Finley v. United States/Dissent Blackmun

Justice BLACKMUN, dissenting.

If Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), required us to ask whether the Federal Tort Claims Act embraced "an affirmative grant of pendent-party jurisdiction," ante, at 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 16, 96 S.Ct., at 2421 (emphasis omitted). And, as those of us in dissent in Aldinger observed, the Aldinger test would be rendered meaningless 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 23, 96 S.Ct., at 2424 (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 16-17, 96 S.Ct., at 2421.

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, 61 S.Ct. 767, 85 L.Ed. 1058 (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 590, 61 S.Ct., at 771. It turned also upon "the history of the Court of Claims' jurisdiction." Id., at 590-591, 61 S.Ct., at 771. 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 court is exclusive," 427 U.S., at 18, 96 S.Ct., at 2422, 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.

Notes