D.C. Ass'n of Chartered Pub. Sch. v. Dist. of Columbia ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2018 Decided July 19, 2019
No. 17-7155
D.C. ASSOCIATION OF CHARTERED PUBLIC SCHOOLS, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01293)
Kelly P. Dunbar argued the cause for appellants. With him
on the brief were Carl J. Nichols and Thomas C. Kost.
Jason Lederstein, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the briefs were Karl A.
Racine, Attorney General, Loren L. AliKhan, Solicitor General,
and Caroline S. Van Zile, Deputy Solicitor General.
John R. Hoellen and Lauren R.S. Mendonsa were on the
brief for amicus curiae Council of the District of Columbia in
support of appellees.
2
Roger E. Warin, Osvaldo Vazquez, Marcus Gadson, and
Jonathan Smith were on the brief for amici curiae Community
Members and Organizations in support of defendants-
appellees.
Before: HENDERSON, SRINIVASAN and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: In 1996, Congress enacted
the School Reform Act, which established parallel systems of
traditional public schools and charter schools in the District of
Columbia. The Act requires the District to fund the operating
expenses of public and charter schools on a uniform, per-
student basis. In this case, the D.C. Association of Chartered
Public Schools contends that the District’s school funding
practices inadequately fund charter schools. The district court
rejected the Association’s claims. We conclude, though, that
the district court lacked jurisdiction to hear this case.
I.
The Constitution’s District Clause grants Congress the
power “[t]o exercise exclusive Legislation in all Cases
whatsoever, over [the] District [of Columbia].” U.S. Const.
art. I, § 8, cl. 17. Pursuant to that Clause, Congress can
delegate “legislative power” to the District. District of
Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953).
Congress did so in the District of Columbia Self-Government
and Governmental Reorganization Act, Pub. L. No. 93-198, 87
Stat. 774 (1973) (codified as amended at D.C. Code § 1-201.01
et seq.)—also known as the Home Rule Act, or HRA—which
sought to “relieve Congress of the burden of legislating upon
essentially local District matters,” id. § 102(a).
 3
Congress, however, limited the District’s power to
legislate in certain respects. Of most relevance for our
purposes, Congress barred the District from amending or
repealing an Act of Congress that “is not restricted in its
application exclusively in or to the District.” Id. § 602(a)(3).
In 1996, Congress enacted the School Reform Act, Pub. L.
No. 104-134, 110 Stat. 1321-107 (1996), which authorized the
creation of charter schools in the District. The Act addresses
the annual operating budgets for both traditional public schools
and charter schools. It provides that the District “shall
establish . . . a formula to determine the amount of . . . the
annual payment to the Board of Education for the operating
expenses of the District of Columbia public schools . . . [and]
the annual payment to each public charter school for [its]
operating expenses.” Id. § 2401(b)(1). The “amount of the
annual payment” for each school “shall be calculated by
multiplying a uniform dollar amount . . . [by] the number of
students” enrolled at the school. Id. § 2401(b)(2).
The District’s uniform per-student funding level for both
traditional public and charter schools is currently $10,658. See
D.C. Code § 38-2903. But the District allocates certain
additional funding to traditional public schools above the per-
pupil amount (including for maintenance of facilities and for
teacher pensions). The District also applies the per-pupil
formula to traditional public schools and charter schools in a
slightly different way: the District makes one annual payment
to traditional public schools based on the prior year’s
enrollment, see D.C. Code § 38-2906(a), whereas for charter
schools, the District makes quarterly payments that can be
adjusted during the year if the actual enrollment turns out to
differ from projected enrollment, id. § 38-2906.02(b)–(c).
 4
The D.C. Association of Chartered Public Schools brought
suit challenging the District’s funding practices. The
Association contends that the District underfunds charter
schools relative to traditional public schools, in violation of the
School Reform Act, the Home Rule Act, and the Constitution.
The district court ruled for the District on all counts, and the
Association now appeals.
II.
We do not reach the merits of the Association’s claims
because we conclude that the district court lacked jurisdiction
over them. The Association contends that its claims under the
School Reform Act, Home Rule Act, and Constitution fall
within the district court’s original jurisdiction over claims
arising under federal law. See 28 U.S.C. § 1331. None of those
claims, however, arises under federal law within the meaning
of the federal-question statute. We thus vacate the district
court’s judgment and remand for dismissal of the complaint for
want of jurisdiction.
A.
We first consider whether the district court had jurisdiction
over the Association’s claim under the School Reform Act. For
purposes of our analysis, we assume that Act furnishes a cause
of action. The District makes no argument to the contrary, and
in general, “the absence of a valid (as opposed to arguable)
cause of action does not implicate subject-matter jurisdiction.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).
Under the federal-question statute, the “district courts shall
have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. For purposes of that provision, “a case can arise under
5
federal law in two ways.” Gunn v. Minton, 568 U.S. 251, 257
(2013) (alteration and internal quotation marks omitted).
“Most directly, a case arises under federal law when
federal law creates the cause of action asserted.” Id.; see Am.
Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260
(1916). That test “accounts for the vast bulk of suits that arise
under federal law.” Gunn, 568 U.S. at 257.
A claim under the School Reform Act cannot qualify for
federal-question jurisdiction under that test. That is because
the School Reform Act is not a “law of the United States”
within the meaning of § 1331. Another provision, 28 U.S.C.
§ 1366, prescribes that, “[f]or the purposes of [§ 1331],
references to laws of the United States . . . do not include laws
applicable exclusively to the District of Columbia.” The
School Reform Act is such a law: it applies solely to the
District, establishing and regulating charter schools within the
District alone. Section 1366 then denies the School Reform
Act the status of a “law of the United States” for purposes of
the federal-question statute.
The Association does not dispute that conclusion. Instead,
the Association relies on the second way in which an action
arises under federal law for purposes of federal-question
jurisdiction, which applies even though the cause of action is
created by state law rather than federal law. In that “slim
category” of cases, “federal jurisdiction over a state law claim
will lie if a federal issue is: (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance
approved by Congress.” Gunn, 568 U.S. at 258. That test is
not met here.
The Association identifies no federal question “necessarily
raised” by its claim under the School Reform Act. The
6
Association submits that its claim raises a federal question—
i.e., “whether the District may amend or repeal” the School
Reform Act pursuant to its authority under the Home Rule Act.
Association Supp. Br. 7; see HRA § 602(a)(3). But that
question, even assuming it is federal in character, is not an
“essential element” of a School Reform Act claim, as would be
necessary for the claim to support federal-question jurisdiction.
Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545
U.S. 308, 315 (2005). The Association raises that question, not
as an essential part of its affirmative claim, but instead in
response to an anticipated defense—namely, the District’s
defense that, even if its actions conflict with the School Reform
Act, it can amend or repeal that Act pursuant to its authority
under the Home Rule Act. And it is black-letter law that an
anticipated federal defense does not substantiate federal-
question jurisdiction. See Louisville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149, 153 (1908). The Association thus errs
in arguing that its School Reform Act claim arises under federal
law even if the cause of action is nonfederal.
B.
Next, the Association relies on its claim under the Home
Rule Act. Again, we assume, without deciding, that the Act
furnishes a cause of action. See Steel Co., 523 U.S. at 89. The
gravamen of the Association’s claim is that the District’s
alleged contravention of the School Reform Act amounts to a
violation of the Home Rule Act. That claim does not arise
under federal law within the meaning of the federal-question
statute.
The Home Rule Act is a “hybrid statute,” Thomas v. Barry,
729 F.2d 1469, 1471 (D.C. Cir. 1984), in that while certain of
its provisions apply “exclusively to the District of Columbia,”
28 U.S.C. § 1366, others do not. In order to determine whether
7
a particular claim asserted under the Act falls within federal-
question jurisdiction, we must assess whether the specific
provision at issue is federal or local in character. That analysis
turns on whether the provision can be “equated” with laws
“enacted by state and local governments having plenary power
to legislate for the general welfare of their citizens.” Thomas,
729 F.2d at 1471 (quoting Key v. Doyle, 434 U.S. 59, 68 n.13
(1977)).
For example, in Thomas, we examined a claim raised
under section 204 of the Home Rule Act, which “transfers
certain functions away from the Secretary of Labor” and
abolishes another federal “position entirely within the federal
system.” Id. We concluded that section 204 is federal in
character because a “state or local statute” could not “direct the
federal government to affect transfers or to abolish positions
altering its structure.” Id.
Here, the pertinent provisions of the Home Rule Act are
sections 602(a)(3) and 717(b). Section 602(a)(3) provides that
the D.C. Council “shall have no authority to . . . enact any act
to amend or repeal any Act of Congress . . . which is not
restricted in its application exclusively in or to the District.”
HRA § 602(a)(3) (codified at D.C. Code § 1-206.02(a)(3)).
Section 717(b) provides in pertinent part that “[n]o law or
regulation which is in force on” the Home Rule Act’s effective
date (January 2, 1975) “shall be deemed amended or repealed
by this Act . . . but any such law or regulation may be amended
or repealed by act or resolution as authorized in this Act.” HRA
§ 717(b) (codified at D.C. Code § 1-207.17(b)).
The Association argues that those provisions are federal in
character. That proposition cannot be squared with our
decision in Dimond v. District of Columbia, 792 F.2d 179 (D.C.
Cir. 1986). There, we considered the existence of federal-
8
question jurisdiction over claims brought under two provisions
of the Home Rule Act. One limits the District’s authority to
“[e]nact any act, resolution, or rule . . . (relating to organization
and jurisdiction of the District of Columbia courts).” HRA
§ 602(a)(4) (codified at D.C. Code § 1-206.02(a)(4)). The
other limits the District’s authority to “[e]nact any act or
regulation relating to the United States District Court for the
District of Columbia.” HRA § 602(a)(8) (codified at D.C.
Code § 1-206.02(a)(8)). We concluded that § 1366 excluded
both provisions from the body of federal law because they both
“would appear to apply exclusively to the District.” Dimond,
792 F.2d at 188.
That logic equally applies here. In particular, the
provisions of the Home Rule Act at issue in this case resemble
the provisions we considered in Dimond in relevant respects.
Like those provisions, § 602(a)(3) imposes a constraint only on
the District’s power to legislate, and its effect does not go
beyond the compass of the District. It can thus be “equated”
with local law, such that it falls outside the body of federal law
by operation of § 1366. Thomas, 729 F.2d at 1471. So too for
§ 717(b), which merely announces a default rule with respect
to laws in place on the effective date of the Home Rule Act.
That provision clarifies that laws in effect on that date remain
in place but are subject to repeal by the District. Section
717(b)’s effect is confined exclusively to the District, and the
provision is thus excluded from federal law by § 1366.
The Association disputes that understanding of § 717(b).
It reads the provision to “grant[], but then delimit[], the
District’s authority to amend congressional enactments.”
Association Supp. Br. 6. Even so, such a limitation on
legislative authority would apply exclusively to the District.
The provision thus would remain indistinguishable in character
from sections 602(a)(4) and 602(a)(8) of the Act, the provisions
9
we considered in Dimond, 792 F.2d at 188. It follows that the
Association’s claim under the Home Rule Act, like its claim
under the School Reform Act, cannot establish federal-question
jurisdiction.
C.
We turn last to the Association’s claim that the School
Reform Act preempts contrary District law, including the
school-funding provisions of the D.C. Code at issue. The
Association argues that a preemption-based action of that kind
arises under federal law for purposes of federal-question
jurisdiction. We disagree.
In its complaint, the Association styled its preemption
claim as arising under both the District Clause and the
Supremacy Clause. See Complaint ¶ 79–89, J.A. 34–38. In its
briefing before our court, the Association relies exclusively on
the District Clause. See Association Supp. Br. 2–5. In either
event, the claim does not support federal-question jurisdiction.
Under the general test for federal-question jurisdiction, a
claim “arises under” federal law only if federal law creates the
asserted cause of action. See Gunn, 568 U.S. at 257; Am. Well
Works Co., 241 U.S. at 260. And for preemption-like claims,
the District Clause—like the Supremacy Clause—“certainly
does not create a cause of action.” Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015). Rather, the
District Clause, like the Supremacy Clause, “is silent regarding
who may enforce federal laws in court, and in what
circumstances they may do so.” Id. Neither the District Clause
nor the Supremacy Clause then directly furnishes the
Association with a cause of action.
Still, the Association correctly observes that “[s]uits to
enjoin official conduct that conflicts with the federal
10
Constitution are common.” Association Supp. Br. 2. Indeed,
a cause of action routinely exists for such claims. See, e.g.,
Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,
642 (2002); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96
(1983); see also Richard H. Fallon, Jr. et al., Hart & Wechsler’s
The Federal Courts and the Federal System 844–45 (7th ed.
2015). But the cause of action for such claims does not arise
under the Constitution itself. Rather, it exists as “the creation
of courts of equity.” Armstrong, 135 S. Ct. at 1384. In other
words, the Association’s putative cause of action for its
preemption-based claim would arise under federal common
law. See id. We assume the existence of such a common-law
action here (although we note that an action “to enjoin unlawful
executive action is subject to express and implied statutory
limitations,” Armstrong, 135 S. Ct. at 1385, and we have no
occasion to consider whether any such limitations would
preclude recognizing a cause of action in this case).
While claims arising under federal common law typically
fall within federal-question jurisdiction, see Illinois v. City of
Milwaukee, 406 U.S. 91, 100 (1972), here, § 1366 forecloses
federal jurisdiction. Under that statute, as we have seen,
federal-question jurisdiction excludes claims whose cause of
action arises under “laws applicable exclusively to the District
of Columbia.” Because the School Reform Act applies solely
to the District, a common-law cause of action to guard against
“illegal executive action” in violation of that Act, Armstrong,
135 S. Ct. at 1384, would have no broader application than the
Act itself. Such an action would apply exclusively to the
District, such that it would fall outside of federal-question
jurisdiction by operation of § 1366.
If it were otherwise, a litigant bringing a claim barred from
federal court by § 1366 could nonetheless gain access to a
federal forum merely by restyling her claim as a “preemption”
11
one to enforce an ostensibly supreme federal law. Such a
regime would make little sense. Rather, the Supreme Court has
established that, even for preemption claims, the availability of
federal-question jurisdiction hinges on Congress’s “intent to
withdraw federal jurisdiction under § 1331.” Verizon, 535 U.S.
at 644. Section 1366 speaks directly to that intent in the
circumstances of this case. We thus conclude that the district
court lacked jurisdiction over any common-law cause of action
to enforce the School Reform Act.
* * * * *
For the foregoing reasons, we vacate the judgment of the
district court and remand with instructions to dismiss the
complaint for want of jurisdiction.
So ordered.