

															Cong.Globe, 42d Cong., 1st Sess., App. 335 (1871).

															[ Footnote 2/5 ] Id. at 704-705.

															[ Footnote 2/6 ] Id. at 725.

															[ Footnote 2/7 ] Id. at 749.

															[ Footnote 2/8 ] Id. at 800-801.

															[ Footnote 2/9 ] Id. at 804.

															[ Footnote 2/10 ] Id. at 788 (remarks of Mr. Kerr); id. at 791
(remarks of Mr. Willard); id. at 793 (remarks of Mr.
Poland); id. at 795 (remarks of Mr. Blair); ibid. (remarks of Mr. Burhard); id. at 799 (remarks of Mr.
Farnsworth).

															[ Footnote 2/11 ] Id. at 792 (Mass.); id. at 799 (N.Y.); id. at 800 (Pa.); ibid. (Ky.).

															[ Footnote 2/12 ]

															I can find only one expression of hostility to the federal
courts -- and that ambiguous in its context -- in the entire
legislative history of the proposed Sherman Amendment:

															"I care comparatively little about the Sherman amendment, either
in its original or modified form. It is too grossly and palpably
unconstitutional to receive the sanction of any court that even a
Radical President or Senate might organize. The Supreme Court,
thank God, has yet a decent respect for constitutional liberty and
law, and it will dismiss with the contempt it merits the first case
that comes before it seeking to enforce the judgments provided for
in this bill, and that will be an end of the Sherman amendment.
Therefore, I am not afraid of the practical effect of that piece of
narrow-minded, fanatical, and malicious legislation; it overleaps
itself. The old English 'hue and cry,' or any other relic of
barbarism, cannot save it."

															"Our written Constitution, its limitations and restrictions,
were intended to put an end forever to the exercise of all such
legislative and judicial authority by the Federal Government, and
leave all these matters to the several States and the people
thereof. I care nothing about the minor charges, but I do protest
against the continuance and application of the law of July 17,
1862, to the numerous classes of cases provided for in the proposed
bill." Id. at 789-790 (remarks of Mr. Beck).

															[ Footnote 2/13 ]

															" See the remarks of Mr. Dawes, a member of the
Committee which reported the Ku Klux bill, [Cong.Globe, 42d Cong.,
1st Sess.] 476:"

															" The first remedy proposed by this bill is a resort to the
courts of the United States. Is that a proper place in which to
find redress for any such wrongs? If there be power to call into
the courts of the United States an offender against these rights,
privileges, and immunities, and hold him to an account there,
either civilly or criminally, for their infringement, I submit to
the calm and candid judgment of every member of this House that
there is no tribunal so fitted, where equal and exact justice would
be more likely to be meted out in temper, in moderation, in
severity, if need be, but always according to the law and the fact,
as that great tribunal of the Constitution."

															"And see, e.g., the remarks of Mr. Coburn, id. at 459-460:"

															"Whenever, then, there is a denial of equal protection by the
State, the courts of justice of the nation stand with open doors,
ready to receive and hear with impartial attention the complaints
of those who are denied redress elsewhere. Here may come the weak
and poor and downtrodden, with assurance that they shall be heard.
Here may come the man smitten with many stripes and ask for
redress. Here may come the nation, in her majesty, and demand the
trial and punishment of offenders when all, all other tribunals are
closed. . . ."

															" Can these means be made effectual? Can we thus suppress these
wrongs? I will say we can but try. The United States courts are
further above mere local influence than the county courts; their
judges can act with more independence, cannot be put under terror,
as local judges can; their sympathies are not so nearly identified
with those of the vicinage; the jurors are taken from the State,
and not the neighborhood; they will be able to rise above
prejudices or bad passions or terror more easily. The marshal,
clothed with more power than the sheriff, can make arrests with
certainty, and, with the aid of the General Government, can seize
offenders in spite of any banded and combined resistance such as
may be expected. Thus, at least, these men, who disregard all law,
can be brought to trial. Here we stop. The court is to do the rest,
acting under all its solemn obligations of duty to country and God.
Can we trust it, or are we afraid of our own institutions? Does the
grim shadow of the State step into the national court, like a
goblin, and terrify us? Does this harmless and helpless ghost drive
us from that tribunal -- the State that mocks at justice, the State
that licenses outlawry, the State that stands dumb when the lash
and the torch and the pistol are lifted every night over the quiet
citizen? We believe that we can trust our United States courts, and
we propose to do so." Monroe v. Pape, 365 U.S. at 365 U. S.
253 -254, n. 83 (Frankfurter, J., dissenting).

															[ Footnote 2/14 ] E.g.: "As Representative Lowe stated, the"

															"records of the [state] tribunals are searched in vain for
evidence of effective redress [of federally secured rights]. . . .
What less than this [the Civil Rights Act of 1871] will afford an
adequate remedy? The Federal Government cannot serve a writ of
mandamus upon State Executives or upon State courts to compel them
to protect the rights, privileges and immunities of citizens. . . .
The case has arisen . . . when the Federal Government must resort
to its own agencies to carry its own authority into execution.
Hence, this bill throws open the doors of the United States courts
to those whose rights under the Constitution are denied or
impaired."

															"Cong.Globe, 42d Cong., 1st Sess., 374-376 (1871)." Mitchum v. Foster, 407 U.S. at 407 U. S.
240 .

															[ Footnote 2/15 ] See Wechsler, Federal Jurisdiction and the Revision of
the Judicial Code, 13 Law & Contemp.Prob. 216, 230 (1948):

															"[I]n [the] instance [of] the rights of action specially
conferred by Congress in the Civil Rights Laws . . . , Congress has
declared the historic judgment that, within this precious area,
often calling for a trial by jury, there is to be no slightest risk
of nullification by state process. The danger is unhappily not
past. It would be moving in the wrong direction to reduce the
jurisdiction in this field -- not because the interest of the state
is smaller in such cases, but because its interest is outweighed by
other factors of the highest national concern."

															(Footnote omitted.)

															[ Footnote 2/16 ]

															"There is a vice in federal adjudication on state grounds
inhering in the fact that federal courts are not the authorized
expositors of state law; there is no mechanism by which their
errors in such matters can be corrected on appeal by state courts.
There is a vice also, as we have recognized by liberal rules of
joinder, in forcing plaintiffs who have multiple bases of action to
pursue their remedies in pieces and in different courts. It is,
however, possible to find a balance for these evils. The balance is
achieved if jurisdiction is extended generally to claims that under
joinder rules may be asserted in a single action, subject to
discretion in the court to dismiss without prejudice claims resting
upon state law. When uncertainty obtains as to prevailing local
doctrine, when that doctrine is enmeshed in clashing policies that
render any legal formulation an intrinsically changing concept, the
discretion would be exercised to limit federal adjudication to the
federal grounds. When, on the contrary, the issue turns on
principles well settled by the state, the federal courts can safely
undertake the full adjudication of the case." Id. at 232-233 (footnotes omitted).

															[ Footnote 2/17 ]

															The Court today appears to decide sub silentio a
hitherto unresolved question by implying that § 1983 claims are not
claims exclusively cognizable in federal court, but may also be
entertained by state courts. See ante at 427 U. S. 15 , 427 U. S. 18 .
This is a conclusion with which I agree.