Petition for Writ of Certiorari — In Re Gerald Nelson, Petitioner

►.

,25-6193

In Supreme Court of The United States

OFFICE OF THE CLERK

SUPREME COURT, U.S,

---------------------

In Re Gerald Nelson

ORIGINAL

PETITION FOR A WRIT OF MANDAMUS

FROM THE UNITED STATES COURT OF

APPEAL THE SECOND CIRCUIT

Gerald Nelson

Pro Se/Petitioner

293 Ralph Avenue 2nd FL.

Brooklyn,New York 11233

Tel-347-737-2217

Email-rockynelson234@gmail.com

B

QUESTION PRESENTED

This dispute concerns original jurisdiction and subject matter jurisdiction

conferred over this action, pursuant to 28 U.S.C. Section 1331 , because

Plaintiff-Appellant Gerald Nelson (“Nclson”)raiscd claims under section 301 of the

Labor Management Relations Act (“LMRA”) .Nelson commenced this action in

the Supreme court for the state of New York,County of Kings No. 537/22. On

August 25 ,2022 against New York City Transit Authority (‘ NYCTA “), The case

was then removed to federal court by NYCTA on October 12, 2022. December 11,

2023, Nelson filed an Amended Complaint and added Transportation Workers

Union Local 100 (“TWU”) as a defendant.The District Court dismissed the case

based on 12 (b)(6) , failure to state a claim, The Court of Appeals Affirmed,

stating: “Nelson challenges the district court jurisdiction.

1. According to the principles established in In re Winn, 213 U.S. 458 (1909), is a

writ of mandamus the appropriate remedy for compelling a Circuit court to remand

a case to state court when the removal was improper?

2. Under the well-pleaded complaint rule articulated in Caterpillar INC. v.

Williams, 482 U.S. 386 (1987), can an employer and union successfully remove a

case to federal court if their only argument for federal jurisdiction is a defense of

complete preemption under section 301 of the LMRA?

3. What are the jurisdictional boundaries between state and federal courts for

section 301 labor cases, as defined by concurrent jurisdiction recognized in

Charles Dowd Box Co. v. Courtney 368 U.S. 502 (1962)?

4. Does intentional misrepresentation ,false and misleading statements to

establish original jurisdiction meet the high bar for proving fraud upon the court,

or is it a lesser form of misconduct?

LIST OF PARTIES

New York City Transit Authority , Transportation Workers Union Local 100

ii

Table of Contents

Table of Authorities—-------------------------------------------------------------- IV

Questions Presented---------------------------------------------------------------------- i

List of Parties----------------------------------------------------------------------------- ii

I. Order and Opinion Below—---------------------------------------------------------1

II. Jurisdiction-------------------------------------------------------------------------- 1

III. Constitutional And Statutory Provisions-------------------------- ---------------1

IV. Statement Of The Case---------------------------------------------------------------1,2

V Background And Reason For Granting The Writ----------- 3,4,5,6,7,8,9,10,11,12

A. Removal of State Court 301 labor Petition without original Jurisdiction.

VI. No Other Adequate Means to relief exist— ---------------------------------- 12, 13

VII. Conclusion— ------------------------------------------------------------------------ 13

iii

Table of Authorities

Cases:

page(s)

Armstrong v. Alliance Trust 126 F2d 164 (5th Cir. 1942)--------------------- 6

Arbraugh v. Y&H Corp. 546 U.S. 500 (2006)----------------------------------- 9

Boston C. Mining Co. v. Montana Ore. Co. 186 U.S. 632 (1903)------------- 3

Caterpillar Williams 482 U.S. 386 (1987)--------------------------------------- 10,11

Charles Dowd Box Co. Inc. v. Courtney 386 U.S. 502 (1962)----------------- 2,5.7,8

Delcostello v. Inti. Blvd, of Teamster 462 U.S. 151 (1983)--------------------- 4

Ex Parte Wisner 203 U.S. 449 (1906)------------------------- --------------------3

Green v. Department of Education of City of New York 16 E 4th 1070 (2d Cir.)—9

Ire Winn 213 U.S 458 (1909)------------------------------------------------------- 9,12,13

Louisville & NR Co. v. Mottley 211 U.S 149 (1908—------------------------ 9,12

Marbury v Madison 5 U.S. 137 (1803)--------------------------------------------------- 8

Royal Cahin U.S.A. Inc. v. Wullsleger 604 U.S. 22 (2025)-------------------------- 8

Steel Co. v. Citizens For Better Environment 523 U.S. 83 (1998------------------- 4

Statues & Other Authorities

301 Labor Management 28 U.S,C. section 185(a)-------------------- 1,2,3,7,8,10,11

28 U.S.C. section 1441----------------------------------------------------- 1,10

28 U.S.C. section 1331----------------------------------------------------- 1,10

28 U.S.C. section 1651------------------------------------------------------1

28 U.S.C. section 1254------------------------------------------------------ 1

Fed. R. Civ. P. 12 (b) (6)----------------------------------------------------- 1,4,12

IV

Statutes and Other Authorities

Constitution and Laws of the United States 25 Stat, at 433,434, Chap. 866,

U.S. Comp. Stat. 1901, pp. 508,509------------------------------------------------ 9

Fed. R. Civ. P. Rule 60 (b)---------------------------------------------------------- 2,3

28 U.S.C section 1446----------------------------------------------------------------10

V.

I. ORDER AND OPINION BELOW

Report and Recommendation 22 -cv-6112 Bloom, United States Magistrate Judge.

08/07/23, Order Adopting Report and Recommendation 09/29/23.

On September 26, 2024 Court of Appeals Second Circuit entered a summary order,

that affirmed district court dismissal of Nelson case ,that was removed from state

court to federal court under 301 Labor Management Related Act.

The Court of Appeal stated in the summary order that Nelson's case could be

removed based on 28 U.S.C. section 1441 (and federal question jurisdiction exists

for “all civil actions arising under the Constitution, laws ,or treaties of the United

States, “ 28 U.S,C. section 1331.(summary order is attached), Writ of certiorari

denied on May 27, 2025 , Petition for rehearing denied on October 6, 2025.

IL JURISDICTION

Jurisdiction to grant the writ of mandamus sought by petitioner is conferred on this

Court by 28 U.S.C.section 1651 in aid of its jurisdiction pursuant to 28 U.S.C.

section 1254.

III. CONSTITUTIONAL AND STATUTORY PROVISIONS

Construed and interpreted, explicitly, Fed. R. Civ. P. 12 (b)(6), hybrid 301/duty of

fair representation claim,28 U.S.C. section 1441(a), and 28 U.S.C. section 1331.

These provisions are set forth in Nelson's case and in the summary order of the

Court of Appeals.

IV. STATEMENT OF THE CASE

On October 12, 2022, NYCTA removed the action to federal court.

On December 11, 2023 ,Nelson filed the Amended Complaint which replead

The claim for breach of contract and duty of fair representation.The Amended

The complaint added TWU as a named party.

On August 7, 2023, Magistrate Judge Bloom issued the R&R. Thereafter,

Nelson timely filed objections to the R&R.

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On October 7, 2023 , Nelson filed a motion pursuant to Fed R. Civ. P.

60 (b). The District denied Nelson 60 (b) for lack of subject matter jurisdiction.

On November 29, 2023, Appellant filed a notice of appeal of the Dismissal

Order the 60 (b) order.

On September 30, 2024 , Second Circuit affirmed the District. The Second

Circuit stated:

“Nelson’s complaint explicitly relied on section 301-a federal statute. That gave

the federal court jurisdiction and made removal proper.”

But Second Circuit summary order is not in accordance with Charles Dowd Box

Co., Inc. v. Courtney, 368 U.S. 502 (1962), which held 301 (a) LMRA, 1947,

which confers on federal district courts jurisdiction over suits for violation of

contracts between employers and labor organization representing employees in

Industries affecting interstate commerce, does not divest state courts of jurisdiction

over suits..

On May 27, 2025 , the Supreme Court of the United States denied Writ of

Certiorari.

On October 6, 2025, the Supreme Court of the United States denied Petition for

Rehearing.

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V. BACKGROUND AND REASON FOR GRANTING THE WRIT

A. Removal of state court 301 labor petition claim without original

jurisdiction

The focus of the controversy is original jurisdiction .Whether

Congress , in enacting the Labor Management Relation Act of 1947 (commonly

referred to as the Taft-Hartly Act)61 Stat. 136, 29 U.S.C. section 141, preempted to

the exclusive jurisdiction of the federal courts that the field of litigation involving

violations of collective bargaining when interstate would be affected thereby in

such a manner that the lower court in this action was without jurisdiction to hear or

determine this action .It is well settled that no cause cannot be removed from the

state court to federal court, unless it could have been brought in the district court

originally. See :Boston C. Mining Co. v. Montana Ore Co. 188 U.S. 632,640

(1903), Ex Parte Wisner, 203 U.S. 449 (1906). NYCTA defense should have been

in state court and not removed to federal court. The district court and the Court of

Appeal proceeded to decide these issues themselves , even though Nelson sought a

motion under 60 (b), and argued in the Court of Appeals that the removal was

fraudulent. The record is clear that the Circuit Court and the District court did not

have original jurisdiction. Nelson simply was deprived of his day in state court, by

the false statements made by NYCTA and TWU.

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It is a general principle that a federal Court must confirm its subject matter

jurisdiction before ruling on the merits of a case , including a dismissal under

rule 12 (b)(6) for failure to state a claim. The district court assumed jurisdiction in

Nelson’s case for the purpose of deciding that there was no valid claim.

Jurisdiction must be established as the first order of business. This Court has

stated for a Court to pronounce upon a law’s meaning or constitutionality when it

has no jurisdiction to do so, it is by very definition , an ultra vires act (See Steel

Co. v. Citizens for Better Environment, 523 U.S. 83, 84 (1998) .) This is exactly

what the district Court did when it adopted the Magistrate R &R In Nelson’s case.

( See Appendix Magistrate Judge Bloom R&R pg. 5-foote note 4).(See also

State Courts have concurrent jurisdiction. The District and the Court of Appeals

in Nelson’s case, have established removal of the case. However, there is no law

that gives federal courts exclusive jurisdiction.. Section 301 provides that an

individual employee may bring suit against its employer for breach of a collective

bargaining agreement (citing Delcostello v Inti Blvd of Teamster, 462 U.S 151 ,

164-65). Unless there is exclusive federal jurisdiction , state courts are equally

competent to apply federal and state law.

301 (a) of the Labor Management Relations Act of 1947,61 stat. 156, 29

U.S.C. section 185 p. 180. section 301 reads as follows:

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(a) Suits for violations of a contract between an employer and a labor

organization representing employees in a an industry affecting commerce

As defined in this Act, or between any such labor organization, may be

brought in any district court of the United States having jurisdiction on the

the parties.”

NYCTA removed Nelson’s case to federal court knowing that state court

had original jurisdiction, because state courts have concurrent jurisdiction. This

Court affirmed , holding that because the statute 29 U.S.C.S section 185 stated a

case “may” be brought In federal court, such language did not imply exclusive

federal jurisdiction. Where no legislative intent existed to find federal jurisdiction

was exclusive, the state was free to settle the dispute. (See Charles Dowd Box Co.

v. Courtney 368 U.S. 502 ,506,507(1962), ).

The legislative history of the enactment of section 301 of the Labor

Management Relations Act of 1947 , nowhere suggests that contrary to clear

import of the statutory language, Congress intended in enacting section 301 (a) of

the Act to deprive a party to a collective bargaining contract of the right to seek

redress for its violation in an appropriate state tribunal.

Pocahontas Terminal Corporation v. Portland Building & Construction

Trade Council et al ,93 F. Supp. 217,219,220, (1950). Stated:

“ To determine whether the Taft-Hartley Act is the real basis of the present

proceeding, this Court must ascertain:

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(1) Whether the complaint shows a controversy affecting commerce

within the meaning of that law; and

(2) Whether alleged illegality of defendants' act, as set forth in the

complaint. Necessarily stems from the Taft-Hartley Act.

These questions must be answered from the face of the complaint alone,

as filed in the state court, unaided by reference to any other pleadings

or to the petition for removal itself.

In Armstrong v. Alliance Trust Co., 5 Cir.,126 F.2d 164, 167 (1942),

the Court said: In order to sustain the jurisdiction of the United States

District Court on the ground of a federal question in a case removed

thereto from a state Court. It is not sufficient for the question to be

raised in the answer of defendant or in the petition for removal. The

federal question must clearly appear on the face of the declaration or

complaint as an essential and integral part of the plaintiff’s statement of

his own case, not an anticipation of a defense that may interposed by an

adversary party. A federal question merely incidental or collateral to

the main controversy is not the basis of the suit and is not enough to

deprive the State court of jurisdiction upon petition of removal by the

defendant”

Clearly, NYCTA and TWU knew there was no complete pr-emption under 301

labor management. It is indisputable that state courts have concurrent Jurisdiction.

The Magistrate Judge Bloom stated in the R&R ,that NYCTA and TWU stated the

defendants indeed lacked subject matter jurisdiction (see appendix Magistrate

R&R pg. 11, defendants’ motion for lack of subject matter denied).

It is not against the law for Nelson to file a 301 labor management case as a

New York Public Employee against his union and a breach of collective bargaining

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agreement against a political subdivision in New York State Court.

State Courts have concurrent jurisdiction over Nelson 301 labor management

claim (a federal statute ). The defendants cannot remove this action to federal

court, unless 301 labor management provides exclusive federal jurisdiction. Both

state and federal courts have the power to hear these types of cases.

Nelson filed his case in State Court, that court had original jurisdiction.

See Charles Dowd 368 U.S. 502 (1962).

This right was taken away from Nelson when NYCTA improperly removed

Nelson case.

The idea that federal courts can’t “create” jurisdiction is a fundamental tenet of

the U.S. federal court power. The courts are constrained by the powers granted to

them by Article III of the Constitution and subsequent legislation passed by

Congress, as they are courts of limited jurisdiction.

One of the most prominent modem cases emphasizing this strict limitation

is Steel Co. v. Citizens for Better Environment, decided in 1998. In this case, the

Supreme Court reinforced that subject-matter jurisdiction is an Article III as well

as a statutory requirement" and cannot be waived by the parties or created by the

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court itself; it must be present from the outset.

This principle is also rooted in the foundational case of Marbury v. Madison

(1803), which established that the jurisdiction of the Supreme Court is defined by

the Constitution and cannot be expanded by an act of Congress(or by the courts

themselves).

While section 301 (a) allows for removal of state-court labor cases to federal

court when there is a federal question, it does not eliminate the state court when

there is a federal question, it does not eliminate the state original jurisdiction.

Charles Dowd Box Co. v. Courtney (1962) ruling ensured that a federal court’s

decision is based on the actual terms of the labor contract and not hypothetical

ones.

Royal Canin U.S.A., Inc. v. Wullshleger 604 U.S. 22,42,43 (2025), reinforced

the importance of proper subject matter jurisdiction in removed cases .

Therefore, the principle that federal courts cannot use hypothetical jurisdiction,

stems from the fundamental constitutional requirement for subject-matter

jurisdiction as articulated in cases Steel Co. v. Citizens for a Better Environment

(1998), which applies across all federal question cases, including those removed

under LMRA.

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On page 8 of Magistrate Judge Bloom R&R , it states:

“ But this argument has two distinct concepts:federal-court subject-matter

jurisdiction over a controversy, and the essential ingredients of a federal claim for

relief Green. 16 F.4th a 176 (quoting Arbaugh v. Y&H Corn.. 546 U.S. 500,503

(2006). In Green . the Second Circuit clarified that whether a plaintiff is an

“employee” as defined by the NLRA is not jurisdictional, but rather one of “the

requirements of a cause of action under the NLRA. ...”Id. At 1076. If a plaintiff

“cannot allege that he is an employee under the NLRA, his complaint fails to state

a claim for violation of the statute” and should be dismissed pursuant to rule

12(b)(6)” Id. at 1075. Therefore, while this Court has jurisdiction over plaintiff’s

amended complaint, it should nevertheless be dismissed for failure to state a claim.

The District Judge Rachel P. Kovner adopted this analysis from the Magistrate

Judge.

But the District Court and the Court of Appeals did not have original

jurisdiction.

However, in In re Winn 213 U.S. 458 ,464,465, (1909).

“This Court indisputablely and clearly stated: It is well settled that no cause can be

removed from state court to the Circuit Court unless it could originally have been

brought in the latter Court”.

“ The only ground of jurisdiction which is or can be suggested is that the suit was

one arising under the Constitution and the and the laws of the United States. 25

State law at L. 433,434.chap. 866, U.S. Comp. Stat. 1901,pp. 508,509. It is the

settled interpretation of these words, as used in this statute conferring jurisdiction,

that a suit arises under the Constitution and laws of the United States only when

the plaintiff’s statement of his own cause of action shows that it is based upon

those laws or that Constitution. It is not enough, as the law now exists, that it

appears that the defendant may find in the Constitution or laws of the United States

some ground of defense. Louisville & N.R. Co. v. Mottley, 211 U.S. 149 If the

defendant has any such defense to the plaintiff’s claim, it may be set up in the state

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courts, and, if properly set up, and denied by the highest court of the state, may

ultimately be brought to this court for a decision”

The Defendant NYCTA made false statements in their Notice of Removal,

this is what NYCTA stated in the introduction Page 2, No.2, Page 4, No. 12 “

“For the reason set forth below, this Court has jurisdiction over this action

pursuant to Section 301 of the LMRA, and 28 U.S.C. section 1331,1441 and

1446.”

“Because the verified complaint expressly invokes 29 U.S.C.A. 185 as the basis

for a claim therein, this Court has original jurisdiction pursuant that provision and

28 U.S.C. section 1331. Therefore this action is properly removed to this Court

Pursuant to 28 U.S.C. section 1441”.

This Court directly addresses the issue of federal preemption and the

impropriety of removal in section 301 (LMRA) cases, effectively stating such

cases should have remained in state court if they do not require the interpretation of

a collective bargaining agreement ,See Caterpillar Inc. v. Williams 482 U.S.

386,398, 399 (1987). ( See also NYCTA excerpt of brief of defendant-Appelee

Page 8,9,10, 11,12, Summary of Argument, (B) ,The District Court Had

Federal-Question Jurisdiction Under “Complete "Preemption" Doctrine). (In

Appendix).

Nelson's claim was filed in state Court, which made him the master of the

complaint. This is called the well pleaded complaint rule. It is recorded that

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immediately after Nelson amended his complaint. NYCTA and TWU filed an

affirmative defense instead of an answer, the reason was Lack of Subject-matter

Jurisdiction, (and defendants do indeed raise lack subject matter jurisdiction as an

alternative basis for dismissal of plaintiff’s amended complaint., see Magistrate

Bloom R&R Page 8.)

In Caterpillar, Inc. V. Williams, 482 U.S. 386 (1987) , it clearly states:

“It is true that, when a defense to a state claim is based on the terms of a

of a collective bargaining agreement, the state court will have to interpret

that agreement to decide whether the state claim survives.But the presence of

a federal question, even a section 301 question, in a defensive argument

does not overcome the paramount policies embodied in the well-pleaded

complaint rule-that plaintiff is master of the complaint, that a federal question

must appear on the face of the complaint, and that the plaintiff may, by

eschewing claims based on federal law, choose to have the cause heard in state

I

court. When a plaintiff invokes a right created by a collective bargaining

agreementThe plaintiff has chosen to plead what we have held must be

regarded as a federal claim, and removal is at the defendant’s option . But a

defendant cannot, merely by injecting a federal question into an action that

assert what is plainly a state law claim, transform the action into one arising

under federal law, thereby selecting the forum in which the claim shall be

litigated. If the defendant could do so, the plaintiff would be master of nothing.

Congress has long since decided that federal defenses do not provide a basis

for removal. Respondents’ claims do not arise under federal law, and

therefore may not be removed to federal court.”

NYCTA and TWU removed Nelson’s case from state court to federal court

based on false and misleading statements as a defense, knowing that state court had

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original jurisdiction under 301 labor management.

It is clear, as a matter of law, that the Second Circuit Court was without

jurisdiction when the summary order was issued. By looking at the R&R made

in the District Court.

Nelson case upon its face, no CircuitCourt of the United States (including

Second Circuit) had jurisdiction of the controversy, originally or by removal.

In Nelson’s case , not even the parties can confer jurisdiction. See Louisville &

Nashville R. Co. v. Mottley, 211 U.S. 149 (1908).

NYCTA and TWU motion to dismiss (12 (b)(1), for lack of subject jurisdiction,

by itself is self incrimination. ( See Magistrate Judge Bloom R&R Page 1, stating “

Defendants move to dismiss plaintiff’s amended complaint under Federal

Rules of Civil Procedure 12 (b)(1) for lack of subject matter jurisdiction and

12(b)(6) for failure to state a claim.”) The District Court and Second Circuit

did not have original jurisdiction See In re Winn , 213 U.S. 458 (1909).

VI. No Other Adequate Means To Obtain Relief Exist

No other adequate means exist to obtain Nelson requested relief. Nelson

has shown above that want of jurisdiction of the Circuit Court appears clearly on

the record and in all the lower court Judges decisions and orders. Therefore,it is

clear why this Court can issue a writ of Mandamus, are in the alternative a writ of

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certiorari, (see In re Winn, 213 U.S. 458,467,468,469 (1909).)

VII. Conclusion

t

For the foregoing reasons, petitioner prays:

This Court should issue a writ of mandamus to Court of Appeals below,

directing it to vacate its summary order September 30,2024, and remand the

matter to the State Court or in the alternative the Court should treat this petition as

a petition for a writ of Certorari.

November 15,2025

Respectfully submitted

Gerald Nelson

293 Ralph Avenue 2FL.

Brooklyn,New York 11233

347-737-2217

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