Can you have federal question jurisdiction in a case where no federal claim is alleged?  The question has a certain self-defining quality to it, sort of like asking if something done under the table can be above board.  Or asking whether the Holy Roman Empire was holy, Roman, or an empire.

We stole that last reference from an old Saturday Night Live sketch, but we have it on much higher authority that, yes, you can have federal question jurisdiction in a case where there is no federal claim alleged anywhere in the complaint.  The U.S. Supreme Court paved the way in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), and Gunn v. Minton, 133 S. Ct. 1059 (2013), where the Court basically held that even a state claim can give rise to federal jurisdiction when it necessarily raises substantial federal issues.

The Fourth Circuit’s recent opinion in Burrell v. Bayer Corporation, No. 17-1715, 2019 WL 1186722 (4th Cir. Mar. 14, 2019), explains how Grable jurisdiction works, even if the explanation is a little hostile to the concept and the result is not what the defendant wanted.  In Burrell, the plaintiffs alleged state product liability claims arising from the use of a Class III medical device.  Anticipating that the defendant manufacturer would invoke the Medical Device Amendments’ express preemption clause, the plaintiffs endeavored to plead a “parallel claim,” including that the defendant breached its alleged duty to report adverse events to the FDA and failed to update the product’s labeling.  Id. at *2.

The plaintiff walked into a jurisdictional conundrum that we blogged about here, when the district court in Burrell entered its order finding federal question jurisdiction.  The plaintiff was affirmatively alleging “parallel” claims, i.e., violations of legal duties equivalent to violations of FDA regulations.  Why don’t these allegations—even if characterized as state-law claims—necessarily raise substantial issues of federal law?

The district court found that they did, but the Fourth Circuit has now reversed, and its discussion of Grable jurisdiction is both informative and the first appellate treatment of this particular jurisdictional issue.  Here is the four-part test for determining whether state-law claims give rise to federal question jurisdiction:

To come within [federal question jurisdiction], the case must feature a state-law claim that (1) “necessarily raise[s]” a federal issue, and that federal issue must be “(2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”

Id. at *3 (quoting Gunn v. Minton, 568 U.S. 251, 258 (2013)).  You can see what this test is going for:  If it walks like a federal question and quacks like a federal question, it’s a federal question.

In application, the Fourth Circuit found that the plaintiffs’ state-law claims did not meet the test.  The anticipated assertion of an express preemption defense did not alone necessarily raise a substantial federal question because “under the well-pleaded complaint rule, . . . our inquiry is limited to the plaintiff’s statement of his own claim; we do not consider affirmative defenses.”  Id. at *5.  As for the plaintiffs’ allegations that the defendant breached duties “parallel” to federal requirements, the court ruled that “so long as even one theory” does not require the interpretation of federal law, resolution of the federal question is not “necessary.”  Id. at *7.

Given that the “parallel” claim allegations were necessary to survive express preemption—which would dispose of the entire case—we are not sure how it could be not necessary to resolve the federal issues.  Even the Fourth Circuit thought “this question was not entirely free from doubt,” so it held instead that the federal issues were not “substantial.”  Id. at *8-*10.  According to the Fourth Circuit, the plaintiff’s claims raised fact-intensive inquiries into the defendant’s compliance with certain FDA requirements, and not pure issues of law that would be important to the federal system as a whole, such as the constitutionality or construction of a federal statute.  Id. at *8.

Finally, the Fourth Circuit ruled that federal question jurisdiction would not be consistent with the “congressionally approved balance of federal and state judicial responsibilities.”  Id. at *9-*10.  On this point, the court noted that Congress had not created a federal cause of action providing remedies for violations of FDA regulations and did not intend “to divert a multitude of fact-intensive, state-law suits against medical-device manufacturers to federal court.”  Id.

We differ with the Fourth Circuit on a few of these points.  For one thing, where the court found “doubt” we clearly see a complaint that affirmatively and necessarily raised federal issues.  We similarly would find those issues to be substantial.  Sure, we are not talking here about the constitutionality of a federal statute, but we are considering the contours of federal laws enacted to provide for the consistent and predictable regulation of life-saving and life-improving devices.  That seems substantial to us.

We also do not believe that finding federal question jurisdiction in this case would disrupt any existing state-federal balance.  To begin with, it makes no difference whether Congress provided a private right of action to enforce FDA regulations.  That was the point of Grable:  Even a state law claim can give rise to federal question jurisdiction; no federal claim is required.  Moreover, with the current and growing masses of medical device product liability cases that currently exist in federal courts—multidistrict litigation, mostly drug/device product liability cases, now makes up more than half the federal docket—what federal-state balance was the Fourth Circuit concerned with disrupting?  We surely have not heard the last of this.