BARBARA FINLEY, PETITIONER V. UNITED STATES OF AMERICA No. 87-1973 In the Supreme Court of the United States October Term, 1988 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States PARTIES TO THE PROCEEDING Pursuant to the district court's order, which was reversed by the court of appeals, the City of San Diego and the San Diego Gas & Electric Company were added as defendants in this proceeding. TABLE OF CONTENTS Question presented Parties to the proceeding Opinions below Jurisdiction Statute involved Statement Summary of argument Argument: Federal district courts may not exercise pendent party jurisdiction in actions against the United States under the Federal Tort Claims Act A. Pendent party jurisdiction is impermissible under a particular statute if Congress has expressly or by implication negated its existence B. The language, purpose, and legislative history of the Federal Tort Claims Act negate the existence of pendent part jurisdiction in that setting C. Petitioner's argument based on convenience and judicial economy does not justify finding pendent party jurisdiction under the Federal Tort Claims Act Conclusion OPINIONS BELOW The order of the district court (Pet. App. A5-A10) granting petitoner's motion to add the City of San Diego and the San Diego Gas & Electric Company as defendants in this action and certifying the question for interlocutory appeal is not reported. The order of the court of appeals (Pet. App. A3-A4) granting the government's petition for permission to take an interlocutory appeal and ordering the plaintiff to show cause why the district court's decision should not be summarily reversed is not reported. The order of the court of appeals (Pet. App. A1-A2) summarily reversing the district court's decision is not reported. JURISDICTION The judgment of the court of appeals was entered on March 4, 1988. The petition for a writ of certiorari was filed on June 2, 1988, and was granted on October 3, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The jurisdictional provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), provides in pertinent part: Subject to the provisions of (28 U.S.C. 2671-2680), the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. QUESTION PRESENTED Whether, in an action brought against the United States under the Federal Tort Claims Act, a district court may exercise "pendent party jurisdiction" over the plaintiff's claims against other persons, where there exists no independent basis for federal-court jurisdiction over the claims against those persons. STATEMENT In November 1983, petitioner's husband and two daughters were killed in an airplane crash in Montgomery Field, an airport near San Diego, California, after the plane carrying them struck electric power lines on its approach to the runway. Pet. App. A6. Less than one year later, petitioner filed a tort suit in the California courts against the City of San Diego (the City) and the San Diego Gas & Electric Company (the Utility). She claimed that the City had negligently failed to maintain and to operate the runway approach lights and that the lights were not working at the time of the crash. She also claimed that the Utility had negligently placed the transmission lines near the runway and failed to place warning lights on the poles supporting the lines. Id. at A6-A7. After some discovery in the state-court suit, petitioner decided to pursue recovery against the federal government as well. In 1985, she submitted a claim for compensation to the Federal Aviation Administration (FAA). Upon the denial of the administrative claim, petitioner in May 1986 filed an action in federal court against the United States under the FTCA. In that suit, she alleged that the FAA had a duty to maintain and to operate the runway lights and, if the lights were not working, to inform pilots of the lights' malfunction. She also alleged that FAA air-traffic-control personnel had a duty to activate a special low altitude alert warning system, and to advise pilots of its use, in the circumstances that led to the crash. She claimed that the FAA breached those duties and that the United States was accordingly liable for the crash. Pet. App. A7; J.A. 8-10. In March 1987, petitioner moved in the FTCA action for permission to file an amended complaint that would add the City and the Utility as new defendants and would add her state-law claims against them as new claims. J.A. 24. Petitioner acknowledged that there was no independent basis for federal jurisdiction over the claims against the City and the Utility because, as she states in this Court (Br. 3), "(n)o federal question is presented and the parties are not diverse." Nevertheless, petitioner contended that, based on the close relation between the claims against the City and Utility and the federal-law claims against the United States, the district court could assert "pendent party" jurisdiction over the new claims and parties. See J.A. 22-33. Petitioner based her argument on this Court's ruling in United Mine Workers v. Gibbs, 383 U.S. 715 (1966), that in appropriate circumstances a federal court has power to exercise "pendent claim" jurisdiction -- that is, jurisdiction over a state-law claim against a defendant who is already properly in the federal suit by virtue of a federal-law claim. Gibbs held that a federal court has authority to exercise such jurisdiction when the federal claim is substantial, when it and the state-law claim "derive from a common nucleus of operative fact," and when the plaintiff would ordinarily be expected to try all of the claims in a single proceeding. Id. at 725; see Carnegie-Mellon Univ. v. Cohill, No. 86-1021 (Jan. 20, 1988), slip op. 5-6. Although Gibbs involved jurisdiction over nonfederal claims against a federal-law defendant, petitioner suggested that the Gibbs standards also justify "pendent party" jurisdiction -- that is, jurisdiction over a nonfederal claim against an entirely new party, one against which the plaintiff has asserted no federal-law or other claim that would independently support federal jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 18 (1976); Moor v. County of Alameda, 411 U.S. 693, 713 (1973). Petitioner argued that her state-law claims against the City and the Utility and her FTCA claims against the United States were closely enough related to meet the Gibbs standards and that she could therefore add the new defendants and claims to her suit against the United States. J.A. 29-32. The district court granted petitioner's motion. Pet. App. A5-A10. The court reasoned (id. at A8) that "from the perspective of judicial economy and efficiency * * * all of these actions ought to be tried together." Borrowing the Gibbs standards, the district court observed (ibid.) that the FTCA claims against the government and the state-law claims against the City and the Utility "arise from a common nucleus of operative facts." The court added (ibid.) that, in its view, "(n)o significant additional burden would be placed upon any party by having the entire matter tried in federal court, in one trial." The court also noted that "all of the parties but for the UNITED STATES want to consolidate (the matters) for a single trial" (id. at A8-A9). The court concluded that it would "accept() the invitation of plaintiff to assert pendent party jurisdiction over (the City and the Utility)" (id. at A9). The district court recognized, however, that its ruling was "far from certain." Pet. App. A9. It pointed out (id. at A8) that the Ninth Circuit had specifically rejected the exercise of pendent party jurisdiction in an FTCA case, Ayala v. United States, 550 F.2d 1196 (9th Cir. 1977), cert. dismissed, 435 U.S. 982 (1978). /1/ The district court therefore certified its ruling for interlocutory appeal under 28 U.S.C. (Supp. IV) 1292(b). Pet. App. A9-A10. The government, pursuant to 28 U.S.C. (Supp. IV) 1292(b), petitioned the court of appeals to permit the interlocutory appeal. By order dated July 7, 1987, the court of appeals granted the government's petition and directed the plaintiff to "show cause why the district court's order should not be summarily reversed under Ayala." Pet. App. A3-A4. On March 4, 1988, the court of appeals summarily reversed the district court's decision (id. at A1-A2). SUMMARY OF ARGUMENT 1. It is a cardinal principle of federal law that the limits of district court jurisdiction are determined by statute. See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). In accord with that principle, the Court's decision in Aldinger v. Howard, 427 U.S. 1 (1976), teaches that -- whatever Article III of the Constitution may permit -- the primary focus of the inquiry into whether pendent party jurisdiction is proper in a particular case must be on the statutes that authorize the bringing of that case in federal court. If Congress has "expressly or by implication negated (the) existence" (id. at 18) of federal jurisdiction over the plaintiff's nonfederal claims against the pendent party, then the district courts are without power to exercise jurisdiction. The Aldinger Court thus ruled that "(r)esolution of a claim of pendent-party jurisdiction * * * calls for careful attention to the relevant statutory language" (id. at 17), in order to determine "whether by virtue of the statutory grant of subject-matter jurisdiction, upon which (the plaintiff's) principal claim * * * rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought" (id. at 16 (emphasis in original)). 2. In the context of the FTCA, that critical question should receive the same answer as it did in the setting presented in Aldinger: Congress did address itself to the parties that a plaintiff may sue in an FTCA action, and it excluded parties like the City and the Utility here. The FTCA limits its grant of jurisdiction to actions on claims against a specified party, namely, "civil actions on claims against the United States" (28 U.S.C. 1346(b)). That provision, basing jurisdiction on the identity of the defendant, should be construed as excluding claims against other persons from the FTCA's jurisdictional grant. To begin, the FTCA's original language granted jurisdiction to the federal courts only "to hear, determine, and render judgment on any claim against the United States" of the specified type (Legislative Reorganization Act of 1946, ch. 753, Section 410(a), 60 Stat. 844; 28 U.S.C. (1946 ed.) 931(a)). That language is expressly limited to adjudication of claims against the United States and could not support pendent party jurisdiction. The current language, which speaks of "actions on" such claims, was not intended to alter the scope of the jurisdictional grant. Moreover, the well-understood purpose of the FTCA was simply to waive the government's traditional sovereign immunity from tort liability and to transfer into federal court the tort claims that had previously been addressed in the forum of Congress (through private bills). As a waiver of sovereign immunity, the FTCA jurisdictional provision should be narrowly construed. As the Seventh Circuit recently stated in another, comparable setting, "(i)t would be odd if a jurisdictional statute of such limited and specialized purpose allowed the plaintiff fortunate enough to be able to get into district court under it to haul in a nongovernmental party (who could not in any event plead the defense of sovereign immunity) against which the plaintiff had a claim purely of state law" (Citizens Marine National Bank v. United States Dep't of Commerce, 854 F.2d 223, 226-227 (7th Cir. 1988), petition for cert. filed, No. 88-940 (Dec. 7, 1988)). The legislative history of the FTCA, which petitioner does not even discuss, confirms that Congress did not intend the FTCA to support pendent party jurisdiction. Key congressional committee reports make clear that in waiving sovereign immunity from certain tort suits, Congress was borrowing from the approach it had used in the Tucker Act's provisions for nontort suits against the United States, 28 U.S.C. 1346(a). The committee reports explain the Tucker Act analogy and cite United States v. Sherwood, 312 U.S. 584, 588-589 (1941), in which this Court held that Tucker Act suits may not include defendants other than the United States. The reports expressly state that, like the Tucker Act, the FTCA "does not permit any person to be joined as a defendant with the United States." E.g., H.R. Rep. 1287, 79th Cong., 1st Sess. 5 (1945). The background understanding is consistent with the complete absence of any suggestion of pendent party jurisdiction in the FTCA. That absence is significant because Congress recognized and on several occasions addressed the most obvious situation in which such jurisdiction might have been provided for -- a tort suit against the government employee tortfeasor that would otherwise be brought in state court. 3. Petitioner's argument for pendent party jurisdiction is based on general policy considerations that are not tied to any indicia of congressional intent. Although practical considerations of judicial administration may properly enter into the construction of jurisdictional statutes, in the FTCA setting such considerations are not strong enough to overcome the numerous indications that Congress in the FTCA did not furnish a basis for federal jurisdiction over defendants other than the United States. Indeed, petitioner's practical policy arguments, even judged on their own terms, are much less persuasive than she suggests. Thus, petitioner's arguments of convenience and judicial economy ignore the host of special rules that Congress has established to govern FTCA litigation. Those special rules show that, in a variety of important respects relating to both questions of fact and questions of law, a plaintiff's ordinary state-law tort claim against a "pendent" co-defendant typically differs markedly from an FTCA claim against the United States. Consequently, the efficiency gains that would allegedly flow from allowing pendent party jurisdiction are to a large extent illusory. ARGUMENT FEDERAL DISTRICT COURTS MAY NOT EXERCISE PENDENT PARTY JURISDICTION IN ACTIONS AGAINST THE UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT A. Pendent Party Jurisdiciton Is Impermissible Under A Particular Statute If Congress Has Expressly Or By Implication Negated Its Existence Building on long-established precedent, this Court held in United Mine Workers v. Gibbs, supra, that federal courts have the power to exercise pendent claim jurisdiction in specified circumstances, i.e., jurisdiction over "additional claims between parties with respect to whom there is federal jurisdiction." Aldinger, 427 U.S. at 6. /2/ By contrast, this Court has not resolved the general question whether the federal courts may exercise pendent party jurisdiction, i.e., jurisdiction over "additional parties with respect to whom there is no independent basis of federal jurisdiction" (ibid.). Indeed, the latter concept is a relatively new one: "Until approximately 10 years ago, pendent party jurisdiction was rejected." Miller, Ancillary and Pendent Jurisdiction, 26 So. Tex. L.J. 1, 11 (1985). And this Court has twice declined to address the general question of when, if ever, pendent party jurisdiction is permissible under Article III of the Constitution or "to formulate any general, all encompassing jurisdictional rule." Aldinger, 427 U.S. at 13; Moor v. County of Alameda, 411 U.S. 693, 713-716 (1973). In declining to address the general question, the Court has observed that "there is a significant difference between" pendent party jurisdiction and pendent claim jurisdiction because the former "require(s) (the court) to bring an entirely new party -- a new defendant -- into (the) litigation." Moor v. County of Alameda, 411 U.S. at 713. In Aldinger, the leading decision on pendent party jurisdiction, the Court recognized the judicial-economy justification for the Gibbs principle, and it then explained (427 U.S. at 14): The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state-law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant "derive from a common nucleus of operative fact." See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978) ("(t)he Gibbs case differed from this one in that it involved * * * the resolution of a plaintiff's federal- and state-law claims against a single defendant"). Thus, the Court has admonished that, whereas pendent claim jurisdiction is permissible under Article III, the general question whether federal courts may exercise pendent-party jurisdiction consistent with Article III is "a subtle and complex question with far-reaching implications." Moor, 411 U.S. at 715; see Aldinger, 427 U.S. at 2, 18. /3/ As this Court has often acknowledged, constitutional questions should not needlessly be addressed. See, e.g., Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 (1947); Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring). With respect to the jurisdiction of the federal district courts, moreover, constitutional questions are necessarily secondary to statutory questions, for it is a fundamental principle that "federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress" (Aldinger, 427 U.S. at 15). See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) ("Courts created by statute can have no jurisdiction but such as the statute confers"); see also, e.g., Christianson v. Colt Industries Operating Corp., No. 87-499 (June 17, 1988), slip op. 15; Lockerty v. Phillips, 319 U.S. 182, 187 (1943); Kline v. Burke Constr. Co., 260 U.S. 226, 233-234 (1922). Accordingly, if a suit is outside the jurisdiction contemplated in the relevant federal statutes, no constitutional questions about jurisdiction need be reached. The Aldinger Court applied those principles to the issue of pendent party jurisdiction. It made clear that the statutory authority for pendent party jurisdiction in a particular case should be the primary focus of judicial inquiry, for if the claim against the pendent party is outside the jurisdictional limits set by Congress, the court would not have to address the "subtle and complex" constitutional questions about whether and to what extent pendent party jurisdiction is generally available. Thus, the Court stated, whether pendent party jurisdiction exists in a particular case "turns initially, not on the general contours of the language in Art. III, * * * but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts" (427 U.S. at 16-17). The Aldinger Court further explained that the inquiry should focus on the particular statute that establishes federal jurisdiction over the principal claim. The key question, the Court stated, is "whether by virtue of the statutory grant of subject-matter jurisdiction, upon which (the plaintiff's) principal claim * * * rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought" (427 U.S. at 16). The Court elaborated: "Resolution of a claim of pendent-party jurisdiction * * * calls for careful attention to the relevant statutory language" (id. at 17); and "as against a plaintiff's claim of additional power over a 'pendent party,' the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress" (ibid.). The Court directed that the inquiry into whether the pertinent statutes preclude pendent party jurisdiction was required even though such jurisdiction might be supported by "the same considerations of judicial economy" as those supporting pendent claim jurisdiction (id. at 14-15). Following that approach, the Aldinger Court rejected the particular claim that was before it -- a claim that in a federal civil rights action against county officials, pendent party jurisdiction could be asserted over a state-law action against the county -- and so found it unnecessary to address any broader questions concerning pendent party jurisdiction. The plaintiff had founded her principal claim on 28 U.S.C. 1343(3), which grants jurisdiction over "any civil action authorized by law" that is brought to redress certain civil rights violations; and the "civil action" she brought was a suit against county officials under 42 U.S.C. 1983, which declares that "(e)very person" who commits certain civil rights violations "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Of course, the Court could not find in those statutes an express preclusion of pendent party jurisdiction over the plaintiff's state-law claim against the county. Rather, the Court found that the statutes implicitly precluded such jurisdiction because, based on then-settled precedent, a county was not a "person" subject to suit under Section 1983. /4/ As the Court explained, "(p)arties such as counties, whom Congress excluded from liability in Section 1983, * * * can argue with a great deal of force that the scope of that 'civil action' over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law" (427 U.S. at 17). The Aldinger Court emphasized the statute-specific character of its holding: "we decide here only the issue of so-called 'pendent-party' jurisdiction with respect to a claim brought under Sections 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result." 427 U.S. at 18. In particular, the Court pointed out that "(w)hen the grant of jurisdiction to a federal court is exclusive, * * * as in the prosecution of tort claims against the United States under 28 U.S.C. Section 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together." 427 U.S. at 18 (footnote omitted). The Court did not speculate on how the FTCA inquiry might be resolved, however, and it declined to consider any statute not before it, declaring that "it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of (pendent party) jurisdiction" (ibid.). Instead, the Court reiterated that in any particular case, "(b)efore it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence" (ibid.). Accordingly, whether the district court in the present case has the power to exercise pendent party jurisdiction over the City and the Utility turns, as a primary matter, on whether the FTCA's grant of jurisdiction over the United States "expressly or by implication negate(s) its existence" (Aldinger, 427 U.S. at 18). For the reasons stated below, we submit that the fairest reading of the FTCA is that it does preclude pendent party jurisdiction, regardless of whether the Gibbs standards for pendent claim jurisdiction are met. /5/ Of course, that conclusion is by its terms limited to the FTCA and makes it unnecessary to resolve the permissibility of pendent party jurisdiction under Article III of the Constitution or in any other statutory setting. B. The Language, Purpose, And Legislative History Of The Federal Tort Claims Act Negate The Existence Of Pendent Party Jurisdiction In That Setting Although in this case, as in Aldinger, the constitutional questions of the permissibility of pendent party jurisdiction need not and should not be reached, /6/ the seriousness of those questions has a bearing on the proper construction of the provisions of the FTCA. This Court has often applied the principle that statutes should be construed, if possible, to avoid raising serious constitutional questions. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, No. 86-1461 (Apr. 20, 1988), slip op. 6-7; Webster v. Doe, No. 86-1294 (June 15, 1988), slip op. 10; United States v. Clark, 445 U.S. 23, 27 (1980); NLRB v. Catholic Bishop, 440 U.S. 490, 500-501 (1979). It may be, as we suggested in our brief in Ayala (at 10-11), that pendent party jurisdiction would be constitutionally proper if Congress provided for it. But the district courts' jurisdiction should not be stretched into areas that raise substantial, unresolved constitutional questions, at least where there are strong indications that Congress did not intend the jurisdiction-defining statutes to reach that far. /7/ In the FTCA context, there are such strong indications. Indeed, recognizing pendent party jurisdiction over parties other than the United States would be inconsistent with the careful limits on the jurisdiction granted by Congress in the FTCA. Here, as in Aldinger, the provision granting jurisdiction over the principal defendant is limited to a class of persons that excludes the pendent parties. Accordingly, the FTCA jurisdictional provision, properly understood, shows that "Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought" (Aldinger, 427 U.S. at 16) and "by implication negate(s)" (id. at 18) the existence of pendent party jurisdiction. This does not preclude such parties from being brought into federal court under some other jurisdictional provision, as when the United States impleads another person under 28 U.S.C. 1345; it merely means that the FTCA itself does not furnish jurisdiction over state-law claims against persons other than the United States. To begin with the statutory language, the FTCA confers upon the federal courts jurisdiction over "civil actions on claims against the United States." 28 U.S.C. 1346(b) (emphasis added). The most natural reading -- perhaps the only natural reading -- of that language is that it extends only to the adjudication of claims against the United States: suits requiring the adjudication of claims against other persons are not readily described as "actions on claims against the United States." Moreover, Aldinger demonstrates the significance of the fact that the statute bases jurisdiction on the identity of specified parties -- that it grants jurisdiction in a class of cases defined by the presence of a single party, the United States, as a defendant. /8/ If, in Aldinger, the statutory reference to "persons" was construed as excluding those (such as counties) that were not within the class mentioned, the FTCA's reference to a far narrower class of defendants (consisting only of the United States) suggests even more strongly the exclusion of all other persons from the FTCA's jurisdictional grant. /9/ In this respect, the FTCA is like the diversity statute, 28 U.S.C. 1332, under which the requirement of complete diversity precludes the exercise of pendent party jurisdiction such as petitioner asserts. See Owen Equipment & Erection Co. v. Kroger, supra; see also Zahn v. International Paper Co., 414 U.S. 291 (1973) (all plaintiffs must meet the jurisdictional amount requirement of the diversity statute). /10/ The original language of the FTCA's jurisdictional provision confirms that persons other than the United States are excluded from its reach. The federal courts were given "jurisdiction to hear, determine, and render judgment on any claim against the United States" that met the specified conditions for FTCA coverage. Legislative Reorganization Act of 1946, ch. 753, Section 410(a), 60 Stat. 844; 28 U.S.C. (1946 ed.) 931(a). No argument for pendent party jurisdiction would be compatible with that language. /11/ And when the current language was adopted as part of the 1948 codification of Title 28 of the United States Code (Act of June 25, 1948, ch. 646, 62 Stat. 869), there was no indication whatever that Congress intended to expand the scope of the FTCA's jurisdictional grant when making the change; indeed, the minor change in wording was not even noted by the revisers. See 28 U.S.C. 1346 revision notes. Section 1346(b) should therefore be construed to go no further than the FTCA did in 1946. The sovereign immunity background of the FTCA further supports construing the FTCA jurisdictional provision to reach only "claims against the United States." Prior to the enactment of the FTCA, persons injured through the negligence of government employees were, with exceptions, without judicial recourse against the government; they had to seek relief from Congress through private bills. The FTCA was designed to waive the government's sovereign immunity and thus to shift tort claims from a congressional to a judicial forum, thereby alleviating both the burden on Congress and the injustice perceived to result from the government's traditional immunity from suit. See, e.g., United States v. Muniz, 374 U.S. 150, 154, 165 (1963); Dalehite v. United States, 346 U.S. 15, 24-25 & n.9 (1953); United States v. Yellow Cab Co., 340 U.S. 543, 549 (1951) (FTCA "merely substitutes the District Courts for Congress as the agency to determine the validity and amount of the claims"); Feres v. United States, 340 U.S. 135, 139 (1950); S. Rep. 1400, 79th Cong., 2d Sess. 29 (1946) (FTCA "waives, with certain limitations, governmental immunity to suit in tort and permits suits on tort claims to be brought against the United States. It is complementary to the provision in Title I (of the bill containing the FTCA as title IV) banning private bills and resolutions in Congress, leaving claimants to their remedy under this title"). /12/ As a waiver of the sovereign immunity of the United States, the FTCA must be "construe(d) strictly in favor of the sovereign." Library of Congress v. Shaw, 478 U.S. 310, 318 (1986); see, e.g., Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 (1983); McMahon v. United States, 342 U.S. 25, 27 (1951). That principle, moreover, was well established at the time of the FTCA's enactment, and Congress was acutely aware of it when it enacted the FTCA. United States v. Sherwood, 312 U.S. 584, 590 (1941); Eastern Transportion Co. v. United States, 272 U.S. 675, 686 (1927); see H.R. Rep. 1287, 79th Cong., 1st Sess. 5 (1945) (citing Sherwood). In these circumstances, it would be inappropriate to construe Section 1346(b) expansively so as to subject the United States to suits not clearly within the scope of Congress's consent -- namely, suits involving parties who are not brought into the case by virtue of an independent grant of federal jurisdiction and whose presence would generally cause complication and delay. There is simply no reason, based on the purposes of the FTCA, to read Section 1346(b)'s waiver of sovereign immunity as saddling the federal courts with ordinary tort claims between nondiverse private parties. As the Seventh Circuit has recently stated in another context involving a similar statute (Citizens Marine National Bank v. United States Dep't of Commerce, 854 F.2d at 226-227 (rejecting claim of pendent party jurisdiction under the Trade Act of 1974, 19 U.S.C. 2350)): "The statute on which the district court's jurisdiction over the main claim * * * is based is narrowly drawn; * * * all it does is lift the bar of sovereign immunity * * *. It would be odd if a jurisdictional statute of such limited and specialized purpose allowed the plaintiff fortunate enough to be able to get into district court under it to haul in a nongovernmental party (who could not in any event plead the defense of sovereign immunity) against which the plaintiff had a claim purely of state law * * *." Moreover, state-law tort claims between nondiverse parties could not, of course, be heard in federal court prior to 1946, when tort claims against the government generally had to be pursued in Congress. A transfer into federal court of any state-law tort claims against nongovernment parties is outside the scope of a measure that, as this Court characterized the FTCA, "merely substitute(d) the District Courts for Congress as the agency to determine the validity and amount of the claims" against the government. Yellow Cab, 340 U.S. at 549. The legislative history makes explicit Congress's reliance on this Court's decision interpreting an analogous statute in United States v. Sherwood, supra. Sherwood explained that, under the Tucker Act (Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; 28 U.S.C. 1346(a)), it had "been uniformly held" that the jurisdiction of the Court of Claims "is confined to the rendition of money judgments in suits brought for that relief against the United States, and if the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court, or if its maintenance against private parties is prerequisite to prosecution of the suit against the United States the suit must be dismissed." 312 U.S. at 587-588 (citations omitted). The Court held that the same rules applied to the district courts' jurisdiction under the Tucker Act, and it therefore dismissed a district court Tucker Act suit against the government in which a private person was a necessary party. The Court stated that the government's consent to be sued "may be conditioned, as we think it has been here, on the restriction of the issues to be adjudicated in the suit, to those between the claimant and the Government." Id. at 591. In 1942, after the legislative process leading to enactment of the FTCA had been underway for a number of years, the House Committee on the Judiciary reported a bill on the subject that was similar to the bill ultimately enacted four years later. In explaining the jurisdictional provision of the bill, the Committee stated that the district courts were to "exercise essentially the same type of jurisdiction as district courts exercise concurrently with the Court of Claims of the United States under the Tucker Act." H.R. Rep. 2245, 77th Cong., 2d Sess. 9 (1942). The Committee added: "The bill therefore does not permit any person to be joined as a defendant with the United States and does not lift the immunity of the United States from tort actions except as jurisdiction is specifically conferred upon the district courts by this bill. See United States v. Sherwood, 312 U.S. 584 (1941) * * *." H.R. Rep. 2245, supra, at 9. Later in its report, the Committee explained that it was deleting a provision of the Senate bill concerning proportionate liability of the government and joint tortfeasors in order to leave the matter to state law. The Committee noted: "However, as stated above, no person may be joined with the United States as a defendant." Id. at 12. In 1945, the same House Committee reported a similar bill, H.R. 181, 79th Cong., 1st Sess. It repeated verbatim its 1942 passage drawing the analogy to the Tucker Act, citing Sherwood, and stating that the FTCA "does not permit any person to be joined as a defendant with the United States." H.R. Rep. 1287, 79th Cong., 1st Sess. 5 (1945). The bill reported by that House Report was "virtually identical" (Muniz, 374 U.S. at 157 n.11) to the bill that was ultimately enacted as the FTCA. See S. Rep. 1400, supra, at 30 (House bill is "almost identical" with bill that was enacted; "essential difference" is that the new bill removed the House bill's $10,000 ceiling on claims). /13/ This history is highly probative of what Congress understood to be the reach of the FTCA jurisdictional provision. /14/ It confirms that Congress was fully aware of the limited nature of the FTCA's waiver of sovereign immunity. It makes clear that the FTCA jurisdictional provision, when unaided by any other statute furnishing federal court jurisdiction over a nongovernment party, is, as Sherwood held of the Tucker Act, "narrowly restricted to the adjudication of suits brought against the Government alone" (312 U.S. at 589). Finally, it is worth noting that nothing in any of the provisions of the FTCA suggests the existence of pendent party jurisdiction. That is significant because those provisions reflect a clear congressional awareness of the most obvious circumstance in which such jurisdiction might be claimed: when an FTCA plaintiff files a state-law tort claim against the government employee whose act or omission gave rise to the claim. Thus, 28 U.S.C. 2676, which has been part of the FTCA since its enactment in 1946, provides that a judgment "in an action under section 1346(b)" is a complete bar to "any action" against the employee by reason of the same subject matter. /15/ Section 2679's provisions concerning automobile accident cases, which were enacted in 1961 (Federal Drivers Act, Pub. L. No. 258, 75 Stat. 539), provide that the FTCA remedy against the United States is exclusive of any action against the federal driver, and expressly recognize that an action against the driver might be brought in state court. /16/ Moreover, the 1961 Congress recognized that a person injured by a government employee's conduct could sue the employee "'instead of or in addition to the United States'" (S. Rep. 736, 87th Cong., 1st Sess. 12 (1961) (quoting letter of Deputy Attorney General)). Although a court of appeals in 1959 had expressly addressed and rejected pendent party jurisdiction over an employee in an FTCA suit (Falk v. United States, 264 F.2d 238 (6th Cir. 1959)), Congress did not in 1961 provide for or address the subject of pendent party jurisdiction, and it has not done so since. /17/ C. Petitioner's Argument Based On Convenience And Judicial Economy Does Not Justify Finding Pendent Party Jurisdiction Under The Federal Tort Claims Act Despite Aldinger's instruction that the inquiry into pendent party jurisdiction "calls for careful attention to the relevant statutory language" (427 U.S. at 17) and "turns * * * upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts" (id. at 16-17), petitioner relies neither on the language of the statute nor on its legislative history. Instead, she advances a general policy argument. She observes (Br. 12), as Aldinger did (427 U.S. at 18), that there is exclusive federal jurisdiction over FTCA suits under 28 U.S.C. 1346(b). /18/ Hence, "only in a federal court may all of the (plaintiff's) claims be tried together" (Aldinger, 427 U.S. at 18 (footnote omitted)). Apparently acting on the theory that one suit is better than two, petitioner thus suggests that fairness to her and considerations of judicial economy weigh in favor of recognizing pendent party jurisdiction under the FTCA. See Br. 10, 33. /19/ To be sure, practical considerations may properly be taken into account in construing jurisdictional statutes, and petitioner's policy argument would presumably have a strong bearing on the application of a jurisdiction-granting statute that made no reference to the range of parties that may be brought into federal court. But the FTCA is not such a statute: it identifies a single party defendant in its jurisdictional provision. And for all of the reasons we have set forth, that provision is properly construed to establish jurisdiction over no other defendant. Where the case for construing a statute to set certain limits is as strong as it is here, a pure policy argument such as petitioner's cannot justify expanding jurisdiction beyond those limits. See Kroger, 437 U.S. at 377 (rejecting argument based on "the convenience of litigants (and) considerations of judicial economy," and holding that court has no jurisdiction over claim by plaintiff in diversity action against impleaded third-party defendant where there is no independent basis of federal jurisdiction over that claim); Aldinger v. Howard, supra. In any event, petitioner's policy arguments are far weaker than she suggests. An assessment of possible gains in efficiency from allowing pendent party jurisdiction, and the relevance of any gains to determining whether such jurisdiction is permissible notwithstanding the express language of 28 U.S.C. 1346(b), must be far less simplistic than petitioner's one-suit-rather-than-two analysis. Such an assessment shows that petitioner's argument for judicial economy could not weigh heavily even if it were considered in the statutory analysis. It is critical, first, to take account of the numerous special rules that Congress has established for FTCA litigation. For example, an FTCA claim against the government must be tried without a jury (28 U.S.C. 2402), whereas any pendent state-law claims would generally be subject to trial by jury under the Seventh Amendment (see Yellow Cab, 340 U.S. at 555). The resulting duplication of functions between judge and jury can give rise to a number of practical problems (see id. at 555-556), not the least of which is the possibility of inconsistent determinations by the different factfinders. Cf. Barron v. United States, 654 F.2d 644, 649-650 (9th Cir. 1981) (private co-defendant in FTCA action is not bound by judge's determination of government's proportionate share of liability). Petitioner here has requested a jury trial (J.A. 72). "Thus, the trial of this action would be partly to the Court and partly to the jury with all of the problems associated with such an arrangement." Center Glass & Trim Co. v. United States, 637 F. Supp. 209, 212 (S.D. W. Va. 1986) (rejecting pendent party jurisdiction under 42 U.S.C. 4072). Special standards govern the liability of the United States. The government can be held liable under the FTCA only for negligent or wrongful conduct, not on a strict-liability theory. 28 U.S.C. 1346(b), 2680(a); Laird v. Nelms, 406 U.S. 797 (1972). It cannot be liable for punitive damages. 28 U.S.C. 2674; Carlson v. Green, 446 U.S. 14, 22 (1980). Thus, while petitioner here alleges merely negligent conduct with respect to her claim against the United States (J.A. 60-63), she seeks punitive damages against one of the "pendent" defendants, the Utility, alleging that the Utility engaged in "oppression, fraud and malice" warranting punitive damages under state law (J.A. 68-69). Similarly, the government may claim any of numerous defenses, exemptions, and immunities, including those for discretionary functions (28 U.S.C. 2680(h)), and activities incident to military service (United States v. Johnson, 481 U.S. 681 (1987); Feres v. United States, 340 U.S. 135 (1950)). In addition, a claimant against the government under the FTCA must file an administrative claim within two years of accrual, cannot file suit more than six months after the claim has been denied or not acted on (28 U.S.C. 2401(b), 2675(a)), and is presumptively limited in damages to the amount requested in the administrative claim (28 U.S.C. 2675(b)). This panoply of special rules is significant, first, because the rules evince a deliberate effort by Congress carefully to circumscribe the nature and extent of FTCA litigation. That congressional approach underscores the importance of respecting the single-party limit on the jurisdictional grant of 28 U.S.C. 1346(b). The rules are also significant because they make clear that recognizing pendent party jurisdiction over nongovernment tortfeasors would not in fact produce much of the efficiency that petitioner alleges. Thus, the government would be able to resolve claims on the pleadings in many cases in which nongovernment defendants would have to proceed to trail. Both in discovery and at trial, different issues would often be presented against different defendants. And different factfinders (judge and jury) frequently would have to try the issues. /20/ The greater such difficulties, the more the efficiency gains touted by petitioner would evaporate -- and the more the federal proceeding would be beset by problems of coordination and delay that may be as great as those which must be solved if there are separate state and federal proceedings. Those practice problems are not, to be sure, insurmountable, though if pendent party jurisdiction were discretionary, as pendent claim jurisdiction is, they might well warrant a refusal to accept the jurisdiction in many cases. An express grant of jurisdiction, as in Yellow Cab, may make it necessary to tolerate such difficulties, but no such necessity is present here. And whatever efficiency gains might exist in some instances, there are strong reasons to think that the practical problems are serious enough to undermine petitioner's efficiency argument in a broad class of FTCA cases. In those circumstances, petitioner's argument can have little force in the statutory analysis; it certainly cannot overcome the strong considerations favoring the construction of the FTCA that precludes pendent party jurisdiction. /21/ Surely, there is no compelling reason on judicial-efficiency grounds to assume, as petitioner does, that Congress "wanted" (Aldinger, 427 U.S. at 17) to allow the exercise of pendent party jurisdiction in FTCA cases. Such an assumption is especially unwarranted in light of the fact that even if pendent party jurisdiction under the FTCA were to produce some gains in efficiency, only state courts would benefit. The alleged gains would derive from a oneway shifting of state-court suits into federal court. Indeed, recognizing pendent party jurisdiction under the FTCA would undoubtedly encourage some plaintiffs to file FTCA actions against the government that would not otherwise be filed, for the sole purpose of obtaining a federal forum of their ordinary state-law tort claims against others. Cf. Grinter v. Petroleum Operation Support Service, Inc., 846 F.2d 1006 (5th Cir. 1988) (state-law claim against "pendent" defendant anchored on jurisdictionally defective FTCA claim), cert. denied, No. 88-691 (Nov. 28, 1988); Kroger, 437 U.S. at 374 & n.17. Because of the wide array of activities in which the government is involved and the difficulty of identifying such improperly filed cases early in the litigation, the additional burden on the government and the federal courts might be substantial. * * * * * "It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded." Kroger, 437 U.S. at 374. Petitioner's state-law claims against the City and the Utility, both parties not otherwise properly in federal court, are outside the limits of the FTCA's grant of jurisdiction. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General RICHARD G. TARANTO Assistant to the Solicitor General JOHN F. CORDES THOMAS M. BONDY Attorneys JANUARY 1989 /1/ The Ninth Circuit held in Ayala, and has held in several other cases both before and after Ayala, that an independent basis of jurisdiction is required over claims against any party other than the United States in an FTCA suit. Ayala, 550 F.2d at 1198; see, e.g., Idaho ex rel. Trombley v. United States Dep't of the Army, Corps of Engineers, 666 F.2d 444, 446 (9th Cir.), cert. denied, 459 U.S. 823 (1982); Williams v. United States, 405 F.2d 951, 954 (9th Cir. 1969). /2/ Gibbs and its predecessors were couched in terms of Article III power, because "(n)one of them posed the need for a further inquiry into the underlying statutory grant of federal jurisdiction." Aldinger v. Howard, 427 U.S. 1, 13-14 (1976). The statutory grants of federal-question jurisdiction at issue in those cases were broad enough to encompass the pendent claim jurisdiction permitted by Article III. /3/ In Ayala, the precedent on which the court of appeals relied in rejecting pendent party jurisdiction in the present case, the Ninth Circuit stated that the "difficulty with pendent party jurisdiction is a constitutional one under Article III" (550 F.2d at 1199, 1201 n.8). Indeed, reflecting the view that the doctrine is inconsistent with the limited grant of jurisdiction to the federal courts in Article III of the Constitution, the Ninth Circuit has rejected the doctrine of pendent party jurisdiction not only in FTCA cases but in several other contexts as well. E.g., Carpenters Southern Cal. Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999, 1000 (9th Cir. 1984) (ERISA, 29 U.S.C. 1132); Safeco Ins. Co. v. Guyton, 692 F.2d 551, 555 & n.5 (9th Cir. 1982) (diversity); Munoz v. Small Business Admin., 644 F.2d 1361, 1365 (9th Cir. 1981) (15 U.S.C. 634(b)(1)); see Danner v. Himmelfarb, 858 F.2d 515, 522 (9th Cir. 1988). See also Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1359 (7th Cir. 1985) (separate opinion of Posner, J.) (suggesting that "(t)he 'pendent partis' concept has * * * wobbly constitutional foundations"). /4/ That precedent was later overruled in Monell v. Dep't of Social Services, 436 U.S. 658 (1978). But "Monell in no way qualifies the holding of Aldinger that the jurisdictional questions * * * are statutory as well as constitutional." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 n.12 (1978). Nor does it undermine Aldinger's approach in analyzing the statute to determine whether pendent party jurisdiction is permissible. /5/ Petitioner's extensive focus on Gibbs ignores "the holding of Aldinger that the jurisdictional questions (regarding pendent party jurisdiction are) statutory as well as constitutional" (Kroger, 437 U.S. at 373 n.12) and that "the extension of Gibbs to this kind of 'pendent party' jurisdiction -- bringing in an additional defendant at the behest of the plaintiff -- presents rather different statutory jurisdictional considerations" (Aldinger, 427 U.S. at 15). Where, as here, the question is one of pendent party jurisdiction, "a finding that federal and nonfederal claims arise from a 'common nucleus of operative fact,' the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones." Kroger, 437 U.S. at 373. /6/ The precise constitutional questions raised by pendent party jurisdiction depend on which of the bases of jurisdiction defined by Article III supports jurisdiction over the claim against the principal defendant. For example, the question whether a new party may be brought within a "Case() * * * arising under (federal law)" is different from the question whether a new party may be included within a "Controvers(y) to which the United States (is) a Party." /7/ See also Romero v. International Terminal Co., 358 U.S. 354, 379 (1959) (rejecting jurisdiction based partly on "the deeply felt and traditional reluctance of this Court to expand the jurisdiction of the federal courts through a broad reading of jurisdictional statutes"); American Fire & Cas. Co. v. Finn, 341 U.S. 6, 17 (1951) ("(t)he jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation"). /8/ Although the Ninth Circuit has rested its rejection of FTCA pendent party jurisdiction partly on constitutional grounds (see note 3, supra), it has also noted the exclusivity of Section 1346(b)'s reference to the United States in justifying its position. See Davis v. United States, 667 F.2d 822, 825 (9th Cir. 1982); Morris v. United States, 521 F.2d 872, 875 (9th Cir. 1975). /9/ The Third Circuit drew a similar conclusion in rejecting pendent party jurisdiction under another federal jurisdictional statute that makes jurisdiction turn on the identity of the parties, 28 U.S.C. 1349 (concerning federal corporations): "just as jurisdiction in Aldinger was based on what was viewed then as a limited grant of jurisdiction enabling federal courts to hear suits against municipal officials but not against the municipalities themselves * * *, so too is jurisdiction here premised on a limited grant of jurisdiction over particular parties." Lovell Manufacturing v. Export-Import Bank, 843 F.2d 725, 732 (3d Cir. 1988). /10/ The FTCA is in this respect unlike the federal-question jurisdictional statute, 28 U.S.C. 1331, which is not party-specific and which therefore does not suggest any exclusion of particular parties from suits brought under it. Indeed, aside from the FTCA cases, all of the lower court decisions described by petitioner (Br. 12-26) that approve pendent party jurisdiction involve statutes that base jurisdiction on the presence of a particular federal question, and not on the identity of the parties. See Bowers v. Moreno, 520 F.2d 843 (1st Cir. 1975) (29 U.S.C. 186(e)); Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982), cert. denied, 464 U.S. 818 (1983) (28 U.S.C. 1331); Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971) (28 U.S.C. 1333 (admiralty)); Boudreaux v. Puckett, 611 F.2d 1028 (5th Cir. 1980) (15 U.S.C. 1989); Connecticut General Life Ins. Co. v. Craton, 405 F.2d 41 (5th Cir. 1968) (29 U.S.C. 185); Price v. Pierce, 823 F.2d 1114 (7th Cir. 1987) (28 U.S.C. 1331), cert. denied, No. 87-967 (Mar. 21, 1988); North Dakota v. Merchants Nat'l Bank & Trust Co., 634 F.2d 368 (8th Cir. 1980) (28 U.S.C. 1331). See also FDIC v. Otero, 598 F.2d 627 (1st Cir. 1979) (12 U.S.C. 1819 Fourth, expressly granting jurisdiction whenever FDIC in its corporate capacity is a party, regardless of other parties and claims). The sole exception is Beautytuft, Inc. v. Factory Ins. Ass'n, 431 F.2d 1122 (6th Cir. 1970), which involved diversity and is almost certainly inconsistent with this Court's subsequent decision in Zahn v. International Paper Co., 414 U.S. 291 (1973). By contrast, in addition to the diversity cases and the Third Circuit's Lovell decision (see note 9, supra), several decisions have disapproved or cast doubt on pendent party jurisdiction where the jurisdictional statute based jurisdiction on the identity of the parties. Citizens Marine Nat'l Bank v. United States Dep't of Commerce, 854 F.3d 223 (7th Cir. 1988) (19 U.S.C. 2350), petition for cert. filed, No. 88-940 (Dec. 7, 1988); Center Glass & Trim Co. v. United States, 637 F. Supp. 209, 212 (S.D. W. Va. 1986) (42 U.S.C. 4072); Cheltenham Supply Corp. v. Consolidated Rail Corp., 541 F. Supp. 1103, 1107 (E.D. Pa. 1982) (49 U.S.C. 11707). /11/ The final Senate committee report accompanying the bill that became the FTCA states that the statute "permits suits on tort claims to be brought against the United States" and that it "vests exclusive jurisdiction in the United States district courts over claims against the United States." S. Rep. 1400, 79th Cong., 2d Sess. 29, 32 (1946) (emphasis added). /12/ See also S. Rep. 1400, 79th Cong., 2d Sess. 30-31 (1946); S. Rep. 1011, 79th Cong., 2d Sess. 25 (1946); H.R. Rep. 1675, 79th Cong., 2d Sess. 25 (1946); H.R. Rep. 1287, 79th Cong., 1st Sess. 2 (1945); H.R. Rep. 2245, 77th Cong., 2d Sess. 5 (1942); S. Rep. 1196, 77th Cong., 2d Sess. 5 (1942); H.R. Doc. 562, 77th Cong., 2d Sess. (1942). /13/ The FTCA expressly borrowed the Tucker Act's "provisions for counterclaim and set-off, for interest upon judgments, and for payment of judgments" (Section 411, 60 Stat. 844; 28 U.S.C. (1946 ed.) 932). /14/ In Berkovitz v. United States, No. 87-498 (June 13, 1988), slip op. 7 n.4, this Court described H.R. Rep. 1287 as "(t)he House of Representatives Report on the final version of the FTCA." The Court has frequently relied on H.R. Rep. 1287 in the course of construing the FTCA. E.g., Berkovitz v. United States, supra; Kosak v. United States, 465 U.S. 848, 857 (1984); Muniz, 374 U.S. at 156-157; see United States v. Shearer, 473 U.S. 52, 56 (1985) (plurality); Richards v. United States, 369 U.S. 1, 14 n.29 (1962); Dalehite v. United States, 346 U.S. 15, 28 n.17 (1953). In United States v. Yellow Cab Co., 340 U.S. 543, 551-552 n.8 (1951), the Court rejected reliance on the above-quoted statements in H.R. Rep. 1287, noting that those statements did not appear in the final Senate Report (S. Rep. 1400, supra). But the Court has, as noted, repeatedly relied on H.R. Rep. 1287, and not merely on the Senate Report, as weighty legislative history. Moreover, the Yellow Cab Court found the statements unpersuasive authority only for the contention that jurisdiction under the FTCA does not extend to claims for contribution brought against the United States. Not only did that contention run counter to the statutory language, but as the Court itself noted, the statements at issue do not in fact weigh against the bringing of claims against the United States, but only against the joinder of a private co-defendant. See 340 U.S. at 552 n.8 (statements "relate() to the joinder of the United States as a co-defendant, rather than as a third-party defendant"). In the present case, the question of pendent party jurisdiction, unlike the question of contribution discussed in Yellow Cab, directly implicates the statement in the committee report that the FTCA "does not permit any person to be joined as a defendant with the United States" (H.R. Rep. 1287, supra, at 5). /15/ The language of Section 2676 would be quite awkward if "action under section 1346(b)" were to encompass claims against the employee, for Section 2676 states that the judgment in such an action is a bar to "any action * * * against the employee." /16/ The exclusivity provisions of Section 2679 were recently extended to all federal employees by the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, Section 5, (Nov. 18, 1988). /17/ Section 2675 states that the provision requiring the filing of an administrative claim before an FTCA action is brought against the United States "shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim." That provision, which was enacted along with the administrative claim requirement in 1966, creates an exception to that requirement where the party claiming against the United States is already in federal court, as it was in Yellow Cab. The provision neither itself creates jurisdiction (nor do the Federal Rules, see Fed. R. Civ. P. 82) nor furnishes any evidence that the FTCA jurisdictional provision encompasses claims against defendants other than the United States. /18/ Contrary to the apparent views of the Tenth Circuit (Stewart v. United States, 716 F.2d 755, 758 (1982), cert. denied, 469 U.S. 1018 (1984)), and the Eleventh Circuit (Lykins v. Pointer Inc., 725 F.2d 645, 648 (1984)), the Aldinger Court's reference to the FTCA was not an approval of pendent party jurisdiction under that Act. As petitioner herself notes (Br. 11), "(t)he Aldinger Court limited its holding to the specific statutes under which the claim was brought." The reference was by its terms merely an illustration that different statutes raise different problems, and it was made in the course of the Court's explanation of why it was expressly declining to rule on any case not squarely before it. See page 14, supra. /19/ Actually, much of petitioner's brief (Br. 12-26) is devoted to cataloguing cases that purportedly bear on the question of pendent party jurisdiction under the FTCA. It is certainly true, as we noted in our response to the certiorari petition in this case (at 6), that, unlike the Ninth Circuit, both the Tenth Circuit (Stewart v. United States, 716 F.2d at 757-759) and the Eleventh Circuit (Lykins v. Pointer Inc., 725 F.2d at 647-649; see Brown v. United States, 838 F.2d 1157, 1159 n.5 (11th Cir. 1988)) have squarely held that pendent party jurisdiction is permissible in FTCA actions in light of Aldinger. But, even aside from the inadequate analysis undertaken in the decisions she cites, petitioner's catalogue does not establish nearly as much support for her view as she contends. Cf. Citizens Marine National Bank v. United States Dep't of Commerce, 854 F.2d 223, 226 (7th Cir. 1988) (describing pendent party jurisdiction concept in general as "embattled"), petition for cert. filed, No. 88-940 (Dec. 7, 1988). First, petitioner fails to cite decisions of the Sixth Circuit and the Eighth Circuit that reject the theory of pendent party jurisdiction in FTCA cases. Kack v. United States, 570 F.2d 754, 757 n.4 (8th Cir. 1978); Falk v. United States, 264 F.2d 238, 239 (6th Cir. 1959). Moreover, putting aside those decisions that did not rule on the FTCA issue or did so only as an alternative ground (e.g., Wood v. Standard Products Co., 456 F. Supp. 1098 (E.D. Va. 1978); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978), cert. denied, 440 U.S. 908 (1979)), many of the decisions she cites involved claims against parties that were already properly in the federal case, typically because they had been impleaded by the United States, as in Ortiz v. United States Gov't, 595 F.2d 65 (1st Cir. 1979), or were cases in which the United States, by filing a cross-claim against a co-party, demonstrated that it would have impleaded that party. See Hipp v. United States, 313 F. Supp. 1152 (E.D.N.Y. 1970) (cross-claim); Maltais v. United States, 439 F. Supp. 540 (N.D.N.Y. 1977) (cross-claim); Dumansky v. United States, 486 F. Supp. 1078 (D.N.J. 1980) (cross-claim); Florida East Coast Ry. v. United States, 519 F.2d 1184, 1193-1196 (5th Cir. 1975) (impleader). /20/ In Moor, 411 U.S. at 715-717, this Court upheld a district court's decision not to exercise pendent party jurisdiction in a particular case based in part on the fact that different rules would apply to the principal defendant and the "pendent" defendant. As the case at bar suggests, in FTCA suits there are virtually always such differences. Cf. Lynn v. United States, 110 F.2d 586, 589 (5th Cir. 1940) (cited in H.R. Rep. 1287, supra, at 5) ("The proceeding is sui generis. * * * It is not to be embarassed by joining other litigants who may be entitled to jury trial, and whose liability must necessarily depend on different principles."). /21/ Contrary to the suggestion of petitioner (Br. 15-16, citing Hipp, 313 F. Supp. at 1155), it is not necessary to recognize pendent party jurisdiction in order for the government to be able to secure contribution from joint tortfeasors. The United States may, of course, implead a private person as a third-party defendant, because there is an independent basis of jurisdiction under 28 U.S.C. 1345. The plaintiff then may be able to add a claim against the third-party defendant, as we argued in our brief in Ayala (at 24-28). But even if he cannot do so as a result of the ruling in Owen Equipment & Erection Co. v. Kroger, supra (rendered after we filed our Ayala brief), the Hipp court's concern -- that contribution was available only if the tortfeasors were parties to a single judgment -- is of little if any practical significance. New York long ago abandoned that rule (see N.Y. Civ. Prac. L. & R. 1401 (McKinney 1976)), and the Uniform Contribution Among Tortfeasors Act (Section 1) expressly rejects any such limitation (12 U.L.A. 63 (1975)).