Peggy Childers v. The Chesapeake and Potomac Telephone Company, a New York Corporation David Charles Seal Ray N. Brown, M.D. Robert E. Gerring

PHILLIPS, Circuit Judge,

dissenting:

I disagree with two critical aspects of the majority opinion, and with the resulting judgment of the court.

I

I disagree first and principally with the broad threshold holding that upon the removal of a union employee’s state-law tort action on an employer-defendant’s claim of federal § 301 preemption, a federal removal court can dismiss the state-law action on the merits, without ever addressing the preemption question, if the “invalidity” of the state-law claims as pleaded is “apparent.” At 1260. This implies that without first deciding that it has any basis in federal jurisdiction, a federal court may summarily dismiss such an action on the merits for failure of the complaint to state a claim under state law. The majority justifies this seemingly drastic result by drawing on a proposition that, so far as I am aware, is asserted a priori: that a federal removal court has jurisdiction to decide a state-law claim on the merits as an aspect of determining its own jurisdiction. At 1260. 1

*1268 As indicated, I know of no basis for this proposition and the result to which it leads, either in specific precedent or in general removal and preemption principles. 2 Indeed, it appears to me to fly directly in the face of the relevant concerns of comity and federalism that underlie both of those principles. It could allow a wholly meritless claim of § 301 preemption to empower a federal court to dismiss on the merits a removed state-law action over which the federal court had no possible basis for exercising subject matter jurisdiction. Indeed, this approach precludes any true inquiry by the federal court into its jurisdiction. By directing the court’s threshold and potentially dispositive inquiry into the merits of the claim under state substantive law, jurisdiction is effectively bootstrapped 3 in the very process of rejecting the claim on the merits.

Looked at from the perspective of the state court plaintiff deprived of her forum of choice and of the state courts deprived of jurisdiction by this means, the comity and federalism concerns are even more stark. If the claim of preemption is merit-less (or even frivolous) — a possibility that is never addressed by any court under the majority’s regime — the state court plaintiff winds up having her state-law claim dismissed on the merits by a federal court which in objective fact has no power to decide it. If the state-law claim’s viability turns on an unsettled or novel question of state common law, that question winds up being decided by a federal court whose jurisdiction has never been determined and may not exist, rather than by the state courts primarily charged with the development and explication of state common law.

For these reasons, I believe the majority’s basic holding is simply wrong on general principles. If asked to identify more specific error I would find it in the court’s perception that “a federal court has jurisdiction in a removed § 301 action to address the merits of alleged state-law claims during the course of determining its own jurisdiction_” At 1260. From the analysis that follows this assertion, it is plain that by this the majority means that the proper first step for any federal court confronted upon removal with an assertion of § 301 preemption is to address the substantive sufficiency of the state-law claim as pleaded under state law (presumably whether or not its substantive sufficiency has been challenged by the defendant). On this view, a preemption inquiry is then required only if the court first decides that a “colorable” state claim has been stated, at 1262, presumably under the normal stan *1269 dards for assessing the substantive sufficiency of claims as pleaded. If, however, the court decides that no “colorable” state-law claim has been stated, no preemption inquiry is required; the action is properly dismissed on the merits under state law, and that is the end of it.

I believe that in this the majority simply misperceives the extent to which, and the purpose for which, a federal court must necessarily inquire into a removed state-law “cause of action” in resolving a claim of § 301 preemption. There is no doubt that some federal inquiry into the “state-law cause of action” is now required to apply the “independent claim” test of § 301 preemption under Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 , 108 S.Ct. 1877 , 100 L.Ed.2d 410 (1988). But that inquiry need only identify the essential elements of the general cause of action pleaded in order to tell whether adjudication of such a claim would necessarily require interpretation of a collective bargaining agreement. That is the limited purpose and function of the § 301 preemption inquiry as now mandated by Lingle. See id., 108 S.Ct. at 1881-83 (analysis focussed upon elements of state tort remedy as generally applied). Making such an inquiry obviously does not require deciding the state-law claim on the merits. And because federal jurisdiction here depends entirely upon § 301 preemption, deciding the claim on the merits cannot properly precede and thereby finesse the preemption/jurisdictional inquiry. 4

In sum, and with all respect, I think the majority has converted the true principle that inquiry into the nature of a removed state-law cause of action is a necessary first step in conducting the § 301 preemption/jurisdictional inquiry into a general license for federal court adjudication of removed state-law claims without any inquiry into the asserted basis for the federal court’s removal jurisdiction. Considerations of economy and repose obviously cannot justify the fundamental intrusion on state sovereignty interests that results from such an assumption of federal and ouster of state jurisdiction. 5

From this it follows that I think the court errs here in finessing the difficult preemption issues which, in my view, were rightly addressed but wrongly decided by the district court. Because I think we should reverse the district court’s preemption decision, I turn to that.

II

As the majority opinion recites, the plaintiff here alleged three types of Maryland common law tort claims whose preemption under § 301 was then put in issue. One involved a single claim of wrongful discharge in violation of state public policy against retaliation for filing a workers’ compensation claim. Another involved a single claim of wrongful discharge in violation of state public policy against employment discrimination on the basis of worker handicap. Another involved multiple claims of intentional infliction of emotional distress growing out of various disputes over employment terms and conditions. Effectively, for preemption purposes, this presented only two distinct tort remedies requiring separate analysis: one involving two claims, for abusive or wrongful discharge in violation of state public policy; the other, involving four claims, for intentional infliction of emotional distress.

The district court, directly addressing the preemption issue, found both types of state tort remedies, hence all claims, preempted. *1270 In summary, the court concluded that because the issue necessarily raised by both types of state tort claims were “inextricably intertwined” with any provisions of the collective bargaining agreement regarding the employer’s duty of care, the state tort claims were preempted. The district court’s analysis was based upon its understanding of pre-Lingle decisions of the Supreme Court. Lingle , decided later, made clear that the district court’s understanding of those earlier decisions and hence its preemption analysis was wrong.

As indicated in Part I of this opinion, Lingle emphasized what may not have been too clear from those earlier decisions — that the proper inquiry is whether the state-law claim can be adjudicated independently of, i.e., without any need for interpretation of the relevant collective bargaining agreement, not whether there would necessarily be factual overlap between any state-law analysis and a contractual analysis under such an agreement. The Lingle Court, in the process of disapproving the very analysis employed by the court of appeals in that case and the district court here, put it this way:

[Ejven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is “independent” of the agreement for § 301 preemption purposes.

108 S.Ct. at 1883 .

Under the analysis mandated by Lingle , I would hold that none of plaintiffs’ state law claims was preempted by § 301.

I will take the intentional infliction of emotional distress and abusive discharge claims in that order.

A

Under Lingle’s preemption analysis, the first step is to identify the essential elements of the Maryland state-law tort of intentional infliction of emotional distress. As recently discussed by the Maryland Court of Appeals in Young v. Hartford Accident & Indemnity Co., 303 Md. 182 , 492 A.2d 1270, 1277 (1985), those elements are: (1) extreme or outrageous conduct by a defendant, which (2) was done recklessly or with the intent to cause emotional distress, and (3) did cause severe emotional distress (4) under circumstances not privileged by the fact that the defendant was simply insisting upon his legal rights in a permissible way. I would hold that such a tort claim is not preempted by § 301 under Lingle’s “independent claim” test.

At first blush it might appear that adjudication of such a tort claim would necessarily require interpreting the relevant collective bargaining agreement — particularly with respect to element (4), the lack of any “permissible exercise of legal right” privilege — in order to assess the possible justification for the defendant-employer’s conduct. A series of Ninth Circuit cases seemingly adopts this view in finding comparable state-law emotional distress claims preempted. See, e.g., Newberry v. Pacific Racing Assoc., 854 F.2d 1142 (9th Cir.1988) (adjudicating state-law claim requires decision on justification for conduct under collective bargaining agreement); Miller v. AT & T Network Systems, 850 F.2d 543, 550 (9th Cir.1988) (“requires inquiry into appropriateness of the defendant’s behavior”).

With all respect, I think this analysis is flawed. A comparable analysis would lead to preemption of state-law retaliatory discharge claims of the very type found not preempted in Lingle itself. With respect to that tort too it could be said that to determine whether a discharge was “retaliatory” a court must necessarily look to the collective bargaining agreement for its possible justification of the discharge, e.g., to whether it was for any “just cause” recognized by the agreement. That indeed was the analysis employed to find preemption by the court of appeals in Lingle , an analysis then specifically rejected by the Supreme Court. See Lingle, 108 S.Ct. at 1882-83 (whether reason for discharge was nonretaliatory requires “factual inquiry [that] does not turn on the meaning of any provision of a collective-bargaining agreement”); cf. Allis-Chalmers v. Lueck, 471 U.S. 202, 216 , 105 S.Ct. 1904, 1913 , 85 L.Ed.2d 206 (1985) (state tort remedy for *1271 bad-faith handling of claim for disability benefits authorized in collective-bargaining agreement preempted because duty of insurer in handling claims necessarily “ascertained from a consideration of the contract itself”).

Just as the Lingle Court recognized that adjudication of a state-law retaliatory discharge claim “might well involve attention to the same factual considerations as the contractual determination of whether someone was fired for just cause,” 108 S.Ct. at 1883 , so adjudication of a state-law emotional distress claim “might well involve attention to the same factual considerations as the contractual determination” of whether the conduct alleged was a permissible exercise of employer rights. But just as the parallelism between the state tort remedy for retaliatory discharge and the contractual grievance of a “no just cause” discharge were held in Lingle not to give rise to preemption, neither should the mere parallelism between an emotional distress claim and a contractual grievance of the same underlying conduct. Quite unlike the state-law claim at issue in Allis-Chalmers , a state-law emotional distress claim may be adjudicated without any need to interpret the meaning of a collective-bargaining agreement between the parties.

I would therefore hold the emotional distress claims here independent of such an agreement, so not preempted by § 301, and would remand them to the state court from which they were removed.

B

The question of the possible preemption of Childers’ two claims of “abusive discharge” for violation of separate state policies — one found in Maryland’s workmen’s compensation law, the other in its handicapped workers law — is more difficult.

It would not be at all difficult if the “abusive” or “retaliatory” discharge tort recognized in Maryland were unmistakably the same abusive discharge tort as that generally recognized — increasingly in recent time — in many states. As generally recognized, such a claim requires proof that (1) the employee was discharged or threatened with discharge (2) for reasons violative of a recognized public policy of the state. See, e.g., Kelsay v. Motorola, Inc., 74 Ill.2d 172 , 23 Ill.Dec. 559 , 384 N.E.2d 353 (1978); Harless v. First Nat’l Bank in Fairmont, 162 W.Va. 116 , 246 S.E.2d 270 (1978). Under the Lingle independent claim test, such state-law tort claims are not preempted by § 301 — indeed this was precisely the type state-law claim held not preempted in Lingle, 108 S.Ct. at 1882-83 (claim of retaliatory discharge for filing state workers’ compensation claim).

In 1981, Maryland’s highest court, answering a question certified to it by a federal district court, recognized the existence of such a tort remedy in Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981), an action brought by a nonunion employee. As there recognized, its elements were the same as those generally recognized in other states, see id., 432 A.2d at 473 , and the Adler court did not purport to limit this remedy to nonunion employees.

In 1988, however, Maryland’s highest court held in Ewing v. Koppers Co., 312 Md. 45 , 537 A.2d 1173 (1988), a union employee’s action claiming retaliatory discharge for filing a workers’ compensation claim, that when asserted by such an employee, the Adler tort remedy was substantially curtailed. Specifically, the remedy could only be made available to union employees as a supplemental remedy to any contractual remedy for the same employer conduct previously awarded in arbitration under a labor contract. So construed, the remedy could only be asserted after a favorable resort by the employee to such grievance procedures; if such a grievance was pursued and rejected, no state claim could be maintained. 6

The majority here, addressing the union employee’s Adler tort claims on the merits, *1272 interprets Ewing as a deliberate decision by the Maryland Court of Appeals to accommodate state law to federal preemption law by shaping the state tort remedy in a way that avoids any possibility of inconsistent results between federal arbitration and state court adjudications respecting the same employer conduct. At 1264-1265. In the majority’s view, this reflected a considered judicial decision that as a matter of state labor policy the tort remedy should be so limited in deference to, but not under compulsion of, the federal labor law policies reflected in § 301. Id. at 1265.

This leads to my second point of disagreement with the majority. Looking at Ewing for the related, but distinctly separate, purpose of assessing its impact on the preemption inquiry mandated by § 301, I would interpret it quite differently. In my view, Ewing’s curtailment of the Adler tort remedy for union employees reflects an erroneous perception that § 301 compelled the curtailment; that only in such a modified form could the state tort remedy avoid outright preemption when brought by a union employee. Rightly read, that is, Ewing indicates a state judicial perception that but for federal preemption under § 301, the Adler remedy should be equally available to union and nonunion employees insofar as state policy interests are concerned. See Makovi v. Sherwin-Williams Co., 75 Md.App. 58 , 540 A.2d 494, 497 (1988) (post-Adler state court decision so reading Ewing). Put somewhat differently, Ewing reflects a judicial intention to give the Adler tort remedy the widest reach possible for union employees under federal preemption law, 7 not, as the majority reads it, a judicial intention voluntarily to yield primacy, as a matter of state labor law policy, to parallel federal policies and mechanisms for resolving labor disputes.

As indicated, I believe that in holding as it did, the Ewing court simply (and understandably) misinterpreted federal preemption law as it stood in the pre-Lingle period. Lingle itself, decided some three months after Ewing , expressly held that exactly the same type tort claim by a union employee under Illinois law was not preempted under the appropriate preemption test. 8

*1273 I am satisfied that the Maryland courts, if confronted with the same type abusive discharge claim today, would hold, consistent with Lingle’s clarification, that the Adler tort remedy for abusive discharge is the same for union as for nonunion employees. 9

On that basis, I would hold here that Childers’ state-law tort claims for abusive and retaliatory discharge are not preempted by § 301, and accordingly would remand them to the state court from which they were removed.

. Having held this at the outset, the majority thereby avoids review of the principal issue actually briefed and argued by the parties — whether the district court erred in finding the state-law claims preempted under § 301. Avoiding that concededly difficult issue (actually several issues), the majority affirms on a theory never raised by the parties nor addressed by the district court: that the state-law claims could and should properly have been dismissed on the merits under state law, because "a federal court has jurisdiction in a removed § 301 action to address the merits of alleged state-law claims during the course of determining its own juris-diction_” At 1260. Aside from the substantive error that I think this entails, the procedure is equally questionable. We may certainly decide cases on such completely new theories in appropriate circumstances; but this seems to me almost certainly not such a case. See Singleton v. Wulff, 428 U.S. 106, 119-21 , 96 S.Ct. 2868, 2876-78 , 49 L.Ed.2d 826 (1976) (court of appeals decision on the merits was "an unacceptable exercise of its appellate jurisdiction” where district court had dismissed solely on standing grounds, defendant had argued only that issue, and issue resolved by court of appeals was not beyond doubt).

My concern here that we not decide this case on the basis of a new theory is distinguishable from the majority’s appropriation of the Singleton standard — a standard on which we do not *1268 disagree — for authority that it may address the state claims for the first time on appeal because their proper resolution is supposedly beyond doubt. At 1263 n. 1.

. The one case the majority cites in support, Caterpillar, Inc. v. Williams, 482 U.S. 386 , 107 S.Ct. 2425 , 96 L.Ed.2d 318 (1987), does not stand for the proposition named, that a federal court "possesses the discretion to address a state claim on its merits in the process of determining its own jurisdiction_" At 1263. As I have noted elsewhere, in Caterpillar as

[i]n each of the principal Supreme Court cases dealing with the preemption of removed or pendent state-law claims, the state-law claim directly in issue was one whose existence and essential elements were indisputably established under state law and could simply be referred to by the federal court as there defined.

Washington v. Union Carbide Corp., 870 F.2d 957 , 965 n. 2 (4th Cir.1989) (Phillips, J., dissenting) (citations omitted).

Further, the majority cannot rely on our prior decision in Washington for the proposition that "district courts possess the discretion to dismiss insubstantial state claims both in original and removed cases_" At 1263. This was not "made clear,” id., in Washington , for that case addressed district court discretion only where state claims were pendent to original federal jurisdiction. It is precisely the extension of that holding to removal cases that is here at issue.

. A form of bootstrapping that goes far beyond the traditionally accepted form in which a jurisdictional determination not directly challenged may effectively create jurisdiction under res ju-dicata principles by precluding collateral attack. See Durfee v. Duke, 375 U.S. 106 , 84 S.Ct. 242 , 11 L.Ed.2d 186 (1963). It may be that the majority has sought to bring the process here within this accepted form by suggesting that the merits determination here is in some way a part of the process of determining the removal court’s jurisdiction by preemption. At 1262. But this directly contradicts the majority’s basic premise that if the state-law claim is found "invalid," this avoids any need to make a determination of jurisdiction by conducting a preemption inquiry. At 1260.

. This differentiates the situation here from one in which the claim of § 301 preemption is with respect to a state-law claim as to which there is another, independent basis for federal jurisdiction, i.e., pendent or diversity. In the latter situation, there can be no question of the federal court's jurisdiction to decide such a claim whether or not it is found preempted; the only question could be the propriety of doing so where it is found not preempted. See, e.g., Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir.1989).

. As apparent, my concerns about whether a federal removal court may, as an aspect of determining its jurisdiction, decide state-law claims on the merits is quite other than “a simplistic model of federalism based on the notion that only state courts may decide questions of state law and only federal courts may decide questions of federal law." At 1263.

. In Ewing , this holding resulted in dismissal of the employee’s retaliatory discharge claim because in earlier arbitration of his parallel grievance under the collective bargaining agreement, it was determined that he had been discharged for "good cause.” 537 A.2d at 1178-79 . In a later case, Allen v. Bethlehem Steel Corp., 76 Md.App. 642 , 547 A.2d 1105 (1988), Maryland’s intermediate appellate court applied the other side of Ewing's holding to uphold a union employee’s right to maintain an Adler tort action following successful arbitration of his parellel *1272 grievance under the collective bargaining agreement.

. There are plain indications in the Ewing opinion that this was the basis and purpose of the court’s modification of the Adler remedy for union employees. The court opened by stating that, "[r]esolution of this appeal requires consideration of the scope of federal pre-emption in the field of labor law, as well as consideration of the doctrine of mutual collateral estoppel." 537 A.2d at 1173 . After noting that the abusive discharge claim recognized in Adler was that of an at-will nonunion employee, the court emphasized that the policy which underlay its recognition there was equally applicable to union employees under collective bargaining agreements, and therefore specifically held that the claim also “exists in favor of union employees.” Id. at 1175. Then, however, the court observed that the question remained "whether federal preemption principles preclude recovery in this case” by such an employee. Id.

From that point on, the unmistakable thrust of the opinion is to curtail the Adler claim only so far as compelled by federal preemption law. The court first concluded, though tentatively, that Congress may not have intended § 301 completely to preempt all such state tort claims, and that state interests were sufficiently powerful that union employers should not be allowed completely to opt out of state regulations protective of those interests. Id. at 1177-78. But the court then concluded that federal preemption policies at least compelled first resort to collective bargaining contract grievance procedures to determine, with preclusive effect, “the issues with respect to the discharge.” Id. Inexorably then, the court held that federal preemption law left room only for the prosecution by union employees of claims for “supplemental” state tort remedies after arbitration of a parallel grievance under the labor contract had yielded a favorable result. Id. Hence, on the facts of the case before it, federal preemption law precluded maintenance of the claim because of a prior adverse labor arbitration decision. Id. at 1179. In the court’s express view, “it is manifestly clear that § 301 does not permit” a state tort claim to succeed where this would be inconsistent with facts determined in arbitration of a parallel labor contract grievance. Id. at 1178.

. In specific terms, Lingle points up two ways in which the Ewing court misinterpreted then extant federal preemption law. First, in its basic understanding of the preemption test as formulated in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 , 105 S.Ct. 1904 , 85 L.Ed.2d 206 (1985), upon which the Ewing court primarily relied. Just as did the court of appeals in Lingle (and as had other lower federal courts) the Ewing court apparently misread the import of the statement in Allis-Chalmers that the test of preemption is *1273 “whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” 471 U.S. at 213 , 105 S.Ct. at 1912 . The Ewing court, with others, understandably interpreted this essentially to mandate an inquiry into whether there are common issues necessarily to be addressed in arbitrating and adjudicating parallel labor contract grievances and state-law claims respecting the same employer conduct. See Ewing, 537 A.2d at 1176-77 . Lingle , clarifying the test, emphasized that a proper inquiry into the "independence” of the state law claim focussed not upon the possibility of "overlap" of issues between the two parallel proceedings, but upon whether adjudication of the state-law claim would inevitably require interpretation of the labor contract. Lingle, 108 S.Ct. at 1882-83 . Mere “parallelism" of the two analyses, said the Lingle Court, does not "render[ ] the state-law analysis dependent upon the contractual analysis.” Id. at 1883.

In a related way, Lingle flatly rejects the Ewing court's perception (again, quite an understandable one at the time) that the preemption policy expressed in § 301 at a minimum requires, as a precondition to maintenance of a state-law claim, the prior exhaustion of labor contract grievance procedures in order to insure primacy for the critical determinations made pursuant to federal law and procedures. Instead, as the Lingle Court pointed out, preemption law does not preclude the possibility that a state-law claim challenging particular employee conduct might succeed despite an arbitrator’s decision that the same conduct violated no labor contract rights of the employee. Lingle, 108 S.Ct. at 1885 .

. Though the purpose of this federal court inquiry into the current state of state law is not the usual one of finding the appropriate rule of decision to apply in resolving an issue on the merits, I see no reason why the usual principles guiding the federal court’s search are not in play here as well. The purpose of this search is the closely related one of identifying the elements of a state-law tort claim for purposes of deciding whether, as defined by state courts, it is federally preempted. Here as in the more usual context we must be "free ... to consider all the data the highest court of the state would use in an effort to determine how the highest court of the state would decide.” C. Wright, Federal Courts 373 (4th ed. 1983). Certainly preeminent among that data would be a decision of the Supreme Court of the United States drawing directly in question critical premises of the state’s highest court’s most recent pronouncement on the nature of the remedy.