Commentary

It’s High Time for the Supreme Court to Scrap the “Wholly Insubstantial and Frivolous” Jurisdictional Standard Enunciated in Bell v. Hood

By Paul A. Avron

Paul A. Avron is a partner with Berger Singerman LLP in Fort Lauderdale, Fla., and his practice is focused on corporate restructuring and appellate litigation in state and federal courts. In Bell v. Hood, 1 the U.S. Supreme Court enunciated a standard for dismissal of actions on lack of federal question jurisdiction where a claim based on the Constitution or a federal statute is “immaterial and made solely for the purpose of obtaining jurisdiction” or “wholly insubstantial and frivolous.”2 Several lower federal courts have questioned the viability of the “wholly insubstantial and frivolous” standard as blurring the line between subject matter jurisdiction and claims that are subject to dismissal under Rule 12(b)(6). Indeed, in his dissent to the denial of certiorari in Yazoo Cnty. Indus. Dev. Corp. v. Suthoff, 3 then-Chief Justice William Rehnquist referenced the “legal landmine” arising from the “wholly insubstantial and frivolous” standard, characterizing the decision in Bell as “one of the most cryptic in the recent history of this Court’s jurisprudence” for which he expressed “nothing but sympathy for those who seek to divine its meaning.”4

“A claim is insubstantial and frivolous if it is ‘obviously without merit’ or clearly foreclosed by Supreme Court precedent.”5 “A claim is ‘insubstantial’ and may be dismissed if it has no plausible foundation, or if the court concludes that a prior Supreme Court decision clearly forecloses the claim.”6 A complaint is frivolous “where it lacks an arguable basis either in law or in fact.”7 The phrase “‘meritless’ is to be understood as meaning groundless or without foundation.”8

In Ricketts v. Midwest Nat’l Bank, 9 the Seventh Circuit stated that “[t]he substantiality doctrine has a long and rich history as a statement of principle affecting the original jurisdiction of the federal courts over constitutional or federal statutory claims,” but noted that it “has evoked sharp criticism directed at its vitality as a jurisdictional first principle,” citing Justice Rehnquist’s dissent in Yazoo Cnty. and Rosado v. Wyman, 10 where the Supreme Court referred to the doctrine as “a maxim more ancient than analytically sound.”11 Getting to the heart of the problem with the “wholly insubstantial and frivolous” standard, the Seventh Circuit stated the following: “The upshot of this doctrine is that it places an obligation on the district court to determine its jurisdiction based on an assessment of the complaint that is confusingly similar to the analysis required by a motion under Fed. R. Civ. P. 12(b)(6).”12

As noted in a recent opinion from the Eleventh Circuit, “[t]he notion from Bell that we can distinguish ‘frivolous’ claims from those that simply fail on the merits has received its fair share of criticism.”13 In a concurring opinion in Resnick v. Krunchash, LLC, 14 Eleventh Circuit Judge Kevin Newsom invited the Supreme Court to revisit the standard enunciated in Bell:

The Supreme Court should bury the “wholly insubstantial and frivolous” gloss once and for all. Not only does it blur what should be a clear line between a court’s jurisdiction—i.e., its power—to entertain a plaintiff’s claim and the merits of that claim, it is analytically unsustainable. Under it, courts must draw razor-fine distinctions between claims that are really weak and those that are really, really weak—between those that are meritless, and thus sufficiently un-nonserious to invoke the court’s jurisdiction and to withstand a Rule 12(b)(1) motion (even if a Rule 12(b)(6) dismissal is immediately around the corner), and those that are frivolous, and thus fail even to implicate the judicial power. Needless to say, that distinction is so slippery as to border on illusory. See, e.g., Frivolous, Black’s Law Dictionary (11th ed. 2019) (defining “frivolous” to mean “[l]acking a legal basis or legal merit”).

In my view, a plaintiff’s complaint either pleads a federal claim on its face—in which case § 1331 “arising under” jurisdiction exists— or it doesn't. Courts should get out of the business

of peering through a plaintiff’s allegations to test their bona fides as a means of assessing subject-matter jurisdiction. If it turns out, as it sometimes will, that a plaintiff’s contention is a loser—even an obvious loser—then the court should simply take jurisdiction and dismiss it on the merits for failure to state a claim.15

After reciting the “wholly insubstantial and frivolous” standard, the court in Banco de Ponce v. Hinsdale Supermarket Corp., 16 noted that “[i]t is not entirely clear when the courts will deem a complaint ‘frivolous’”17 under the “wholly insubstantial and frivolous” standard. This is the essence of the problem identified by many federal judges tasked with determining whether they possess subject matter jurisdiction under the “wholly insubstantial and frivolous” standard, most recently by Judge Newsom in his concurring opinion—joined by the other two members of the panel. He said that the distinction between meritless claims (due to be dismissed for failure to state a claim) and really meritless claims (due to be dismissed for failure to invoke a federal court’s subject matter jurisdiction) “border[s] on illusory.”18 Judge Newsom’s criticism of the “wholly insubstantial and frivolous” standard enunciated in Bell is not unique or new; it remains valid since at least Justice Rehnquist’s dissenting opinion in Yazoo Cnty.

It is unclear if the “wholly insubstantial and frivolous” standard is loosened in the context of pro se complaints, which are uniformly held “to less stringent standards than formal pleadings drafted by lawyers….”19 In Gilberti v. Governor of Fla., 20 the Eleventh Circuit dismissed a pro se complaint alleging RICO violations for lack of jurisdiction under the “wholly insubstantial and frivolous” standard. The plaintiff sued the governor of Florida, private companies, county commissions, and state agencies alleging that the defendants-appellees purposely

hid[ ] Critical US underground Alkaline spring water rivers … to increase Cancer rates, home foreclosures, land foreclosures, selective funding to developers, infrastructure projects with unsafe designs, Medicaid fraud billings, higher utility bills and medicine sales through a pattern of racketeering activity.21

The Eleventh Circuit concluded that the claims asserted were “patently without merit” and had been rejected in a prior opinion.22 Gilberti suggests that there is no loosening of the “wholly insubstantial and frivolous” standard when courts are faced with complaints filed by pro se litigants.23 On the other hand, some courts appear to give the benefit of the doubt to pro se litigants. In Karls v. Prudential Real Estate Affiliates, Inc., 24 the district court stated that, “while this may be a close case, considering Plaintiff’s pro se status, … Plaintiff has sufficiently alleged that his Fifth Amendment due process rights [in a real estate license] were violated at least for purposes of establishing subject matter jurisdiction” despite failing to name a government actor as a defendant.25

In short, the “wholly insubstantial and frivolous” standard is due to be retired, not unlike the “no-set-of-facts” standard enunciated in Conley v. Gibson. 26 To paraphrase Eleventh Circuit Judge Newsom, either a federal court possesses subject matter jurisdiction, or it does not. If a claim is so lacking in merit, dismissal will assuredly be sought via a Rule 12(b)(6) motion to dismiss for failure to state a claim. It is unfair for a plaintiff, whether proceeding pro se or represented by counsel, to be deprived of the opportunity to have an Article III court adjudicate its claim on the merits because it is first determined that that claim is so lacking in merit that it fails to invoke the federal court’s subject matter jurisdiction in the first instance. The Supreme Court should renounce the “wholly insubstantial and frivolous” standard and relieve lower federal courts of the obligation of discerning which claims are so lacking in merit that they fail to invoke their subject matter jurisdiction. 

Endnotes

1327 U.S. 678 (1946). 2Bell, 327 U.S. at 682-83; Hagans v. Lavine, 415 U.S. 528, 536–37 (1974) (federal claims that are “essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit” fail to invoke federal question jurisdiction) (internal quotation marks omitted). The “wholly insubstantial and frivolous” standard for determining the existence of federal question jurisdiction “generally applies to claims that have ‘no plausible foundation’ or are ‘clearly immaterial,’ ‘insubstantial,’ or ‘clearly foreclosed by a prior Supreme Court decision.’” Carmichael v. United Techs. Corp., 835 F.2d 109, 114 (5th Cir. 1988); see also Southpark Square Ltd. v. City of Jackson, Miss., 565 F.2d 338, 34243 (5th Cir. 1978) (a federal claim “must be more than frivolous to support federal question jurisdiction” and can satisfy this threshold only if “there is any foundation of plausibility to the claim”). 3454 U.S. 1157 (1982) (Rehnquist, J., dissenting) 4454 U.S. 1157, 1159 (1982). 5Rubinstein v. Yehuda, 38 F.4th 982, 993 (11th Cir. 2022) (quoting Hagans, 415 U.S. at 537). 6Mihalik v. ExpressJet Airlines, No. 3:10cv67/LAC/EMT, 2010 WL 1189345, at *1 (N.D. Fla. Mar. 4, 2010) (quotation omitted). 7Neitzke v. Williams, 490 U.S. 319, 325 (1989). 8Christianburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421 (1978). 9874 F.2d 1177 (7th Cir. 1988). 10397 U.S. 397 (1970). 11Id. at 404. 12Ricketts, 874 F.2d at 1180 (citing authorities, including Montana–Dakota Utilities Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 249 (1951) (jurisdiction based on subject matter is often confused with whether the complaint states a claim); Hagans, 415 U.S. at 538 (explaining that the substantiality doctrine as a statement of jurisdictional principles affecting a federal court’s authority to hear a case is more ancient than analytically sound, citing Rosado, supra)). 13The author discloses that he served as counsel to the appellees in the appeal before the Eleventh Circuit. 1434 F.4th 1028 (11th Cir. 2022). 15Id. at 1042 (Newsom, J., concurring). 16663 F. Supp. 813 (E.D.N.Y. 1983). 17Id. at 820. 18Banco de Ponce, 34 F.4th at 1042. 19Haines v. Kerner, 404 U.S. 519, 520 (1972). 20835 F. App’x 508 (11th Cir. 2020) (per curiam). 21Id. at 511. 22Id. 23See Linge v. Ga. Inc., 569 F. App’x 895, 896 (11th Cir. 2014) (per curiam) (denying leave to amend where pro se complaint was “wholly insubstantial and frivolous”); Bey v. Eemco, No: 8:21-cv926-TPB-TGW, 2021 WL 4819610, at *2 (M.D. Fla. Oct. 15, 2021) (“Given Plaintiff’s pro se status, the Court would ordinarily allow Plaintiff an opportunity to amend the complaint. However, because Plaintiff's complaint is ‘wholly insubstantial, unintelligible

and frivolous,’ leave to amend would be futile.”). 24No. 2:07cv325, 2008 WL 1953474 (D. Utah Jan. 10, 2008). 25Id. at *3. Cf. Chestnut v. Wells Fargo Bank, N.A., No. 11–CV–5369 (JS)(ARL), 2012 WL 6601785, at *3 (E.D.N.Y. Feb. 22, 2012),

Litigation Brief continued from page 13

Rule 702—Admissibility of Expert Testimony

The Evidence Committee’s final approval of proposed changes to Rule 702 was the culmination of five years of work that began with a symposium on forensic experts and Daubert, held at Boston College School of Law in October 2017.3 Similarly, the Evidence Committee’s October 2019 meeting at Vanderbilt Law School included a mini-conference on Best Practices for Managing Daubert Questions.4 The purpose of the mini-conference was to “further the Committee’s objective to provide education on proper management of expert testimony as an addition to (or an alternative to) and amendment to Rule 702.”5 The panel comprised six judges with extensive experience handling Daubert questions and a professor.6

The Evidence Committee sought to address a concern that experts sometimes overstate the results that could be reliably obtained from the method used. This issue arises when experts testify of a “zero error rate” or that something is a “practical impossibility.” While the focus was primarily as to the testimony of forensic experts, it applied to all experts. Another change the Evidence Committee considered was an amendment to clarify that the requirements for admissibility contained in Rule 702 (such as sufficiency of basis and reliability of application) must be decided by a preponderance of the evidence under Rule 104(a). Amazingly, the Evidence Committee received more than 500 comments on the proposed changes.

Interestingly, the overwhelming majority of the public comments focused on the reference to the preponderance of the evidence standard that was contained in the preliminary draft. That standard had been included in the preliminary draft because, as the Supreme Court had held under Rule 104(a), it generally applies to admissibility rulings by trial courts under all the Evidence Rules. In fact, the Daubert decision in a footnote mentions the standard and, yet, trial courts have not uniformly utilized it. To address the public comments, the proposal was revised to provide that the proponent must establish that it is “more likely than not” that the reliability requirements are met. The Evidence Committee views this standard as substantively identical to “preponderance of the evidence,” but it avoids any reference to “evidence” and thus addresses a concern that the term “evidence” means only admissible evidence. Based on the public comments, the Evidence Committee also unanimously agreed with a change requiring that the proponent establish “to the court” that it is more likely than not that the reliability requirements have been met. After all, in the words of the Evidence Committee’s Report “when it comes to making preliminary determinations about admissibility, the judge is and always has been a factfinder.”7 Accordingly, the Evidence Committee unanimously gave final approval to the following as the new language of Rule 702:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The proposed amendments are detailed as follows:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

(“[E]ven given a liberal construction, Plaintiff’s Complaint does not allege a federal claim such that the Court’s federal question subject matter jurisdiction may be invoked.”). 26355 U.S. 41 (1957).

Conclusion

In addition to the three proposals discussed above, the Evidence Committee unanimously approved proposed amendments of five other rules to be released for public comment. The proposed amendments are to Rules 611, 613(b), 801(d)(2), 804(b)(3), and 1006. Those proposals will be discussed in the next issue of Sidebar. 

Endnotes

1Federal Litigation Section and FBA Government Relations Committee Collaborate to Monitor Federal Rules Changes, Sidebar Newsletter (Fed. Bar Ass’n, Arlington, Va.), Winter 2020, at 4. 2Fed. R. Evid. 1101. 3Daniel J. Capra, Symposium on Forensic Expert Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1463 (2018). 4Conference on Best Practices for Managing Daubert Questions, 88 Fordham L. Rev. 1215 (2020). 5Agenda for Committee Meeting, Advisory Committee on Evidence Rules at 1 (Oct. 25, 2019), https://www.uscourts.gov/ rules-policies/archives/agenda-books/advisory-committee-rulesevidence-october-2019. 6Conference on Best Practices, supra note 1218. 7Report of the Advisory Committee on Evidence Rules to Standing Committee on Rules of Practice and Procedure (May 15, 2022), https://www.uscourts.gov/rules-policies/archives/ committee-reports/advisory-committee-evidence-rules-may-2022 (emphasis in original).