SEDM Jurisdictions Database(OFFSITE
LINK) -detailed treatment of all jurisdictions in the U.S.
Federal Enforcement Authority Within States of the Union,
Form #05.032 (OFFSITE LINK) -detailed treatment of
(39) Persons residing outside United States
citizen or resident of the United States
does not reside in (and is not found in) any
United States judicial district,
such citizen or resident shall be treated as residing in the District
of Columbia for purposes of any provision of this title relating
of courts, or
Johnson v. Zarefoss, 198 F. Supp. 548 (1961)
"Assuming domicile is not the test under the venue statute, however, it is at least clear that something more than mere physical presence in the district is required. Stacher v. United States, 9 Cir., 1958, 258 F.2d 112."
There are other cases which serve to illustrate the foregoing point, but the Stacher case, just cited, was chosen for convenience, since plaintiff has elected it as the keystone of his argument, introducing it as follows:
'The most recent pronouncement on the definition of the word 'residence' within the Federal Venue Statute 28 U.S.C.A. 1391 was in Stacher v. United States (9 Cir.Cal.1958) 258 F.2d 112 wherein the court stated that the term residence and the term domicile were not synonymous. 'Reside as used in the federal statute differs from domicil; latter term involving intent, while 'reside' involves only an actual place of abode."
The last sentence, purportedly a quotation, cannot be found in the opinion after a careful search of the lengthy opinion. Instead, the following ambiguous or at least innocuous statement appears at page 116:
'We accept appellant's position that there is an essential difference between 'domicile' which generally involves [**6] intent, and 'residence' which generally involves an actual place of [*551] abode. With this position the government agrees. We are then, not concerned with 'intent."
Further, in the Stacher case, the Court of Appeals for the Ninth Circuit went to great pains to analyze the District Court's findings of fact as to residence. As may be seen at pages 116 to 119, the most searching scrutiny is given to all the circumstances surrounding the activities of defendant Stacher. The latter had lived in New Jersey for 38 years prior to 1953, continued to receive wages from New Jersey corporations, and still owned his Newark homestead at the time suit was brought. Physically, he was in Reno or Las Vegas, Nevada, at the crucial times -- and was conducting substantial business dealings there. Palm Springs and Beverly Hills, California, proved to be his residence, however.
Analysis of the factors leading to the court's ruling in that case shows that the test for residence was not different from that which this Court intends to apply here -- that is, -- something more than mere physical presence, and something less than domicile. Thus it will be seen that had the court in the [**7] Stacher case, construing three statutes which contained the words reside or resident, been concerned primarily with intent, defendant Stacher would doubtless have been held to be a New Jersey resident. Had actual place of abode been the essence, he would have been a 'resident' of Nevada. Instead after a complete analysis of his activities during the time in question, the residence was found to have been in Southern California.
Other grounds of argument raised by the plaintiff must likewise be disapproved. Without conceding wrong venue, he argues convenience to the parties, citing DeGeorge v. Mandate Poultry Co., D.C.E.D.Pa.1961, 196 F.Supp. 192, opinion, by Wood, J. Such argument might be appropriate to a motion to transfer -- but would require support in the record beyond mere conclusory assertions of a pleader.
A case already cited was urged as supporting plaintiff's position, Champion Spark Plug Company v. Karchmar, D.C.S.D.N.Y.1960, 180 F.Supp. 727. It held that dismissal of one or more defendants for improper venue did not require dismissal as to remaining defendants. That proposition is not helpful here. True, it has been assumed that if plaintiff were able to maintain [**8] venue in this district, dismissal of the separate suit of Jess Johnson (of Illinois) in his own right would follow -- but the ruling of this Court is that Larry Johnson did not reside in the Eastern District of Pennsylvania at the time suit was filed.
A suggestion of waiver of objection to venue by one of the defendant interests has been made. Smith v. Bain, D.C.M.D.Pa.1954, 123 F.Supp. 632 is urged as intimating that if a certain letter from a defendant to counsel had been more explicit it might have amounted to a waiver.
In the present case a letter has been written to this Court to the effect that an interest represented by counsel who has been present without taking part in the defense would have no objection to the forum. The hint is too subtle to amount to a waiver. It is not possible for a court to make distinctions between the wishes of the defendant which it sees before it and some other part of the defendant personality which has been split off and appears or observes by silent counsel. While sympathetic to counsel who must operate under the most frustrating limitation imaginable for a lawyer, a ban on speech, a court must rule only on the clear cut motions and [**9] objections of the parties before it.
This Court has been asked to dismiss the present complaint for improper venue. For the foregoing reasons, the motion is granted. The ruling of this Court is, therefore, that the complaint filed in this action shall be dismissed and it is so ordered.
[Johnson v. Zarefoss, 198 F.Supp. 548 (1961)]
O'Donoghue v. United States, 289 U.S. 516 (1933)
“The District of Columbia, unlike the territories, is a permanent part of the United States — the very heart of the Union — over which Congress, under Art. I, § 8, cl. 17, has permanent and exclusive power of legislation — the combined powers of national and state governments where legislation is possible. P. 538. 13. Possession of the plenary power under Art. I, § 8, cl. 17, does not preclude Congress from exercising in the District other appropriate powers conferred upon it by the Constitution, or authorize a denial to the inhabitants of any constitutional guaranty not plainly inapplicable. P. 539. 14. It is important to bear in mind that the District was made up of portions of two of the original States, and was not taken out of the Union by the cession. Prior thereto its inhabitants were entitled to all the rights, guaranties, and immunities of the Constitution, among which was the right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III. It is not reasonable to assume that the cession stripped them of these rights, and that it was intended that at the very seat of the national government the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union. ”
[. . .520-521]
“Whether the courts of the District were established under the powers given Congress by Art. I, § 8, "to constitute tribunals inferior to the Supreme Court" or "to exercise exclusive legislation in all cases whatsoever over such District," etc., or under Art. III, § 1, it can not be denied that they are "tribunals inferior to the Supreme Court" of the United States and repositories of the judicial power under Art. III. They are a part of the Federal Judicial System. Federal Trade Comm'n v. Klesner, 274 U.S. at p. 145.”
[. . .522]
O'Donoghue v. United States, 289 U.S. 516, 522 (1933) (“There is a vast distinction between jurisdiction and judicial power. The former may be granted, qualified or taken away at the will of Congress. Congress has frequently increased and diminished the appellate jurisdiction of this Court and created and abolished inferior courts. But after having created an inferior court of the United States and defined the subjects over which it shall have jurisdiction, Congress can not limit the exercise of the judicial power, because that comes directly from the Constitution and is not derived from Congress. Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 305, 328; Chief Justice Hughes, "The Supreme Court of the United States," p. 133; Kansas v. Colorado, 206 U.S. 46.”
[. . .524]
This Court has thus repeatedly recognized that the power of Congress, in legislating for the courts of the District of Columbia and for the Court of Claims, is free of the limitations imposed by Art. III of the Constitution. This does not mean that the tribunals in question are not courts, or that they do not exercise judicial power. The exercise of judicial power is common to both legislative and constitutional courts and determines the status of neither. Ex parte Bakelite Corp., 279 U.S. 438, 449. ”
[O'Donoghue v. United States, 289 U.S. 516 (1933)]
Great Cruz Bay, Inc., St. John v. Wheatley, 495 F.2d 301, 307 (3d Cir. 1974)
“In the case of the federal government where the individual is either a United States citizen or an alien residing in the taxing jurisdiction, the tax under section 1 of the Code is based upon jurisdiction over the person; where the individual is an alien not residing in the taxing jurisdiction, the tax under section 871 of the Code is based upon jurisdiction over the property or income of the nonresident individual located or earned in the taxing jurisdiction”
[Great Cruz Bay, Inc., St. John v. Wheatley, 495 F.2d 301, 307 (3d Cir. 1974)]
[EDITORIAL: The "taxing jurisdiction" need NOT be physical. You can either earn it in the GEOGRAPHICAL "United States" OR earn it INSIDE THE CORPORATION (a fiction) as an officer of the corporation. Either way, you are WITHIN the "taxing jurisdiction". As long as you understand that a STATUTORY "citizen" or "resident of the United States" is the PUBLIC property subject to tax, then if you claim either of these two civil statuses, then the property attached to these two offices are PUBLIC property, because the OWNER is a public office.
Rights are property, and public rights attach to the office, which is property, and the legislative creator of the status and the corresponding rights is the owner. The creator is always the owner. See:
Hierarchy of Sovereignty: The Power to Create is the Power to Tax, Family Guardian Fellowship
The SSN/TIN is the METHOD of voluntary attachment. It furnishes PRIMA FACIE evidence of voluntary attachment to the office. 26 C.F.R. §301.6109-1(b) indicates that it is only mandatory in the case of a nonresident alien engaged in a "public office"/"trade or business. If the use of either the CIVIL STATUS or the NUMBER is coerced, or if you never indicate duress, then you are PRESUMED to be a VOLUNTEER and all property attached to the office will be "treated AS IF" it is public property.
The public office is property, and the civil status of "citizen and resident of the United States" that indicates it is property. If you invoke the status, you are using PUBLIC property for a PUBLIC benefit and must follow the rules for the exercise of the office, called a franchise or a "quasi-contract" or a privilege.
This is why a court can say the following in a refund claim in the case of someone claiming "citizen" or "resident" status and who has not corrected false information returns:
"The property McCoy claims they were depriving her of is not her private property. "
[McCoy v. U.S., 3:00-CV-2786-M, at *1 (N.D. Tex. Nov. 16, 2001)] ]
U.S. Code Annotated, Article III-The Judiciary:
UNITED STATES CODE ANNOTATED
CONSTITUTION OF THE UNITED STATES
ARTICLE III--THE JUDICIARY
Current through P.L. 106-73, approved 10-19-1999
Section 2, Clause 1. Jurisdiction of Courts
Consent of the parties cannot confer subject matter jurisdiction on
federal court, nor can party ever waive its right to challenge the subject
matter jurisdiction of the court. United Indus. Workers, Service,
Transp., Professional Government of North America of Seafarers' Intern.
Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dist.
AFL-CIO, (Local No. 16) on Behalf of Bouton v. Government of Virgin
Islands, C.A.3 (Virgin Islands) 1993, 987 F.2d 162.
Federal jurisdiction cannot be conferred
upon court by consent of parties, nor may its absence be waived.
Commonwealth Land Title Ins. Co.
v. U.S., D.Conn.1991, 759 F.Supp. 87.
United States district court has only limited
jurisdiction, depending upon either the existence of a federal question
or diverse citizenship of the parties, and where such elements of jurisdiction
are wanting district court cannot proceed, even with the consent of
Wolkstein v. Port of New York Authority,
D.C.N.J.1959, 178 F.Supp. 209.
Parties may not by stipulation invoke judicial power of United States
in litigation which does not present actual "case or controversy."
Sosna v. Iowa, U.S.Iowa 1975, 95 S.Ct. 553, 419 U.S. 393, 42 L.Ed.2d
532; Memphis Light, Gas and Water Division v. Craft, Tenn.1978,
98 S.Ct. 1554, 436 U.S. 1, 56 L.Ed.2d 30.
Parties may not confer jurisdiction either upon the Supreme Court of
the United States or a United States District Court by stipulation.
California v. LaRue, U.S.Cal.1972, 93 S.Ct. 390, 409 U.S. 109, 34 L.Ed.2d
342, rehearing denied 93 S.Ct. 1351, 410 U.S. 948, 35 L.Ed.2d 615.
Parties may not by stipulation invoke judicial power of the United States
in litigation which does not present an actual case or controversy.
Citizens Concerned for Separation of Church and State v. City and County
of Denver, C.A.10 (Colo.) 1980, 628 F.2d 1289, certiorari denied 101
S.Ct. 3114, 452 U.S. 963, 69 L.Ed.2d 975.
Federal courts are not bound by factual stipulations that impact on
their jurisdiction; hence, courts are not bound by stipulations
on which existence of a "case or controversy" might turn. Occidental
of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard
Tanker Dauntless Colocotronis, C.A.5 (La.) 1978, 577 F.2d 1196, certiorari
denied 99 S.Ct. 2857, 442 U.S. 928, 61 L.Ed.2d 296.
Parties cannot invoke jurisdiction of federal court by stipulating to
jurisdictional requirement of standing. Vannatta v. Keisling,
D.Or.1995, 899 F.Supp. 488, affirmed 151 F.3d 1215, certiorari denied
119 S.Ct. 870, 142 L.Ed.2d 771.
Norwood v. Kenfield, 34 C. 329; Ex parte Giabonini, 117 C.
573, [49 P. 732]
"A universal principle as old as the law, is that a proceedings
of a court without jurisdiction are a nullity and its judgment therein
without effect either on person or property."
[Norwood v. Kenfield, 34 C. 329; Ex parte Giabonini, 117 C. 573,
[49 P. 732]]
Re Application of Wyatt, 114 Ca.App. 557, [300 P. 132]; Re
Cavitt, 47 Cal.App.2d. 698, [118 P.2d. 846].
Jurisdiction is fundamental and a judgment rendered by a court
that does not have jurisdiction to hear is void ab initio.
[Re Application of Wyatt, 114 Ca.App. 557, [300 P. 132]; Re Cavitt,
47 Cal.App.2d. 698, [118 P.2d. 846].]
Brooks v. Yawkey, 200 F. 2d 633
“...federal jurisdiction cannot be assumed, but must be clearly
[Brooks v. Yawkey, 200 F. 2d 633]
Stanard v. Olesen, 74 S. Ct. 768
“No sanction can be imposed absent proof of jurisdiction”.
[Stanard v. Olesen, 74 S. Ct. 768]
People v. Ortiz, 32 Cal. App. 4th 286 (1995)
A statute does not trump the Constitution. Under the Fourth Amendment, " 'To be arrested in the home . . . is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority . . . .' " ( Payton v. New York, supra, 445 U.S. at pp. 588-589 [63 L. Ed. 2d at p. 652], quoting United States v. Reed (2d Cir. 1978) 572 F.2d 412, 423.)
[People v. Ortiz, 32 Cal. App. 4th 286 (1995)]
Osborn v. Bank of U.S., 22 U.S. 738, 1824 WL 2682 (U.S.,1824)
"But whatever may be the correct interpretation of the constitution
upon this point, it has long been settled, that the Circuit
Courts can exercise no jurisdiction but what is conferred upon them
by law. The judiciary act does not vest them with jurisdiction
where a State is a party. On the contrary, in a case like the present,
it vests exclusive jurisdiction in the Supreme Court."
[Osborn v. Bank of U.S., 22 U.S. 738, 1824 WL 2682 (U.S.,1824)]
‘In the first place, the State courts are older than the Federal
courts. They were here administering justice and functioning between
litigants for 150 years before the Federal Government was organized.
When the Constitution was written and adopted these State courts
were not abolished nor subordinated to the national courts created
by the Constitution of the new nation. The national courts
have jurisdiction only of those things
law. And at the time of the creation of the national courts
and at time of writing the Constitution itself the State courts
were kept as a separate and distinct judicial institution.
As a result all cases that originate in the State court must be
appealed to an appellate court of the State and thence to the Supreme
Court of the State. All cases originating in the United States
court must be appealed to the Circuit Court of the United States
or to the Supreme Court of the United States. Nowhere has a Federal
trial court been given supervisory or appellate jurisdiction over
State judges.’ (emphasis added)
v. Puerifoy, 316 F.2d 774 (5 Cir. 1963)]
"A court lacking diversity
jurisdiction cannot render judgment but must dismiss the cause at any
stage of the proceedings in which it becomes apparent that jurisidiction
is lacking. 28 U.S.C.A. §1332."
"Party invoking jurisdiction
of the court has duty to establish that federal jurisdiction does not
exist. 28 U.S.C.A. §§1332, 1332(c)."
"There is a presumption
against existence of federal jurisdiction; thus, party invoking federal
court's jurisdiction bears the burden of proof. 28 U.S.C.A. §§1332,
1332(c); Fed.Rules Civ. Proc. rule 12(h)(3), 28 U.S.C.A."
"If parties do not
raise question of lack of jurisdiction, it is the duty of the federal
court to determine the manner sua sponte. 28 U.S.C.A. §1332."
"Lack of jurisdiction
cannot be waived and jurisdiction cannot be conferred upon a federal
court by consent, inaction, or stipulation. 28 U.S.C.A. §1332."
did not present evidence to support dismissal for lack of jurisdiction,
burden rested with plaintiffs to prove affirmatively that jurisdiction
did exist. 28 U.S.C.A. §1332". Basso v. Utah Power and Light
Company, 495 F.2d 906 (1974)
v. Utah Power and Light Company, 495 F.2d 906 (1974)]
Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that
‘whenever it appears by suggestion of the parties or otherwise that
the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.’ A court lacking jurisdiction cannot render judgment
but must dismiss the cause at any stage of the proceedings in which
it becomes apparent that jurisdiction is lacking.
Bradbury v. Dennis, 310 F.2d 73 (10th Cir. 1962), cert. denied,
372 U.S. 928, 83 S.Ct. 874, 9 L.Ed.2d 733 (1963). The party invoking
the jurisdiction of the court has the duty to establish that federal
jurisdiction does exist,
Wilshire Oil Co. of Texas v. Riffe, 409 F.2d 1277 (10th Cir. 1969),
but, since the courts of the United States are courts of limited jurisdiction,
there is a presumption against its existence.
City of Lawton, Okla. v. Chapman, 257 F.2d 601 (10th Cir. 1958).
Thus, the party invoking the federal court's jurisdiction bears the
burden of proof.
Becker v. Angle, 165 F.2d 140 (10th cir. 1947).
the parties do not raise the question of lack of jurisdiction, it is
the duty of the federal court to determine the matter sua sponte.
Atlas Life Insurance Co. v. W. I. Southern Inc., 306 U.S. 563, 59 S.Ct.
657, 83 L.Ed. 987 (1939);
Continental Mining and Milling Co. v. Migliaccio, 16 F.R.D. 217 (D.C.
Utah 1954). Therefore, lack of jurisdiction cannot be waived and
jurisdiction cannot be conferred upon a federal court by consent, inaction
California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972);
Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968);
Reconstruction Finance Corp. v. Riverview State Bank, 217 F.2d 455 (10th
[Basso v. Utah Power and Light Company,
495 F.2d 906 (1974)]
'As the only judicial power vested in Congress is to create courts
whose judges shall hold their offices during good behavior, it necessarily
follows that, if Congress authorizes the creation of courts and
the appointment of judges for a limited time, it must act independently
of the Constitution and upon territory which is not part of the
United States within the meaning of the Constitution. ... It is
sufficient to say that this case (The American Insurance Company
et al. v. Canter, supra) has ever since been accepted as authority
for the proposition that the judicial clause of the Constitution
has no application to courts created in the territories, and that
with respect to them Congress has a power wholly unrestricted by
it.' [289 U.S. 516, 543] After an exhaustive review
of the prior decisions of this court relating to the matter, the
following propositions, among others, were stated as being established:
IMPORTANCE OF JURISDICTION:
The major reason Citizens
of the 50 states have been punished for laws that were not applicable
to them is because they did not challenge jurisdiction. They were,
therefore, "presumed" to be citizens subject to the territorial jurisdiction
of the United States Government.
is done by demanding written legal FACTS from the agency asserting their
jurisdiction over the subject matter and you. Remember, jurisdiction
cannot be ASSUMED, it must be PROVEN! Without FACTS substantiating
jurisdiction, a case cannot be held over for trial. A simple Freedom
Form challenging jurisdiction is included here. Jurisdiction can
also be challenged in Pre-Trial hearings.
TITLE 40 >
SUBTITLE II >
PART A >
CHAPTER 31 >
SUBCHAPTER II > § 3112
§ 3112. Federal jurisdiction
(a) Exclusive Jurisdiction
Not Required.— It is not required that the Federal Government obtain
exclusive jurisdiction in the United States over land or an interest
in land it acquires.
(b) Acquisition and
Acceptance of Jurisdiction.— When the head of a department, agency,
or independent establishment of the Government, or other authorized
officer of the department, agency, or independent establishment, considers
it desirable, that individual may accept or secure, from the State in
which land or an interest in land that is under the immediate jurisdiction,
custody, or control of the individual is situated, consent to, or cession
of, any jurisdiction over the land or interest not previously obtained.
The individual shall indicate acceptance of jurisdiction on behalf of
the Government by filing a notice of acceptance with the Governor of
the State or in another manner prescribed by the laws of the State where
the land is situated.
(c) Presumption.— It
is conclusively presumed that jurisdiction has not been accepted until
the Government accepts jurisdiction over land as provided in this section.
The plaintiff in error insists that the Pennsylvania court had
no jurisdiction to proceed against it; consequently the judgment
it rendered was void for the want of the due process of law required
by the 14th Amendment. If the defendant had no such actual, legal
notice of the Pennsylvania suit as would bring it into court, or
if it did not voluntarily appear therein by an authorized
representative, then the Pennsylvania court was without jurisdiction,
and the conclusion just stated would follow, even if the judgment
would be deemed conclusive in the courts of that commonwealth.
The constitutional requirement that full faith and credit shall
be given in each state to the public acts, records, and judicial
proceedings of every other state is necessarily to be interpreted
in connection with other provisions of the Constitution, and therefore
no state can obtain in the tribunals of other jurisdictions full
faith and credit for its judicial proceedings if they are wanting
in the due process of law enjoined by the fundamental law. 'No judgment
of a court is due process of law, if rendered without jurisdiction
in the court, or without notice to the party.' Scott v. McNeal,
154 U.S. 34, 46 , 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108.
No state can, by any tribunal or representative, render nugatory
a provision of the supreme law. And if the conclusiveness of a judgment
of decree in a court of one state is questioned in a court of another
government, Federal or state, it is open, under proper averments,
to inquire whether the court rendering the decree or judgment had
jurisdiction to render it.
Such is the settled doctrine of this court. In the leading case
of Thompson v. Whitman, 18 Wall. 457, 468, 21 L. ed. 897, 901, the
whole question was fully examined in the light of the authorities.
Mr. Justice Bradley, speaking for the court and delivering its unanimous
judgment, stated the conclusion to be clear that the jurisdiction
of a court rendering judgment in one state may be questioned in
a collateral proceeding in another state, [204 U.S. 8, 16]
notwithstanding the averments in the record of the judgment itself.
The court, among other things, said that if it be once conceded
that 'the validity of a judgment may be attacked collaterally by
evidence showing that the court had no jurisdiction, it is not perceived
how any allegation contained in the record itself, however strongly
made, can affect the right so to question it. The very object of
the evidence is to invalidate the paper as a record. If that can
be successfully done no statements contained therein have any force.
If any such statements could be used to prevent inquiry, a slight
form of words might always be adopted so as effectually to nullify
the right of such inquiry. Recitals of this kind must be regarded
like asseverations of good faith in a deed, which avail nothing
if the instrument is shown to be fraudulent.' This decision was
in harmony with previous decisions. Chief Justice Marshall
had long before observed in Rose v. Himely, 4 Cranch, 241, 269,
2 L. ed. 608, 617, that, upon principle, the operation of every
judgment must depend on the power of the court to render that judgment.
In Williamson v. Berry, 8 How. 495, 540, 12 L. ed. 1170, 1189,
it was said to be well settled that the jurisdiction of any court
exercising authority over a subject 'may be inquired into in every
other court when the proceedings in the former are relied upon and
brought before the latter by a party claiming the benefit of such
proceedings,' and that the rule prevails whether 'the decree or
judgment has been given in a court of admiralty, chancery, ecclesiastical
court, or court of common law, or whether the point ruled has arisen
under the laws of nations, the practice in chancery, or the municipal
laws of states.' In his Commentaries on the Constitution,
Story, 1313, referring to Mills v. Duryee, 7 Cranch, 481, 484, 3
L. ed. 411, 413, and to the constitutional requirement as to the
faith and credit to be given to the records and judicial proceedings
of a state, said: "But this does not prevent an inquiry into the
jurisdiction of the court in which the original judgment was given,
to pronounce it; or the right of the state itself to exercise authority
over the person or the subject-matter. The Con- [204 U.S. 8, 17]
stitution did not mean to confer [upon the states] a new power or
jurisdiction, but simply to regulate the effect of the acknowledged
jurisdiction over persons and things within the territory."
In the later case of Galpin v. Page, 18 Wall. 350, 365, 366,
368, 21 L. ed. 959, 962, 963,-decided after, but at the same term
as, Thompson v. Whitman,-the court, after referring to the general
rule as to the presumption of jurisdiction in superior courts of
general jurisdiction, said that such presumptions 'only arise with
respect to jurisdictional facts concerning which the record is silent.
Presumptions are only indulged to supply the absence of evidence
or averments respecting the facts presumed. They have no place for
consideration when the evidence is disclosed or the averment is
made. When, therefore, the record states the evidence or makes an
averment with reference to a jurisdictional fact, it will be understood
to speak the truth on that point, and it will not be presumed that
there was other or different evidence respecting the fact, or that
the fact was otherwise than as averred.' In the same case: 'It is
a rule as old as the law, and never more to be respected than now,
that no one shall be personally bound until he has had his day in
court; by which is meant until he has been duly cited to appear,
and has been afforded an opportunity to be heard. Judgment without
such citation and opportunity wants all the attributes of a judicial
determination; it is judicial usurpation and oppression, and never
can be upheld where justice is justly administered.'
[Old Wayne Mut. Life Assn v. McDonough, 204 U.S. 8 (1907)]
"The canon of construction which teaches
that legislation of Congress, unless a contrary intent appears, is meant
to apply only within the territorial jurisdiction of the United States,
Blackmer v. United States, supra, 284 U.S. at 437, 52 S.Ct. at page
254, is a valid approach whereby unexpressed congressional intent may
be ascertained It is based on the assumption that Congress is primarily
concerned with domestic conditions. We find nothing in the Act itself,
as amended, nor in the legislative history, which would lead to the
belief that Congress entertained any intention other than the normal
one in this case. The situation here is different from that in Vermilya-Brown
Co. v. Connell,
335 U.S. 377 , where we held that by specifically declaring that
the Act covered 'possessions' of the United States, Congress directed
that the Fair Labor Standards Act, 29 U.S.C.A. 201 et seq., applied
beyond those areas over which the United States has sovereignty and
was in effect in all 'possessions.' This Court concluded that the leasehold
there involved was a 'possession' within the meaning of the Fair Labor
Brothers, Inc. v. Filardo,
336 US 281 (1949)]
In passing upon the
questions involved in this and kindred cases, we ought not to overlook
the fact that, while the Constitution was intended to establish
a permanent form of government for the states which should elect to
take advantage of its conditions, and continue for an indefinite future,
the vast possibilities of that future could never have entered the minds
of its framers. The states had but recently emerged from a war
with one of the most powerful nations of Europe, were disheartened by
the failure of the confederacy, and were doubtful as to the feasibility
of a stronger union. Their territory was confined to a narrow strip
of land on the Atlantic coast from Canada to Florida, with a somewhat
indefinite claim to territory beyond the Alleghenies, where their sovereignty
was disputed by tribes of hostile Indians supported, as was popularly
believed, by the British, who had never formally delivered possession
[182 U.S. 244, 285] under the treaty of peace. The vast
territory beyond the Mississippi, which formerly had been claimed by
France, since 1762 had belonged to Spain, still a powerful nation and
the owner of a great part of the Western Hemisphere. Under these
circumstances it is little wonder that the question of annexing these
territories was not made a subject of debate. The difficulties of bringing
about a union of the states were so great, the objections to it seemed
so formidable, that the whole thought of the convention centered upon
surmounting these obstacles. The question of territories was dismissed
with a single clause, apparently applicable only to the territories
then existing, giving Congress the power to govern and dispose of them.
Had the acquisition
of other territories been contemplated as a possibility, could it have
been foreseen that, within little more than one hundred years, we were
destined to acquire, not only the whole vast region between the Atlantic
and Pacific Oceans, but the Russian possessions in America and distant
islands in the Pacific, it is incredible that no provision should have
been made for them, and the question whether the Constitution should
or should not extend to them have been definitely settled. If
it be once conceded that we are at liberty to acquire foreign territory,
a presumption arises that our power with respect to such territories
is the same power which other nations have been accustomed to exercise
with respect to territories acquired by them. If, in limiting
the power which Congress was to exercise within the United States, it
was also intended to limit it with regard to such territories as the
people of the United States should thereafter acquire, such limitations
should have been expressed. Instead of that, we find the Constitution
speaking only to states, except in the territorial clause, which is
absolute in its terms, and suggestive of no limitations upon the power
of Congress in dealing with them. The states could only delegate to
Congress such powers as they themselves possessed, and as they had no
power to acquire new territory they had none to delegate in that connection.
The logical inference from this is that if Congress had power
to acquire new territory, which is conceded, that power was not hampered
by the constitutional provisions. If, upon the other hand, we
assume [182 U.S. 244, 286] that the territorial clause of
the Constitution was not intended to be restricted to such territory
as the United States then possessed, there is nothing in the Constitution
to indicate that the power of Congress in dealing with them was intended
to be restricted by any of the other provisions.
[. . .]
If those possessions
are inhabited by alien races, differing from us in religion, customs,
laws, methods of taxation, and modes of thought, the administration
of government and justice, according to Anglo-Saxon principles, may
for a time be impossible; and the question at once arises whether large
concessions ought not to be made for a time, that ultimately our own
theories may be carried out, and the blessings of a free government
under the Constitution extended to them. We decline to hold that there
is anything in the Constitution to forbid such action.
We are therefore of
opinion that the island of Porto Rico is a territory appurtenant and
belonging to the United States, but not a part of the United States
within the revenue clauses of the Constitution; that the Foraker act
is constitutional, so far as it imposes duties upon imports from such
island, and that the plaintiff cannot recover back the duties exacted
in this case.
[Downes v. Bidwell, 182 US 244 (1901)]
"The judicial power does
not extend to the determination of abstract questions. Muskrat v. United
219 U.S. 346, 361 , 31 S.Ct. 250; Liberty Warehouse Company v. Grannis,
273 U.S. 70, 74 , 47 S.Ct. 282; Willing v. Chicago Auditorium Ass'n,
277 U.S. 274, 289 , 48 S.Ct. 507; Nashville, Chattanooga & St. Louis
R. Co. v. Wallace,
288 U.S. 249, 262 , 264 S., 53 S.Ct. 345, 87 A.L. R. 1191."
v. TVA, 297 U.S. 288 (1936)]
It is clear,
that Congress cannot punish felonies generally; and, of consequence,
cannot punish misprision of felony. It is equally clear, that a State
legislature, the State of Maryland for example, cannot punish those
who, in another State, conceal a felony committed in Maryland.
How, then, is it that Congress, legislating exclusively for a fort,
punishes those who, out of that fort, conceal a felony committed within
The solution, and the
only solution of the difficulty, is, that the power vested in
Congress, as the legislature of the United States, to legislate exclusively
within any place ceded by a State, carries with it, as an incident,
the right to make that power effectual. If a felon escape out
of the State in which the act has been committed, the government cannot
pursue him into another State, and apprehend him there, but must demand
him from the executive power of that other State. If Congress
were to be considered merely as the local legislature for the fort or
other place in which the offence might be committed, then this principle
would apply to them as to other local [19 U.S. 264, 429]
legislatures, and the felon who should escape out of the fort, or other
place, in which the felony may have been committed, could not be apprehended
by the marshal, but must be demanded from the executive of the State.
But we know that the principle does not apply; and the reason is, that
Congress is not a local legislature, but exercises this particular power,
like all its other powers, in its high character, as the legislature
of the Union. The American people thought it a necessary power, and
they conferred it for their own benefit. Being so conferred, it carries
with it all those incidental powers which are necessary to its complete
and effectual execution.
Whether any particular
law be designed to operate without the District or not, depends on the
words of that law. If it be designed so to operate, then the question,
whether the power so exercised be incidental to the power of exclusive
legislation, and be warranted by the constitution, requires
a consideration of that instrument. In such cases the constitution and
the law must be compared and construed. This is the exercise of jurisdiction.
It is the only exercise of it which is allowed in such a case. For the
act of Congress directs, that 'no other error shall be assigned or regarded
as a ground or reversal, in any such case as aforesaid, than such as
appears on the face of the record, and immediately respects the before
mentioned questions of validity or construction of the said constitution,
[. . .]
It is clear that
Congress, as a legislative body, exercise two species of legislative
power: the one, limited as to its objects, but extending all over the
Union: the other, an absolute, exclusive legislative power over the
District of Columbia. The preliminary inquiry in the case now
before the Court, is, by virtue of which of these authorities was the
law in question passed? When this is ascertained, we shall be able to
determine its extent and application. In this country, we are trying
the novel experiment of a divided sovereignty, between the national
government and the States. The precise line of division between these
is not always distinctly marked. Government is a moral not a mathematical
science; and the powers of such a government especially, cannot be defined
with mathematical [19 U.S. 264, 435] accuracy and precision.
There is a competition of opposite analogies.
19 U.S. 264, 6 Wheat. 265; 5 L.Ed. 257 (1821)]
The foregoing considerations would
lead, in case of doubt, to a construction of any statute as intended
to be confined in its operation and effect to the territorial limits
over which the lawmaker has general and legitimate power. 'All legislation
is prima facie territorial.' Ex parte Blain, L. R. 12 Ch. Div. 522,
528; State v. Carter, 27 N. J. L. 499; People v. Merrill, 2 Park. Crim.
Rep. 590, 596. Words having universal scope, such as 'every
contract in restraint of trade,' 'every person who shall monopolize,'
etc., will be taken, as a matter of course, to mean only everyone subject
to such legislation, not all that the legislator subsequently may be
able to catch. In the case of the present statute, the improbability
of the United States attempting to make acts done in Panama or Costa
Rica criminal is obvious, yet the law begins by making criminal the
acts for which it gives a right to sue. We think it entirely plain that
what the defendant did in Panama or Costa Rica is not within the scope
of the statute so far as the present suit is concerned. Other objections
of a serious nature are urged, but need not be discussed.
Banana Co. v. U.S. Fruit, 213 U.S. 347 at 357-358]
"Legislation is presumptively
territorial and confined to limits over which the law-making power has
jurisdiction. American Banana Company v. United Fruit Co.,
213 U.S. 347, 357 , 29 S. Sup. Ct. 511, 16 Ann. Cas. 1047. In
Patterson v. Bark Eudora, supra, this court declared such legislation
as to foreign vessels in United States ports to be constitutional. We
think that [248 U.S. 185, 196] there is nothing in this
section to show that Congress intended to take over the control of such
contracts and payments as to foreign vessels except while they were
in our ports. Congress could not prevent the making of such contracts
in other jurisdictions. If they saw fit to do so, foreign countries
would continue to permit such contracts and advance payments no matter
what our declared law or policy in regard to them might be as to vessels
coming to our ports."
[Sandberg v. McDonald,
248 U.S. 185 (1918)]
"Special provision is made in the constitution,
for the cession of jurisdiction from the states over places where the
federal government shall establish forts, or other military works. And
it is only in these places, or in the territories of the United States,
where it can exercise a general jurisdiction."
Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)]
In Foley Bros. v. Filardo,12 we had occasion
to refer to the 'canon of construction which teaches that legislation
of Congress, unless a contrary intent appears, is meant to apply only
within the territorial jurisdiction of the United States * * * .' That
presumption, far from being overcome here, is doubly fortified by the
language of this statute and the legislative purpose underlying it.
v. Spelar, 338 U.S. 217 at 222 (1949)]
.the United States never held any municipal sovereignty, jurisdiction,
or right of soil in Alabama or any of the new states which were formed
Alabama was admitted into the union, on an equal footing with the original
states, she succeeded to all the rights of sovereignty, jurisdiction,
and eminent domain which Georgia possessed at the date of the cession,
except so far as this right was diminished by the public lands remaining
in the possession and under the control of the United States, for the
temporary purposes provided for in the deed of cession and the legislative
acts connected with it. Nothing remained to the United States, according
to the terms of the agreement, but the public lands. And, if an express
stipulation had been inserted in the agreement, granting the municipal
right of sovereignty and eminent domain to the United States, such stipulation
would have been void and inoperative: because the United States have
no constitutional capacity to exercise municipal jurisdiction, sovereignty,
or eminent domain, within the limits of a state or elsewhere, except
in the cases in which it is expressly granted. 7 ”
v. Hagan, 44 U.S. 213, 221, 223 (1845)]
the states are separate sovereigns with respect to the federal government”
v. Alabama, 474 U.S. 82 (1985)]
"Jurisdiction . . . is not defeated as
respondents seem to contend, by the possibility that the averments might
fail to state a cause of action on which petitioners could actually
recover. For it is well settled that the failure to state a proper cause
of action calls for a judgment on the merits and not for a dismissal
for want of jurisdiction. Whether the complaint states a cause of action
on which relief could be granted is a question of law and just as issues
of fact it must be decided after and not before the court has assumed
jurisdiction over the controversy. If the court does later exercise
its jurisdiction to determine that the allegations in the complaint
do not state a ground for relief, then dismissal of the case would be
on the merits, not for want of jurisdiction." Id., at 682 (citations
v. Lavine, 415 U.S. 533 (1974)]
Lowe v. Alexander 15 Cal. 296
is well settled that no intendments can be indulged in favor of the
jurisdiction of inferior courts, but that their jurisdiction must
affirmatively appear, or their judgments will be absolutely void.
“The general distinction seems to be fully agreed, that power and authority
shall be intended as to courts of general jurisdiction, but as to inferior
or limited courts, those who claim any right or exemption under
their proceedings, are bound to show affirmatively that they had jurisdiction.”
(1 Phil. Ev. Cow. & Hill's notes, 206.) There is no doubt about the
law upon this subject, and the authorities are so numerous, and so familiar
to the profession, that a citation of them is entirely unnecessary."
[Lowe v. Alexander 15 Cal. 296]
"Neither party has questioned that jurisdiction,
but it is the duty of this court to see to it that the jurisdiction
of the circuit court, which is defined and limited by statute, is not
exceeded. This duty we have frequently performed of our own motion.
Mansfield, C. & L. M. R. Co. v. Swan,
111 U.S. 379, 382 , 28 S. L. ed. 462, 463, 4 Sup. Ct. Rep. 510;
King Iron Bridge & Mfg. Co. v. Otoe County,
120 U.S. 225 , 30 L. ed. 623, Sup. Ct. Rep. 552; Blacklock v. Small,
127 U.S. 96, 105 , 32 S. L. ed. 70, 73, 8 Sup. Ct. Rep. 1096; Cameron
127 U.S. 322, 326 , 32 S. L. ed. 132, 134, 8 Sup. Ct. Rep. 1154;
Metcalf v. Watertown,
128 U.S. 586, 587 , 32 S. L. ed. 543, 9 Sup. Ct. Rep. 173; Continental
Nat. Bank v. Buford,
191 U.S. 120 , 48 L. ed. 119, 24 Sup. Ct. Rep. 54. "
There was no diversity of citizenship,
and it is not and cannot be suggested that there was any ground of jurisdiction,
except that the case was 'suit . . . arising under the Constitution
or laws of the United States.' 25 Stat. at L. 434, chap. 866, U. S.
Comp. Stat. 1901, p. 509. It is the settled interpretation of these
words, as used in this statute, conferring jurisdiction, that a suit
arises under the Constitution and laws of the United States only when
the plaintiff's statement of his own cause of action shows that it is
based upon those laws or that Constitution. It is not enough that the
plaintiff alleges some anticipated defense to his cause of action, and
asserts that the defense is invalidated by some provision of the Constitution
of the United States.
RR v. Motley, 211 U.S. 149, 29 S.Ct. 42 (1908)]
addition, there are several well known subordinate principles. The Government
may not be sued except by its consent. The United States has not submitted
to suit for specific performance*99
or for an injunction. This immunity may not be avoided by naming an
officer of the Government as a defendant. The officer may be sued
only if he acts in excess of his statutory authority or in violation
of the Constitution for then he ceases to represent the Government."
[U.S. ex. rel. Brookfield
Const. Co. v. Stewart, 284 F.Supp. 94 (1964)]
"Our own experience
is fully consistent with the common law's rejection of a rule of judicial
immunity from prospective relief. We never have had a rule of
absolute judicial immunity from prospective relief, and there is no
evidence that the absence of that immunity has had a chilling effect
on judicial independence. None of the seminal opinions on judicial immunity,
either in England or in this country, has involved [466 U.S. 522, 537]
immunity from injunctive relief. 15
No Court of Appeals ever has concluded that immunity bars injunctive
relief against a judge. See n. 6, supra. At least seven
Circuits have indicated affirmatively that there is no immunity bar
to such relief, and in situations where in their judgment an injunction
against a judicial officer was necessary to prevent irreparable injury
to a petitioner's constitutional rights, courts have granted that relief.
v. Allen, 466 U.S. 522, 104 S.Ct. 1970 (1984)]
also agree with the Rankin court that immunity for judicial
acts in the clear absence of jurisdiction is lost only if the judge
knows that he lacks jurisdiction, or acts in the face of clearly valid
statutes or case law expressly depriving him of jurisdiction. See
633 F.2d at 849. Issues of jurisdiction are often complex,
and judges should be free to decide them without concern that their
errors may subject them to liability.
the instant case, the federal district court judge assumed that a court
which had subject matter jurisdiction did not act in the clear absence
of jurisdiction. The court refused to reconsider its ruling when the
appellants introduced Rankin as new authority. Because the issues
of whether Judge Hosemann knew he lacked personal jurisdiction or acted
in the face of clearly valid statutes or case law expressly depriving
him of jurisdiction are matters for initial determination in the district
court, we reverse the order dismissing the claim against Judge Hosemann
and remand to the district court for further proceedings not inconsistent
with this opinion.FN10
[Dykes v. Hosemann, 743 F.2d 1488 (1984)]
Manning v. Ketcham, 58 F.2d 948 (1932)
affirmance results. When a judge acts in the clear absence of all jurisdiction,
i. e., of authority to act officially over the subject-matter in hand,
the proceeding is coramnon judice. In such a case the judge has
lost his judicial function, has become a mere private person, and is
liable as a trespasser for the damages resulting from his unauthorized
acts. Such has been the law from the days of the case of The
Marshalsea, 10 Coke 68. It was recognized as such in Bradley v. Fisher,
13 Wall. (80
U. S.) 335, 351, 20 L. Ed. 646. In
State ex rel. Egan v. Wolever, 127 Ind. 306, 26 N. E. 762, 763,
the court said: ‘The converse statement of it is also ancient. Where
there is no jurisdiction at all there is no judge; the proceeding is
[. . .]
Honesty of purpose and sincere belief that appellant was acting
in the discharge of his official duty under his oath of office and for
the public welfare is not available as a defense further than in mitigation
of damages. See
Glazar v. Hubbard, 102 Ky. 68, 69, 42 S. W. 1114,
39 L. R. A. 210,
80 Am. St. Rep. 340;
Prell v. McDonald, 7 Kan. 266, 283, 12 Am. Rep. 423;
DeCourcey v. Cox, 94 Cal. 665, 669, 30 P. 95;
Truesdell v. Combs, 33 Ohio St. 186, 194.
[Manning v. Ketcham, 58 F.2d 948 (1932)]
the present case we have looked into the authorities and are clear,
from them, as well as from the principle on which any exemption is maintained,
that the qualifying words used were not necessary to a correct statement
of the law, and that judges of courts of superior or general jurisdiction
are not liable to civil actions for their judicial acts, even when such
acts are in excess of their jurisdiction, and are alleged to have been
done maliciously or corruptly. A distinction must be here observed
between excess of jurisdiction and the clear absence of all jurisdiction
over the subject-matter. Where there is clearly no jurisdiction over
the subject-matter any authority exercised is a usurped authority, and
for the exercise of such authority, when the want of jurisdiction is
known to the judge, no excuse is permissible. But where
jurisdiction over the subject-matter is invested by law in the judge,
or in the court which he holds, the manner and extent in which the jurisdiction
shall be exercised are generally as much questions for his determination
as any other questions involved in the case, although upon the correctness
of his determination in these particulars the validity of his judgments
may depend. Thus, if a probate court, invested only with authority
over wills and the settlement of estates of deceased persons, should
proceed to try parties for public offences, jurisdiction over the subject
of offences being entirely wanting in the court, and this being necessarily
known to its judge, his commission would afford no protection to him
in the exercise of the usurped authority. But if on the other hand a
judge of a criminal court, invested with general criminal jurisdiction
over offences committed within a certain district, should hold a particular
act to be a public offence, which is not by the law made an offence,
and proceed to the arrest and trial of a party charged with such act,
or should sentence a party convicted to a greater punishment than that
authorized by the law upon its proper construction, no personal liability
to civil action for such acts would attach to the judge, although those
acts would be in excess of his jurisdiction, or of the jurisdiction
of the court held by him, for these are particulars for his judicial
consideration, whenever his general jurisdiction over the subject-matter
is invoked. Indeed some of the most difficult and embarrassing questions
which a judicial officer is called upon to consider and determine relate
to his jurisdiction, or that of the court held by him, or the manner
in which the jurisdiction shall be exercised. And the same principle
of exemption from liability which obtains for errors committed in the
ordinary prosecution of a suit where there is jurisdiction of both subject
and person, applies in cases of this kind, and for the same reasons.
The distinction here made between acts done in excess of jurisdiction
and acts where no jurisdiction whatever over the subject-matter exists,
was taken by the Court of King's Bench, in Ackerley v. Parkinson.
FN18 In that case an action
was brought against the vicar-general of the Bishop of Chester and his
surrogate, who held the consistorial and episcopal court of the bishop,
for excommunicating the plaintiff with the greater excommunication for
contumacy, in not taking upon himself the administration of an intestate's
effects, to whom the plaintiff was next of kin, the citation issued
to him being void, and having been so adjudged. The question presented
was, whether under these circumstances the action would lie. The citation
being void, the plaintiff had not been legally brought before the court,
and the subsequent proceedings were set aside, on appeal, on that ground.
Lord Ellenborough observed that it was his opinion that the action was
not maintainable if the ecclesiastical court had a general jurisdiction
over the subject-matter, although the citation was a nullity, and said,
that ‘no authority had been cited to show that the judge would be liable
to an action where he has jurisdiction, but has proceeded erroneously,
or, as it is termed, inverso ordine.’ Mr. Justice Blanc
said there was ‘a material distinction between a case where a party
comes to an erroneous conclusion in a matter over which he has jurisdiction
and a case where he acts wholly without jurisdiction;’ and held that
where the subject-matter was within the jurisdiction of the judge, and
the conclusion was erroneous, although the party should by reason of
the error be entitled to have the conclusion set aside, and to be restored
to his former rights, yet he was not entitled to claim compensation
in damages for the injury done by such erroneous conclusion, as if the
court had proceeded without any jurisdiction.FN19
[Bradley v.Fisher,80 U.S. 335, 13 Wall
335, 351, 352 (1871)]
were more solidly [386 U.S. 547, 554] established at common
law than the immunity of judges from liability for damages for acts
committed within their judicial jurisdiction, as this Court recognized
when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872).
This immunity applies even when the judge is accused of acting maliciously
and corruptly, and it " is not for the protection or benefit of a malicious
or corrupt judge, but for the benefit of the public, whose interest
it is that the judges should be at liberty to exercise their functions
with independence and without fear of consequences." (Scott
v. Stansfield, L. R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher,
supra, 349, note, at 350.) It is a judge's duty to decide all cases
within his jurisdiction that are brought before him, including controversial
cases that arouse the most intense feelings in the litigants. His errors
may be corrected on appeal, but he should not have to fear that unsatisfied
litigants may hound him with litigation charging malice or corruption.
Imposing such a burden on judges would contribute not to principled
and fearless decision-making but to intimidation.
We do not believe
that this settled principle of law was abolished by 1983, which makes
liable " every person" who under color of law deprives another person
of his civil rights. The legislative record gives no clear indication
that Congress meant to abolish wholesale all common-law immunities.
Accordingly, this Court held in Tenney v. Brandhove,
341 U.S. 367 (1951), that the immunity of legislators for acts within
the legislative role was not abolished. The immunity of judges for acts
within the judicial role is equally well established, and [386 U.S.
547, 555] we presume that Congress would have specifically
so provided had it wished to abolish the doctrine.
The common law has
never granted police officers an absolute and unqualified immunity,
and the officers in this case do not claim that they are entitled to
one. Their claim is rather that they should not be liable if they acted
in good faith and with probable cause in making an arrest under a statute
that they believed to be valid. Under the prevailing view in this country
a peace officer who arrests someone with probable cause is not liable
for false arrest simply because the innocence of the suspect is later
proved. Restatement, Second, Torts 121 (1965); 1 Harper & James, The
Law of Torts 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co.
of Maryland, 179 F.2d 327 (C. A. 8th Cir. 1950). A policeman's lot is
not so unhappy that he must choose between being charged with dereliction
of duty if he does not arrest when he has probable cause, and being
mulcted in damages if he does. Although the matter is not entirely free
from doubt, 10 the same consideration
would seem to require excusing him from liability for acting under a
statute that he reasonably believed to be valid but that was later held
unconstitutional, on its face or as applied.
v. Ray, 386 U.S. 547 (1967).]
“In another, not
unrelated context, Chief Justice Marshall’s exposition in Cohens v.
Virginia, 6 Wheat, 264 (1821), could well have been the explanation
of the Rule of Necessity; he wrote that a court “must take jurisdiction if it should.
The judiciary cannot, as the legislature may, avoid a measure because
it approaches the confines of the constitution. We cannot pass it by,
because it is doubtful. With whatever doubts, with whatever difficulties,
a case may be attended, we must decide it, if it be brought before us.
We have no more right to decline the exercise of jurisdiction which
is given, than to usurp that which is not given. The one or the other
would be treason to the constitution. Questions may occur which
we would gladly avoid; but we cannot avoid them.” Id., at 404 (emphasis
v. Will, 449 U.S. 200 (1980)]
FEDERAL RULES OF CIVIL PROCEDURE CITES RELATING TO JURISDICTION:
Federal Rules of Civil Procedure, Rule 12(b) provides the escape
clause from federal prosecution for the Citizens of the 50 states:
Rule 12. Defenses and Objections--
(b) "...the following defenses may at the option of the pleader be
made by motion:
(1) lack of jurisdiction over the subject matter.
(2) lack of jurisdiction over the person.
...A motion making any of these defenses shall be made before
(h)(3) "Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject matter,
the court shall dismiss the action."
Pacemaker Diagnostic Clinic of America Inc. v. Instromedix
Inc., 725 F.2d 537 (9th Cir. 02/16/1984)
Pacemaker argues that in the federal system a party may not
consent to jurisdiction, so that the parties cannot waive their
rights under Article III. The maxim that parties may not consent
to the jurisdiction of federal courts is not applicable here.
The rule is irrelevant because it applies only where the parties
attempt to confer upon an Article III court a subject matter jurisdiction
that Congress or the Constitution forbid. See, e.g., Jackson
v. Ashton, 33 U.S. (8 Peters), 148, 148-49, 8 L. Ed. 898 (1834);
Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S.
379, 28 L. Ed. 462, 4 S. Ct. 510 (1884). The limited jurisdiction
of the federal courts and the need to respect the boundaries of
federalism underlie the rule. In the instant case, however, the
subject matter, patents, is exclusively one of federal law. The
Supreme Court has explicitly held that Congress may "confer upon
federal courts jurisdiction conditioned upon a defendant's consent."
Williams v. Austrian, 331 U.S. 642, 652, 91 L. Ed. 1718, 67 S. Ct.
1443 (1947); see Harris v. Avery Brundage Co., 305 U.S. 160, 83
L. Ed. 100, 59 S. Ct. 131 (1938). The litigant waiver in this case
is similar to waiver of a defect in jurisdiction over the person,
a waiver federal courts permit. Hoffman v. Blaski, 363 U.S. 335,
343, 4 L. Ed. 2d 1254, 80 S. Ct. 1084 (1960).
[Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc.,
725 F.2d 537 (9th Cir. 02/16/1984)]
In International Shoe Co. v. Washington, 326 U.S. 310 (1945),
the Supreme Court held that a court may exercise personal jurisdiction
over a defendant consistent with due process only if he or she has
"certain minimum contacts" with the relevant forum "such that the
maintenance of the suit does not offend 'traditional notions of
fair play and substantial justice.' " Id. at 316 (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)). Unless a defendant's contacts
with a forum are so substantial, continuous, and systematic that
the defendant can be deemed to be "present" in that forum for all
purposes, a forum may exercise only "specific" jurisdiction - that
is, jurisdiction based on the relationship between the defendant's
forum contacts and the plaintiff's claim. The parties agree that
only specific jurisdiction is at issue in this case.
In this circuit, we analyze
specific jurisdiction according to a three-prong test:
(1) The non-resident
defendant must purposefully direct his activities or consummate
some transaction with the forum or resident thereof; or perform
some act by which he purposefully avails himself of the privilege
of conducting activities in the forum, thereby invoking the benefits
and protections of its laws;
(2) the claim must be
one which arises out of or relates to the defendant's forum-related
(3) the exercise of jurisdiction
must comport with fair play and substantial justice, i.e. it must
Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (quoting Lake
v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The first prong is
determinative in this case. We have sometimes referred to it, in
shorthand fashion, as the "purposeful availment" prong. Schwarzenegger,
374 F.3d at 802. Despite its label, this prong includes both purposeful
availment and purposeful direction. It may be satisfied by purposeful
availment of the privilege of doing business in the forum; by purposeful
direction of activities at the forum; or by some combination thereof.
We have typically treated "purposeful availment" somewhat differently
in tort and contract cases. In tort cases, we typically inquire
whether a defendant "purposefully direct[s] his activities" at the
forum state, applying an "effects" test that focuses on the forum
in which the defendant's actions were felt, whether or not the actions
themselves occurred within the forum. See Schwarzenegger, 374 F.3d
at 803 (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). By
contrast, in contract cases, we typically inquire whether a defendant
"purposefully avails itself of the privilege of conducting activities"
or "consummate[s] [a] transaction" in the forum, focusing on activities
such as delivering goods or executing a contract. See Schwarzenegger,
374 F.3d at 802. However, this case is neither a tort nor a contract
case. Rather, it is a case in which Yahoo! argues, based on the
Amendment, that the
French court's interim orders are unenforceable by an American court.
LICRA and UEJF contend that we must base our analysis on the
so-called "effects" test of Calder v. Jones, 465 U.S. 783 (1984),
which is normally employed in purposeful direction cases. See, e.g.,
CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1111 (9th Cir.
2004); Schwarzenegger, 374 F.3d at 803; Dole Food Co. v. Watts,
303 F.3d 1104, 1111 (9th Cir. 2002). In Calder, a California-based
entertainer sued the National Enquirer and various individual defendants
for an allegedly defamatory article published in the Enquirer. The
article had been written and edited in Florida, and the defendants
had few contacts with California. The Court nonetheless upheld the
exercise of personal jurisdiction in California because the defendants
knew that the article would have an effect in that state. In the
words of the Court, the defendants had not engaged in "mere untargeted
negligence"; rather, their "intentional, and allegedly tortious,
actions were expressly aimed at California." 465 U.S. at 789.
In this circuit, we construe Calder to impose three requirements:
"the defendant allegedly [must] have
(1) committed an intentional act,
(2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be suffered
in the forum state." Schwarzenegger, 374 F.3d at 803 (quoting Dole
Food, 303 F.3d at 1111).
In some of our cases, we have employed a slightly different formulation
of the third requirement, specifying that the act must have "caused
harm, the brunt of which is suffered and which the defendant knows
is likely to be suffered in the forum state." Bancroft & Masters,
Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000)
(emphasis added). The "brunt" of the harm formulation originated
in the principal opinion in Core-Vent Corp. v. Nobel Indus. AB,
11 F.3d 1482 (9th Cir. 1993). That opinion required that the "brunt"
of the harm be suffered in the forum state; based on that requirement,
it concluded that there was no purposeful availment by the defendant.
Id. at 1486. A dissenting judge would have found purposeful availment.
Relying on the Supreme Court's opinion in Keeton v. Hustler Magazine,
465 U.S. 770 (1984), he specifically disavowed the "brunt" of the
harm formulation. Core-Vent, 11 F.3d at 1492 (Wallace, C.J., dissenting)
("[T]he Supreme Court has already rejected the proposition that
the brunt of the harm must be suffered in the forum."). Without
discussing the disputed "brunt" of the harm formulation, a concurring
judge agreed with the dissenter that purposeful availment could
be found. Id. at 1491 (Fernandez, J., concurring) ("I agree with
Chief Judge Wallace that purposeful availment can be found in this
case."). Later opinions picked up the "brunt" of the harm formulation
of the principal opinion in Core-Vent without noting that at least
one, and possibly two, of the judges on the panel disagreed with
it. See, e.g., Bancroft & Masters, 223 F.3d at 1087; Panavision,
141 F.3d at 1321; Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d
126, 128 (9th Cir. 1995).
We take this opportunity to clarify our law and to state that
the "brunt" of the harm need not be suffered in the forum state.
If a jurisdictionally sufficient amount of harm is suffered in the
forum state, it does not matter that even more harm might have been
suffered in another state. In so stating we are following Keeton,
decided the same day as Calder, in which the Court sustained the
exercise of personal jurisdiction in New Hampshire even though "[i]t
is undoubtedly true that the bulk of the harm done to petitioner
occurred outside New Hampshire." 465 U.S. at 780.
LICRA and UEJF contend that the Calder effects test is not satisfied
because, in their view, Calder requires that the actions expressly
aimed at and causing harm in California be tortious or otherwise
wrongful. LICRA and UEJF contend that they have done no more than
vindicate their rights under French law, and that their behavior
has therefore not been wrongful. They conclude that their behavior
therefore does not confer personal jurisdiction in California. We
agree with LICRA and UEJF that the Calder effects test is appropriately
applied to the interim orders of the French court. But we disagree
with them about the meaning and application of Calder.
In any personal jurisdiction case we must evaluate all of a defendant's
contacts with the forum state, whether or not those contacts involve
wrongful activity by the defendant. See, e.g., Quill Corp. v. North
Dakota, 504 U.S. 298, 308 (1992) (upholding jurisdiction to enforce
state tax on out-of-state corporation that sent catalogs and goods
to forum); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985)
(upholding personal jurisdiction based on a course of dealing related
to a franchise agreement). Many cases in which the Calder effects
test is used will indeed involve wrongful conduct by the defendant.
See, e.g., Calder, 465 U. S. at 790, (allegedly defamatory publication
purposefully directed at California); Bancroft & Masters, 223 F.3d
at 1088 (wrongful interference with California corporation's use
of domain name); Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191,
1192 (9th Cir. 1988) (unauthorized use of celebrity's name and likeness
to promote Swiss clinic); Lake, 817 F.2d at 1422-23 (provision of
legal services to secure allegedly improper custody order). But
we do not read Calder necessarily to require in purposeful direction
cases that all (or even any) jurisdictionally relevant effects have
been caused by wrongful acts. We do not see how we could do so,
for if an allegedly wrongful act were the basis for jurisdiction,
a holding on the merits that the act was not wrongful would deprive
the court of jurisdiction.
We therefore analyze all of LICRA and UEJF's contacts with California
relating to its dispute with Yahoo!, irrespective of whether they
involve wrongful actions by LICRA and UEJF. There are three such
contacts. The first two contacts, taken by themselves, do not provide
a sufficient basis for jurisdiction. However, the third contact,
considered in conjunction with the first two, does provide such
The first contact is the cease and desist letter that LICRA sent
to Yahoo!, demanding that Yahoo! alter its behavior in California
to conform to what LICRA contended were the commands of French law.
A cease and desist letter is not in and of itself sufficient to
establish personal jurisdiction over the sender of the letter. Red
Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361
(Fed. Cir. 1998) ("A patentee should not subject itself to personal
jurisdiction in a forum solely by informing a party who happens
to be located there of suspected infringement."). There are strong
policy reasons to encourage cease and desist letters. They are normally
used to warn an alleged rights infringer that its conduct, if continued,
will be challenged in a legal proceeding, and to facilitate resolution
of a dispute without resort to litigation. If the price of sending
a cease and desist letter is that the sender thereby subjects itself
to jurisdiction in the forum of the alleged rights infringer, the
rights holder will be strongly encouraged to file suit in its home
forum without attempting first to resolve the dispute informally
by means of a letter. See Red Wing Shoe, 148 F.3d at 1360-1361;
Cascade Corp. v. Hiab-Foco AB, 619 F.2d 36, 38 (9th Cir. 1980);
Douglas Furniture Co. of Cal., Inc. v. Wood Dimensions, Inc., 963
F. Supp. 899, 903 (C.D. Cal. 1997) ("If any attempt by an intellectual
property holder to put an alleged wrongdoer on notice forced the
property holder to submit to the jurisdiction of the alleged wrongdoer's
forum, an intellectual property owner would be forced to file an
action in his own jurisdiction in order to avoid the threat of being
haled before a court in another, possibly distant state.").
This is not to say that a cease and desist letter can never be
the basis for personal jurisdiction. For example, in Bancroft &
Masters, we upheld jurisdiction based on two letters sent by Augusta
National Inc. ("ANI"), based in Georgia, contending that Bancroft
& Masters, Inc. ("B & M") was improperly using its domain name.
One letter was sent to Network Solutions, Inc. ("NSI") in Virginia.
NSI was then the sole registrar of domain names. The other, a cease
and desist letter, was sent to B & M at its corporate offices in
California. B & M sued ANI in federal district court in California
seeking a declaratory judgment that it had the right to the disputed
domain name. On the assumption that B & M's factual allegation was
true, we held that the letters were intended to trigger NSI's dispute
resolution procedures, to interfere wrongfully with B & M's use
of its domain name, and to misappropriate that name for ANI's own
use. 223 F.3d at 1087. We therefore upheld jurisdiction under Calder
based on the letters.
LICRA's letter was not used to facilitate settlement. Although
it stated that LICRA would file suit in eight days if Yahoo! had
not complied with LICRA's demands, LICRA filed suit five days after
the date of the letter. Nonetheless, LICRA's letter to Yahoo! was
more like a normal cease and desist letter than the letters at issue
in Bancroft & Masters, for it was not abusive, tortious or otherwise
wrongful. Rather, it simply alerted Yahoo! to its view of French
law and stated its intent to file suit in France to enforce that
law against Yahoo!.
Under these circumstances, we do not believe that LICRA's letter
is a contact that would, if considered alone, justify the exercise
of personal jurisdiction.
LICRA and UEJF's second contact (or, more precisely, set of contacts)
with California was service of process on Yahoo! in California.
LICRA first effected service of process to commence the French suit.
LICRA and UEJF later effected service of the French court's two
interim orders. We do not regard the service of documents in connection
with a suit brought in a foreign court as contacts that by themselves
justify the exercise of personal jurisdiction over a foreign litigant
in a United States court. If we were to hold that such service were
a sufficient basis for jurisdiction, we would be providing a forum-choice
tool by which any United States resident sued in a foreign country
and served in the United States could bring suit in the United States,
regardless of any other basis for jurisdiction. We are unaware of
any case so holding, and Yahoo! has cited none.
Third, and most important, LICRA and UEJF have obtained two interim
orders from the French court directing Yahoo! to take actions in
California, on threat of a substantial penalty. We agree with LICRA
and UEJF that the French court's orders are appropriately analyzed
under the Calder effects test.
The first two requirements are that LICRA and UEJF "have '(1)
committed an intentional act, [which was] (2) expressly aimed at
the forum state[.]' " Schwarzenegger, 374 F.3d at 805 (quoting Dole
Food, 303 F.3d at 1111). It is obvious that both requirements are
satisfied. LICRA intentionally filed suit in the French court. Indeed,
it had previously signaled its intent to file suit in its April
5 letter to Yahoo!. UEJF intentionally joined LICRA's suit ten days
later. Further, LICRA and UEJF's suit was expressly aimed at California.
The suit sought, and the French court granted, orders directing
Yahoo! to perform significant acts in California. It is of course
true that the effect desired by the French court would be felt in
France, but that does not change the fact that significant acts
were to be performed in California. The servers that support yahoo.com
are located in California, and compliance with the French court's
orders necessarily would require Yahoo! to make some changes to
those servers. Further, to the extent that any financial penalty
might be imposed pursuant to the French court's orders, the impact
of that penalty would be felt by Yahoo! at its corporate headquarters
in California. See Dole Food, 303 F.3d at 1113-14.
The third requirement is that LICRA and UEJF's acts " 'caus[e]
harm that the defendant knows is likely to be suffered in the forum
state.' " Id. This requirement is somewhat problematic, for Yahoo!
has not shown or even alleged any specific way in which it has altered
its behavior in response to the French court's interim orders. Yahoo!
changed its policy with respect to Yahoo.com after the French court's
orders were entered, but Yahoo! has consistently maintained that
the change was unrelated to the orders. Therefore, even if we were
persuaded that Yahoo!'s change of policy harmed it in some way,
Yahoo! itself has represented that such harm was not caused by any
action of LICRA or UEJF. Nor is it clear that, absent the interim
orders, Yahoo! would change its policy in the future. Indeed, Yahoo!
represented to us during oral argument that there is nothing that
it would like to do, but is now refraining from doing, because of
the interim orders.
Yahoo!, however, points to the possibility that a substantial
penalty will be assessed under the French court's November 20 interim
order. It points in particular to the provision in that order specifying
that the potential amount of the penalty increases by 100,000 Francs
for every day that Yahoo! is in violation of the court's orders.
Yahoo! represents to us that even now, after its change of policy,
it is acting in plain violation of the orders. It contends that
a declaratory judgment determining the enforceability by an American
court of the French court's orders will allow it to determine an
appropriate course of conduct with respect to the activities in
which it continues to engage. The district court found that, notwithstanding
its new policy, the Yahoo.com auction site still offers certain
items for sale (such as stamps, coins, and a copy of Mein Kampf)
which appear to violate the French Order. While Yahoo! has removed
the Protocol of the Elders of Zion from its auction site, it has
not prevented access to numerous other sites which reasonably "may
be construed as constituting an apology for Nazism or a contesting
of Nazi crimes."
Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d
1199 (9th Cir. 01/12/2006)]
Suits by Foreign States.—The
privilege of a recognized foreign state to sue in the courts of
another state upon the principle of comity is recognized by both
international law and American constitutional law.
To deny a sovereign this privilege “would manifest a want of comity
and friendly feeling.”
Although national sovereignty is continuous, a suit in behalf of
a national sovereign can be maintained in the courts of the United
States only by a government which has been recognized by the political
branches of our own government as the authorized government of[p.775]the
As the responsible agency for the conduct of foreign affairs, the
State Department is the normal means of suggesting to the courts
that a sovereign be granted immunity from a particular suit.
Once a foreign government avails itself of the privilege of suing
in the courts of the United States, it subjects itself to the procedure
and rules of decision governing those courts and accepts whatever
liabilities the court may decide to be a reasonable incident of
bringing the suit.
The rule that a foreign nation instituting a suit in a federal district
court cannot invoke sovereign immunity as a defense to a counterclaim
growing out of the same transaction has been extended to deny a
claim of immunity as a defense to a counterclaim extrinsic to the
subject matter of the suit but limited to the amount of the sovereign’s
Moreover, certain of the benefits extending to a domestic sovereign
do not extend to a foreign sovereign suing in the courts of the
United States. A foreign state does not receive the benefit of the
rule which exempts the United States and its member States from
the operation of the statute of limitations, because those considerations
of public policy back of the rule are regarded as absent in the
case of the foreign sovereign.
[. . .]
Narrow Construction of the Jurisdiction.—As
in cases of diversity jurisdiction, suits brought to the federal
courts under this category must clearly state in the record the
nature of the parties. As early as 1809, the Supreme Court ruled
that a federal court could not take jurisdiction of a cause where
the defendants were described in the record as “late of the district
of Maryland,” but were not designated as citizens of Maryland, and
plaintiffs were described as aliens and subjects of the United Kingdom.
The meticulous care manifested in this case appeared twenty years
later when the Court narrowly construed Sec. 11 of the Judiciary
Act of 1789, vesting the federal courts with jurisdiction when an
alien was a party, in order to keep it within the limits of this
clause. The judicial power was further held not to extend to private
suits in which an alien is a party, unless a citizen is the adverse
This interpretation was extended in 1870 by a holding that if there
is more than one plaintiff or defendant, each plaintiff or defendant
must be competent to sue or liable to suit.
These rules, however, do not preclude a suit between citizens of
the same State if the plaintiffs are merely nominal parties and
are suing on behalf of an alien.
Constitution, Article III, Congressional Research Service]
FEDERAL STUDY ON JURISDICTION WITHIN
In June, 1957, the government of the
United States published a work entitled
Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental
Committee for the Study of Jurisdiction Over Federal Areas Within the
States, Part II. The Committee stated at pg. 45 :
"It scarcely needs to be
said that unless there has been a transfer of jurisdiction pursuant
to clause 17 by a Federal acquisition of land with State consent,
or by cession from the State to the Federal Government, or unless
the Federal Government has reserved jurisdiction upon admission
of the State, the Federal Government possesses no legislative jurisdiction
over any area within a State, such jurisdiction being for exercise
by the State, subject to non-interference by the State with Federal
"The consent requirement of Article
I, section 8, clause 17 was intended by the framers of the Constitution
to preserve the State's jurisdictional integrity against federal
encroachment. The Federal Government cannot, by unilateral
action on its part, acquire legislative jurisdiction over any area
within the exterior boundaries of a State," Id.,
According to the April, 1956, report
(Part I), pages 41-47 of the
Interdepartmental Committee "Study Of Jurisdiction Over Federal Areas
Within The States," the court has recognized three methods
by which the federal government may acquire exclusive legislative jurisdiction
over a physical area:
Constitutional consent.--Other than the
District of Columbia, the Constitution gives express recognition
to but one means of Federal acquisition of legislative jurisdiction--
purchase with State consent under article I,
section 8, clause 17.
..."and to exercise like
authority over all places purchased by the consent of the
legislature of the state in which the same shall be, for
the creation of forts, magazines, arsenals, dockyards and other
"The debates in the Constitutional
Convention and State ratifying conventions leave little doubt that
both the opponents and proponents of Federal exercise of exclusive
legislature jurisdiction over the seat of government were of the
view that a constitutional provision such as clause 17 was essential
if the Federal government was to have such jurisdiction.... While,
as has been indicated in the preceding chapter, little attention
was given in the course of the debates to Federal exercise of exclusive
legislative jurisdiction over areas other than the seat of government,
it is reasonable to assume that it was the general view
that a special constitution provision was essential to enable the
United States to acquire exclusive legislative jurisdiction over
According to the 1956 report, pages
7-8, "... the provision of the second portion, for transfer of like
jurisdiction [as the District of Columbia] to the Federal Government
over other areas acquired for Federal purposes, was not uniformly
exercised during the first 50 years of the existence of the United
States. It was exercised with respect to most, but not all, lighthouse
sites, with respect to various forts and arsenals, and with respect
to a number of other individual properties. But search of appropriate
records indicates that during this period it was often the practice
of the Government merely to purchase the lands upon which its installations
were to be placed and to enter into occupancy for the purposes intended,
without also acquiring legislative jurisdiction over the lands."
Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), the Supreme
Court approved a method not specified in the Constitution of securing
legislative jurisdiction in the United States. Although the matter
was not in issue in the case, the Supreme Court said (p. 526):
"The land constituting the Reservation
was part of the territory acquired in 1803 by cession from France,
and until the formation of the State of Kansas, and her admission
into the Union, the United States possessed the rights of a
proprietor, and had political dominion and sovereignty over
it. For many years before that admission it had been reserved
from sale by the proper authorities of the United States for
military purposes, and occupied by them as a military post.
The jurisdiction of the United States over it during this time
was necessarily paramount. But in 1861 Kansas was admitted into
the Union upon an equal footing with the original States, that
is, with the same rights of political dominion and sovereignty,
subject like them only to the Constitution of the United States.
Congress might undoubtedly, upon such admission, have
stipulated for retention of the political authority, dominion
and legislative power of the United States over the Reservation
so long as it should be used for military purposes by the government;
that is, it could have excepted the place from the jurisdiction
of Kansas, as one needed for the uses of the general government.
But from some cause, inadvertence perhaps, or over-confidence
that a recession of such jurisdiction could be had whenever
desired, no such stipulation or exception was made."(See also
United States v. Gratoit concerning post-statehood
reservation of mines, salt licks, salt springs, and mill seats
in the (former) Eastern ceded territories.)
"State cession.--In the same case, ( Fort Leavenworth
R.R. v. Lowe,) the United States Supreme
Court sustained the validity of an act of Kansas ceding to
the United States legislative jurisdiction over the Fort Leavenworth
military reservation, but reserving to itself the right to serve
criminal and civil process in the reservation and the right to tax
railroad, bridge, and other corporations, and their franchises and
property on the reservation. In the course of its opinion
sustaining the cession of legislative jurisdiction , the Supreme
Court said (p. 540):
"... Though the jurisdiction
and authority of the general government are essentially different
form those of the State, they are not those of a different country;
and the two, the State and general government, may deal with
each other in any way they may deem best to carry out the purposes
of the Constitution. It is for the protection and interests
of the States, their people and property, as well as for the
protection and interests of the people generally of the United
States, that forts, arsenals, and other buildings for public
uses are constructed within the States. As instrumentalities
for the execution of the powers of the general government, they
are, as already said, exempt from such control of the States
as would defeat or impair their use for those purposes; and
if, to their more effective use, a cession of legislative authority
and political jurisdiction by the State would be desirable,
we do not perceive any objection to its grant by the Legislature
of the State. Such cession is really as much for the benefit
of the State as it is for the benefit of the United States."
"Whenever a government has been established, I have always
supposed, that a power to preserve itself, was a necessary,
and an inseparable, concomitant. But the existence of the Federal
government would be precarious, it could no longer be called
an independent government, if, for the punishment of offences
of this nature [bribery of a tax collector], tending to obstruct
and pervert the administration of its affairs, an appeal must
be made to the State tribunals, or the offenders must escape
with absolute impunity. The power to punish misdemeanors,
is originally and strictly a common law power; of which, I think,
the United States are constitutionally possessed. It might have
been exercised by Congress in the form of a Legislative act;
but, it may, also, in my opinion be enforced in a course of
Judicial proceeding. Whenever an offence aims at the subversion
of any Federal institution, or at the corruption of its public
officers, it is an offence against the well-being of the United
States; from its very nature, it is cognizable under their authority;
and, consequently, it is within the jurisdiction of this Court,
by virtue of the 11th section of the Judicial act. [2 U.S. 384,
396] The Court being divided in opinion, it became
a doubt, whether sentence could be pronounced upon the defendant;
and a wish was expressed by the Judges and the Attorney of the
District, that the case might be put into such a form, as would
admit of obtaining the ultimate decision of the Supreme Court,
upon the important principle of the discussion: But the counsel
for the prisoner did not think themselves authorised to enter
into a compromise of that nature. The Court, after a short consultation,
and declaring, that the sentence was mitigated in consideration
of the defendant's circumstances, proceeded to adjudge,
"That the defendant be imprisoned for three months; that
he pay a fine of 200 dollars; and that he stand committed, 'till
this sentence be complied with, and the costs of prosecution
[The United States v. Worrall,
32 U.S. 384 (1798)]
The first position taken by the defendants is that their claims
must be tested by the laws of the state in which the lands are situate
rather than by the legislation of Congress, and in support of this
position they say that lands of the United States within a state,
when not used or needed for a fort or other governmental purpose
of the [243 U.S. 389, 404] United States, are subject
to the jurisdiction, powers, and laws of the state in the same way
and to the same extent as are similar lands of others. To this we
cannot assent. Not only does the Constitution (art. 4, 3, cl. 2)
commit to Congress the power 'to dispose of and make all needful
rules and regulations respecting' the lands of the United States,
but the settled course of legislation, congressional and state,
and repeated decisions of this court, have gone upon the theory
that the power of Congress is exclusive, and that only through its
exercise in some form can rights in lands belonging to the United
States be acquired. True, for many purposes a state has civil and
criminal jurisdiction over lands within its limits belonging to
the United States, but this jurisdiction does not extend to any
matter that is not consistent with full power in the United States
to protect its lands, to control their use, and to prescribe in
what manner others may require rights in them. Thus, while the state
may punish public offenses, such as murder or larceny, committed
on such lands, and may tax private property, such as live stock,
located thereon, it may not tax the lands themselves, or invest
others with any right whatever in them. United States v. McBratney,
104 U.S. 621, 624 , 26 S. L. ed. 869, 870; Van Brocklin v. Tennessee
(Van Brocklin v. Anderson)
117 U.S. 151, 168 , 2 S.. L. ed. 845, 851, 6 Sup. Ct. Rep. 670;
Wisconsin C. R. Co. v. Price County,
133 U.S. 496, 504 , 33 S. L. ed. 687, 690, 10 Sup. Ct. Rep.
341. From the earliest times Congress by its legislation, applicable
alike in the states and territories, has regulated in many particulars
the use by others of the lands of the United States, has prohibited
and made punishable various acts calculated to be injurious to them
or to prevent their use in the way intended, and has provided for
and controlled the acquisition of rights of way over them for highways,
railroads, canals, ditches, telegraph lines, and the like. The states
and the public have almost uniformly accepted this legislation as
controlling, and in the instances where it has been questioned in
this court its validity has been upheld and [243 U.S. 389, 405]
its supremacy over state enactments sustained. Wilcox
v. Jackson, 13 Pet. 498, 516, 10 L. ed. 264, 273; Jourdan v. Barrett,
4 How. 169, 185, 11 L. ed. 924, 931; Gibson v. Chouteau, 13 Wall.
92, 99, 20 L. ed. 534, 536; Camfield v. United States,
167 U.S. 518 , 42 L. ed. 260, 17 Sup. Ct. Rep. 864; Light v.
220 U.S. 523, 536 , 537 S., 55 L. ed. 570, 574, 31 Sup. Ct.
Rep. 485. And so we are of opinion that the inclusion within a state
of lands of the United States does not take from Congress the power
to control their occupancy and use, to protect them from trespass
and injury, and to prescribe the conditions upon which others may
obtain rights in them, even though this may involve the exercise
in some measure of what commonly is known as the police power. 'A
different rule,' as was said in Camfield v. United States,
167 U.S. 518 , 42 L. ed. 260, 17 Sup. Ct. Rep. 864, 'would place
the public domain of the United States completely at the mercy of
It results that state laws, including those relating to the exercise
of the power of eminent domain, have no bearing upon a controversy
such as is here presented, save as they may have been adopted or
made applicable by Congress.
Power and Light v. United States, 243 U.S. 389 (1917) ]
The Court is correct, in my view, to conclude that federal courts
have jurisdiction to consider challenges to the legality of the
detention of foreign nationals held at the Guantanamo Bay Naval
Base in Cuba. While I reach the same conclusion, my analysis follows
a different course. JUSTICE SCALIA exposes the weakness in the Court's
conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410
U.S. 484 (1973), "overruled the statutory predicate to Eisentrager's
holding," ante at ___. As he explains, the Court's approach is not
a plausible reading of Braden or Johnson v. Eisentrager, 339 U.S.
763 (1950). In my view, the correct course is to follow the framework
Eisentrager considered the scope of the right to petition for
a writ of habeas corpus against the backdrop of the constitutional
command of the separation of powers. The issue before the
Court was whether the Judiciary could exercise jurisdiction over
the claims of German prisoners held in the Landsberg prison in Germany
following the cessation of hostilities in Europe. The Court concluded
the petition could not be entertained. The petition was not within
the proper realm of the judicial power. It concerned matters within
the exclusive province of the Executive, or the Executive and Congress,
The Court began by noting the "ascending scale of rights"
that courts have recognized for individuals depending on their connection
to the United States. Id. at 770. Citizenship provides a longstanding
basis for jurisdiction, the Court noted, and among aliens physical
presence within the United States also "gave the Judiciary power
to act." Id. at 769, 771. This contrasted with the "essential pattern
for seasonable Executive constraint of enemy aliens." Id. at 773.
The place of the detention was also important to the jurisdictional
question, the Court noted. Physical
presence in the United States "implied protection," id. at 777-778,
whereas in Eisentrager "th[e] prisoners at no relevant time were
within any territory over which the United States is sovereign,"
id. at 778. The Court next noted that the prisoners
in Eisentrager "were actual enemies" of the United States, proven
to be so at trial, and thus could not justify "a limited opening
of our courts" to distinguish the "many [aliens] of friendly personal
disposition to whom the status of enemy" was unproven. Id. at 778.
Finally, the Court considered the extent to which jurisdiction would
"hamper the war effort and bring aid and comfort to the enemy."
Id. at 779. Because the prisoners in Eisentrager were proven enemy
aliens found and detained outside the United States, and because
the existence of jurisdiction would have had a clear harmful effect
on the Nation's military affairs, the matter was appropriately left
to the Executive Branch and there was no jurisdiction for the courts
to hear the prisoner's claims.
The decision in Eisentrager indicates that there is a realm
of political authority over military affairs where the judicial
power may not enter. The existence of this realm acknowledges
the power of the President as Commander in Chief, and the joint
role of the President and the Congress, in the conduct of military
affairs. A faithful application of Eisentrager, then, requires an
initial inquiry into the general circumstances of the detention
to determine whether the Court has the authority to entertain the
petition and to grant relief after considering all of the facts
presented. A necessary corollary of Eisentrager is that there are
circumstances in which the courts maintain the power and the responsibility
to protect persons from unlawful detention even where military affairs
are implicated. See also Ex parte Milligan, 4 Wall. 2 (1866).
The facts here are distinguishable from those in Eisentrager
in two critical ways, leading to the conclusion that a federal court
may entertain the petitions.
First, Guantanamo Bay is in every
practical respect a United States territory, and it is one far removed
from any hostilities. The opinion of the Court well
explains the history of its possession by the United States. In
a formal sense, the United States leases the Bay; the 1903 lease
agreement states that Cuba retains "ultimate sovereignty" over it.
Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba,
Art. III, T.S. No. 418. At the same time, this lease is no ordinary
lease. Its term is indefinite and at the discretion of the United
States. What matters is the unchallenged and indefinite control
that the United States has long exercised over Guantanamo Bay. From
a practical perspective, the indefinite lease of Guantanamo Bay
has produced a place that belongs to the United States, extending
the "implied protection" of the United States to it. Eisentrager,
supra, at 777-778.
The second critical set of
facts is that the detainees at Guantanamo Bay are being held indefinitely,
and without benefit of any legal proceeding to determine their status.
In Eisentrager, the prisoners were tried and convicted by a military
commission of violating the laws of war and were sentenced to prison
terms. Having already been subject to procedures establishing their
status, they could not justify "a limited opening of our courts"
to show that they were "of friendly personal disposition" and not
enemy aliens. 339 U.S. at 778. Indefinite detention without trial
or other proceeding presents altogether different considerations.
It allows friends and foes alike to remain in detention. It suggests
a weaker case of military necessity and much greater alignment with
the traditional function of habeas corpus. Perhaps, where detainees
are taken from a zone of hostilities, detention without proceedings
or trial would be justified by military necessity for a matter of
weeks; but as the period of detention stretches from months to years,
the case for continued detention to meet military exigencies becomes
In light of the status of Guantanamo Bay and the indefinite pretrial
detention of the detainees, I would hold that federal court jurisdiction
is permitted in these cases. This approach would avoid creating
automatic statutory authority to adjudicate the claims of persons
located outside the United States, and remains true to the
reasoning of Eisentrager. For these reasons, I concur in the judgment
of the Court.
v. Bush, 542 U.S. 466 (2004)]
Teledyne, Inc. v. Kone Corp., 892 F.2d 1404, C.A.9 (Cal.)
Unlike state courts, the lower federal courts are courts of limited
jurisdiction. “It remains rudimentary law that ‘as regards all courts
of the United States inferior to [the Supreme Court] 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····’ ”
Finley, 109 S.Ct. at 2006 (quoting The
Mayor v. Cooper, 6 Wall. 247, 252, 18 L.Ed. 851 (1868)).
Jones v. Mayer, 392 U.S. 409 (1968): An "act
of Congress" that has national scope and operates inside the states
"As its text reveals, the Thirteenth Amendment "is not a mere
prohibition of State laws establishing or upholding slavery, but
an absolute declaration that slavery or involuntary servitude shall
not exist in any part of the United States." Civil Rights Cases,
109 U.S. 3, 20 . It has never been doubted, therefore, "that
the power vested in Congress to enforce the article by appropriate
legislation," ibid., includes the power to enact laws "direct and
primary, operating upon the acts of individuals, whether sanctioned
by State legislation or not." Id., at 23.
"Thus, the fact that 1982 operates upon the unofficial acts
of private individuals, whether or not sanctioned by state law,
presents no constitutional problem. If Congress has power under
the Thirteenth Amendment to eradicate conditions that prevent Negroes
from buying and renting property because of their race or color,
then no federal statute calculated to achieve that objective [392
U.S. 409, 439] can be thought to exceed the constitutional
power of Congress simply because it reaches beyond state action
to regulate the conduct of private individuals. The constitutional
question in this case, therefore, comes to this: Does the authority
of Congress to enforce the Thirteenth Amendment "by appropriate
legislation" include the power to eliminate all racial barriers
to the acquisition of real and personal property? We think the answer
to that question is plainly yes.
"By its own unaided force and effect," the Thirteenth Amendment
"abolished slavery, and established universal freedom." Civil
109 U.S. 3, 20 . Whether or not the Amendment itself did
any more than that - a question not involved in this case -
it is at least clear that the Enabling Clause of that Amendment
empowered Congress to do much more. For that clause clothed
"Congress with power to pass all laws necessary and proper for
abolishing all badges and incidents of slavery in the United
States." Ibid. (Emphasis added.)
Those who opposed passage of the Civil Rights Act of 1866 argued
in effect that the Thirteenth Amendment merely authorized Congress
to dissolve the legal bond by which the Negro slave was held to
his master. 75 Yet many had earlier
opposed the Thirteenth Amendment on the very ground that it would
give Congress virtually unlimited power to enact laws for the protection
of Negroes in every State. 76 And
the majority leaders in Congress - who were, after all, the authors
of the Thirteenth Amendment - had no doubt that its Enabling Clause
contemplated the sort of positive legislation that [392 U.S. 409,
440] was embodied in the 1866 Civil Rights Act. Their
chief spokesman, Senator Trumbull of Illinois, the Chairman of the
Judiciary Committee, had brought the Thirteenth Amendment to the
floor of the Senate in 1864. In defending the constitutionality
of the 1866 Act, he argued that, if the narrower construction of
the Enabling Clause were correct, then
"the trumpet of freedom that we have been blowing throughout
the land has given an `uncertain sound,' and the promised freedom
is a delusion. Such was not the intention of Congress, which
proposed the constitutional amendment, nor is such the fair
meaning of the amendment itself. . . . I have no doubt that
under this provision . . . we may destroy all these discriminations
in civil rights against the black man; and if we cannot, our
constitutional amendment amounts to nothing. It was for that
purpose that the second clause of that amendment was adopted,
which says that Congress shall have authority, by appropriate
legislation, to carry into effect the article prohibiting slavery.
Who is to decide what that appropriate legislation is to be?
The Congress of the United States; and it is for Congress to
adopt such appropriate legislation as it may think proper, so
that it be a means to accomplish the end."
"Surely Senator Trumbull was right. Surely Congress has the power
under the Thirteenth Amendment rationally to determine what are
the badges and the incidents of slavery, and the authority to translate
that determination into effective legislation. Nor can we say that
the determination Congress has made is an irrational [392 U.S. 409,
441] one. For this Court recognized long ago that, whatever
else they may have encompassed, the badges and incidents of slavery
- its "burdens and disabilities" - included restraints upon "those
fundamental rights which are the essence of civil freedom, namely,
the same right . . . to inherit, purchase, lease, sell and convey
property, as is enjoyed by white citizens." Civil Rights Cases,
109 U.S. 3, 22 . 78 Just as the
Black Codes, enacted after the Civil [392 U.S. 409, 442]
War to restrict the free exercise of those rights, were substitutes
for the slave system, so the exclusion of Negroes from white communities
became a substitute for the Black Codes. And when racial discrimination
herds men [392 U.S. 409, 443] into ghettos and makes
their ability to buy property turn on the color of their skin, then
it too is a relic of slavery.
"Negro citizens, North and South, who saw in the Thirteenth Amendment
a promise of freedom - freedom to "go and come at pleasure"
79 and to "buy and sell when they
please" 80 - would be left with "a
mere paper guarantee" 81 if Congress
were powerless to assure that a dollar in the hands of a Negro will
purchase the same thing as a dollar in the hands of a white man.
At the very least, the freedom that Congress is empowered to secure
under the Thirteenth Amendment includes the freedom to buy whatever
a white man can buy, the right to live wherever a white man can
live. If Congress cannot say that being a free man means at least
this much, then the Thirteenth Amendment made a promise the Nation
[Jones v. Mayer,
392 U.S. 409 (1968)]