Foreign Relations and Federal Questions: Resolving the Judicial Split on Federal Court Jurisdiction

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ABSTRACT

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

TABLE OF CONTENTS

 
  I. INTRODUCTION 
 II. THE PRINCIPLES UNDERLYING THE CIRCUIT SPLIT 
     A. Federal Question Jurisdiction 
     B. Federal Common Law of Foreign Relations 
III. THE DETAILS OF THE CIRCUIT SPLIT 
     A. The Second Circuit: Republic of the Philippines v. Marcos 
     B. The Fifth Circuit: Torres v. Southern Peru Copper Corporation 
     C. The Eleventh Circuit: Pacheco de Perez v. AT&T Company 
     D. The Ninth Circuit: Patrickson v. Dole Food Company 
IV.  RESOLVING THE SPLIT 
     A. Judicial Resolution by the Supreme Court 
        1. Federal Jurisdiction Attaches 
           a. The Argument for "Quasi-Protective Jurisdiction" 
           b. The Arguments Against "Quasi-Protective Jurisdiction" 
               i. Forum Non Conveniens 
              ii. Political Question Doctrine 
        2. No Federal Jurisdiction 
           a. Analogy to "Statehood" 
           b. Strictly Reading Section 1331 
     B. Legislative Resolution: Implementing the Ninth Circuit Result 
        and Reasoning 
V.   CONCLUSION 

I. INTRODUCTION

This Note examines a split among the federal circuits regarding the intersection of two frequently debated issues--one an aspect of U.S. law, the other an aspect of international relations. The U.S. legal matter is the concept of a "federal question," which is fundamental to the jurisdiction of federal courts. (1) The international matter is the concept of "foreign relations," which typically encompasses activities only conducted by the political branches of the federal government. (2) The question here is the relationship between the two: does "foreign relations" necessarily entail a "federal question," as three circuit courts have held, (3) so that litigation involving foreign policy will automatically be granted access to federal courts? Or are the two distinct, as one circuit court most recently held, (4) so that the foreign relations element of a case cannot by itself be a basis to establish federal court jurisdiction?

To illustrate the implications of the issue, assume that ABC Corporation, a manufacturer of weapons systems of various kinds with its corporate headquarters in State A, has, with federal government approval, established a contract to sell an important military item to an important allied government--Country X--that is strategically critical to the foreign relations interests of the United States. Unfortunately, an accident occurs at an ABC plant in Country X, and workers are killed and injured. Plaintiffs sue ABC in the state courts of State A under the law of State A. If liability results, manufacturing of the item may cease, and relations with Country X may be jeopardized. The question this Note addresses is whether ABC should be able, for any number of strategic reasons, to remove this case to a federal district court in State A under the theory that, despite the fact that ABC may not remove the case to federal court under 28 U.S.C. [section] 1441(b), the foreign relations implications of the case are sufficient to establish federal question jurisdiction. (5)

As discussed in Part II of this Note, each case decided by one of the circuit courts of appeal involved an action originally filed by plaintiffs in a state court, based on state causes of action, that the defendants sought to remove to federal court. (6) In each of these four cases, the district courts ruled that removal was barred because at least one of the defendants was considered a resident of the state of filing. …