In Mims v. Arrow Financial Services (analysis here), Justice Ginsburg provides a brief recitation of whether TCPA creates a federal cause of action, and if it “arises under” 1331 with stops at American ell Works, Merrell Down, and Grable:
Because federal law creates the right of action andprovides the rules of decision, Mims’s TCPA claim, in 28
U. S. C. §1331’s words, plainly “aris[es] under” the “laws. . . of the United States.” As already noted, supra, at 2, “[a] suit arises under the law that creates the cause of action.” American Well Works, 241 U. S., at 260. Al-though courts have described this formulation as “moreuseful for inclusion than for . . . exclusion,” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 809, n. 5 (1986) (quoting T. B. Harms Co. v. Eliscu, 339 F. 2d 823, 827 (CA2 1964)), there is no serious debate that a federally created claim for relief is generally a “sufficient condition for federal-question jurisdiction.” Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545
U. S. 308, 317 (2005).
And the Court tries to explain away an outlier in its jurisprudence by citing Hart & Wechsler! Go figure.
For a rare exception to the rule that a federal cause of action suffices to ground federal-question jurisdiction, see Shoshone Mining Co. v. Rutter, 177 U. S. 505 (1900), discussed in R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System, 784–785 (6th ed. 2009). In Shoshone Mining, we held that a suit for a federal mining patent did not arise under federal lawfor jurisdictional purposes because “the right of possession” in controversy could be determined by “local rules or customs, or state statutes,” 177 U. S., at 509, or “may present simply a question of fact,” id., at 510. Here, by contrast, the TCPA not only creates the claim for relief anddesignates the remedy; critically, the Act and regulations thereunder supply the governing substantive law.
I remember just this discussion from my H&W, and when I taught the topic, I explained that it was doctrinally incoherent. I guess now H&W is right, and SCOTUS concedes. I’m glad some fed courts junkie law clerk stuck that in there.
Plus Richard Fallon, who objects to filing scholar’s briefs, gets cited by SCOTUS without even trying!