U.S. Supreme Court Finley v. United States, 490
U.S. 545 (1989) Finley v. United
States No. 87-1973 Argued February 28,
1989 Decided May 22, 1989 490
U.S. 545 CERTIORARI TO THE UNITED STATES
COURTOF APPEALS FOR THE NINTH CIRCUIT Syllabus Petitioner's decedents were killed when their plane struck
electric power lines on its approach to a city-run airfield in San
Diego. She filed the present action against the United States under
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), claiming
that the Federal Aviation Administration had been negligent in its
operation and maintenance of runway lights and in its performance
of air traffic control functions. Petitioner subsequently moved to
amend her complaint to add state tort law claims against both the
city and the utility company that maintained the power lines. The
District Court granted the motion and asserted "pendent"
jurisdiction under Mine Workers v. Gibbs, 383 U.
S. 715 , concluding that "judicial economy and
efficiency" favored trying the actions together, and that the
claims arose "from a common nucleus of operative facts." The Court
of Appeals reversed on interlocutory appeal, categorically
rejecting pendent-party jurisdiction under the FTCA. Held: The text of the FTCA -- which provides in
pertinent part that the federal district courts shall have
jurisdiction over "civil actions on claims against the United
States" -- defines jurisdiction in a manner that does not reach
defendants other than the United States. This Court's decision in Aldinger v. Howard, 427 U. S. 1 , made
explicit the nontransferability of Gibbs to the context of
pendent party jurisdiction. Aldinger, Zahn v. International
Paper Co., 414 U. S. 291 , and Owen Equipment & Erection Co. v. Kroger, 437 U.
S. 365 , establish that a grant of jurisdiction over
claims involving particular parties does not confer jurisdiction
over additional claims by or against different parties, even if
consideration of the additional claims would promote "judicial
economy and efficiency," and all of the claims "derive from a
common nucleus of operative fact." Nor do the circumstances here
suffice to establish "ancillary" jurisdiction. The unavailability
of jurisdiction over the additional claims is unaltered by the
exclusivity of federal jurisdiction under the FTCA, even though
that may sometimes require separate suits in state and federal
court. Finally, the 1948 revision of the Judicial Code, which
changed the relevant language of the FTCA from "any claim against
the United States" to its present form, does not suggest an
affirmative grant of pendent party jurisdiction, but is more
naturally understood as a stylistic Page 490 U. S. 546 change reflecting the terminology of the Federal Rules of Civil
Procedure. See Fed.Rule Civ.Proc. 2. Pp. 490 U. S.
547 -556.

															SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined.
BLACKMUN, J., filed a dissenting opinion, post, p. 490 U. S. 556 .
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 490 U. S.
558 .

															JUSTICE SCALIA delivered the opinion of the Court.

															On the night of November 11, 1983, a twin-engine plane carrying
petitioner's husband and two of her children struck electric
transmission lines during its approach to a San Diego, California,
airfield. No one survived the resulting crash. Petitioner brought a
tort action in state court, claiming that San Diego Gas and
Electric Company had negligently positioned and inadequately
illuminated the transmission lines, and that the city of San
Diego's negligent maintenance of the airport's runway lights had
rendered them inoperative the night of the crash. When she later
discovered that the Federal Aviation Administration (FAA) was in
fact the party responsible for the runway lights, petitioner filed
the present action against the United States in the United States
District Court for the Southern District of California. The
complaint based jurisdiction upon the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 1346(b), alleging negligence in the FAA's
operation and maintenance of the runway lights and performance of
air traffic control functions. Almost a year later, she moved to
amend the federal complaint to include claims against the original
state court defendants, as to which no independent basis for
federal jurisdiction existed. The District Court Page 490 U. S. 547 granted petitioner's motion and asserted "pendent" jurisdiction
under Mine Workers v. Gibbs, 383 U.
S. 715 (1966), finding it "clear" that "judicial economy
and efficiency" favored trying the actions together, and concluding
that they arose "from a common nucleus of operative facts." App. to
Pet. for Cert. A-8 to A-9. The District Court certified an
interlocutory appeal to the Court of Appeals for the Ninth Circuit
under 28 U.S.C. § 1292(b). That court summarily reversed on the
basis of its earlier opinion in Ayala v. United States, 550 F.2d 1196 (1977), cert. dism'd, 435 U.
S. 982 (1978), which had categorically rejected pendent
party jurisdiction under the FTCA. We granted certiorari, 488 U.S.
815 (1988), to resolve a split among the Circuits on whether the
FTCA permits an assertion of pendent jurisdiction over additional
parties. Compare, e.g., Ayala v. United States, supra, with Lykins v. Pointer, Inc., 725 F.2d 645 (CA11 1984),
and Stewart v. United States, 716 F.2d 755 (CA10 1982), cert. denied, 469 U.S. 1018 (1984).

															The FTCA provides that "the district courts . . . shall have
exclusive jurisdiction of civil actions on claims against the
United States" for certain torts of federal employees acting within
the scope of their employment. 28 U.S.C. § 1346(b). Petitioner
seeks to append her claims against the city and the utility to her
FTCA action against the United States, even though this would
require the District Court to extend its authority to additional
parties for whom an independent jurisdictional base -- such as
diversity of citizenship, 28 U.S.C. § 1332(a)(1) -- is lacking.

															In 1807, Chief Justice Marshall wrote for the Court that

															"courts which are created by written law, and whose jurisdiction
is defined by written law, cannot transcend that jurisdiction. It
is unnecessary to state the reasoning on which this opinion is
founded, because it has been repeatedly given by this court; and
with the decisions heretofore rendered on this point, no member of
the bench has, even for an instant, been dissatisfied." Ex parte
Bollman , 4 Cranch 75, 8 U. S. 93 (1807).
It Page 490 U. S. 548 remains rudimentary law that

															"[a]s regards all courts of the United States inferior to this
tribunal, two things are necessary to create jurisdiction, whether
original or appellate. The Constitution must have given to the
court the capacity to take it, and an act of Congress must have
supplied it. . . . To the extent that such action is not
taken, the power lies dormant." The Mayor v.
Cooper , 6 Wall. 247, 73 U. S. 252 (1868) (emphasis added); accord, Christianson v. Colt
Industries Operating Co., 486 U. S. 800 , 486 U. S. 818 (1988); Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368 , 449 U. S.
379 -380 (1981); Kline v. Burke Construction
Co., 260 U. S. 226 , 260 U. S.
233 -234 (1922); Case of the Sewing Machine
Companies , 18 Wall. 553, 85 U. S.
577 -578, 85 U. S.
586 -587 (1874); Sheldon v.
Sill , 8 How. 441, 49 U. S. 449 (1850); Cary v.
Curtis , 3 How. 236, 44 U. S. 245 (1845); McIntire v.
Wood , 7 Cranch 504, 11 U. S. 506 (1813).

															Despite this principle, in a line of cases by now no less well
established, we have held, without specific examination of
jurisdictional statutes, that federal courts have "pendent" claim
jurisdiction -- that is, jurisdiction over nonfederal claims
between parties litigating other matters properly before the court
-- to the full extent permitted by the Constitution. Mine
Workers v. Gibbs, supra; Hurn v. Oursler, 289 U.
S. 238 (1933); Siler v. Louisville & Nashville
R. Co., 213 U. S. 175 (1909). [ Footnote 1 ] Gibbs, which has come to stand for the principle in
question, held that

															"[p]endent 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 Page 490 U. S. 549 between that claim and the state claim permits the conclusion
that the entire action before the court comprises but one
constitutional 'case.'"

															383 U.S. at 383 U. S. 725 (emphasis in original). The requisite relationship exists, Gibbs said, when the federal and nonfederal claims "derive
from a common nucleus of operative fact" and are such that a
plaintiff "would ordinarily be expected to try them in one judicial
proceeding." Ibid. Petitioner contends that the same
criterion applies here, leading to the result that her state law
claims against San Diego Gas and Electric Company and the city of
San Diego may be heard in conjunction with her FTCA action against
the United States.

															Analytically, petitioner's case is fundamentally different from Gibbs in that it brings into question what has become
known as pendent party jurisdiction, that is, jurisdiction
over parties not named in any claim that is independently
cognizable by the federal court. [ Footnote 2 ] We may assume, without deciding, that the
constitutional criterion for pendent party jurisdiction is
analogous to the constitutional criterion for pendent claim
jurisdiction, and that petitioner's state law claims pass that
test. Our cases show, however, that, with respect to the addition
of parties, as opposed to the addition of only claims, we will not
assume that the full constitutional power has been congressionally
authorized, and will not read jurisdictional statutes broadly. In Zahn v. International Paper Co., 414 U.
S. 291 , 414 U. S. 301 (1973), we refused to allow a plaintiff pursuing a diversity action
worth less than the jurisdictional minimum of $10,000 to append his
claim to the jurisdictionally adequate diversity claims of other
members of a plaintiff class -- even though all of the claims would together Page 490 U. S. 550 have amounted to a single "case" under Gibbs, see Owen
Equipment & Erection Co. v. Kroger, 437 U.
S. 365 , 437 U. S. 372 (1978). We based this holding upon "the statutes defining the
jurisdiction of the District Court," 414 U.S. at 414 U. S. 292 ,
and did not so much as mention Gibbs. Two years later, the nontransferability of Gibbs to
pendent party claims was made explicit. In Aldinger v.
Howard, 427 U. S. 1 (1976),
the plaintiff brought federal claims under 42 U.S.C. § 1983 against
individual defendants, and sought to append to them a related state
claim against Spokane County, Washington. (A federal § 1983 claim
was unavailable against the county because of this Court's decision
in Monroe v. Pape, 365 U. S. 167 (1961).) [ Footnote 3 ] We
specifically disapproved application of the Gibbs mode of
analysis, finding a "significant legal difference." 427 U.S. at 427 U. S. 15 .
"[T]he addition of a completely new party," we said, "would run
counter to the well-established principle that federal courts . . .
are courts of limited jurisdiction marked out by Congress." Ibid. "Resolution of a claim of pendent party jurisdiction
. . . calls for careful attention to the relevant statutory
language." Id. at 427 U. S. 17 . We held in Aldinger that the
jurisdictional statute under which suit was brought, 28 U.S.C. §
1343, which conferred district court jurisdiction over civil
actions of certain types "authorized by law to be commenced," did
not mean to include as "authorized by law" a state law claim
against a party that had been statutorily insulated from similar
federal suit. The county had been " excluded from liability
in § 1983, and therefore by reference in the grant of jurisdiction
under § 1343(3)." Ibid. (emphasis in original).

															We reaffirmed and further refined our approach to pendent party
jurisdiction in Owen Equipment & Erection Co. v. Kroger,
supra, at 437 U. S.
372 -375 -- a case, like Zahn, involving the
diversity statute, 28 U.S.C. § 1332(a)(1), but focusing on the
requirement that the suit be "between . . . citizens of
different Page 490 U. S. 551 states," rather than the requirement that it "excee[d] the sum
or value of $10,000." We held that the jurisdiction which §
1332(a)(1) confers over a "matter in controversy" between a
plaintiff and defendant of diverse citizenship cannot be read to
confer pendent jurisdiction over a different, nondiverse defendant,
even if the claim involving that other defendant meets the Gibbs test. " Gibbs, " we said,

															"does not end the inquiry into whether a federal court has power
to hear the nonfederal claims along with the federal ones. Beyond
this constitutional minimum, there must be an examination of the
posture in which the nonfederal claim is asserted and of the
specific statute that confers jurisdiction over the federal
claim,"

															437 U.S. at 437 U. S.
373 .

															The most significant element of "posture" or of "context," id. at 376, in the present case (as in Zahn,
Aldinger, and Kroger ) is precisely that the added
claims involve added parties over whom no independent basis of
jurisdiction exists. While in a narrow class of cases a federal
court may assert authority over such a claim "ancillary" to
jurisdiction otherwise properly vested -- for example, when an
additional party has a claim upon contested assets within the
court's exclusive control, see, e.g., Krippendorf v. Hyde, 110 U. S. 276 (1884); Freeman v.
Howe , 24 How. 450, 65 U. S. 460 (1861), or when necessary to give effect to the court's judgment, see, e.g., Local Loan Co. v. Hunt, 292 U.
S. 234 , 292 U. S. 239 (1934); Julian v. Central Trust Co., 193 U. S.
93 , 193 U. S.
112 -114 (1904) -- we have never reached such a result
solely on the basis that the Gibbs test has been met.
[ Footnote 4 ] And little more
basis than that can be relied Page 490 U. S. 552 upon by petitioner here. As in Kroger, the relationship
between petitioner's added claims and the original complaint is one
of "mere factual similarity," which is of no consequence, since

															"neither the convenience of the litigants nor considerations of
judicial economy can suffice to justify extension of the doctrine
of ancillary jurisdiction,"

															437 U.S. at 437 U. S.
376 -377. It is true that here, unlike in Kroger, see
id. at 437 U. S. 376 ,
the party seeking to bring the added claims had little choice but
to be in federal rather than state court, since the FTCA permits
the Federal Government to be sued only there. But that alone is not
enough, since we have held that suits against the United States
under the Tucker Act, 24 Stat. 505 (which can of course be brought
only in federal court, see 28 U.S.C. §§ 1346(a)(2),
1491(a)(1)), cannot include private defendants. United States
v. Sherwood, 312 U. S. 584 (1941).

															The second factor invoked by Kroger, the text of the
jurisdictional statute at issue, likewise fails to establish
petitioner's case. The FTCA, § 1346(b), confers jurisdiction over
"civil actions on claims against the United States." It does not
say "civil actions on claims that include requested relief against
the United States," nor "civil actions in which there is a claim
against the United States" -- formulations one might expect if the
presence of a claim against the United States constituted merely a
minimum jurisdictional requirement, rather than a definition of the
permissible scope of FTCA actions. Just as the statutory provision
"between . . . citizens of different States" has been held to mean
citizens of different States and no one else, see Kroger,
supra, so also here we conclude that "against the United
States" means against the United States and no one else. [ Footnote 5 ]

															"Due regard for the rightful Page 490 U. S. 553 independence of state governments . . . requires that [federal
courts] scrupulously confine their own jurisdiction to the precise
limits which the statute has defined." Healy v. Ratta, 292 U. S. 263 , 292 U. S. 270 (1934); accord, Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249 , 409 U. S.
272 -273 (1972); Shamrock Oil & Gas Corp. v.
Sheets, 313 U. S. 100 , 313 U. S.
108 -109 (1941). The statute here defines jurisdiction in
a manner that does not reach defendants other than the United
States. [ Footnote 6 ]

															Petitioner contends, however, that an affirmative grant of
pendent party jurisdiction is suggested by changes made to the
jurisdictional grant of the FTCA as part of the comprehensive 1948
revision of the Judicial Code. See Pub.L. 773, Page 490 U. S. 554 62 Stat. 869. In its earlier form, the FTCA had conferred upon
district courts "exclusive jurisdiction to hear, determine, and
render judgment on any claim against the United States"
for specified torts. 28 U.S.C. § 931 (1946 ed.) (emphasis added).
In the 1948 revision, this provision was changed to "exclusive
jurisdiction of civil actions on claims against the United
States." 28 U.S.C. § 1346(b) (1952 ed.) (emphasis added).
Petitioner argues that this broadened the scope of the statute,
permitting the assertion of jurisdiction over any "civil action,"
so long as that action includes a claim against the United
States. We disagree.

															Under established canons of statutory construction,

															"it will not be inferred that Congress, in revising and
consolidating the laws, intended to change their effect unless such
intention is clearly expressed." Anderson v. Pacific Coast S.S. Co., 225 U.
S. 187 , 225 U. S. 199 (1912); see United States v. Ryder, 110 U.
S. 729 , 110 U. S. 740 (1884). Concerning the 1948 recodification of the Judicial Code in
particular, we have stated that

															"no changes in law or policy are to be presumed from changes of
language in the revision unless an intent to make such changes is
clearly expressed." Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 , 353 U. S. 227 (1957); see Tidewater Oil Co. v. United States, 409 U. S. 151 , 409 U. S. 162 (1972). We have found no suggestion, much less a clear expression,
that the minor rewording at issue here imported a substantive
change.

															The change from "claim against the United States" to "civil
actions on claims against the United States" would be a strange way
to express the substantive revision asserted by petitioner -- but a
perfectly understandable way to achieve another objective. The 1948
recodification came relatively soon after the adoption of the
Federal Rules of Civil Procedure, which provide that "[t]here shall
be one form of action to be known as civil action.'" Fed.Rule
Civ.Proc. 2. Consistent with this new terminology, the 1948
revision inserted the expression "civil action" throughout the
provisions governing Page 490 U. S.
555 district court jurisdiction. See H.R.Rep. No. 308,
80th Cong., 1st Sess., App. A114-A125 (1947) (Reviser's
Notes). Reliance upon the 1948 recodification also ignores the fact that
the concept of pendent party jurisdiction was not considered
remotely viable until Gibbs liberalized the concept of
pendent claim jurisdiction -- nearly 20 years later. See 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 3567.2, pp. 146-148 (2d ed.1984); Miller, Ancillary and
Pendent Jurisdiction, 26 S.Tex.L.J. 1, 11 (1985). Indeed, in 1948,
even a relatively limited substantive expansion of pendent claim jurisdiction with respect to unfair competition
actions provoked considerable discussion, see Wechsler,
Federal Jurisdiction and the Revision of the Judicial Code, 13 Law
& Contemp. Prob. 216, 232 (1948); Note, The Proposed Revision
of the Federal Judicial Code, 60 Harv.L.Rev. 424, 430-431 (1947),
and was described by the chief reviser as one of a dozen "major
changes of law" effected by his handiwork, W. Barron, The Judicial
Code 1948 Revision, 8 F.R.D. 439, 441-445 (1949). That change, in
the already accepted realm of pendent claim jurisdiction,
was accomplished by wording that could not be mistaken, referring
to

															"any civil action asserting a claim of unfair competition when
joined with a substantial and related claim under the copyright,
patent, or trademark laws."

															§ 1338(b), 62 Stat. 931. It is inconceivable that the much more
radical change of adopting pendent party jurisdiction would have
been effected by the minor and obscure change of wording at issue
here -- especially when that revision is more naturally understood
as stylistic.

															Because the FTCA permits the Government to be sued only in
federal court, our holding that parties to related claims cannot
necessarily be sued there means that the efficiency and convenience
of a consolidated action will sometimes have to be forgone in favor
of separate actions in state and federal courts. We acknowledged
this potential consideration Page 490 U. S. 556 in Aldinger, 427 U.S. at 427 U. S. 18 , but
now conclude that the present statute permits no other result. * * * * As we noted at the outset, our cases do not display an entirely
consistent approach with respect to the necessity that jurisdiction
be explicitly conferred. The Gibbs line of cases was a
departure from prior practice, and a departure that we have no
intent to limit or impair. But Aldinger indicated that the Gibbs approach would not be extended to the pendent party
field, and we decide today to retain that line. Whatever we say
regarding the scope of jurisdiction conferred by a particular
statute can, of course, be changed by Congress. What is of
paramount importance is that Congress be able to legislate against
a background of clear interpretive rules, so that it may know the
effect of the language it adopts. All our cases -- Zahn,
Aldinger, and Kroger -- have held that a grant of
jurisdiction over claims involving particular parties does not
itself confer jurisdiction over additional claims by or against
different parties. Our decision today reaffirms that interpretive
rule; the opposite would sow confusion.

															For the foregoing reasons, the judgment of the Court of Appeals
is Affirmed. [ Footnote 1 ]

															JUSTICE STEVENS apparently does not acknowledge the divergence
in these lines of authority. Nothing else can explain the belief
expressed in his dissent that there is force in the argument
that,

															"[i]f the Court's demonstration [of lack of statutory authority]
were controlling, Gibbs, Hurn, and Moore, as well
as a good many other cases, were incorrectly decided." Post at 490 U. S. 572 .
For that is entirely canceled by the equally valid argument that,
if lack of statutory authority were not controlling, Christianson, Firestone, Sewing Machine Companies, and McIntire, as well as a good many other cases, were
incorrectly decided.

															[ Footnote 2 ]

															JUSTICE STEVENS is thus mistaken to rely upon, post at 490 U. S.
559 -560, n. 6, this Court's decision in Moore v. New
York Cotton Exchange, 270 U. S. 593 (1926). That case involved jurisdiction over a counterclaim brought
by and against parties who were already properly before the court
on other, federal question, grounds. His dissent generally ignores
this distinction -- a central distinction, as we shall later
discuss -- between new parties and parties already before the
court.

															[ Footnote 3 ] Monroe v. Pape was later overruled by Monell v. New
York City Dept. of Social Services, 436 U.
S. 658 (1978).

															[ Footnote 4 ]

															This Court's decision in Dewey v. West Fairmont Gas Coal
Co., 123 U. S. 329 (1887), which JUSTICE STEVENS cites in his dissent, see
post at 490 U. S. 560 ,
n. 6, explicitly rested upon "ancillary" jurisdiction, citing Krippendorf v. Hyde, 110 U. S. 276 (1884), in support of its holding that "[t]he suit in equity was an
exercise of jurisdiction . . . ancillary to that which it had
already acquired in the action at law." 123 U.S. at 123 U. S. 333 .
In Dewey, the new defendant added in the equitable
counterclaim was asserted to have been the recipient of a
fraudulent conveyance from the insolvent plaintiff, and the
counterclaim was brought under a West Virginia statute authorizing
suits to set aside such conveyances in assistance of an anticipated
judgment or decree against the conveying debtor. Any decree on the
counterclaim would presumably have been worthless if the fraudulent
conveyance could not have been recaptured.

															[ Footnote 5 ]

															JUSTICE STEVENS would distinguish Kroger (and Zahn
v. International Paper Co., 414 U. S. 291 (1973)) from the present case on the ground that, where
Congress

															"has unequivocally indicated its intent that the federal right
be litigated in a federal forum, there is reason to believe that
Congress did not intend that the substance of the federal right be
diminished by the increased costs in efficiency and convenience of
litigation in two forums." Post at 490 U. S. 577 .
It seems to us, however, that one could say precisely the same
thing about the diversity jurisdiction involved in Kroger and Zahn: when Congress has unequivocally indicated its
intent that a plaintiff have a right to bring a diversity action in
federal court, there is reason to believe that Congress did not
intend that the substance of that right be diminished, etc. We
simply do not agree with the inference in either context.

															[ Footnote 6 ]

															JUSTICE STEVENS says that "it is perfectly clear that the
District Court has . . . statutory power to decide this case," post at 490 U. S. 560 -- which is true if one means this case against the United States.
His dissent then continues, however, "[i]t is also undisputed that
this power will not be defeated by the joinder of two private
defendants," ibid., supporting that statement by
references to Federal Rules of Civil Procedure 14(a) and 20(a),
which permit the impleader and joinder of parties, post at 490 U. S.
560 -561. Unfortunately, the proposition in that second
sentence is disputed. Indeed, it is what this case is all
about. More precisely, it is not that the "statutory power to
decide this case" is defeated by the joinder of a private
party for purposes of a claim over which the District Court has no
independent jurisdiction, but that the statutory power to decide a
case including such a claim simply does not exist, since the FTCA
provides jurisdiction only for claims against the United States.
Rules 14(a) and 20(a) in no way alter that reality, since the
Federal Rules explicitly provide that they "shall not be construed
to extend . . . the jurisdiction of the United States district
courts," Fed.Rule Civ.Proc. 82.

															JUSTICE BLACKMUN, dissenting.

															If Aldinger v. Howard, 427 U. S.
1 (1976), required us to ask whether the Federal Tort
Claims Act embraced "an affirmative grant of pendent party
jurisdiction," ante at 490 U. S. 553 ,
I would agree with the majority that no such specific grant of
jurisdiction is present. But, in my view, that is not the
appropriate question under Aldinger. I read the Court's
opinion in that case, rather, as requiring us to consider whether
Congress has demonstrated an intent to exempt "the party as to whom
jurisdiction pendent to the principal claim" is asserted from being
haled into federal court. 427 U.S. at 427 U. S. 16 (emphasis omitted). And, as those of us in dissent in Aldinger observed, the Aldinger test would be
rendered meaningless Page 490 U. S. 557 if the required intent could be found in the failure of the
relevant jurisdictional statute to mention the type of party in
question,

															"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." Id. at 427 U. S. 23 (BRENNAN, J., dissenting).

															In Aldinger, the Court found the requisite intent to
exclude municipalities from the relevant jurisdictional statute,
because (the Court then thought) municipalities had been
affirmatively excluded by Congress from the scope of 42 U.S.C. §
1983. In such a case, the Court barred the use of the pendent party
doctrine, for otherwise the doctrine would permit an end run around
an express congressional limitation of federal power. See
id. at 427 U. S.
16 -17.

															In the present case, I find no such substantive limitation. Nor,
in my view, is there any other expression of congressional intent
to exclude private defendants from federal tort claims litigation. United States v. Sherwood, 312 U.
S. 584 (1941), is not to the contrary. There, this Court
held that Congress did not intend under the Tucker Act to permit
the district courts to adjudicate any cause of action that could
not have been brought in the Court of Claims, an Article I court in
which no private party could be a defendant. Sherwood did
not turn solely on a canon of "conservatism which is appropriate in
the case of a waiver of sovereign immunity." Id. at 312 U. S. 590 .
It turned also upon "the history of the Court of Claims'
jurisdiction." Id. at 312 U. S.
590 -591. There is no equivalent history of adjudication
of tort claims against the United States in a tribunal without
power to litigate the liability of private tortfeasors; thus, Sherwood does not require the result the Court reaches
today.

															In a case not controlled by any express intent to limit the
scope of a constitutional "case," Aldinger suggests that
the appropriateness of pendent party jurisdiction might turn on the
"alignmen[t] of parties and claims," and that one significant
factor is whether "the grant of jurisdiction to [the] federal Page 490 U. S. 558 court is exclusive," 427 U.S. at 427 U. S. 18 , as
is the situation here. Where, as here, Congress' preference for a
federal forum for a certain category of claims makes the federal
forum the only possible one in which the constitutional
case may be heard as a whole, the sensible result is to permit the
exercise of pendent party jurisdiction. Aldinger imposes
no obstacle to that result, and I would not reach out to create
one. I therefore dissent.

															JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.

															The Court's holding is not faithful to our precedents and
casually dismisses the accumulated wisdom of our best judges. As we
observed more than 16 years ago,

															"numerous decisions throughout the courts of appeals since
[ Mine Workers v. Gibbs, 383 U. S. 715 (1966),] have recognized the existence of judicial power to hear
pendent claims involving pendent parties where "the entire action
before the court comprises but one constitutional case'" as
defined in Gibbs. " Moor v. County of Alameda, 411 U.
S. 693 , 411 U. S. 713 (1973). I shall first explain why the position taken by the
overwhelming consensus of federal judges is correct, and then
comment on major flaws in the opinion the Court announces
today. I Article III of the Constitution identifies the categories of
"Cases" and "Controversies" that federal courts may have
jurisdiction to decide. [ Footnote
2/1 ] If a case is not within one of the Page 490 U. S. 559 specified categories, neither Congress nor the parties may
authorize a federal court to decide it. [ Footnote 2/2 ] Objections to a federal court's
jurisdiction over the subject matter of a case cannot be waived.
[ Footnote 2/3 ] Although Article III
strictly confines the subject matter jurisdiction of federal
courts, it does not limit the extent of the courts' personal
jurisdiction over individual parties [ Footnote 2/4 ] or their power to decide individual claims
in cases within any of the specified categories. [ Footnote 2/5 ] A party beyond the reach of a federal
court's process may voluntarily submit to its jurisdiction over his
person, but he cannot create subject matter jurisdiction -- by
waiver, estoppel, or the filing of a lawsuit -- over a non-Article
III case. [ Footnote 2/6 ] Page 490 U. S. 560 The case before us today is one in which the United States is a
party. Given the plain language of Article III, there is not even
an arguable basis for questioning the federal court's
constitutional power to decide it. [ Footnote 2/7 ] Moreover, by enacting the Federal Tort
Claims Act (FTCA) in 1946, 28 U.S.C. § 1346(b), Congress
unquestionably authorized the District Court to accept jurisdiction
of "civil actions on claims against the United States." Thus, it is
perfectly clear that the District Court has both constitutional and
statutory power to decide this case.

															It is also undisputed that this power will not be defeated by
the joinder of two private defendants. Rule 14(a) of the Federal
Rules of Civil Procedure expressly authorizes the defendant to
implead joint tortfeasors, [ Footnote
2/8 ] and this Rule is applicable Page 490 U. S. 561 to FTCA cases. [ Footnote 2/9 ]
Moreover, if the claim against nonfederal defendants had been
properly brought in a federal court, those defendants could require
the United States to defend their claim for contribution in that
action. [ Footnote 2/10 ] The
dispute between all the parties derives from a common nucleus of
operative fact. There is accordingly ample basis for regarding this
entire three-cornered controversy as a single "case," and for
allowing petitioners to assert additional claims against the
nonfederal defendants as they are authorized to do by Rule 20(a) of
the Federal Rules. [ Footnote
2/11 ]

															Prior to the adoption of the Federal Rules of Civil Procedure in
1938, the federal courts routinely decided state law claims in
cases in which they had subject matter jurisdiction, see, e.g.,
Hurn v. Oursler, 289 U. S. 238 , 289 U. S. 246 (1933); Siler Page 490 U. S. 562 v. Louisville & Nashville R. Co., 213 U.
S. 175 (1909), and granted relief against nondiverse
parties on state claims as to which there was no independent basis
for federal jurisdiction, see, e.g., Moore v. New York Cotton
Exchange, 270 U. S. 593 (1926); Julian v. Central Trust Co., 193 U. S.
93 , 193 U. S.
112 -114 (1904); Freeman v.
Howe , 24 How. 450, 65 U. S. 460 (1861). [ Footnote 2/12 ] Although
the contours of the federal cause of action -- or "case" -- were
then more narrowly defined than they are today, see, e.g., Hurn
v. Oursler, supra, the doctrine of "pendent" or "ancillary"
jurisdiction had long been firmly established. The relevant change
that was effectuated by the adoption of the Rules in 1938 was, in
essence, a statutory broadening of the dimensions of the cases that
federal courts may entertain.

															The Court's unanimous opinion [ Footnote 2/13 ] in Mine Workers v. Gibbs, 383 U. S. 715 (1966), highlights the modern conception of a "civil action" and a
"constitutional case." At issue was the exercise of pendent
jurisdiction over a state law claim in an action brought under the
Labor Management Relations Act, 1947. [ Footnote 2/14 ] We wrote: Page 490 U. S. 563 "Hurn was decided in 1933, before the unification of law and
equity by the Federal Rules of Civil Procedure. At the time, the
meaning of 'cause of action' was a subject of serious dispute; the
phrase might 'mean one thing for one purpose and something
different for another.' United States v. Memphis Cotton Oil
Co., 288 U. S. 62 , 288 U. S.
67 -68. The Court in Hurn identified what it
meant by the term by citation of Baltimore S. S. Co. v.
Phillips, 274 U. S. 316 , a case in which
'cause of action' had been used to identify the operative scope of
the doctrine of res judicata. In that case, the Court had
noted that 'the whole tendency of our decisions is to require a
plaintiff to try his whole cause of action and his whole case at
one time.' 274 U.S. at 274 U. S. 320 ."

															" * * * *" "With the adoption of the Federal Rules of Civil Procedure and
the unified form of action, Fed.Rule Civ.Proc. 2, much of the
controversy over 'cause of action' abated. The phrase remained as
the keystone of the Hurn test, however, and, as
commentators have noted, has been the source of considerable
confusion. Under the Rules, the impulse is toward entertaining the
broadest possible scope of action consistent with fairness to the
parties; joinder of claims, parties and remedies is strongly
encouraged. Yet because the Hurn question involves issues
of jurisdiction as well as convenience, there has been some
tendency to limit its application to cases in which the state and
federal claims are, as in Hurn, 'little more than the
equivalent of different epithets to characterize the same group of
circumstances.' 289 U.S. at 289 U. S.
246 ."

															"This limited approach is unnecessarily grudging. 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 . . . ,' Page 490 U. S. 564 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. Levering & Garrigues Co.
v. Morrin, 289 U. S. 103 . 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." Id. at 383 U. S.
722 -725 (emphasis in original; footnotes omitted).
[ Footnote 2/15 ]

															Immediately after Gibbs was decided, [ Footnote 2/16 ] federal judges throughout the
Nation recognized that its reasoning applied to cases in which it
was necessary to add an additional party on a pendent, nonfederal
claim in order to grant complete relief. For example, Judge Henry
Friendly considered this Page 490 U. S. 565 precise question in three separate opinions. [ Footnote 2/17 ] Because he is universally
recognized not only as one of our wisest judges, [ Footnote 2/18 ] but also as one with special
learning and expertise in matters of federal jurisdiction,
[ Footnote 2/19 ] a reference to
each of those opinions is appropriate.

															In Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d
800 (CA2 1971), Judge Friendly summarized the understanding of the Gibbs doctrine that prevailed in 1971, as follows:

															"To be sure, the Gibbs Court was not confronted with
the question whether pendent jurisdiction extended to a state claim
against a party not named in the federal claim. But as we have
recently observed in Astor-Honor, Inc. v. Grosset & Dunlap,
Inc., 441 F.2d 627, 629 (2 Cir.1971),"

															"Mr. Justice Brennan's language and the common sense
considerations underlying it seem broad enough to cover that
problem also. See Note, UMW v. Gibbs and Pendent
Jurisdiction, 81 Harv.L.Rev. 657, 664 (1968)."

															"In Page 490 U. S. 566 that decision, involving federal claims under the copyright laws
and state claims of unfair trade practice and unfair competition,
including a defendant not named in the copyright claims, we held
that a federal court had power to hear a state claim against a
party not named in the federal claim, provided the Gibbs test was met, noting that this conclusion was buttressed by our
decisions concerning ancillary jurisdiction to entertain compulsory
counterclaims under F.R.Civ.P. 13(a), United Artists Corp. v.
Masterpiece Productions, Inc., 221 F.2d 213 (2 Cir.1955), and
third-party claims under F.R.Civ.P. 14(a), Dery v. Wyer, 265 F.2d 804 (2 Cir.1959)." Id. at 809-810.

															It is noteworthy that, in his Leather's Best opinion,
Judge Friendly relied, in part, on the Federal Rules of Civil
Procedure, just as JUSTICE BRENNAN had done in the Gibbs opinion itself. Indeed, in another paragraph of his opinion, Judge
Friendly concluded that the 1966 amendments to the Rules made it
appropriate to extend the ancillary jurisdiction doctrine to the
admiralty context, as well as to ordinary civil cases. [ Footnote 2/20 ] In another opinion in
1971, he unequivocally concluded Page 490 U. S. 567 that

															"the doctrine of pendent jurisdiction is sufficiently broad to
support a claim within the limits of Gibbs against a
person not a party to the primary, jurisdiction-granting
claim." Almenares v. Wyman, 453 F.2d 1075, 1083 (CA2 1971), cert. denied, 405 U. S. 944 (1972). [ Footnote 2/21 ]

															Before Judge Friendly addressed this issue for the third time,
we decided Aldinger v. Howard, 427 U. S.
1 (1976). In that case, after declining to announce any
general rule governing pendent party jurisdiction, we held that
such jurisdiction should not be exercised if Congress has
"expressly or by implication negated its existence" in the statute
granting subject matter jurisdiction over the particular claim
before the Court. Id. at 427 U. S. 18 -19.
Specifically, we concluded that the Civil Rights Acts, as then
interpreted, precluded the joinder of a municipal corporation as a
defendant to a claim asserted pursuant to 42 U.S.C. § 1983 or to a
state law claim pendent to such a federal claim. Although a
reasonable argument can be made that the Court misconstrued the
intent of Congress in that case, see 427 U.S. at 427 U. S. 23 -37
(BRENNAN, J., dissenting), there surely can be no quarrel with the
proposition that Congress may withdraw or deny pendent jurisdiction
over particular claims or parties.

															In his third "pendent party" opinion, Judge Friendly correctly
described the limited scope of our holding in Aldinger. He
wrote:

															"Although the Aldinger Court disapproved of the joinder
of a pendent party defendant in the case before it, the Page 490 U. S. 568 Court explicitly limited its conclusion to "the issue of
so-called pendent party' jurisdiction with respect to a claim
brought under [28 U.S.C.] § 1343(3) and [42 U.S.C. §]1983," id. at 427 U. S. 18 , and
noted that "[o]ther statutory grants and other alignments of
parties and claims might call for a different result," id. and 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," id. " "The circumstances here are about as powerful for the exercise
of pendent party jurisdiction as can be imagined. The exclusivity
of federal jurisdiction over claims for violation of the Securities
Exchange Act makes a federal court the only one where a complete
disposition of federal and related state claims can be rendered. Cf. the Court's comment in Aldinger that"

															"[w]hen 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 federal court may all of the claims be tried
together,"

															"427 U.S. at 427 U. S. 18 ." Weinberger v. Kendrick, 698 F.2d 61, 76-77 (CA2 1982), cert. denied, 464 U.S. 818 (1983). In the Weinberger case, the circumstances were "about as powerful
for the exercise of pendent party jurisdiction as can be imagined"
because Congress had vested the federal courts with exclusive
jurisdiction over claims arising under the Securities Exchange Act.
The federal district court was therefore the only forum in which
the entire constitutional case could be tried at one time. That
powerful circumstance is also present in cases arising under the
FTCA. In fact, in dicta, the Aldinger Court suggested that
pendent party jurisdiction Page 490 U. S. 569 might be available under the FTCA for precisely this reason. 427
U.S. at 427 U. S. 18 .

															I would thus hold that the grant of jurisdiction to hear "civil
actions on claims against the United States" authorizes the federal
courts to hear state law claims against a pendent party. As many
other judges have recognized, [ Footnote 2/22 ] the fact that such claims are within the
exclusive federal jurisdiction, together with the absence of any
evidence of congressional disapproval of the exercise of pendent
party jurisdiction in FTCA cases, [ Footnote 2/23 ] provides a fully sufficient Page 490 U. S. 570 justification for applying the holding in Gibbs to this
case. [ Footnote 2/24 ] Page 490 U. S. 571 II The Court's contrary conclusion rests on an insufficient major
premise, a failure to distinguish between diversity and federal
question cases, and an implicit reliance on a narrow view of the
waiver of sovereign immunity in the FTCA. [ Footnote 2/25 ] Page 490 U. S. 572 The Court treats the absence of an affirmative grant of
jurisdiction by Congress as though it constituted the kind of
implicit rejection of pendent jurisdiction that we found in Aldinger v. Howard, 427 U. S. 1 (1976).
Its opinion laboriously demonstrates that the FTCA "defines
jurisdiction in a manner that does not reach defendants other than
the United States," ante at 490 U. S. 553 ,
and that the language of the statute cannot be construed as
"adopting pendent party jurisdiction," ante at 490 U. S. 555 .
That, of course, is always the predicate for the question whether a
federal court may rely on the doctrine of ancillary or pendent
jurisdiction to fill a gap in the relevant jurisdictional statute.
If the Court's demonstration were controlling, Gibbs,
Hurn , and Moore, as well as a good many other cases,
were incorrectly decided. [ Footnote
2/26 ] Page 490 U. S. 573 In Aldinger, we adopted a rule of construction that
assumed the existence of pendent jurisdiction unless "Congress in
the statutes conferring jurisdiction has . . . expressly or by
implication negated its existence," 427 U.S. at 427 U. S. 18 .
[ Footnote 2/27 ] We rejected the
assertion of pendent party jurisdiction there because it arose "not
in the context of congressional silence or tacit encouragement, but
in quite the opposite context." Id. at 427 U. S. 15 -16.
[ Footnote 2/28 ] Congress'
exclusion of municipal corporations from the definition of persons
under § 1983, we concluded, evinced an intent to preclude the
exercise of federal court jurisdiction over them. If congressional
silence were sufficient to defeat pendent jurisdiction, the careful
reasoning in our Aldinger opinion was wholly unnecessary,
for obviously the civil rights statutes do not affirmatively
authorize the joinder of any state law claims.

															A similar approach, focusing on a legislative intent to bar a
party from federal court, guided our analysis in Zahn v.
International Paper Co., 414 U. S. 291 (1973), and Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978). Page 490 U. S. 574 In Zahn, we surveyed the "firmly rooted" law that

															"multiple plaintiffs with separate and distinct claims must each
satisfy the jurisdictional amount requirement for suit in federal
courts,"

															414 U.S. at 414 U. S. 294 ,
and refused to adopt a rule that would allow putative plaintiffs
who could not meet the jurisdictional amount to assert claims
pendent to jurisdictionally sufficient claims. We noted that
adoption of such a rule

															"would undermine the purpose and intent of Congress in providing
that plaintiffs in diversity cases must present claims in excess of
the specified jurisdictional amount"

															and would depart from "the historic construction of the
jurisdictional statutes, left undisturbed by Congress over these
many years." Id. at 414 U. S. 301 .
In Kroger, the rule at issue was the requirement that a
plaintiff invoking diversity jurisdiction plead complete diversity.
After noting the historical evidence demonstrating

															"a congressional mandate that diversity jurisdiction is not to
be available when any plaintiff is a citizen of the same State as
any defendant,"

															437 U.S. at 437 U. S. 374 ,
we held that that jurisdictional requirement could not be
circumvented through the exercise of pendent jurisdiction.
[ Footnote 2/29 ]

															The Court today adopts a sharply different approach. Without
even so much as acknowledging our statement in Aldinger that, before a federal court may exercise pendent Page 490 U. S. 575 party jurisdiction, it must satisfy itself that Congress "has
not expressly or by implication negated its existence," 427 U.S. at 427 U. S. 18 , it
now instructs that

															"a grant of jurisdiction over claims involving particular
parties does not itself confer jurisdiction over additional claims
by or against different parties." Ante at 490 U. S. 556 .
This rule, the Court asserts, is necessary to provide Congress "a
background of clear interpretative rules" and to avoid sowing
confusion. Ibid. But as a method of statutory
interpretation, the Court's approach is neither clear nor faithful
to our judicial obligation to discern congressional intent. While
with respect to the joinder of additional defendants on pendent
state claims, the Court's mandate is now clear, its approach offers
little guidance with respect to the many other claims that a court
must address in the course of deciding a constitutional case.
Because the Court provides no reason why the joinder of pendent
defendants over whom there is no other basis of federal
jurisdiction should differ from the joinder of pendent claims and
other pendent parties, [ Footnote
2/30 ] I fear that its approach will confuse more than it
clarifies. Page 490 U. S. 576 How much more clear to assume -- especially when the courts have
long so held -- that, with respect to all of these situations,
Congress intended the Federal Rules to govern unless Congress has
indicated otherwise.

															The Court's focus on diversity cases may explain why it loses
sight of the purpose behind the principle of pendent jurisdiction.
[ Footnote 2/31 ] The doctrine of
pendent jurisdiction rests in part on a recognition that forcing a
federal plaintiff to litigate his or her case in both federal and
state courts impairs the ability of the federal court to grant full
relief, Supreme Tribe of Ben-Hur v. Cauble, 255 U.
S. 356 , 255 U. S. 367 (1921), and

															"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." Aldinger, 427 U.S. at 427 U. S. 36 (BRENNAN, J., dissenting). [ Footnote
2/32 ]

															"The courts, by recognizing pendent jurisdiction, are Page 490 U. S. 577 effectuating Congress' decision to provide the plaintiff with a
federal forum for litigating a jurisdictionally sufficient
claim."

															Miller, Ancillary and Pendent Jurisdiction, 26 S.Tex.L.J. 1, 4
(1985). This is especially the case when, by virtue of the grant of
exclusive federal jurisdiction, " only in a federal court
may all of the claims be tried together." Aldinger, 427
U.S. at 427 U. S. 18 . In
such circumstances, in which Congress has unequivocally indicated
its intent that the federal right be litigated in a federal forum,
there is reason to believe that Congress did not intend that the
substance of the federal right be diminished by the increased costs
in efficiency and convenience of litigation in two forums. Cf.
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1 , 460 U. S. 25 (1983); Will v. Calvert Fire Ins. Co., 437 U.
S. 655 , 437 U. S.
673 -675 (1978) (BRENNAN, J., dissenting). [ Footnote 2/33 ] No such special federal
interest is present when federal jurisdiction is invoked on the
basis of the diverse citizenship of the parties and the state law
claims may be litigated in a state forum. See Owen Equipment
& Erection Co. v. Kroger, 437 U.S. at 437 U. S. 376 ;
Currie, The Federal Courts and the American Law Institute, 36 U.
Chi.L.Rev. 1, 21 (1968). [ Footnote
2/34 ] To be sure, "[w]hatever we say regarding the scope of
jurisdiction conferred by a particular statute can . . . be changed
by Congress," Page 490 U. S. 578 ante at 490 U. S. 556 ,
but that does not relieve us of our responsibility to be faithful
to the congressional design. The Court is quite incorrect to
presume that, because Congress did not sanction the exercise of
pendent party jurisdiction in the diversity context, it has not
permitted its exercise with respect to claims within the exclusive
federal jurisdiction.

															Finally, the Court seeks to draw support from United States
v. Sherwood, 312 U. S. 584 (1941), a case that involved a narrow issue [ Footnote 2/35 ] and a narrow construction of the
jurisdiction conferred by the Tucker Act. [ Footnote 2/36 ] The Court's holding was based partly on
the special history of the Court of Claims, see id. at 490 U. S. 587 ,
and partly on the view that the sovereign's consent to be sued
"must be strictly interpreted," id. at 490 U. S. 590 .
Fortunately, after the enactment of the FTCA in 1946, the Court
took a much more enlightened view of the waiver of sovereign
immunity effected by that statute. Thus, in its decision upholding
jurisdiction of a claim against the United States for contribution
-- incidentally, a claim that was not expressly covered by the Act
-- the Court wrote:

															"This brings the instant cases within the principle approved in United States v. Aetna Surety Co., 338 U. S.
366 , 338 U. S. 383 :"

															" In argument before a number of District Courts and Courts of
Appeals, the Government relied upon the doctrine that statutes
waiving sovereign immunity must be strictly construed. We think
that the congressional attitude in passing the Tort Claims Act is
more accurately reflected by Judge Cardozo's statement in Anderson v. Page 490 U. S. 579 Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28,
29-30: 'The exemption of the sovereign from suit involves hardship
enough where consent has been withheld. We are not to add to its
rigor by refinement of construction where consent has been
announced.'"

															"Once we have concluded that the Federal Tort Claims Act covers
an action for contribution due a tortfeasor, we should not, by
refinement of construction, limit that consent to cases where the
procedure is by separate action, and deny it where the same relief
is sought in a third-party action. As applied to the State of New
York, Judge Cardozo said, in language which is apt here:"

															"No sensible reason can be imagined why the State, having
consented to be sued, should thus paralyze the remedy."

															"243 N.Y. at 147, 153 N.E. at 29."

															"A sense of justice has brought a progressive relaxation by
legislative enactments of the rigor of the immunity rule. As
representative governments attempt to ameliorate inequalities as
necessities will permit, prerogatives of the government yield to
the needs of the citizen. . . . When authority is given, it is
liberally construed."

															" United States v. Shaw, 309 U. S.
495 , 309 U. S. 501 ." United States v. Yellow Cab Co., 340 U.S. at 340 U. S.
554 -555. [ Footnote
2/37 ] Page 490 U. S. 580 Today we should be guided by the wisdom of Cardozo and Friendly,
rather than by the "unnecessarily grudging" approach that was
unanimously rebuffed in Gibbs. See 383 U.S. at 383 U. S.
725 .

															I respectfully dissent.

															[ Footnote 2/1 ]

															Article III, § 2 provides, in part:

															"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; -- to all Cases affecting Ambassadors, other public
Ministers and Consuls; -- to all Cases of admiralty and maritime
Jurisdiction; -- to Controversies to which the United States shall
be a Party; -- to Controversies between two or more States; --
between a State and Citizens of another State; -- between Citizens
of different States; -- between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects."

															[ Footnote 2/2 ] See, e.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 , 461 U. S. 491 (1983); National Mutual Ins. Co. v. Tidewater Transfer
Co., 337 U. S. 582 , 337 U. S.
646 -655 (1949) (Frankfurter, J., dissenting).

															[ Footnote 2/3 ] See, e.g., Insurance Corp. of Ireland v. Compagnie des
Bauxites, 456 U. S. 694 , 456 U. S. 702 (1982); Sosna v. Iowa, 419 U. S. 393 , 419 U. S. 398 (1975); Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884).

															[ Footnote 2/4 ] See, e.g., Insurance Corp. of Ireland v. Compagnie des
Bauxites, supra; Petrowski v. Hawkeye-Security Ins. Co., 350 U. S. 495 (1956).

															[ Footnote 2/5 ] See, e.g., Verlinden B. V., 461 U.S. at 461 U. S. 491 ; Osborn v. Bank of United
States , 9 Wheat. 738 (1824).

															[ Footnote 2/6 ]

															" 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.'"

															"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 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." Aldinger v. Howard, 427 U. S. 1 , 427 U. S. 20 -21
(1976) (BRENNAN, J., dissenting) (footnote omitted). See
also Currie, Pendent Parties, 45 U.Chi.L.Rev. 753, 755 (1978);
Fortune, Pendent Jurisdiction -- The Problem of "Pendenting
Parties," 33 U.Pitt.L.Rev. 1, 12 (1972); Schenkier, Ensuring Access
to Federal Courts: A Revised Rationale for Pendent Jurisdiction, 75
Nw.U.L.Rev. 245, 281 (1980); Note, 64 B.U.L.Rev. 895, 942
(1985).

															The Court has upheld the authority of a federal court to
entertain counterclaims against a plaintiff, see Moore v. New
York Cotton Exchange, 270 U. S. 593 (1926), and a third-party defendant, Dewey v. West Fairmont Gas
Coal Co., 123 U. S. 329 (1887), notwithstanding that the claims do not have an independent
jurisdictional basis. See also Owen Equipment & Erection
Co. v. Kroger, 437 U. S. 365 , 437 U. S. 375 (1978) ("[T]he exercise of ancillary jurisdiction over nonfederal
claims has often been upheld in situations involving impleader,
cross-claims or counterclaims").

															[ Footnote 2/7 ]

															Federal jurisdiction is supported not only by the fact that the
case is one arising under a law of the United States, but also that
it is a controversy to which the United States is a party. See
Glidden Co. v. Zdanok, 370 U. S. 530 , 370 U. S. 565 (1962) (opinion of Harlan, J.); Minnesota v. Hitchcock, 185 U. S. 373 , 185 U. S.
384 -386 (1902); Ortiz v. United States
Government, 595 F.2d 65, 69-70 (CA1 1979).

															[ Footnote 2/8 ]

															Rule 14(a) provides in part:

															"At any time after commencement of the action a defending party,
as a third-party plaintiff, may cause a summons and complaint to be
served upon a person not a party to the action who is or may be
liable to the third-party plaintiff for all or part of the
plaintiff's claim against the third-party plaintiff."

															[ Footnote 2/9 ]

															"Of course, there is no immunity from suit by the
Government to collect claims for contribution due it from its joint
tortfeasors. The Government should be able to enforce this right in
a federal court not only in a separate action but by impleading the
joint tortfeasor as a third-party defendant. See 3 Moore's
Federal Practice (2d ed.1948) 507, et seq. It is fair that
this should work both ways." United States v. Yellow Cab Co., 340 U.
S. 543 , 340 U. S.
551 -552 (1951).

															[ Footnote 2/10 ]

															"The Government contends that, even if the Federal Tort Claims
Act carries the Government's consent to be sued in a separate
action for contribution due a joint tortfeasor, it does not carry
consent to be impleaded as a third-party defendant to meet such a
claim."

															"We find nothing in the nature of the rights and obligations of
joint tortfeasors to require such a procedural distinction, nor
does the Act state such a requirement. On the contrary, the Act
expressly makes the Federal Rules of Civil Procedure applicable,
and Rule 14 provides for third-party practice." Id. at 340 U. S. 553 (footnotes omitted).

															[ Footnote 2/11 ]

															Rule 20(a) provides in part:

															"All persons . . . may be joined in one action as defendants if
there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out of
the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all
defendants will arise in the action."

															[ Footnote 2/12 ] See also Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 (1887).

															[ Footnote 2/13 ]

															Although Chief Justice Warren took no part in the decision and
Justices Harlan and Clark wrote separately with respect to certain
issues, JUSTICE BRENNAN's opinion on the jurisdictional issue was
unanimous.

															[ Footnote 2/14 ]

															Jurisdiction was asserted on the basis of § 303 of the Labor
Management Relations Act, 1947, which provided:

															"(a) It shall be unlawful, for the purpose of this section only,
in an industry or activity affecting commerce, for any labor
organization to engage in any activity or conduct defined as an
unfair labor practice in section 158(b)(4) of this title."

															"(b) Whoever shall be injured in his business or property by
reason [of] any violation of subsection (a) of this section may sue
therefor in any district court of the United States subject to the
limitations and provisions of section 185 of this title without
respect to the amount in controversy, or in any other court having
jurisdiction of the parties, and shall recover the damages by him
sustained and the cost of the suit."

															61 Stat. 158, 29 U.S.C. § 187 (1964 ed.). See Mine Workers
v. Gibbs, 383 U. S. 715 , 383 U. S. 717 ,
n. 1 (1966).

															[ Footnote 2/15 ]

															The Court is correct to treat Gibbs as established law. See ante at 490 U. S.
548 -549, 490 U. S. 556 .
Just last Term, we stated:

															" Gibbs establishes that the pendent jurisdiction
doctrine is designed to enable courts to handle cases involving
state law claims in the way that will best accommodate the values
of economy, convenience, fairness, and comity, and Gibbs further establishes that the judicial branch is to shape and apply
the doctrine in that light." Carnegie-Mellon Univ. v. Cohill, 484 U.
S. 343 , 484 U. S. 351 (1988). See also Merrell Dow Pharmaceuticals Inc. v.
Thompson, 478 U. S. 804 , 478 U. S. 817 ,
n. 15 (1986); Pennhurst State School and Hospital v.
Halderman, 465 U. S. 89 , 465 U. S. 117 (1984); Schmidt v. Oakland Unified School Dist., 457 U. S. 594 (1982); Moor v. County of Alameda, 411 U.
S. 693 (1973). Cf. Hagans v. Lavine, 415 U. S. 528 , 415 U. S.
545 -548 (1974); Rosado v. Wyman, 397 U.
S. 397 , 397 U. S.
404 -405 (1970).

															[ Footnote 2/16 ]

															Although the Court suggests that

															"the concept of pendent party jurisdiction was not considered
remotely viable until Gibbs liberalized the concept of
pendent-claim jurisdiction," ante at 490 U. S. 555 ,
some courts exercised a form of pendent party jurisdiction even
prior to that decision. See, e.g., Borror v. Sharon Steel
Co., 327 F.2d 165 (CA3 1964); Morris v. Gimbel Bros.,
Inc., 246 F.
Supp. 984 (ED Pa.1965).

															[ Footnote 2/17 ]

															The opinions were anticipated by Judge Friendly's opinions in United States v. Heyward-Robinson Co., 430 F.2d 1077, 1087
(CA2 1970) (concurring opinion), cert. denied, 400 U.S.
1021 (1971), involving permissive counterclaims, and Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d
627 (CA2 1971), upholding pendent party jurisdiction under 28
U.S.C. § 1338(b).

															[ Footnote 2/18 ]

															In 1963, Justice Frankfurter regarded him "as the best judge now
writing opinions on the American scene," see Freund, In
Memoriam: Henry J. Friendly, 99 Harv.L.Rev. 1709, 1720 (1986);
Erwin Griswold has described him as "the ablest lawyer of my
generation," ibid., and Judge Posner called him "the
greatest federal appellate judge of his time," id. at
1724.

															[ Footnote 2/19 ] See H. Friendly, Federal Jurisdiction: A General View
(1973); see also, Paul Freund's comments in 99 Harv.L.Rev.
at 1716-1718, and David Currie's comments in On Blazing Trails:
Judge Friendly and The Federal Jurisdiction, 133 U. Pa.L.Rev. 5
(1984). The authors of Hart & Wechsler's The Federal Courts and
The Federal System, who dedicated the first two editions of the
book to Justice Frankfurter and Professor Henry M. Hart, Jr.,
respectively, dedicate the third edition to Judge Friendly, whom
they describe as "man for all seasons in the law; master of this
subject." P. Bator, D. Meltzer, P. Mistakin, & D. Shapiro, Hart
and Wechsler's The Federal Courts and The Federal System xix (3d
ed.1988).

															[ Footnote 2/20 ]

															"It is true that, in those cases, as well as in Astor-Honor, [441 F.2d 627 (CA2 1971),] the federal claim
had arisen in the ordinary civil jurisdiction, whereas the federal
claim in this action had been brought under the admiralty
jurisdiction. At an earlier date, this difference might have
affected our decision here. But the rules of procedure in the
admiralty and civil jurisdictions were merged in 1966, and we are
of the opinion that, at least since that merger, the constitutional
rationale which underlies the doctrine of ancillary jurisdiction in
the context of Rule 13(a) and Rule 14 may be applied to support the
conclusion that a federal court has the power to hear a related
state claim against a defendant not named in the federal claim
regardless of whether the federal claim arises in the civil or
admiralty jurisdiction. Thus, we conclude that, in a case such as
this, where the facts underlying the state and federal claims are
identical, a federal court vested with admiralty jurisdiction over
a shipper's claim against the carrier for breach of contract of
carriage does have the 'power' also to entertain its state tort
claim against a pier operator." Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800,
810-811 (CA2 1971) (footnotes omitted).

															[ Footnote 2/21 ]

															Relying on an earlier opinion authored by then-judge Blackmun, Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809
(CA8 1969), the Court of Appeals for the Eighth Circuit in 1973
advanced this additional reason for not excluding pendent party
jurisdiction from the Gibbs doctrine:

															"'[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)).

															[ Footnote 2/22 ]

															In Moor, 411 U.S. at 411 U. S.
713 -714, in 1973, we noted that the Ninth Circuit rule
denying pendent party jurisdiction "stands virtually alone against
this post- Gibbs trend in the courts of appeals." An
overwhelming number of judges adhered to that view after Aldinger was decided. See, e.g., Dick Meyers Towing
Service, Inc. v. United States, 577 F.2d 1023 (CA5 1978), cert. denied, 440 U.S. 908 (1979); Ortiz v. United
States Government, 595 F.2d 65 (CA1 1979); Edwards v.
United States, 672 F.
Supp. 910 (ED Va.1987); Kennedy v. United
States, 643 F.
Supp. 1072 (EDNY 1986); Verdi v. United
States, 636 F.
Supp. 114 (EDNY 1986); Fried v. United
States, 579 F.
Supp. 1212 (ND Ill.1983); Kattner v. United
States, 585 F.
Supp. 240 (ED Tex.1984); Rogers v. United
States, 568 F.
Supp. 894 (EDNY 1983); Desellas v. United
States, 542 F.
Supp. 999 (SDNY 1982); Johnston v. United
States, 546 F.
Supp. 879 (Kan.1982); Obenshain v.
Halliday, 504 F.
Supp. 946 (ED Va.1980); Dumansky v. United
States, 486 F.
Supp. 1078 (NJ 1980); Pearce v. United
States, 450 F.
Supp. 613 (Kan.1978); Wood v. Standard Products
Co., 456 F.
Supp. 1098 (ED Va.1978); Maltais v. United
States, 439 F.
Supp. 540 (NDNY 1977).

															[ Footnote 2/23 ]

															"[W]e find no congressional disapproval of the exercise of such
pendent party jurisdiction in the FTCA. The waiver of immunity,
granting jurisdiction to the federal district courts of such tort
suits against the Government, was made in 'sweeping language." United States v. Yellow Cab Co., 340 U.
S. 543 (1951). Moreover, the grant of jurisdiction was
made exclusively to the federal courts. Thus there is no indication
that Congress declined to extend federal jurisdiction over such a
pendent party as was the case in Aldinger. "We hold, therefore, that subject matter jurisdiction in the
district court existed of the claim against Nuss as one over which
the district court properly exercised jurisdiction, pendent to the
claim against the Government under the FTCA over which the federal
court has exclusive jurisdiction." Stewart v. United States, 716 F.2d 755, 757-759 (CA10
1982) (footnote and citation omitted), cert. denied, 469
U.S. 1018 (1984).

															In Lykins v. Pointer, Inc., 725 F.2d 645 (CA11 1984),
another Court of Appeals reached the same conclusion:

															"Turning first to a consideration of 28 U.S.C. § 1346(b), the
statute granting federal jurisdiction over plaintiff's tort claim
against the United States, we find no express or implied negation
of the federal courts' power to hear pendent party claims when that
statute is invoked to confer jurisdiction on the district court. In
this respect this case is distinguishable from Kroger and Aldinger. . . ."

															" * * * *" "No such indicia of a restrictive legislative intent toward
pendent party jurisdiction exist here. Neither the FTCA nor its
jurisdiction-granting statute contains any express proscription of
such jurisdiction, and the statute has not spawned any restrictive
judicial interpretations that could have been tacitly embraced by
Congress. Ortiz, 595 F.2d at 73.[4]" Id. at 647-648. In footnote 4, the court wrote:

															"In addition, the primary purpose of the FTCA is to 'avoid
injustice to those having meritorious claims hitherto barred by
sovereign immunity.' United States v. Muniz, 374 U. S.
150 , 154. . . . This goal reflects a congressional
attitude sensitive to plaintiffs seeking recovery, one which is
furthered by permitting plaintiffs to pursue in a single lawsuit
their claims for injuries suffered in a single accident. As the
Supreme Court noted in Aldinger, since Congress in section
1346(b) granted the district courts exclusive jurisdiction, only in
federal court can all such claims be heard together. 427 U.S. at 427 U. S. 18 . . . ." Id. at 648, n. 4.

															[ Footnote 2/24 ]

															The Government argues that the panoply of special rules
applicable to claims against the United States "underscores the
importance of respecting the single-party limit on the
jurisdictional grant of 28 U.S.C. 1346(b)." Brief for the United
States 30. It notes that an FTCA claim against the Government must
be tried without a jury, whereas pendent state law claims would
generally be subject to trial by jury under the Seventh Amendment;
that the Government cannot be held liable for punitive damages or
on a strict liability theory, whereas both may be available against
a private party; that the Government has numerous defenses and
immunities not available to a private party; and that a claimant
against the Government under the FTCA must comply with the Act's
administrative claim procedures. Id. at 29-30. That
submission ignores the fact that "pendent jurisdiction is a
doctrine of discretion, not of plaintiff's right." Mine Workers
v. Gibbs, 383 U.S. at 383 U. S. 726 ; see Moor v. County of Alameda, 411 U.S. at 411 U. S.
716 -717. While the presence of any of these factors in a
particular case may weigh against the exercise of pendent
jurisdiction, they certainly do not deprive the court of the power
to hear the pendent claim. The Yellow Cab Court provided
sufficient answer in response to a similar complaint regarding the
impleader of the United States in an action between private
parties:

															"Such difficulties are not insurmountable. If, for example, a
jury had been demanded in the Yellow Cab case, the
decision of jury and nonjury issues could have been handled in a
manner comparable to that used when issues of law are tried to a
jury and issues of an equitable nature in the same case are tried
by the court alone. If special circumstances had demonstrated the
inadvisability, in the first instance, of impleading the United
States as a third-party defendant, the leave of court required by
Rule 14 could have been denied. If, at a later stage, the situation
had called for a separation of the claims, the court could have
ordered their separate trial. Fed.Rules Civ.Proc. 42(b). The
availability of third-party procedure is intended to facilitate,
not to preclude, the trial of multiple claims which otherwise would
be triable only in separate proceedings. The possibility of such
procedural difficulties is not sufficient ground for so limiting
the scope of the Act as to preclude its application to all cases of
contribution or even to all cases of contribution arising under
third-party practice." United States v. Yellow Cab Co., 340 U.S. at 340 U. S.
555 -556.

															[ Footnote 2/25 ]

															The Court notes that the 1948 recodification of the Judicial
Code, which amended the jurisdictional grant in the FTCA to provide
for " civil actions on claims against the United States,'" came
shortly after the adoption of the Federal Rules of Civil Procedure,
providing that "`[t]here shall be one form of action to be known as
"civil action."'" Ante at 490 U. S. 554 (quoting Fed.Rule Civ.Proc. 2). The Court, however, rejects
reliance on the plain meaning of the words "civil action" -- which
after all might explain the assertion of pendent claim, as well as
pendent party, jurisdiction, see Freer, A Principled
Statutory Approach to Supplemental Jurisdiction, 1987 Duke L.J. 34,
56-58 -- on the basis of dubious legislative history that the
revisers did not intend to effect such a radical change through
"the minor and obscure change of wording at issue here." Ante at 490 U. S. 555 .
The authorities the Court cites do not support this proposition. See W. Barron, The Judicial Code 1948 Revision, 8 F.R.D.
439, 442 (1949) (characterizing § 1338(b) as "statutory
confirmation of the jurisdiction of federal courts"). Ironically, the Court does not rely on the legislative history
that could support its judgment. The legislative history of the
FTCA indicates that Congress may have originally intended that the
United States not be joined as a defendant in an action with
private parties. The House Report on an earlier version of what
eventually became the FTCA thus stated:

															"The bill therefore does not permit any person to be joined as a
defendant with the United States, and does not lift the immunity of
the United States from tort actions except as jurisdiction is
specifically conferred upon the district courts by this bill.
( See United States v. Sherwood, 312 U. S.
584 (1941); Lynn v. United States, 110 F.2d
586, 588 (C.C.A. 5th 1940); Waite v. United States, 57
C.Cls. 546 (1922); Jackson v. United States, 27 C.Cls. 74,
84 (1891))."

															H.R.Rep. No. 1287, 79th Cong., 1st Sess., 5 (1945). The Court in Yellow Cab rejected the identical argument, noting that
those statements

															"were entirely omitted from even the sectional analysis of the
measure when, in 1946, it was incorporated in the Reorganization
Bill and the report on it was made by the Senate Committee on the
Organization of Congress." Yellow Cab, 340 U.S. at 340 U. S.
551 -552, and n. 8. The Government here has not offered
sufficient reason to reject the Yellow Cab Court's
understanding of that legislative history.

															[ Footnote 2/26 ]

															The Court is mistaken in asserting that this approach is somehow
inconsistent with the principle that a court does not have subject
matter jurisdiction over an action unless an Act of Congress has
supplied it. The District Court clearly had jurisdiction over this
case, and the only question is the scope of its authority to
consider specific claims.

															[ Footnote 2/27 ] See also Owen Equipment & Erection Co. v. Kroger, 437 U.S. at 437 U. S.
373 .

															[ Footnote 2/28 ]

															Although we did state in Aldinger that

															"'the addition of a completely new party would run counter to
the well established principle that federal courts . . . are courts
of limited jurisdiction marked out by Congress,'" ante at 490 U. S. 550 (quoting Aldinger, 427 U.S. at 15), the Court is incorrect
to suggest that we found from that principle a "significant legal
difference" between the addition of claims and the addition of
parties. That statement came in the context of the discussion of
the "purely factual" differences in efficiency between the two
situations -- concerns which the Court accurately notes do not go
to the power to exercise pendent jurisdiction. The only legal
difference the Aldinger Court identified was one of
statutory construction. In § 1343 and § 1983, as opposed to the
statutes under which the Court had exercised pendent claim
jurisdiction, "Congress ha[d] addressed itself to the party as to
whom jurisdiction pendent to the principal claim [was] sought" and
expressly excluded it from federal jurisdiction. 427 U.S. at 427 U. S. 16 .

															[ Footnote 2/29 ]

															We stated:

															"The relevant statute in this case, 28 U.S.C. § 1332(a)(1),
confers upon federal courts jurisdiction over"

															"civil actions where the matter in controversy exceeds the sum
or value of $10,000 . . . and is between . . . citizens of
different States."

															"This statute and its predecessors have consistently been held
to require complete diversity of citizenship. That is, diversity
jurisdiction does not exist unless each defendant is a citizen of a
different State from each plaintiff. Over the years, Congress has
repeatedly reenacted or amended the statute conferring diversity
jurisdiction, leaving intact this rule of complete diversity.
Whatever may have been the original purposes of diversity of
citizenship jurisdiction, this subsequent history clearly
demonstrates a congressional mandate that diversity jurisdiction is
not to be available when any plaintiff is a citizen of the same
State as any defendant." Kroger, 437 U.S. at 437 U. S.
373 -374.

															[ Footnote 2/30 ]

															Consider, for example, the counterclaim cases in which the
Federal Rules of Civil Procedure defined the scope of the
jurisdiction granting statute in precisely the same way the Rules
did in Gibbs: "We conclude that, in the case of a counterclaim which is
compulsory, ancillary jurisdiction should extend to additional
parties, regardless of an ensuing lack of diversity. This is the
position taken by the commentators, Shulman and Jaegerman, Some
Jurisdictional Limitations on Federal Procedure, supra, 45
Yale L.J. 393, 418, and the few courts which have ruled on the
question. Carter Oil Co. v. Wood, supra, D.C.E.D.Ill., 30 F. Supp.
875 ; King v. Edward B. Marks Music Corp., D.C.S.D.N.Y. 56 F. Supp.
446 ; and see Black v. London Assur. Co. of London,
England, D.C.W.D.S.C. 122 F. Supp. 330, where the court
arrived at the desired result through realignment of the parties.
We ourselves have come to the same conclusion in the past on the
similar issue of venue requirements for additional defendants, see Lesnik v. Public Industrials Corp., supra, 2 Cir., 144
F.2d 968, and with respect to impleader of third-party defendants
under F.R. 14. Friend v. Middle Atlantic Transp. Co., 2
Cir., 153 F.2d 778, 779-780, certiorari denied, 328 U.S.
865. 2A liberal attitude toward the inclusion of parties is a
necessary concomitant to the liberalized third-party practice
authorized by the Federal Rules of Civil Procedure. The presence of
these defendants is necessary to a complete adjudication of the
issues involved in this litigation, which should not be retried at
another time in another forum." United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 217 (CA2 1955).

															[ Footnote 2/31 ]

															The unwisdom of having

															"lumped together indiscriminately cases involving each of the
three different contexts in which the question of pendent parties
has been litigated"

															has been sufficiently criticized by Professors Wright, Miller,
and Cooper. See their treatise on Federal Practice and
Procedure § 3567.2, pp. 152-153 (2d ed 1984). They explain:

															"The distinctions are there, and do not become less real because
they are not mentioned. The meaning of 'amount in controversy' in §
1332 raises one question, the meaning of 'between citizens of
different states' in the same statute raises a different question,
and the permissible scope of cases 'arising under' federal law
within the Constitution and § 1331 raises still a third question.
The considerations for allowing 'pendent parties' in a federal
question case may well be more compelling than for doing so when
the only effect is to broaden the scope -- and attractiveness -- of
diversity jurisdiction."

															[ Footnote 2/32 ] See P. Bator, D. Meltzer, P. Mistakin, & D.
Shapiro, Hart and Wechsler's The Federal Courts and The Federal
System 1046 (3d ed.1988); Fortune, Pendent Jurisdiction -- The
Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1, 12 (1972);
Mistakin, The Federal "Question" in the District Courts, 53
Colum.L.Rev. 157, 167 (1953); Schenkier, Ensuring Access to the
Federal Courts: A Revised Rationale for Pendent Jurisdiction, 75
Nw.U.L.Rev. 245, 254-256 (1980).

															[ Footnote 2/33 ] See also Musher Foundation v. Alba Trading Co., 127
F.2d 9, 11 (CA2 1942) (Clark, J., dissenting) ("If the roast must
be reserved exclusively for the federal bench, it is anomalous to
send the gravy across the street to the state court house").

															[ Footnote 2/34 ]

															"The continued need for exercise of diversity jurisdiction, at
least where a showing of prejudice is not made, has been challenged
by respected authorities. But a sharply different view has been
taken of the federal question jurisdiction, and the Court has
reflected that view in its decisions upholding the exercise of
jurisdiction over pendent claims under state law." Zahn v. International Paper Co., 414 U.
S. 291 , 414 U. S. 304 ,
n. 5 (1973) (BRENNAN, J., dissenting).

															[ Footnote 2/35 ]

															The Court held that the Tucker Act should not be construed to
give the consent of the United States to be sued in effect as a
post-judgment garnishee on a claim that, in the hands of the
judgment debtor, would not be within its jurisdiction.

															[ Footnote 2/36 ]

															Professor Moore convincingly argues that the Sherwood decision is based on an unsound and outdated application of the
maxim that sovereign consent to be sued must be strictly construed. See 3A J. Moore, J. Lucas, & G. Grotheer, Moore's
Federal Practice � 20.07(3), pp. 20-55 to 20-58 (2d ed.1987).

															[ Footnote 2/37 ] See also Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682 , 337 U. S. 709 (1949) (Frankfurter, J., dissenting) ("In the course of a century
or more, a steadily expanding conception of public morality
regarding "governmental responsibility" has led to a "generous
policy of consent for suits against the government" to compensate
for the negligence of its agents, as well as to secure obedience to
its contracts"); Great Northern Life Ins. Co. v. Read, 322 U. S. 47 , 322 U. S. 59 (1944) (Frankfurter, J., dissenting) ("[C]onsent does not depend on
some ritualistic formula. Nor are any words needed to indicate
submission to the law of the land. The readiness or reluctance with
which courts find such consent has naturally been influenced by
prevailing views regarding the moral sanction to be attributed to a
State's freedom from suability. Whether this immunity is an
absolute survival of the monarchical privilege, or is a
manifestation merely of power, or rests on abstract legal grounds,
it undoubtedly runs counter to modern democratic notions of the
moral responsibility of the State. Accordingly, courts reflect a
strong legislative momentum in their tendency to extend the legal
responsibility of Government and to confirm Maitland's belief,
expressed nearly fifty years ago, that it is a wholesome sight
to see "the Crown" sued and answering for its torts.'").

Summary: In Finley v. United States, the Supreme Court held that the Federal Tort Claims Act (FTCA) does not allow federal courts to exercise "pendent-party" jurisdiction, meaning they cannot hear additional claims against parties other than the United States in the same lawsuit. The Court's decision was based on the text of the FTCA, which grants jurisdiction over "civil actions on claims against the United States," and previous case law establishing that a grant of jurisdiction over specific claims involving particular parties does not extend to additional claims involving different parties. The Court also rejected the argument that the 1948 revision of the Judicial Code, which changed the FTCA's language, impliedly granted pendent-party jurisdiction.