APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 74-851).
Seitz, Chief Judge, and Van Dusen and Rosenn, Circuit Judges.
VAN DUSEN, Circuit Judge.
While helping to construct a bridge linking the State of New Jersey with the Commonwealth of Pennsylvania, and being built for the Delaware River Port Authority ("Authority"), Francis J. Yancoskie fell to his death on the Pennsylvania side of the bridge. Lorraine Yancoskie, decedent's wife, who is a Pennsylvania resident, commenced this suit in the United States District Court for the District of New Jersey on June 10, 1974. She sued as administratrix of decedent's estate, in her own right, and on behalf of her minor son, who is also a Pennsylvania resident. The complaint asserted a right to recover any and all damages they are entitled to receive "under any and all wrongful death or survival actions or under any other theory of law or recovery."
On September 20, 1974, defendant filed a motion to dismiss the complaint on the ground that there was no federal jurisdiction.*fn1 On December 4, 1974, the district court filed an opinion in which it denied the motion and held that there was federal jurisdiction. The rationale of the opinion was that, since the Authority was created by an interstate compact*fn2 pursuant to the Compact Clause of the Constitution,*fn3 the construction of the compact creating the Authority was a federal question.*fn4 From this, the district court concluded that there was federal jurisdiction, though the opinion did not specify the statute on which jurisdiction was based. Presumably the district court found jurisdiction on the basis of either 28 U.S.C. § 1331 or 28 U.S.C. § 1337.
On December 13, 1974, the district court amended the order to include a certification that "a controlling question of law as to which there is substantial ground for difference of opinion" was involved "and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." By order dated January 7, 1975, this court granted the Authority leave to appeal pursuant to 28 U.S.C. § 1292(b). The instant appeal is the result.
We hold that the district court was without jurisdiction, and we therefore reverse the denial of the defendant's motion to dismiss.
I. Federal Question Jurisdiction
We note that the district court's holding that construction of an interstate compact presents a federal question is supported by Petty v. Tennessee-Missouri Comm'n, 359 U.S. 275, 3 L. Ed. 2d 804, 79 S. Ct. 785 (1959).*fn5 We need not decide this question here because even assuming, without deciding, the truth of that proposition, there is no federal jurisdiction in this case under § 1331 or § 1337. Section 1331 reads, in part:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 . . . and arises under the Constitution, laws, or treaties of the United States."
The provision that the action be one which "arises under" the Constitution, laws, or treaties of the United States has long been held to mean that there is jurisdiction under this section
". . . 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. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution."
Louisville & Nashville R. R. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908). See League to Save Lake Tahoe v. Tahoe Regional Plan. Agency, 507 F.2d 517, 519-20 & n.6 (9th Cir. 1974), cert. denied, 420 U.S. 974, 95 S. Ct. 1398, 43 L. Ed. 2d 654 (1975). Section 1337 also contains an "arising under" requirement,*fn6 which is interpreted to be the same as the § 1331 requirement. See Peyton v. Ry. Express Agency, 316 U.S. 350, 86 L. Ed. 1525, 62 S. Ct. 1171 (1942); Springfield Television, Inc. v. City of Springfield, 428 F.2d 1375, 1378 (8th Cir. 1970).
Nor is jurisdiction conferred by the existence in the compact of a "sue and be sued" clause,*fn7 although its construction might become crucial in this case.*fn8 This question of arguably federal law is not properly part of the plaintiff's statement of her own cause of action. Rather, it is an answer to an anticipated defense.*fn9 Therefore, ...