David A. Davis v. Ohio Barge Line, Inc., a Corporation, and National Maritime Union of America, Afl-Cio, Port of Pittsburgh

ALDISERT, Circuit Judge,

dissenting.

I would affirm the judgment of the district court, dismissing for want of federal jurisdiction, essentially for the reasons set *557 forth by District Judge Maurice B. Cohill, Jr., Davis v. Ohio Barge Line, Inc., 535 F.Supp. 1324 (W.D.Pa.1982).

Although I agree with Judge Cohill, I quickly admit that a very respectable case can be made for the opposite result, as the majority forcefully demonstrate. Of the four federal judges who have carefully examined this matter, two find federal jurisdiction, and two do not. By virtue of the assignment of competence in the judicial hierarchy, however, a total calculus does not control, and only the arithmetic in the court of appeals is conclusive.

What divides us here is not an earthshaking matter, and, in a phrase often used by Judge Wade H. McCree, Jr., when he served as Solicitor General, “the Republic will still stand” if federal jurisdiction is found to exist in this case. We are divided merely because of differing value judgments about whether this labor case belongs in federal court or in state court.

In resolving this issue, two important legal principles compete for our attention: (1) because federal courts are courts of limited jurisdiction, we must presume that state courts have jurisdiction absent a contrary showing, for “it would not simply be wrong but indeed would be an unconstitutional invasion of the powers reserved to the states if the federal courts were to entertain cases not within their jurisdiction;” 1 and (2) § 301(a) of the Taft-Hartley Act is not to be “read ... narrowly as only conferring jurisdiction over labor organizations,” Textile Workers v. Lincoln Mills, 353 U.S. 448, 456 , 77 S.Ct. 912, 918 , 1 L.Ed.2d 972 (1957). 2

It is well established that § 301(a) is available to vindicate individual employee rights arising from a collective bargaining agreement. 3 It provides for “[sjuits for violation of contracts between an employer and a labor organization representing employees.” The jurisdictional question is decided in each case by letting the axe fall somewhere between two extremes: the federal court pole, where the employee’s grievance is based on the interpretation or application of the specific text of the bargaining agreement; or the state court pole, where the bargaining agreement bears no relationship to the employee’s grievance.

The present case rests somewhere between the two poles, but I place it closer to the state court pole. I agree with Judge Cohill that the essence of the complaint is a claim of wrongful discharge in breach of a provision in Davis’ private settlement agreement (count one), and a request that the court vacate or modify the arbitrator’s award because the arbitrator either ignored or improperly construed provisions of that settlement agreement (count two). To be sure, the plaintiff averred a violation of the collective bargaining agreement, as more particularly set forth by the majority. But I do not think that surplusage in a complaint is sufficient to sustain federal jurisdiction. Averred facts—not asserted abstractions—control. To make a naked averment that diversity jurisdiction obtains when the pleaded facts show that the parties are from the same state will not invest the federal court with authority to hear the case. Similarly, to make a naked averment that a grievance comes under a collective bargaining agreement will not confer federal jurisdiction when the averred facts that describe the specific contours of the grievance do not purport to show a bargaining agreement violation.

Where the law gives no rule, the demand of the plaintiff must furnish one; but *558 where the law gives the rule, the legal cause of action, and not the plaintiff’s demand, must be regarded.

McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182 , 56 S.Ct. 780, 782 , 80 L.Ed. 1135 (1936) (quoting Wilson v. Daniel, 3 U.S. (3 Dall.) 401, 407, 408 , 1 L.Ed. 655 (1798)).

Thus, to me the issue is not whether § 301(a) should be construed narrowly or broadly; rather, it is whether § 301(a) is in the case at all. I do not think it is. I recognize, of course, that a respectable school of thought believes that the federal courts should assume, or even reach out for, jurisdiction if a litigant incants a naked averment of our jurisdiction, irrespective of the absence of a federal interest in the pleaded factual underpinning of the claim. I have never subscribed to that theory in the past, nor do I do so here. Federal judges are the final arbiters of whether a case comes within our gigantic power and authority. But at all times we should heed the admonition of the Bard of Stratford-onAvon:

O, it is excellent To have a giant’s strength, but it is tyrannous To use it like a giant. 4

. C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3522, at 45 (1975) (citing cases).

. In Smith v. Evening News Association, the Court noted that

Textile Workers v. Lincoln Mills ... of course, has long since settled that § 301 has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts. There is no constitutional difficulty and § 301 is not to be given a narrow reading.

371 U.S. 195, 199 , 83 S.Ct. 267, 269-270 , 9 L.Ed.2d 246 (1962).

. See cases collected in Smith v. Evening News Association, 371 U.S. at 199-200 , 83 S.Ct. at 269-270 .

. W. Shakespeare, Measure for Measure, II, ii, 107-08 (The Riverside Shakespeare 309 (Houghton-Mifflin Co. 1974)).