UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 24, 1975
LORRAINE YANCOSKIE, ADMINISTRATRIX OF THE ESTATE OF FRANCIS J. YANCOSKIE AND JASON ADAM YANCOSKIE, BY HIS PARENT AND NATURAL GUARDIAN, LORRAINE YANCOSKIE AND LORRAINE YANCOSKIE, IN HER OWN RIGHT
DELAWARE RIVER PORT AUTHORITY, APPELLANT
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.
Author: Van Dusen
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, the "sue and be sued" clause did not make § 1331 or § 1337 applicable to this case.*fn10
The mere fact that the bridge being constructed by the Authority is an instrumentality of interstate commerce is not enough to confer federal jurisdiction under § 1337. No federal law regulating or protecting commerce is part of plaintiff's cause of action, and therefore the "arising under" requirement of § 1337 has not been met.*fn11
At oral argument plaintiff's counsel relied on another ground for finding federal question jurisdiction. He pointed out that the legislation approving the compact contained the following proviso:*fn12
"Provided, that nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board . . . of the United States, over or in regard to navigable waters, or any commerce between the States, . . . or any bridge, railroad, highway, . . . forming the subject matter of the aforesaid compact . . . ."
Plaintiff contends that, since building a bridge between two states over an interstate waterway is a federal function which can be undertaken only with federal approval,*fn13 the above proviso requires that jurisdiction be determined as if the Federal Government were building the bridge. Jurisdiction in that case would exist, plaintiff argued, under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. and 28 U.S.C. § 1346(b), and therefore there is jurisdiction in this case.
We have concluded that this contention is without merit. The instant suit is not against the Federal Government, and the rationale for affording federal court jurisdiction over actions against the Federal Government has no application to this case. Moreover, the apparent purpose of the proviso is to prevent the statute granting congressional approval to the compact from being interpreted to limit federal power to regulate and protect commerce among the states. See The Clinton Bridge, 77 U.S. (10 Wall.) 454, 19 L. Ed. 969 (1870).
II. Diversity Jurisdiction
Because of the district court's decision that federal question jurisdiction did exist, it did not reach the question of the existence of diversity of citizenship jurisdiction, 28 U.S.C. § 1332. Our contrary decision requires us to consider § 1332 as an alternate basis for federal jurisdiction here.
The Authority contends that it is an alter ego of the Commonwealth of Pennsylvania, citing Appeal of Lillian Anderson, 408 Pa. 179, 182 A.2d 514 (1962),*fn14 and therefore not a "citizen" of any state for purposes of diversity jurisdiction. In answer to this contention, the plaintiff relied on the financial independence of the Authority from the state,*fn15 and argued that citizenship for diversity purposes is a federal, and not a state, question. See Harris v. Pennsylvania Turnpike Comm'n, 410 F.2d 1332, 1333 n.1 (3d Cir. 1969).
We need not resolve this issue, however. In the compact, the Authority is referred to as a "body corporate and politic . . . which shall constitute the public corporate instrumentality of the Commonwealth of Pennsylvania and the State of New Jersey . . . ."*fn16 Further, the Supreme Court in Petty referred to a similar commission as a "bi-state corporation . . . a joint or common agency of Tennessee and Missouri." 359 U.S. at 279. We conclude that for the purpose of determining the existence of diversity of citizenship jurisdiction the Authority, if it is not the alter ego of the state, should be treated as a corporation incorporated in both New Jersey and Pennsylvania. Section 1332(c) reads in part:
"For the purposes of this section . . ., a corporation shall be deemed a citizen of any State by which it has been incorporated . . . ."
Assuming, arguendo, that the Authority is not the alter ego of any state, we hold that the Authority is a citizen of both Pennsylvania and New Jersey, and since plaintiff is a citizen of Pennsylvania, there is no diversity of citizenship jurisdiction.*fn17
Therefore, the district court order will be reversed and the case remanded so that the district court may enter an order of dismissal for want of subject matter jurisdiction.
Costs taxed against appellees.