Case: 10-10711         Date Filed: 11/19/2012   Page: 1 of 24

                                                                                 [PUBLISH]



                    IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                      Nos. 10-10711; 10-10718
                                    ________________________

              D.C. Docket Nos. 1:95-cv-02550-TWT; 1:98-cv-01956-TWT



UPPER CHATTAHOOCHEE RIVERKEEPER FUND, INC., et al.,

lllllllllllllllllllllPlaintiffs,

versus

CITY OF ATLANTA,

lllllllllllllllllllllDefendant-Third-Party-Plaintiff-Appellee,

versus

CITY OF SANDY SPRINGS,

llllllllllllllllllllllThird-Party-Defendant-Appellant.

                                    ________________________

                        Appeals from the United States District Court
                            for the Northern District of Georgia
                               ________________________

                                        (November 19, 2012)
                Case: 10-10711       Date Filed: 11/19/2012       Page: 2 of 24

Before CARNES, KRAVITCH, and FARRIS,* Circuit Judges.

PER CURIAM:

       A federal Clean Water Act lawsuit filed against the City of Atlanta in 1995

resulted in two consent decrees requiring Atlanta to clean up its sewer system.

Ten years later Sandy Springs incorporated, which led to state court proceedings

to determine whether Atlanta would be allowed to continue to supply Sandy

Springs with water. Atlanta had pledged its water service revenue as part of the

collateral for bonds that were issued to finance its compliance with the sewer

system consent decrees. Atlanta persuaded the same district court that had issued

the sewer system consent decrees to enjoin the parties from pursuing the state law

proceedings and to take over supervision of those proceedings. The question is

whether the district court had jurisdiction to do that.

                                               I.

       For more than a decade the United States District Court for the Northern

District of Georgia has been monitoring the City of Atlanta’s compliance with two

consent decrees that the court issued in September 1998 and December 1999.

Those consent decrees resolved complex, multi-party litigation arising from



       *
        Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

                                                2
               Case: 10-10711        Date Filed: 11/19/2012      Page: 3 of 24

Atlanta’s violation of the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and

required Atlanta to bring its sewer system into compliance with federal

environmental laws. See Upper Chattahoochee Riverkeeper Fund, Inc. et al. v.

City of Atlanta, 1:95-cv-2550-TWT; United States et al. v. City of Atlanta,

1:98-cv-1956-TWT. The decrees, however, did not specify how compliance with

them is to be financed. Atlanta decided to fund its compliance efforts by issuing

bonds, pledging as collateral for them the assets and revenues from its water and

sewer system.1

       The consent decrees specifically state that the district court “shall retain

jurisdiction of this matter for the purposes of implementing and enforcing the

terms and conditions” of the decrees. Cf. Kokkonen v. Guardian Life Ins. Co. of

Am., 

, 381–82, 

, 1677 (1994) (explaining that a

district court may “retain jurisdiction” over a “dismissal-producing settlement

agreement” at the parties’ request). And the court has done so. The court’s

traditional equitable powers also give it ongoing jurisdiction to supervise Atlanta’s

compliance, to enforce the terms of the consent decrees, and to protect its

       1
         Atlanta has spent approximately $1.3 billion on capital improvements required by the
consent decrees. Almost all of this amount was financed by water and sewer revenue bonds,
under which Atlanta pledged the value of its drinking and wastewater system, as well as current
and future revenues from operating that system. Atlanta’s indebtedness under these bonds was
$3.2 billion at the time the district court’s order was entered in the present case.


                                               3
                  Case: 10-10711        Date Filed: 11/19/2012       Page: 4 of 24

jurisdiction over the decrees from collateral threats. See, e.g., United States v.

Swift & Co., 

, 114, 

, 462 (1932); Wesch v. Folsom, 

, 1470 (11th Cir. 1993).

       In December 2005, while Atlanta’s compliance efforts and the district

court’s monitoring of them continued, Sandy Springs, which is located in Fulton

County, Georgia, was incorporated as a municipality. Both before and after Sandy

Springs was incorporated, Fulton County provided its sewer service and Atlanta

provided its water service.2


       2
           Atlanta describes its water and sewer system as functionally and financially unified:

       For over a century, drinking water and wastewater treatment have been developed
       as complementary components of Atlanta’s regional utility, in recognition of the
       fact that the provision of potable water must be accompanied by treatment of
       wastewater prior to its return to the area’s rivers and streams. One component
       cannot function without the other, as the services are inextricably linked. In
       addition to their functional and environmental linkage, drinking water and
       wastewater are linked financially, as both components have been pledged by
       Atlanta to secure the funding needed to meet its obligations under the Consent
       Decrees.

Br. of Appellee at 8–9 (record citations omitted). Robert Hunter, Atlanta’s Commissioner for the
Department of Watershed Management, testified at the motion hearing before the district court
that Atlanta’s water and sewer systems are bound together by bonds: “[T]his is one system, water
and wastewater. It’s one fund. We only issue bonds for water and wastewater. We don’t have a
separate water fund and a separate wastewater fund, and this is very common in combined
utilities.” Doc. 241 at 58.

       We note for purposes of this appeal, however, it is undisputed that Atlanta provides
Sandy Springs’ water service, and Fulton County provides its sewer service. Fulton County and
Sandy Springs have already agreed to continue that arrangement.

       Atlanta does not contend that it is in danger of losing sewer revenues from Sandy

                                                   4
               Case: 10-10711         Date Filed: 11/19/2012        Page: 5 of 24

       Georgia’s Service Delivery Strategy Act, Ga. Code Ann. §§ 36-70-20 et

seq., requires every Georgia county and each of the municipalities within it to

adopt a service delivery agreement that identifies the service provider, service

areas, and all funding sources for governmental services provided in the county.

36-70-26. The Act also prescribes a process for

reaching that agreement and resolving any disagreement, which “is intended to

minimize inefficiencies resulting from duplication of services and competition

between local governments and to provide a mechanism to resolve disputes over

local government service delivery, funding equity, and land use.” 

one court has explained it, the Act “mandates a dispute resolution procedure



Springs. Commissioner Hunter testified at the motion hearing that Atlanta indirectly receives
revenue from the sewer service that Fulton County provides to Sandy Springs:

       Q. And as to the sewer system, the entire sewer system within the City of Sandy
       Springs is supplied as far as the rates, charges, servicing of it by Fulton County; is
       that correct?

       A. It is supplied by Fulton County. It is billed through the City of Atlanta. And
       the flow that comes from Sandy Springs into the City of Atlanta, Atlanta is paid
       for those flows.

       Q. And you have governmental agreements with Fulton County that address those
       rates, the requirements of Fulton County to cover the cost for the City of Atlanta;
       is that also correct?

       A. We have an agreement for the flows coming from their pipes to our pipes.

Doc. 241 at 89–90.

                                                 5
             Case: 10-10711     Date Filed: 11/19/2012   Page: 6 of 24

for the affected county and municipality to follow if they cannot agree on a service

delivery strategy.” Cobb Cnty. v. City of Smyrna, 

, 671 (Ga. Ct.

App. 2004); see also Ga. Code Ann. § 36-70-25.1.

      An October 2005 service delivery agreement designated Atlanta as the

direct retail water service provider for all of unincorporated Fulton County, which

included the area that was—just two months later—incorporated as the City of

Sandy Springs. Its incorporation triggered some provisions of the Service

Delivery Act. The Act provides that when new municipalities are

incorporated,“[e]ach county and affected municipality shall review, and revise if

necessary, the approved” service delivery agreement. 

Sandy Springs was incorporated, the process of reviewing and revising Fulton

County’s service delivery agreement began, and Sandy Springs proposed

amendments to the retail water service provider part of that agreement. Some of

those amendments, if adopted, would affect the supply of water to Sandy Springs

and could reduce the amount or price of the water that it purchases from Atlanta.

      Negotiations among Fulton County and several of its municipalities to adopt

new service delivery agreements stalled in October 2009, and Fulton County

followed the dispute resolution procedure prescribed by Georgia’s Service

Delivery Strategy Act: it filed a petition in Fulton County Superior Court

                                         6
               Case: 10-10711       Date Filed: 11/19/2012      Page: 7 of 24

“seeking mandatory mediation.” See Ga. Code Ann. § 36-70-25.1(d)(1)(A). The

state court appointed a mediator.

       Atlanta returned to the federal district court, which had retained jurisdiction

to enforce the Clean Water Act consent decrees, and sought to enjoin the service

delivery proceedings that were ongoing in state court. The district court granted

Atlanta’s motion, enjoined the parties from continuing to pursue the service

delivery proceedings in state court, and brought Sandy Springs and Fulton County

into the Clean Water Act litigation in federal court as third party defendants.

While that action may have been pragmatic, we conclude that it went beyond the

court’s jurisdictional authority.

                                            II.

       In its order the district court recounted how disputes “relating to water and

sewer service” had arisen between Fulton County and some cities located within

it—Atlanta, College Park, Fairburn, Palmetto, Sandy Springs, and Union City.3

Doc. 242 at 2. The court determined that those disputes had “created considerable

uncertainty” about Atlanta’s ability “to finance improvements to the sewer system


       3
         The South Fulton Municipal Water and Sewer Authority, the City of Fairburn, the City
of Palmetto, and the City of Union City were originally parties to this appeal, but they have
settled their disputes with Atlanta and dismissed their appeals. See City of Atlanta v. South
Fulton Mun. Reg’l Water and Sewer Auth., Nos. 10-10710 & 10-10721. In the district court,
Atlanta dismissed its claims against the City of College Park.

                                                  7
              Case: 10-10711     Date Filed: 11/19/2012   Page: 8 of 24

that are necessary to comply with the Consent Decrees.” 

Federal Rules of Civil Procedure 19 and 21 gave it the “authority to join the Third-

Party Defendants,” including the City of Sandy Springs and Fulton County, in

order “to avoid the uncertainty, and substantial and immediate threats” to Atlanta’s

ability to comply with the consent decrees. 

court also concluded that

the consent decrees along with “the Clean Water Act, and the Court’s powers

under the All Writs Act and its Supplemental Jurisdiction under 28 U.S.C. § 1367”

gave it the “authority to take actions to prevent interference with the City of

Atlanta’s continued ability to comply with the Consent Decrees.” 

district court’s order went on to prohibit Georgia, Fulton County, and

Sandy Springs from using the process that Georgia law prescribed for determining

how water would be delivered to citizens in the state. The order stated that:

“[The] State of Georgia and . . . Fulton County [are] enjoined from applying the

Georgia Service Delivery Act procedures under O.C.G.A. § 36-70-20 et seq. to the

City of Atlanta . . . with respect to the provision of water and sewer services.” 

court’s order also “held in abeyance” the sanctions that Georgia law

automatically imposes on local governments that do not execute a service delivery

agreement, see Ga. Code Ann. § 36-70-27(a)(1). Doc. 242 at 4. It enjoined Fulton

County from proceeding any further with the state law-prescribed mandatory

                                          8
               Case: 10-10711    Date Filed: 11/19/2012    Page: 9 of 24

mediation in Fulton County Superior Court “with regard to any matter related to

the water and sewer service portions” of the county’s service delivery agreement.

prohibiting the state, the county, and the affected municipalities from

using the state’s own process or court system to resolve the local service delivery

dispute, the district court compelled the state, the county, and the municipalities to

submit the dispute to it for supervision and a decision. The court order required

that:

        The City of Atlanta, Fulton County, and the Third-Party Defendants
        [shall] conduct any and all negotiations, mediation and other dispute
        resolution efforts, including those dispute resolution procedures
        referenced under O.C.G.A. § 36-70-25.1, and if those dispute
        resolution efforts are unsuccessful, any litigation required to
        determine the Service Delivery Strategy for Fulton County, as it
        relates to the water and sewer service portions of the Service Delivery
        Strategy, under the exclusive supervision of this Court.

        . . . [T]he Service Delivery Act mediation as related to the sewer and
        water issues . . . shall occur exclusively under this Court’s
        supervision.

appointed a mediator who would be supervised by and

accountable to the district court, instead of by and to any state court or judge.

(The mediator the district court appointed was former Georgia Supreme Court

Justice Norman Fletcher, who had also been appointed by and had been serving



                                           9
              Case: 10-10711       Date Filed: 11/19/2012   Page: 10 of 24

under the supervision of the state court when the dispute was being handled there.)

Springs’ appeal of the district court’s order. We have

jurisdiction over it under 28 U.S.C. § 1292(a)(1), which provides that “the courts

of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders of the

district courts . . . granting . . . injunctions.”

                                             III.

       In asserting authority to enjoin the parties from pursuing the service

delivery proceedings in state court, the district court relied on its continuing

jurisdiction to enforce Atlanta’s compliance with the consent decrees coupled with

its power under the All Writs Act. That Act provides that federal courts “may

issue all writs necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).

       The power granted federal courts by the All Writs Act is, however, limited

by the Anti-Injunction Act, which prohibits a federal court from “grant[ing] an

injunction to stay proceedings in a State court except as expressly authorized by

Act of Congress, or where necessary in aid of its jurisdiction, or to protect or




                                              10
               Case: 10-10711       Date Filed: 11/19/2012       Page: 11 of 24

effectuate its judgments.” 28 U.S.C. § 2283.4 If one of the three specific

exceptions contained in the Anti-Injunction Act permits an injunction, the All

Writs Act grants a federal court the power to issue it. Burr & Forman v. Blair, 

, 1027–28 (11th Cir. 2006).

       “[I]n assessing the propriety of an injunction entered to stop a state court

proceeding, the sole relevant inquiry is whether the injunction qualifies for one of

the exceptions to the Anti-Injunction Act.” 

also Atl. Coast Line

R.R. Co. v. Bhd. of Locomotive Eng’rs, 

, 286, 

, 1743

(1970) (emphasizing that the Anti-Injunction Act is “an absolute prohibition

against enjoining state court proceedings, unless the injunction falls within one of

[the Act’s] three specifically defined exceptions.”). We review de novo a district

court’s legal conclusion that it has the authority to enjoin a state court action based

on an exception to the Anti-Injunction Act. Estate of Brennan v. Church of

Scientology Flag Serv. Org., 

, 1272 (11th Cir. 2011).

       The Supreme Court has recognized that the Anti-Injunction Act “is designed


       4
         Although on its face the Anti-Injunction Act could be read to apply only to injunctions
issued against state courts, and not those issued against individual parties, it has not been
interpreted that way. See Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 

,
287, 

, 1743 (1970). Instead, “we treat injunctions entered for the purpose of halting
a state court proceeding the same regardless of whether issued against the parties to the state
court proceeding or directly against the state court.” Burr & Forman v. Blair, 

,
1028 n.28 (11th Cir. 2006).

                                               11
              Case: 10-10711     Date Filed: 11/19/2012    Page: 12 of 24

to prevent conflict between federal and state courts.” Leiter Minerals, Inc. v.

United States, 

, 225, 

, 290–91 (1957). The Act’s “core

message is one of respect for state courts,” and it “broadly commands that those

tribunals shall remain free from interference by federal courts” unless one of the

Act’s three specific exceptions is met. Smith v. Bayer Corp., — U.S. —, 

, 2375 (2011) (quotation marks omitted).

      The district court never indicated which of the three exceptions to the Anti-

Injunction Act, if any, it was relying on. The only one that Atlanta contends

applies is the “in aid of its jurisdiction” exception. That exception, like the other

two, must be construed narrowly. See 

three exceptions in

the Anti-Injunction Act “are narrow and are not to be enlarged by loose statutory

construction” (quotation marks and alteration omitted)); see also In re Bayshore

Ford Trucks Sales, Inc., 

, 1250 (11th Cir. 2006) (“The Supreme

Court has repeatedly emphasized that the lower courts are to interpret these

exceptions strictly.”); Delta Air Lines, Inc. v. McCoy Rests., Inc., 

,

585 (11th Cir. 1983) (“Because of the sensitive nature of federal interference with

state court litigation, the exceptions to the rule against injunctions . . . must be

narrowly construed.”); T. Smith & Son, Inc. v. Williams, 

, 407 (5th

Cir. 1960) (“The phrase, ‘where necessary in aid of its jurisdiction’, . . . should be

                                           12
             Case: 10-10711      Date Filed: 11/19/2012    Page: 13 of 24

interpreted narrowly, in the direction of federal non-interference with orderly state

proceedings.”); cf. 

doctrine” expressed in the Anti-

Injunction Act and describing the statute as “a pillar of federalism”). As the

Supreme Court has put it: “Any doubts as to the propriety of a federal injunction

against state court proceedings should be resolved in favor of permitting the state

courts to proceed. . . .” Atl. Coast Line 

, 90 S.Ct. at 1748;

see also Red Rock Cola Co. v. Red Rock Bottlers, Inc., 

, 409 (5th

Cir. 1952) (“Federal Courts will enjoin proceedings in State Courts with

reluctance. . . .”); cf. Smith, — U.S. at 

(stating that

issuing an injunction under the “relitigation exception [to the Act] is resorting to

heavy artillery” and “[f]or that reason, every benefit of the doubt goes toward the

state court”); 

(“The question of whether to stay proceedings

in a state court is never one to be taken lightly, as it impinges on the very delicate

balance struck between the federal and state judicial systems.”).

      Necessity is key. The exception in question does not permit injunctions in

aid of a court’s jurisdiction, but only those that are “necessary in aid of its

jurisdiction.” It certainly “is not enough that the requested injunction is related to

that jurisdiction.” Atl. Coast Line 

, 90 S.Ct. at 1747. Federal

courts may enjoin state court proceedings based on the “necessary in aid of its

                                           13
               Case: 10-10711   Date Filed: 11/19/2012    Page: 14 of 24

jurisdiction” exception in only two situations, where: “(1) the district court has

exclusive jurisdiction over the action because it had been removed from state

court; or, (2) the state court entertains an in rem action involving a res over which

the district court has been exercising jurisdiction in an in rem action.” In re

Bayshore Ford Trucks Sales, Inc., 

, 1251 (11th Cir. 2006).

      As Atlanta admits, there was no “removal,” in the required sense, of this

case from state court to federal court, so the first situation does not exist. The

question is whether the second one does. The reason that the second situation is

an exception to the Anti-Injunction Act prohibition is that “[a] state court and a

federal court cannot simultaneously exercise in rem jurisdiction over the same

property.” United States v. $270,000 in U.S. Currency, Plus Interest, 

,

1147 (11th Cir.1993); see also In re Am. Honda Motor Co. Dealerships Relations

Litig., 

, 439 (4th Cir. 2003) (“The ‘necessary in aid of its jurisdiction’

exception to the Anti-Injunction Act is widely understood to apply most often

when a federal court was the first in obtaining jurisdiction over a res in an in rem

action and the same federal court seeks to enjoin suits in state courts involving the

same res.”).

      Atlanta contends that its water and sewer system is a res over which the

district court has exercised its jurisdiction through the consent decrees, which

                                          14
             Case: 10-10711      Date Filed: 11/19/2012    Page: 15 of 24

impose “extensive ongoing obligations relative to . . . the wastewater collection,

transmission, and treatment components” of the system. The problem with

Atlanta’s contention is that the state service delivery proceedings in state court are

obviously not an in rem action. Those proceedings do not directly involve any res.

Instead, they involve a dispute about the delivery of services, which is a

quintessential in personam dispute. Cf. Burr & 

& n.34;

Vendo Co. v. Lektro-Vend Corp., 

, 642, 

, 2893 (1977)

(“The traditional notion is that in personam actions in federal and state court may

proceed concurrently, without interference from either court, and there is no

evidence that the [‘necessary in aid of its jurisdiction’] exception to [28 U.S.C.] §

2283 was intended to alter this balance.”). Because there is no in rem action in

state court, the state court and the federal court are not adjudicating rights to the

same property, and the in rem exception does not apply. See Burr & 

(explaining that the “focus of this exception is on parallel in rem

proceedings—one in federal court, the other in state court”). Because the state

proceedings are not an in rem action directly involving a res, the state and federal

court are not in danger of simultaneously exercising in rem jurisdiction over the

same property. $270,000 in U.S. Currency, Plus 

; see also

Empire Trust Co. v. Brooks, 

, 645–46 (5th Cir. 1916) (“[W]here the

                                           15
                Case: 10-10711        Date Filed: 11/19/2012        Page: 16 of 24

issues in the subsequent suit are different from those involved in the first suit, and

the subject-matter is not identical, there can be no infringement of the jurisdiction

of the court in which the first suit is pending, by reason of the institution of the

second suit in a court of concurrent jurisdiction.”); Denver-Greeley Valley Water

Users Ass’n v. McNeil, 

, 71 (10th Cir. 1942) (“[T]he necessity does

not exist which would warrant injunctive relief where the subsequent action does

not create a conflict between the courts over the possession or custody of the

res.”). For these reasons, the second situation in which a federal court is allowed

to enjoin state court proceedings under the “necessary in aid of its jurisdiction”

exception to the Anti-Injunction Act does not apply here.5

       The motivation for the issuance of the injunction against the state court

proceedings was the fear that those proceedings could result in a reduction in some

of Atlanta’s water service revenue, which could impede its efforts to comply with

its consent decree obligations because that revenue is pledged as part of the

collateral for the bonds Atlanta issued to finance its compliance with the decrees.

When the district court entered the consent decrees requiring that the sewer system

be cleaned up, it left to Atlanta the task of financing its compliance with those



       5
          Atlanta’s contention that the Clean Water Act litigation itself is a res over which the
district court has exercised in rem jurisdiction fails for the same reasons.

                                                 16
               Case: 10-10711       Date Filed: 11/19/2012       Page: 17 of 24

decrees. It was Atlanta’s decision to issue bonds to finance some of its

compliance efforts. It was Atlanta’s decision to pledge its water and sewer system

revenue to pay off those bonds. If the water system revenue declines for any

reason, the problem will affect the bond holders and the City of Atlanta. It will

not affect the federal court’s jurisdiction over the consent decrees and over their

enforcement.

       If the potential reduction in water system revenue is large enough—and

there has been no showing that it is—Atlanta may have a problem paying off the

bonds that have already been issued, but that will be Atlanta’s problem, not the

district court’s.6 If some additional revenue is required to offset any that Atlanta

loses, it will be Atlanta’s responsibility to find that revenue, not the district

court’s. In the way that matters, a threatened decline in revenue for this reason is

no different from a decline in revenue for some other reason, such as decreased

usage among existing water customers. The fact that the state service delivery

proceedings may reach a result that will make it more difficult for Atlanta to pay

off the bonds that it has issued to pay for the cleanup does not make an injunction


       6
        According to Atlanta, “[a]bout 13 percent of its total revenues in fiscal year 2008-2009
came from sales of water outside the city boundaries,” which amounts to about $41 million per
year. The record does not indicate how much of that revenue comes specifically from providing
water service to Sandy Springs or whether Atlanta could make up, in some other way or from
some other source, any revenue it may lose from not providing water service to Sandy Springs.

                                               17
             Case: 10-10711      Date Filed: 11/19/2012   Page: 18 of 24

against those state proceedings necessary in aid of federal court jurisdiction over

the consent decrees. Cf. Atl. Coast Line 

, 90 S.Ct. at 1747

(“[I]t is not enough that the requested injunction is related to [the federal court’s]

jurisdiction, but it must be ‘necessary in aid of’ that jurisdiction.” (emphasis

added)).

      The district court was sensitive to anything that threatened to impede

Atlanta’s compliance with the two consent decrees. We do not blame the court for

that. Its sensitivity is understandable in light of the vast amount of time and effort

that the court has devoted to the underlying Clean Water Act case, to the consent

decrees, and to their implementation. But no amount of good motives and no

amount of expended time or effort can bestow on a federal court the authority to

interfere with a sovereign state’s proceedings. Only the Constitution and

Congress can do that, and neither has done so here. See Save the Bay, Inc. v. U.S.

Army, 

, 1102 (5th Cir. Feb. 1981) (“We have only the authority

endowed by the Constitution and that conferred by Congress.”).

                                          IV.

      We turn now to the supplemental jurisdiction issue. In addition to relying

on the All Writs Act as a source of authority for enjoining the parties from

pursuing the state service delivery proceedings, the district court concluded that

                                          18
             Case: 10-10711      Date Filed: 11/19/2012    Page: 19 of 24

under 28 U.S.C. § 1367(a) it also had supplemental jurisdiction over those

proceedings; that was an alternative basis for taking over the proceedings and

deciding the issues raised in them. The district court did not explain how its

federal question jurisdiction over the Clean Water Act litigation allowed it to

exercise supplemental jurisdiction over the water delivery service issues in the

state proceedings.

      Section 1367(a) gives federal courts “the power to exercise supplemental

jurisdiction over all claims that arise out of a common nucleus of operative fact

with a substantial federal claim.” Tamiami Partners, Ltd. ex rel. Tamiami Dev.

Corp. v. Miccosukee Tribe of Indians of Fla., 

, 1223 (11th Cir.

1999) (quotation marks omitted); see also 28 U.S.C. § 1367(a) (“[I]n any civil

action of which the district courts have original jurisdiction, the district courts

shall have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part of the

same case or controversy under Article III of the United States Constitution.”).

We review de novo a district court’s legal conclusion that it has subject matter

jurisdiction over a case or controversy. See, e.g., MacGinnitie v. Hobbs Group,




                                           19
                Case: 10-10711        Date Filed: 11/19/2012        Page: 20 of 24

LLC, 

, 1239 (11th Cir. 2005).7

       The federal Clean Water Act litigation and the state service delivery

proceedings involve different issues under different law arising from different sets

of facts occurring in different decades. The federal litigation arose from

environmental law violations in the operation of Atlanta’s sewer system during the

1990s. The state proceedings arose from disagreements about where Sandy

Springs can get its water service after it incorporated in 2005.

       As we have acknowledged, Atlanta did issue bonds to finance its sewer

cleanup efforts, pledging the revenues from its sewer and water system as

collateral for those bonds. And, if left to the state law merits of the matter, the

state service delivery proceedings may result in a decrease in the revenue stream

coming from the water system, which Atlanta fears would undermine its ability to

comply with the consent decrees. Atlanta’s position is that by trying to wrest the



       7
         Atlanta asserts that the district court’s decision about whether to exercise supplemental
jurisdiction should be reviewed only for an abuse of discretion. If a district court’s jurisdiction
over a claim arises from 28 U.S.C. § 1367(a), the court has some discretion about whether to
exercise that jurisdiction if any of the factors set out in § 1367(c) exist. It is a district court’s
discretionary decision under § 1367(c) about whether to exercise its supplemental jurisdiction
that we review for an abuse of discretion. See, e.g., Estate of Amergi ex rel. Amergi v.
Palestinian Auth., 

, 1356 (11th Cir. 2010). In the present case, however, the issue
is not how the district court should have exercised its discretion in regard to supplemental
jurisdiction that it had. The issue is whether the district court had supplemental jurisdiction to
begin with, and that is a question of law we review de novo. See, e.g., Hill v. BellSouth
Telecomms., Inc., 

, 1314 (11th Cir. 2004).

                                                 20
               Case: 10-10711        Date Filed: 11/19/2012        Page: 21 of 24

water system located in Sandy Springs from it, and thereby threatening its revenue,

Sandy Springs has “implicated the same case or controversy as the Clean Water

Act claims.” Br. of Appellee at 45.

       Atlanta is wrong. The test is not whether the same case or controversy is

“implicated.” The test is whether the claims asserted “derive from a common

nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 

,

725, 

, 1138 (1966). We take the nucleus of facts on which the

federal question claims are based and compare it to the nucleus of facts on which

the state law claims are based. We do not look at the results that may flow from

the implications of finding that supplemental jurisdiction does not exist. It is not a

results-oriented analysis, but a fact-oriented one.8

       How Atlanta pays for its sewer cleanup efforts (or even whether it pays for

them) does not change the factual predicate that gave rise to the Clean Water Act

litigation. That factual predicate was a sewer system that was in violation of



       8
         Atlanta relies on Parker v. Scrap Metal Processors, Inc., 

(11th Cir. 2006),
to support its argument that the district court properly exercised supplemental jurisdiction in this
case. That decision does not help Atlanta at all. As all of the parties in Parker agreed, the federal
and state claims in that case arose out of a common nucleus of operative fact, giving the district
court the power to exercise supplemental jurisdiction over the state law claims. See 

issue Parker decided was whether the district court had abused its discretion by declining
under 28 U.S.C. § 1367(c) to exercise supplemental jurisdiction that it had. 

is
not the issue before us here.


                                                 21
             Case: 10-10711      Date Filed: 11/19/2012   Page: 22 of 24

federal clean water laws. The state service delivery proceedings about the source

of Sandy Springs’ water service do not derive from a polluting sewer system or

any federal Clean Water Act violations. It derives instead from Sandy Springs’

incorporation and a dispute about how water service is to be handled in the newly

incorporated city.

      Atlanta’s test for supplemental jurisdiction would grant federal courts

jurisdiction over any state law claim that could potentially affect revenues used to

comply with a federal court decree, regardless of the claim’s factual predicate.

Consider an example. A city pledges the revenue it gets from an occupational tax

to pay the bonds it has issued to fund compliance with a federal court decree

involving Clean Water Act violations. If litigation is filed in state court over the

state constitutional validity of that occupational tax, under Atlanta’s approach the

federal court would have supplemental jurisdiction to decide that purely state law

issue because the outcome could potentially affect revenues used to pay bonds

issued to fund efforts to comply with the federal court decree. Supplemental

jurisdiction is not that malleable.

      The district court erred in concluding that it had supplemental jurisdiction




                                          22
               Case: 10-10711        Date Filed: 11/19/2012        Page: 23 of 24

over the state service delivery proceeding issues.9

                                                 V.

       We must keep federal judicial power confined within the “exact degrees and

character” set out by Congress, Odyssey Marine Exploration, Inc. v. Unidentified

Shipwrecked Vessel, 

, 1179 (11th Cir. 2011), and we should guard

against anything that disrupts the delicately balanced system of dual sovereignty

that is one of the foundation stones underlying our Constitution. See Am. Fire &

Cas. Co. v. Finn, 

, 17, 

, 542 (1951) (“The jurisdiction of the

federal courts is carefully guarded against expansion by judicial interpretation . . .

.”); Healy v. Ratta, 

, 270, 

, 703 (1934) (“Due regard for

the rightful independence of state governments, which should actuate federal

courts, requires that they scrupulously confine their own jurisdiction to the precise

limits which the statute has defined.”); Russell Corp. v. Am. Home Assur. Co.,

, 1050 (11th Cir. 2001) (“[T]here is a presumption against the

exercise of federal jurisdiction . . . .”); Smith v. GTE Corp., 

, 1299

(11th Cir. 2001) (“[F]ederal courts should proceed with caution in construing


       9
        Relying on Federal Rules of Civil Procedure 19 and 21, the district court joined Sandy
Springs as a third-party defendant in the Clean Water Act litigation. Because the district court
lacked subject matter jurisdiction over the state court service delivery proceedings, it necessarily
follows that joinder of Sandy Springs in the Clean Water Act litigation was improper.


                                                 23
             Case: 10-10711     Date Filed: 11/19/2012    Page: 24 of 24

constitutional and statutory provisions dealing with their jurisdiction.” (quotation

marks & alteration omitted)); Eighth Reg’l War Labor Bd. v. Humble Oil & Ref.

Co., 

, 464 (5th Cir. 1944) (“The jurisdiction of the district court is

confined within strict limits . . . .”); Le Mieux Bros. v. Tremont Lumber Co., 

, 389 (5th Cir. 1944) (“United States District Courts are courts of limited

jurisdiction. Creatures of statute, they have only such jurisdiction as the statutes

expressly confer, and this jurisdiction must always affirmatively appear.”). The

district court exceeded the scope of its authority by exercising jurisdiction over the

state service delivery proceedings.

      The district court’s order enjoining Fulton County and Sandy Springs from

pursuing the state service delivery proceedings in state court is VACATED, and

the case is REMANDED with instructions for the district court to dismiss for lack

of subject matter jurisdiction Atlanta’s Amended Third-Party Complaint against

Sandy Springs.




                                          24