Timothy L. Jenkins v. Howard University and Howard University Board of Trustees

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2024 Decided December 20, 2024
No. 23-7093
TIMOTHY L. JENKINS, ET AL.,
APPELLANTS
v.
HOWARD UNIVERSITY AND HOWARD UNIVERSITY BOARD OF
TRUSTEES,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-00874)
Donald M. Temple argued the cause and filed the briefs for
appellants.
Jo-Ann Tamila Sagar argued the cause for appellees. With
her on the brief were Amanda NeCole Allen and Lillian Hardy.
Before: MILLETT, WILKINS and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.

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WILKINS, Circuit Judge: This case arises out of an abrupt,
contentious change to governance at one of our nation’s most
historic and significant educational institutions—The Howard
University. The University’s Board of Trustees amended the
institution’s bylaws to remove trustee positions that alumni,
students, and faculty had filled for several decades. Appellants,
a group of alumni (“the Alumni”), sued the University and the
Board (collectively, “Howard”) in D.C. Superior Court seeking
a declaration that the Board’s amendment was ultra vires
because it violated the governing bylaws. Howard removed the
case to federal court, arguing that the governance dispute
hinged on the University’s federal charter. The Alumni moved
to remand. The District Court denied the Alumni’s motion,
holding that the suit implicated a significant federal issue under
Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 545 U.S. 308, 312 (2005). Jenkins v. Howard
Univ., Civil Action No. 22-00874 (RC), 2023 WL 1070552, at
*2–4 (D.D.C. Jan. 27, 2023). Following briefing on the merits,
the District Court granted Howard’s motion to dismiss the case
under Federal Rule of Civil Procedure 12(b)(6). Jenkins v.
Howard Univ., Civil Action No. 22-00874 (RC), 2023 WL
3948815, at *8 (D.D.C. June 12, 2023). This appeal followed.
We hold that the District Court erred in exercising
jurisdiction over the case because it neither arises under federal
law nor presents a significant, disputed federal issue under
Grable. We thus reverse and remand to the District Court with
instructions to dismiss without prejudice for lack of subject
matter jurisdiction.

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I.
A.
Howard was established by congressional charter in 1867.1
An Act to Incorporate the Howard University in the District of
Columbia, ch. 162, § 1, 14 Stat. 438 (1867). The charter vested
Howard’s governance in a board of trustees, whom it directed
to enact governing bylaws “not inconsistent with the laws of
the United States.” Id. §§ 3–4. Almost 100 years ago, the
Board amended its bylaws to create seats for alumni-nominated
trustees. The bylaws in effect before the challenged
amendment set rules governing Board meetings, bylaw
amendments, and nomination and voting for alumni trustees.
Specifically, the operative bylaws provided that (1) one-third
of the Board’s membership constituted a quorum for general
meetings; (2) amendments to the bylaws required an
affirmative vote by three fourths of the present members at a
meeting properly noticed and attended; and (3) three alumni
trustees had to be elected for staggered three-year terms.
Purportedly exercising emergency authority during the
COVID-19 pandemic, the Board’s Governance Committee
Chair unilaterally suspended elections in 2020 for all “affiliate
trustees,” which included seats filled by students, faculty, and
alumni. Not long after, when only two alumni trustees
remained on the Board, the Board amended the bylaws to
eliminate the affiliate trustee positions altogether.
B.
Following the amendment, the Alumni sued in D.C.
Superior Court. The suit alleged that the Board’s election
1 Because it does not affect our disposition, we assume without
deciding that Howard’s charter is federal law.

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suspension and bylaws amendment violated the procedure
mandated by the bylaws, and sought a declaratory judgment
that the Board’s actions were ultra vires. The Alumni later
amended their complaint to add a breach of fiduciary duty
claim.
Howard removed the case, arguing that it presented a
federal question under 28 U.S.C. § 1331 because the “internal
affairs doctrine” required application of federal law. J.A. 12.
Alternatively, Howard argued that the suit “implicate[d]
significant federal issues” under Grable & Sons Metal
Products, Inc., 545 U.S. at 312. J.A. 13–14. The Alumni
moved to remand.
The District Court denied the remand motion. Jenkins,
2023 WL 1070552. Assuming without deciding that state law
governed, the District Court found that the amended complaint
necessarily raised a disputed, substantial federal issue that it
could resolve without disrupting the federal–state balance. Id.
at *2–4 (applying Grable, 545 U.S. 308). Specifically, the
District Court discerned a necessarily raised and disputed
federal issue because evaluating whether the Board’s actions
were ultra vires required reference to the federal charter that
established the Board and entrusted it with authority to govern.
Id. at *3. So it held that federal jurisdiction was proper under
Grable. Id. at *3–4.
Upon a motion from Howard, the District Court later
dismissed the case under Rule 12(b)(6). Jenkins, 2023 WL
3948815, at *1. The Alumni appealed that final order,
renewing their jurisdictional objections and challenging the
District Court’s dismissal. Because we agree with the Alumni
that the District Court lacked subject matter jurisdiction, we do
not reach the disputed merits issues.

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II.
We have jurisdiction under 28 U.S.C. § 1291 to review a
district court’s final order dismissing an action for failure to
state a claim. Ciralsky v. C.I.A., 355 F.3d 661, 666 (D.C. Cir.
2004). After dismissal, “the district court’s earlier denial of the
motion to remand for lack of subject matter jurisdiction also is
reviewable.” Cap. Hill Grp. v. Pillsbury, Winthrop, Shaw,
Pittman, LLC, 569 F.3d 485, 488 (D.C. Cir. 2009). We review
a district court’s legal conclusions regarding subject matter
jurisdiction de novo. Am. Fed’n of Gov’t Emps. v. Trump, 929
F.3d 748, 754 (D.C. Cir. 2019).
A.
Consistent with Article III’s “arising under” jurisdiction,
Congress has authorized federal courts to hear “all civil actions
arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331; Osborn v. Bank of U.S., 22 U.S.
738, 823–28 (1824). Under Section 1331, “a case can arise
under federal law in two ways.” Gunn v. Minton, 568 U.S. 251,
257 (2013) (cleaned up). “Most directly, a case arises under
federal law when federal law creates the cause of action
asserted.” Id. (citation omitted). This avenue “accounts for the
vast bulk of suits that arise under federal law.” D.C. Ass’n of
Chartered Pub. Sch. v. District of Columbia, 930 F.3d 487, 491
(D.C. Cir. 2019) (quoting Gunn, 568 U.S. at 257). The
Supreme Court has also recognized another “slim category” of
cases that Section 1331 reaches: “federal jurisdiction over a
state law claim will lie if a federal issue is[] (1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the federal–state
balance approved by Congress.” Id. (quoting Gunn, 568 U.S.
at 258); accord Grable, 545 U.S. at 312.

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“[B]ecause we presume that federal courts lack
jurisdiction unless the contrary appears affirmatively from the
record, the party asserting federal jurisdiction when it is
challenged has the burden of establishing it.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (cleaned up);
accord Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97
(1921). Recognizing “the need to give due regard to the
rightful independence of state governments—and more
particularly, to the power of the States to provide for the
determination of controversies in their courts,” we construe
jurisdictional statutes narrowly. Merrill Lynch, Pierce, Fenner
& Smith Inc. v. Manning, 578 U.S. 374, 389 (2016) (cleaned
up); see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
108–09 (1941).
1.
As an initial matter, this action does not “arise under”
federal law. None of the causes of action raised in the Alumni’s
amended complaint arise under federal law. Nor are any
questions of federal law actually disputed. Howard’s pushback
against this conclusion takes two forms. First, it insists that a
plain reading of the amended complaint demonstrates that the
federal charter “forms the basis of” the Alumni’s requested
relief. Appellees’ Br. 20. Second, it asserts that under the
internal affairs doctrine, removal is necessary because federal
law governs the Alumni’s claims. We address each argument
in turn.
First, it is well established that an entity’s status as
federally chartered is not enough to make all suits against it
automatically “arise under” federal law. See Am. Nat’l Red
Cross v. S.G., 505 U.S. 247, 254–57 (1992). Rather, federal
jurisdiction automatically arises in suits by or against a
federally chartered institution “if, but only if,” the entity’s sue-
and-be-sued provision “specifically mentions the federal

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courts.” Id. at 255; accord Lightfoot v. Cendant Mortg. Corp.,
580 U.S. 82, 90–91 (2017). The “sue-and-be-sued provision”
in Howard’s charter does not specifically mention federal
courts. J.A. 253 § 2. It follows that the Alumni’s suit does not
“arise under” federal law merely because Howard is federally
chartered and authorized to sue.
Moreover, Howard’s insistence that the federal charter
“forms the basis of” or is “at the heart of” the amended
complaint is unsupported. Appellants’ Br. 20, 22. It is true that
the charter generally vests the Board with authority to govern.
But the Alumni’s participation in governance—the core of this
lawsuit—was not established until several decades after the
charter’s passage when the Board amended the bylaws to create
alumni trustee positions. The bylaws also govern whether the
bylaws were properly amended. And so it is the bylaws—not
the charter—that form the basis of the Alumni’s asserted right
to participate in Howard’s governance.
Second, we are not persuaded that the internal affairs
doctrine transforms the Alumni’s suit into one that arises under
federal law. The internal affairs doctrine is a conflict-of-laws
principle recognizing that a corporation’s internal affairs
should not be subject to regulation by more than one
jurisdiction. Edgar v. MITE Corp., 457 U.S. 624, 645 (1982);
see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 302
(AM. L. INST. 1971).
Howard asserts that federal law governs the Alumni’s
claim because a corporate entity’s internal affairs are subject to
the laws of its incorporating jurisdiction. Because the
University is congressionally chartered, Howard argues,
federal common law governs this dispute. But the Supreme
Court has considered and rejected the argument that the
internal affairs doctrine requires application of federal common

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law to corporate governance claims against federally chartered
entities. See Atherton v. F.D.I.C., 519 U.S. 213, 218, 223–25
(1997).2 In any event, Howard has presented “no significant
conflict with, or threat to, a federal interest” that would arise
by application of D.C. law. See id. at 225–26. Nor has it
advanced any basis for applying this conflict-of-laws principle
as a jurisdictional hook.
Howard has not met its burden to demonstrate that this
case arises under federal law. But there is one other means by
which federal question jurisdiction could lie.
2.
We now turn to the test set forth in Grable: whether the
Alumni’s case necessarily raises disputed and substantial
federal issues capable of resolution in federal courts without
disrupting the federal–state balance. For the following reasons,
it does not.
The District Court relied on District of Columbia v. Group
Hospitalization & Medical Services, Inc. (“GHMSI”), 576 F.
Supp. 2d 51 (D.D.C. 2008), and that case’s application of
Grable, to hold that it had federal question subject matter
jurisdiction. Jenkins, 2023 WL 1070552, at *3–4. Though it
does not bind us, GHMSI serves as a helpful reference because
2 In Atherton, the Supreme Court held that a federal corporation’s
creation via “a federal charter by itself shows no conflict, threat, or
need for federal common law.” 519 U.S. at 223 (internal quotation
marks omitted). It then rejected the corporation’s appeal to the
internal affairs doctrine, which the corporation argued necessarily
required application of federal law. Id. at 223–25 (explaining that
although the internal affairs doctrine “avoid[s] conflict by requiring
that there be a single point of legal reference,” it is void of any
suggestion “that the single source of law must be federal”).

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it also involved a state law claim against a federally chartered
entity.
In GHMSI, the plaintiff alleged that a federally chartered
non-profit corporation “willfully violated [its] charter.” 576 F.
Supp. 2d at 55 (quoting the complaint). The plaintiff
repeatedly referenced and relied upon the charter’s “charitable
purpose” provision in crafting its breach of trust claim. Id.
And the plaintiff’s requested relief rested squarely on the
court’s interpretation of, and power to enforce, the charter. Id.
(explaining that the plaintiff had asked “the [c]ourt to declare
that Defendants have violated [the] charter and to enjoin
Defendants from further violations of [the] charter” (cleaned
up)).
Accordingly, the GHMSI court reasoned that, like Grable,
the case “really and substantially involv[ed] a dispute
respecting the validity, construction, or effect of a
congressional act—i.e., [the] charter.” Id. (cleaned up).
Because the GHMSI court could not grant the plaintiff “relief
on its state law claims without . . . interpreting [the] federal
charter,” it held that the “plaintiff’s complaint ‘necessarily
raise[d] a stated federal issue’” under Grable. Id. at 55–56
(quoting Grable, 545 U.S. at 314). The court expressed “no
doubt” that the federal issue presented was “actually disputed”
because the “parties disagree[d] over the correct reading of
[the] federal charter.” Id. at 56 (citations omitted).
The critical distinctions between this case and GHMSI
abound. Unlike the GHMSI plaintiff, which expressly
referenced and relied upon the charter in crafting its breach of
trust claim, the Alumni rely solely on the bylaws for their
breach of fiduciary duty claim. In GHMSI, the plaintiff asked
the court to declare that the defendant violated its charter, but
the Alumni asked for the D.C. Superior Court to declare that

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the Board violated its bylaws and “statutory and common law
fiduciary duties.” J.A. 42, 45–46. Finally, contrary to the
GHMSI parties, which disputed the boundaries of GHMSI’s
rights and duties under the charter, the amended complaint puts
at issue only the Board’s rights and duties under the bylaws.
Here, the District Court acknowledged that the Alumni
“explicitly allege violations of the bylaws,” but dismissed the
allegations as artful pleading because “certain claims depend
on the scope of the Board’s authority under the charter.”
Jenkins, 2023 WL 1070552, at *3 (citations omitted). At most,
the Alumni’s affirmative breach of fiduciary duty claim
depends on the charter’s scope in that the legal status of the
current Howard trustees as “trustees” is defined by the charter.
To make out a claim for breach of fiduciary duty under D.C.
law, a plaintiff must show: “(1) the existence of a fiduciary
relationship with the defendant; (2) breach of a duty imposed
by that fiduciary relationship; and (3) an injury caused by such
breach.” Caesar v. Westchester Corp., 280 A.3d 176, 186
(D.C. 2022) (citation omitted). The charter figures into the first
element of that standard. Trustees “owe a fiduciary duty to the
corporation,” Pyne v. Jam. Nutrition Holdings Ltd., 497 A.2d
118, 131 (D.C. 1985) (citations omitted), but that duty attaches
only if the trustee is actually a trustee. The charter, not the
bylaws, originally created the position of trustees, and it is
therefore relevant to whether the current trustees qualify as
trustees. But even though the charter is “necessarily raised” in
that loose sense, it does nothing to establish federal jurisdiction
because the legal status of the current trustees is not “actually
disputed.” Gunn, 568 U.S. at 258.
The scope of the Board’s authority under the charter was
otherwise implicated only because Howard argued before the
District Court that the Alumni’s interpretation of the bylaws
was inconsistent “with the broad discretion” the charter grants

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the Board. Jenkins, 2023 WL 1070552, at *3 (citing Howard’s
brief in opposition to remand). At oral argument, Howard
similarly pointed to an inconsistency between the charter’s
quorum provision and the bylaws’ quorum requirement cited
in the amended complaint.
Howard may choose to highlight what it views as conflicts
between the bylaws and charter to defend against the allegation
that the Board acted inconsistently with its fiduciary duties and
authority, but invoking federal law in a defense does not create
federal jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386,
393 (1987) (“[I]t is now settled law that a case may not be
removed to federal court on the basis of a federal
defense, . . . even if the defense is anticipated in the plaintiff’s
complaint, and even if both parties concede that the federal
defense is the only question truly at issue.” (citation omitted));
see also Louisville & Nashville R.R. Co. v. Mottley, 211 U.S.
149, 152–53 (1908); Chartered Pub. Sch., 930 F.3d at 491
(“[I]t is black-letter law that an anticipated federal defense does
not substantiate federal-question jurisdiction.” (citation
omitted)).
Turning from the District Court’s analysis, we now explain
why Bender v. Jordan, 623 F.3d 1128 (D.C. Cir. 2010), upon
which Howard relied heavily during oral argument, does not
show that this controversy satisfies Grable. Bender involved a
breach of contract dispute between a bank and its directors. Id.
at 1129. This Court held that the case presented a federal
question under Grable because a federal regulation required the
parties to enter into the allegedly breached agreement and the
“parties’ legal duties turn[ed] almost entirely on the proper
interpretation of that regulation.” Id. at 1300–31 (citation
omitted). Recognizing that federal jurisdiction is disfavored in
disputes raising “fact-bound and situation-specific” questions
but favored in cases presenting “nearly ‘pure issue[s] of law,’”

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id. at 1130 (quoting Empire Healthchoice Assur., Inc. v.
McVeigh, 547 U.S. 677, 700–01 (2006)), Bender rested its
conclusion on the purely legal question presented—what did
the governing federal regulation require?
This fact-versus-law distinction weighs against federal
jurisdiction here because the Alumni’s breach of fiduciary duty
claim is riddled with fact-bound questions about how the
Board’s conduct stacked up against the bylaws. Even if the
charter functions like the federal regulation in Bender, the
Alumni’s requested relief does not turn at all, much less
“almost entirely,” on the charter’s interpretation. Id. at 1131.
The record before us simply does not support Howard’s
assertion that the Alumni “necessarily raise a federal issue
because their right to relief turns on the interpretation of the
federal charter.” Appellees’ Br. 21. In fairness, the charter
does vest the Board with governing authority and require the
Board to enact lawful bylaws. Perhaps the Alumni’s suit would
necessarily implicate the charter if the Alumni were
challenging the Board’s authority to enact bylaws in the first
instance or arguing that such bylaws were inconsistent with the
laws of the United States—but the Alumni make no such claim.
Rather, the Alumni’s request for relief rests solely on the bylaw
provisions they claim the Board failed to follow. As Howard’s
counsel conceded at oral argument, not every case based on the
bylaws will create a substantial federal question. Oral Arg. at
23:48–24:19. We fail to see one here.
In sum, the District Court erred in holding that the
Alumni’s amended complaint necessarily raises a significant
and actually disputed federal issue. Because our disagreement
with the District Court on this is fatal to federal subject matter
jurisdiction, we need not address Grable’s other requirements.

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Gunn, 568 U.S. at 258 (federal jurisdiction is proper only
“[w]here all four [Grable] requirements are met”).
III.
For the foregoing reasons, the District Court lacked
jurisdiction over the Alumni’s suit. We therefore reverse and
remand to the District Court with instructions to dismiss this
case without prejudice for lack of subject matter jurisdiction.
So ordered.

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