Petition for Writ of Certiorari — Davis v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America

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Supreme Court, U.S.

FILED

CO) 95-107 su 15 205

OFFICE OF THE CLERK

No. 05-

mapa

Supreme Court of the United States

WARREN DAVIS,

Petitioner,

Vv.

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW), UAW REGION 2B,

RONALD GETTELFINGER, AND LLOYD MAHAFFEY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID G. OAKLEY PAUL ALAN LEVY

KRAMER & ASSOCIATES L.P.A. Counsel of Record

3214 Prospect Avenue East PUBLIC CITIZEN

Cleveland, Ohio 44115-2600 LITIGATION GROUP

(216) 431-5300 1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Petitioner Warren Davis

July 15, 2005

QUESTIONS PRESENTED

i. May an order remanding a removed case to state

court be reviewed, notwithstanding the prohibition in 28 U.S.C.

§ 1447(d),

(a) where the district court expressly states that

it is basing its decision to remand on lack of

jurisdiction, and not that the remand is based on a

ground not specified by section 1447(c) or by a

comparable statute, or

(b) where the court of appeals hypothesized that

the district court had supplemental jurisdiction? i

2. May a state law claim be removed from state court

on grounds of complete preemption absent a determination that

Congress created an alternate private right of action and

intended to displace the state claims with federal claims of

which the district court would have had jurisdiction?

TABLE OF CONTENTS

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STATUTORY PROVISIONS INVOLVED ............ 1

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eae Ushi cans dae Gaevscseetwe ans l

ask kos ep oxen eek en 3

REASONS FOR GRANTING THE WRIT ............. 7

A. This Case Presents Important Questions About

Whether, and Under What Standards, Courts of

Appeals May Review District Court Remand

Decisions That May Be Based on the

Elimination of Claims That Were Properly

A ee ee eee 9

a Background Principles Governing

Appellate Jurisdiction Over Remand

OU ce ysk th ooh a Chek ed eek we 9

iii

> 3 The Court Should Decide Whether

There Is Appellate Jurisdiction to

Second-Guess the “Real” Reasons for

Remand When the District Court Finds

Lack of Federal Jurisdiction. ........... 11

3. The Court Should Decide Whether

Section 1447(d) Forbids Review of

Remand Decisions That Decline

Jurisdiction As Expressly Authorized by

BS a 16

B. Review Should Be Granted to Decide Whether

a Federal Statute Can “Completely Preempt” a

State Claim, Thus Transforming It Into a

Federal Claim That Can Be Removed From

State Court, Where the Federal Statute Does Not

Afford a Private Right of Action Within the

District Court’s Original Jurisdiction. .......... 20

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APPENDIX

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TABLE OF AUTHORITIES

CASES

Aetna Health v. Davila,

542 U.S. 200, 124 S. Ct. 2488 (2004)

In re Allstate Insurance Co.,

8 F.3d 219 (Sth Cir. 1993) ........

Anderson v. American Airlines,

2 F.3d 590 (8th Cir. 1993) ........

Angelides v. Baylor College of Medicine,

117 F.3d 833 (Sth Cir. 1997) ......

Archuleta v Lacuesta,

131 F.3d 1359 (10th Cir. 1997) ....

Ariel Land Owners v. Dring,

351 F.3d 611 (3d Cir. 2003) .......

Avco Corp. v. Machinists Lodge 735,

AE ey rn

Balazik v. County of Dauphin,

44 F.3d 209 (3d Cir. 1995) ........

Bastien v. AT & T Wireless Services, Inc.,

205 F.3d 983 (7th Cir.2000) .......

Bauchelle v. AT7 Corp.,

989 F. Supp. 636 (D.N.J. 1997) ....

Beneficial National Bank v. Anderson,

eR EE ry here eee eee 21

Briarpatch Ltd. v. Phoenix Pictures,

Lik 5 ew Le 0 a | ne 21

Bryceland v. AT & T Corp.,

122 F. Supp. 2d 703 (N.D. Tex. 2000) ......... 24

Burton v. Southwood Door Co..,

305 F. Supp. 2d 629 (S.D. Miss. 2003) ......... 22

In re CSAX Transport,

151 F.3d 164 (4th Cir. 1998) 0... cc ees 17

Carnegie-Mellon University v. Cohill,

ae ee ED. | Sow kh e edd doses 10, 16, 17

Caterpillar v. Williams,

ge Re ks ree ee ear eee 21

Copling v. Container Store,

174 F.3d 590, 596 (Sth Cir. 1999) ............ 11

Davis v. UAW,

390 F.3d 908 (6th Cir. 2004) ......... ay ek ey 4

Davis v. UAW,

Pk re CO a. PD ks Fawn eo eneeas l

Deford v. Soo Line,

867 F.2d 1080 (8th Cir. F989) ...........08. 23

In re Amoco Petroleum Additives Co.,

Fe ade FP CHUNG. BSBA) occ cccwcccccsecs 17

In re Excel Corp.,

Sa COPE COUN Gs BUOD cc cbesersancevs 18

Executive Software v. United States District Court,

Ee ee Bee CON, BD ket cecncaessiss 19

Felix v. Lucent Technologies,

387 F.3d 1146 (10th Cir. 2004) .............. 22

In re First National Bank of Boston,

yoo gt Bio) le errr ere 14

First National Bank of Pulaski v. Curry,

301 F.3d 4356 (Gth Cir. 2002)... ccc ccc cccces 6

Franchise Tax Board v . Construction Laborers

Vacation Trust,

Se NCNM Ke Cecasadsdedcnccaneesens 21

Geddes v. American Airlines,

321 F.3d 1349 (11th Cir. 2003) .............. 24

Giles v NYLCare Health Plans,

eed A pigs lo | PerPerecreT Ter 19

Grable & Sons Metal Prods. v. Darue Engineering

& Mfg.,

ok Ba ee oo. errr rrr err yy ere 23

Gravitt v. Southwestern Beil Telegraph Co.,

Ge She VOR ERUPTED hn sincceciskeceeneae 10

Vii

Heaton v Monogram Credit Card Bank of Georgia,

231 F.3d 994 (Sth Cir. 2000)

Hinson v. Norwest Financial South Carolina,

239 F.3d 611 (4th Cir. 2001) ..........

Hoskins v. Bekins Van Lines,

343 F.3d 769 (Sth Cir. 2003) ..........

King v. Marriott International,

337 F.3d 421 (4th Cir. 2003) ..........

Kircher v. Putnam Funds Trust,

373 F.3d 847 (7th Cir. 2004) ..........

Lindsey v. Dillard's,

306 F.3d 596 (8th Cir. 2002) ..........

Linn v. Plant Guards Local 114,

p gtk Re | BP eee ere oe

Lontz v. Tharp,

2005 WL 1539282 (5° Cir., July 1, 2005)

Mangold v. Analytic Service,

Tt OD band ageducecescxs

Marcus v. AT&T Corp.,

138 F.3d 46 (2d Cir. 1998) .............

Matter of Florida Wire & Cable Co.,

102 F.3d 866 (7th Cir. 1996) ..........

Vili

Metropolitan Life Insurance Co. v. Taylor,

ae RE rere errr Fee rrr ere 21

New vy. Sports & Recreation,

114 F.3d 1092 (Lith Cir. 1997) ........0c000e 17

Northern California District Coun. of

Laborers v. Pittsburg-Des Moines Steel Co.,

69 F.3d 1034 (Sth Cir. 1995) 2... . cece ween 14

Opera Plaza Residential Parcel Homeowners

Association v. Hoang,

376 F.30831 (th Cir. 2006)... ee ee eaes 2h, 22

Pascack Valley Hospital v. Local 464A UFCW

Welfare Reimb. Plan,

Ca es le a ererre rr errr rr Ty 22

Philips v. AT&T Wireless,

2004 WL 1737385 (S.D. Iowa, July 29, 2004) ... 24

Poore v. American-Amicable Life Insurance Co.,

218 F.3d 1267 (hits Cir. 2000) oes ececes 13

In re Prairie Island Dakota Sioux,

2h ie oe Ge Ga, EP. ho ko eke dcnnseea 19

Price v. PSA,

S29 F206 G7) Cs Cie. F9BF) ne eek cece esadass 24

Railway Labor Execs Association v. Pittburgh & Lake

Erie RR Co.,

B56 F206 S56 GAGS. IGG cscs cece eeancesens 24

Schmeling v. NORDAM,

ee Pk Ti Te Be 22

Steelworkers v. Sadlowski,

i «co nccacececcecseccecacs 25

Stevens v. Brink's Home Security,

378 F.3d 944 (9th Cir. 2004) ...........0005. 17

Thermtron Prod v. Hermansdorfer,

CE i neeccscccceseseces passim

Things Remembered v. Petrarca,

ak Bb Te.) ne 10, 16, 17

Tillman v. CSX Transport,

ee Fame BAD CN CU. ISBE) nc cccccccccces 12

Trans Penn Wax Corp. v. McCandless,

ee se AT COs EDS) ccc cccccccccccces 17

Velchez v. Carnival Corp.,

oat Wee bows CRI Cir. ZUUS) ww cc ccc cccces 14

Vermont v. Oncor Communications,

166 F.R.D. 313 (D. Vt. 1996) ...... Sete mans 24

Wayne v. DHL Worldwide Express,

294 F.3d 1179 (9th Cir. 2002) ............... 22

Williams v. Midwest Express Airlines,

315 F. Supp. 2d 975 (E.D. Wis. 2004) ......... 22

In re Wireless Tel. Fed'l Cost Recovery Fees Litig.,

343 F. Supp. 2d 838 (W.D. Mo. 2004) ......... 24

Xiong v. State,

Se ee RG EOD nes cewe vise cases 13

STATUTES

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p RE ade oer -t a passim

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Be ee EE 666 66.0645 5b0s0ddaciseevecenestax 17

Be se Eb ond dc ngscbenedicdsusedacabnl 17

es ae OD abccedecisdedessacanesaaena 17, 18

Pe Us OUT dekccderendsstadescctsccewieeties l

Se ed OUTED 06060006 cb bscnesatdeeseess passim

Se ED b.cacndnesaceeesédeuwaseal passim

yp pit Fa Bs BPPPPPTTTT Tee errr Ter err eee 17

Be a UO five dvadecsucacsquhssndseadgnoes 10

Employee Retirement Income Security Act,

29 U.S.C. §§ 1001 et seq.

Section 502, 29 U.S.C. § 1132 ............. 21, 22

Federal Communications Act,

og ft ot 0 err re 24

Labor Management Relations Act,

29 U.S.C. §§ 151 et seq.

Section 301, ZO USC. S$ 1ES . wc cc cccccccee 4,21

Labor Management Reporting and Disclosure Act,

29 U.S.C. §§ 401 et seq.

Bee Bg Ae es SEEMED occ ccncccicnvcse 4

Section 402(b), 29 U.S.C. § 482(b) ............. 3

Becta 465, ZOU BL. SEES 2. cccccccscscses 26

National Bank Act,

ST ci xk neceshenticdsveaennwedan 21

EE i 4 nceedeuteiaeksanddeue sada 21

Railway Labor Act,

ey ss ee OO, os nnn sé eancearniona 23, 24

Securities Litigation Uniform Standards Act

EE FERGIE, co cccncisnceeneseexeae 13

Ohio Revised Code § 4112.14 ..........cccccccccces 3

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit (Pet. App. la-1 1a) is reported at 392 F.3d 834.

The district court’s opinion and order, remanding the case te the

Cuyahoga County, Ohio Court of Common Pleas (Pet App. 12a

to 32a), is unreported.

JURISDICTION

The decision of the United States Court of Appeals was

issued on December 15, 2004. Pet. App. la. A timely petition

for rehearing was denied on February 28, 2005. Pet. App. 33a.

On May 26, 2005, Justice Stevens granted a motion for

extension of time, until June 30, 2005. On June 22, 2005

Justice Stevens further extended the time for filing until July

15, 2005. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant portions of 28 U.S.C. §§ 1367 and 1447, the

Labor-Management Reporting and Disclosure Act, and the Ohio

Age Discrimination law are set forth at Pet. App. 35a to 41a.

STATEMENT

A. Facts.

Petitioner Warren Davis was the elected Director of

Region 2 of the respondent United Auto Workers Union

(“UAW”), which contained approximately 41,000 union

members in Ohio, Pennsylvania and West Virginia. The

UAW’s regional and national officers are elected at a

quadrennial convention, the most recent of which was in June

2002. The UAW does not have any official enacted retirement

rule. However, all elected officials of the UAW comprise the

“Administration Caucus” of the UAW which, in turn, maintains

a series of custornary rules governing union activities.’

One such rule is a facially discriminatory prohibition

against members running for office after their 65" birthday,

even though the federal age discrimination law, and many state

laws, extend protection against compulsory retirement to

employees over 65. In defiance of this rule, and without prior

warning of his intentions, petitioner Davis ran for re-election as

director at the UAW’s Convention in June, 2002; because he

was the only candidate in the election he was elected.

Respondents, including Ronald Gettelfinger, President of the

UAW, and Lloyd Mahaffey, who was ultimately elected as

director of respondent Region 2B, were outraged by Davis’

successful candidacy in defiance of the retirement rule.

Respondents took several actions in reprisal, including the

issuance of statements that Davis had violated the retirement

rule, lied to the membership, and denied them an honest

election by failing to reveal his candidacy until the last moment,

when it was too late for the Administration Caucus to arrange

an alternate candidate to run against him. At the behest of the

Administration Caucus, the territory of Region 2 was divided

into several surrounding regions, each of which now contained

portions of Region 2, for the purpose of eliminating the position

'Many Caucus rules would be patently unlawful if

adopted by the union; the Caucus attempts to insulate the union

from liability by keeping the rules “informal” and enforceable

only through iron political discipline. One of the ultimate

issues on the merits of this case is whether this strategem

succeeds in insulating the union from liability under state law,

and whether federal law forbids a state from reaching union

discrimination that is implemented in this manner.

to which Davis had been elected. New elections were then held

for the newly created regions. Davis, who had not campaigned

in the areas surrounding his old region, recognized the

effectiveness of the gerrymander and declined to run in these

elections.

After exhausting his intra-union remedies, Davis

protested to the United States Department of Labor against the

maneuvers that had eliminated his election. Although Davis’

protest did not address the issue of age discrimination, the

i abor Department, in rejecting Davis’ claims, stated that the

Administration Caucus retirement rule was not a “governing

rule imposing an age limitation on candidates for office,” and

that, in any event, the ADEA exception for employees who hold

“high policymaking positions” applied to the position of

Director of Region 2. Accordingly, the Secretary declined to

file suit under section 402(b) of the LMRDA, 29 U.S.C. §

482(b), to set aside the election for the UAW positions that had

been created in retaliation for Davis’ candidacy.

B. Proceedings Below.

Davis commenced this action in the Court of Common

Pleas, Cuyahoga County, Ohio. The complaint alleged that the

elimination of Davis’ position violated Ohio Revised Code §

4112.14, which forbids both age discrimination in employment

and retaliation against persons who oppose discrimination.

Similarly, Davis alleged wrongful discharge in violation of

Ohio public policy against retaliation against persons who

oppose age discrimination. Finally, the complaint alleged libel

claims based on respondents’ written statements about Davis’

“lying,” “fraud,” and “unethical, self-dealing” conduct in office,

and slander claims based on similar oral statements accusing

Davis of having “lied” and been “deceitful.” The complaint

sought compensatory and punitive damages, attorney fees, and

injunctive relief including reinstatement to the position that had

been discriminatorily eliminated.”

On July 2, 2003, respondents removed the case to the

United States District Court for the Northern District of Ohio,

claiming subject matter jurisdiction under 28 U.S.C. § 1331 and

sections 401 through 403 of the LMRDA, 29 U.S.C. §§ 481-

483.° A week later, respondents moved to dismiss, arguing that,

because Davis’ claims challenged the outcome of a union

election, they were completely preempted by federal law, and

hence within the district court’s original jurisdiction.

Respondents also asserted that any state claims that were not

“completely preempted” were within the district court’s

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).

Davis moved to remand, arguing that his claims were

based entirely on state law, and were neither preempted nor

completely preempted. He pointed out that he was not

challenging the outcome of a union election, but only claiming

that the elimination of his position, which happened to be

subject to election, was based on age discrimination and

* Davis was also a plaintiff, along with three other UAW

members, in a lawsuit filed in the Eastern District of Michigan

alleging that the UAW violated Title I of the LMRDA when it

eliminated Region 2 to punish the delegates who re-elected him.

This action was dismissed as forbidden by Title IV of the

LMRDA, and the court of appeals affirmed. 390 F.3d 908 (6th

Cir. 2004).

‘Respondents also claimed that Davis’ claims relied in

part on the UAW’s Constitution, and hence were completely

preempted by section 301 of the Labor Management Relations

Act. Because the district court rejected this argument and

respondents did not pursue it on appeal, it is not discussed here.

retaliation. In any event, Davis argued that even if his claims

were preempted, preemption is generally a federal defense, and

the state courts were fully capable of assessing that defense.

Davis further explained that his defamation claims were

independent of any claims he might have had that the elections

at the UAW Convention were invalid. After all, election

winners as well as election losers can sue over defamatory

campaign statements; hence, the validity of the claims cannot

depend on whether the election should be set aside.

The district court agreed that it lacked jurisdiction, and

remanded to state court. Pet. App. 13a-14a, 32a. The court

decided that a state claim for retaliatory elimination of an

elected position, or for defamatory staements made about an

elected official in the course of eliminating his position, does

not necessarily arise under federal law simply because Title [V

provides the exclusive procedure for challenging a union

election after it has been conducted. Although respondents had

argued, in part, that seeking the remedy of reinstatement

showed that he was challenging an election already conducted,

the district court thought that Davis had conceded that

reinstatement was not available to him, which “goes along way

toward mooting [respondents’}] argument.” /d. 30a. But that

was not, in the end, the basis for its decision, because the

district court decided that “the nature of the relief requested by

Davis, alone, does not create federal preemption jurisdiction.”

Id. Moreover, the LMRDA has an express non-preemption

provision, id., and does not condone age discrimination. /d.

32a. Finally, Davis was not challenging “the ultimate validity

of any Union election results,” just the means by which

respondents had eliminated him. /d. 32a. Accordingly, there

was no preemption, and “defendants’ removal of the case to this

Court was not well-taken.” Id.

Respondents appealed, and Davis challenged the court

of appeals’ jurisdiction to hear the case, asserting that remand

to state court for lack of subject matter jurisdiction is not a

permissible basis for appeal under 28 U.S.C. § 1447(d). On

appeal, both parties agreed that the district court was factually

incorrect in perceiving that Davis had agreed not to pursue the

issue of reinstatement to the position that had been eliminated,

and that, to the extent the district court had relied on that

assumption in its remand decision, the reliance was erroneous.

Pet. App. 7a.

The Sixth Circuit decided that, even though the district

court had attributed its remand decision to the absence of

jurisdiction, it would have jurisdiction to review the remand if

the district court’s ruling were that it had jurisdiction at time of

removal, but subsequent events made remand appropriate. Jd.,

citing First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456 (6th

Cir. 2002). The district court’s reference to Davis’

relinquishment of his claim for reinstatement as having

“mooted” one of respondents’ preemption arguments was

deemed sufficient to bring the case within this line of authority.

Thus, in effect, the Sixth Circuit decided, appellate jurisdiction

is precluded only when a district court expressly bases its

decision to remand on the lack of subject matter jurisdiction at

the time of removal. If the district court decided to remand

because of events occurring after removal, Sixth Circuit law

holds that § 1447(d) does not bar appellate review of the

remand order. Id. 6a-7a.

Here, even though the district court had expressly stated

that it lacked jurisdiction, and even though the district court’s

assumption about whether Davis had relinquished the claim to

reinstatement was erroneous, the Sixth Circuit concluded that

this mistake of fact placed the district court’s remand decision

within the class of decisions that are remanded based on a post-

removal event having deprived the court of subject matter

jurisdiction. Jd. 7a. Accordingly, the Court decided it could

review the remand decision on appeal. Id.

The court of appeals then turned directly to the question

of whether Davis’ state law claims are preempted by the

LMRDA. 7d. 8a-1la. The court did not first consider whether

the district court had abused its discretion in deciding to

remand. Nor did the court consider whether federal law creates

a private cause of action that supersedes and supplants Davis’

claims under state law, such that Davis’ state law claims must

be considered as arising under federal law. Instead, the court of

appeals held that it was sufficient to determine that all of Davis’

state law claims, for age discrimination or for libel, all hinge on

whether Davis was properly elected, and whether “defendants’

statements regarding the impropriety of his actions in the

election were false .. .. To determine whether the statements

are false, however, the validity of the election and Davis’s

tactics must be examined.” Jd. 10a. Because the Secretary of

Labor had previously decided that the delegates’ action at the

convention had not violated Davis’ election-related rights,

Davis’ state-law claims would necessarily call those findings

into question, and hence were preempted by Title [V of the

LMRDA. /d. 10-1 1a.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted in this case to decide three

persistent questions on which the lower federal courts have

been deeply divided, about removal based on complete

preemption and about appellate jurisdiction to review remand

decisions. First, even assuming that review is ever available

for decisions remanding remaining state claims after the

elimination of federal claims on which removal was originally

based, the lower courts are hopelessly divided about whether

and how far the courts of appeals may go in second-guessing a

district court’s statement that its remand decision was based on

lack of jurisdiction. Indeed, the Court has never decided

whether the general rule against appellate review of remand

decisions, 28 U.S.C. § 1447(d), authorizes appellate jurisdiction

to review remand decisions based on the statutory authority to

decline supplemental jurisdiction over state law claims that

were properly removed along with federal claims that were

eliminated post-removal, and two Justices have noted that the

question remains open.

Contrary to the apparently clear command of section

1447(d), the courts of appeals are spending an inordinate

amount of time deciding whether one of the many exceptions to

that subsection apply to a particular case; further, there is little

consistency among the circuits on what the exceptions to the

subsection are. Certiorari should be granted here to restore

clarity to this area, and to reaffirm the Congressional mandate

that, absent clear legislation to the contrary, states may be

trusted to consider federal issues, and even if there may be

federal defenses to state claims, district court decisions

remanding those claims should not be reviewed on appeal.

Finally, contrary to each of the decisions of this Court

in which removal has been held appropriate based on the

doctrine of complete preemption, and to the holdings of most

circuits, the court below joined the Seventh and Eighth Circuits,

and district courts in several states, in allowing a state claim to

be removed based on a federal preemption defense even though

the preempting statute did not contain any federal right of action

over which the district court could have had original

jurisdiction. Under the holding below, removal based on

preemption is proper whenever federal law bars any state

regulation. Review should be granted to decide whether

complete preemption can be found where there is no private

cause of action within the district court’s jurisdiction to which

the state claims could be converted.

A. This Case Presents Important Questions

About Whether, and Under What Standards,

Courts of Appeals May Review District

Court Remand Decisions That May Be Based

on the Elimination of Claims That Were

Properly Removed.

1. Background Principles Governing

Appellate Jurisdiction Over Remand

Orders. ;

Section 1447(d) provides that, except for certain civil

rights cases, “An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise.” Despite this seemingly simple command, the rule

has become so hedged about with exceptions that it sometimes

seems as if the rule is the exception. Further, the exceptions

vary in application and content among the circuits.

This Court recognized a narrow exception to section

1447(d) in Thermtron Prod. v. Hermansdorfer, 423 U.S. 336

(1976), where a district judge had acknowledged that there was

subject matter jurisdiction, but decided that the federal court

dockets were so overcrowded that the case could be resolved

more quickly if it were sent back to state court. The Court held

that section 1447(d) was not intended “to extend carte blanche

authority to the district courts to revise the federal statutes

governing removal by remanding cases on grounds that seem

justifiable to them but which are not recognized by the

controlling statute .... Because the District Judge remanded a

properly removed case on grounds that he had no authority to

consider, he exceeded his statutorily defined power; and

issuance of the writ of mandamus was not barred by § 1447(d).”

Id. at 351. The following year, the Court reaffirmed that even

a remand based on erroneous principles is nevertheless

unreviewable. Gravitt v. Southwestern Bell Tel. Co., 430 U.S.

723 (1977).

Then, in Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343

(1988), the Court held that, despite the lack of express statutory

authorization for the remand of state claims that were joined in

a complaint with federal claims after the federal claims were

dismissed, federal courts have inherent authority to remand

such claims even though they were within the court’s pendent

jurisdiction. The Court did not have occasion to decide whether

the court of appeals had jurisdiction to review such remand

decisions, because the Court affirmed the denial of a petition for

mandamus. Two years later, Congress provided express

statutory authorization for supplemental jurisdiction over state-

law claims that are part of the same case or controversy as other

claims of which the district courts have original jurisdiction. 28

U.S.C. § 1367(a). The same statute expressly gave district

courts discretion to decline supplemental jurisdiction, while

enumerating four specified reasons for declining jurisdiction.

28 U.S.C. § 1367(c).

Finally, in Things Remembered v. Petrarca, 516 U.S.

124 (1995), the Court made clear that the remands insulated

from review were not confined to those which were specified in

section 1447(c). That case involved the removal of a state

claim under the bankruptcy provision, 28 U.S.C. § 1452, which

had its own provision for remands to state court. Concurring in

the opinion of the Court, Justices Kennedy and Ginsburg stated

their understanding that the Court’s reliance on Thermtron was

not intended to bear on the reviewability of Cohill remand

orders. 516 U.S. at 129-130. Although all courts of appeals

to have addressed this open question have ruled that they do

have jurisdiction to decide whether supplemental jurisdiction

was properly declined through a remand order, the standard by

which they evaluate the propriety of remand varies among the

circuits.

ae The Court Should Decide Whether

There Is Appellate Jurisdiction to

Second-Guess the “Real’’ Reasons for

Remand When the District Court

Finds Lack of Federal Jurisdiction.

Even if there is appellate jurisdiction to review remand

orders that are issued in cases in which there was

unquestionably federal jurisdiction at the time of removal, but

later events have eliminated the claims that afforded a basis for

the removal, this case presents two significant questions, on

which the courts of appeals are divided. Both concern how

such cases are reviewed. First, the courts of appeals are deeply

divided on the question of whether, and to what extent, the

court should “second—guess” the opinion of a district judge who

has decided to remand a case for a stated reason that facially

complies with section 1447(c), and determine whether the real

reason for remand might have been one not within the statute,

and hence subject to appellate review under Thermtron. The

Third, Fifth and Tenth Circuits employ an approach that is

deeply at odds with approaches in the Fourth, Sixth, Seventh,

and Eighth Circuits.

For example, in the Fifth Circuit, “Reviewable

non-section 1447(c) remands constitute a narrow class of cases,

meaning we will review a remand order only if the district court

‘clearly and affirmatively’ relies on a non-section 1447(c)

basis.” Heaton v Monogram Credit Card Bank of Georgia,

231 F.3d 994, 997 (5" Cir. 2000), quoting Copling v. Container

Store, 174 F.3d 590, 596 (5" Cir. 1999). Review is forbidden

even if the district court states that it is remanding because a

post-removal amendment destroyed its jurisdiction, and even if

that statement is legally erroneous. Tillman v. CSX Transp.,

929 F.2d 1023, 1026-1028 (5" Cir. 1991); accord Angelides v.

Baylor College of Medicine, 117 F.3d 833, 836 & n.3 (5" Cir.

1997). In Heaton, for example, the defendant argued that the

record showed that the district court had jurisdiction at one

time, that the district judge was really remanding pursuant to its

discretionary authority under section 1367(c), and that the

district court’s erroneous reliance on lack of jurisdiction should

not be sufficient to bar appellate review. However, the Fifth

Circuit held that the conclusory statement that there was no

jurisdiction was sufficient basis to deny review.

Similarly, in the Third Circuit, if the trial judge

“purports to remand a case on § 1447(c) grounds, his order is

not subject to challenge in the court of appeals, by mandamus

or otherwise. . .. Our review is forestalled only when the stated

reasons for the remand include procedural or jurisdictional

defects.” Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d

Cir. 1995) (punctuation and citations omitted; emphasis in

original). In Balazik, the district judge alluded to a section

1447(c) procedural ground, but expressly refrained from relying

on that ground as a basis for remand, deciding instead to

remand for comity reasons. The court accepted jurisdiction for

that reason only.

The Tenth Circuit's standard allows slightly more

penetrating review of the stated reasons for remand: The district

judge’s statement that subject matter jurisdiction is lacking is

not alone sufficient, but so long as the finding of lack of subject

matter jurisdiction was made in good faith, that is enough to bar

review under § 1447(d). Archuleta v. Lacuesta, 131 F.3d

1359, 1362 (10" Cir. 1997).

In the Fourth Circuit, by contrast, the district court’s

reference to lack of jurisdiction does not end the matter; if there

is any ambiguity about whether the district judge felt that a

remand was compelled, the court of appeals “must... .

determine by independent review cf the record” what the real

basis for remand was. Mangold v. Analytic Serv, 77 F.3d 1442,

1450 (1996). A strong dissent argued that an express finding

that subject matter jurisdiction is lacking should be enough to

bar review. Id. at 1455-1456. The Fifth Circuit explicitly

recognized its differences with the Fourth Circuit in Angelides

v. Baylor College Of Medicine, 117 F.3d 833, 836 (5® Cir.

1997) (“we purposefully decline to follow the Fourth Circuit’s

evisceration of § 1447(d) [allowing review] when a district

court’s remand error was of a ‘sufficient magnitude.’”’). But the

Eighth Circuit has followed Mangold, holding that even a

remand that is expressly based on lack of jurisdiction can be

reviewed if it was based on reasons that are plainly wrong under

existing circuit precedent. Xiong v. State, 195 F.3d 424, 426-

427 (8 Cir. 1999). Similarly, in the Eighth Circuit, the district

court’s statement that it lacks jurisdiction will not bar review if

inspection of the record reveals that the district court was

“really” relying on the elimination of federal claims and thus,

implicitly albeit unwittingly, on a discretionary decision to

decline supplemental jurisdiction. Lindsey v. Dillard's, 306

F.3d 596, 598 (8° Cir. 2002). Accord Poore v. American-

Amicable Life Ins. Co., 218 F.3d 1287, 1290-1291 (11" Cir.

2000). Adopting a standard comparable to these circuits, the

Seventh Circuit has held that a district court’s use of the term

“jurisdiction” in deciding to remand is not conclusive of

appellate authority to review. Kircher v. Putnam Funds Trust,

373 F.3d 847, 849 (7° Cir. 2004). The Seventh Circuit

characterized the Second and Ninth Circuits as having held

squarely to the contrary with respect to the specialized topic of

removal and remand under the Securities Litigation Uniform

Standards Act of 1998. Jd. at 850-851 (Second and Ninth

Circuits “were mesmerized by the word ‘jurisdiction’ and did

not see the difference between a case that should never have

been removed and a case properly removed and remanded only

when the federal job is done”).*

* A number of appeals courts also scrutinize district

court decisions that on their face rest on procedural grounds and

allow the appeal to proceed if they consider that section 1447(c)

was incorrectly applied. Because section 1447(c) distinguishes

between remands based on lack of jurisdiction, which may be

ordered sua sponte, and remands based on procedural defects,

which may be ordered only in response to a timely motion, the

Fifth and Eleventh Circuits have decided, over dissents, that a

sua sponte district court decision directing remand for lack of

subject matter jurisdiction must be carefully reviewed to ensure

that it is not based on a mere failure properly to plead

jurisdiction in the removal notice. In re First Nat'l Bank of

Boston, 70 F.3d 1184, 1187 (11" Cir. 1995); In re Allstate Ins.

Co., 8 F.3d 219, 221-222 (5" Cir. 1993). But a procedural

matter that the district court notices sua sponte, albeit in

response to a timely motion about a different procedural] matter,

is held to be outside appellate jurisdiction. Velchez v. Carnival

Corp., 331 F.3d 1207, 1210 (11" Cir. 2003). Complicating

matters still further, the Third Circuit holds that if the district

court mischaracterizes as jurisdictional an objection to removal

that is actually procedural but was not presented within thirty

days of removal, the court of appeals has jurisdiction to reverse

the remand. Ariel Land Owners v. Dring, 351 F.3d 611, 613

(3d Cir. 2003). In the Ninth Circuit, the fact that the procedural

reason for the remand was not raised in the district court until

the reply brief is a basis for appellate jurisdiction. Northern

California Dist. Coun. of Laborers v. Pittsburg-Des Moines

Steel Co., 69 F.3d 1034, 1038 (9" Cir. 1995)

Under the standards set forth by the Third, Fifth and

Tenth Circuits, the remand order here would have been

unreviewable, because the district judge unequivocally stated

that her court did not have jurisdiction. Although the district

judge stated in passing that a statement that she mistakenly

thought Davis had made in a brief had “go[ne] a long way

toward mooting” one of respondents’ arguments for complete

preemption, Pet. App. 30a, the court did not conclude that it had

jurisdiction at time of removal (which would have provided a

potential basis for supplemental jurisdiction over the remaining

claims). At worst, the district court found lack of jurisdiction

through a mistaken understanding of the law. Another

interpretation of the district court’s opinion is that the district

judge’s mistake of fact about whether Davis had changed his

prayer for relief did not affect its view of its jurisdiction.

Supporting this reading are the facts that, immediately after its

statement about possible “mooting,” the court stated that a

claim for relief could not create “federal preemption

jurisdiction,” id.; see also id. 13a-14a; the statement that there

was “no direct conflict between federal law and the state laws

allegedly violated by the defendants in the present case,” id.

31a; and the conclusion that the “removal of the case to this

Court was not well-taken.” Jd. 32a. Thus, under the Tenth

Circuit’s standard, the determination of lack of subject matter

jurisdiction would have been made “in good faith” and remand

would have been unreviewable. In apparent agreement with the

Seventh Circuit, however, the Sixth Circuit refused to be

“mesmerized” by the reference to jurisdiction. The Court

should grant review to resolve this conflict and provide

guidance to the courts of appeals on the degree of deference to

be given to the district court’s stated reasons for the remand in

deciding whether jurisdiction is available under section

1447(d).

x The Court Should Decide Whether

Section 1447(d) Forbids Review of

Remand Decisions That Decline

Jurisdiction As Expressly Authorized

by Section 1367(c).

The Court should also resolve the question, left open in

both Cohill and Things Remembered, whether there is appellate

jurisdiction to review orders remanding to state court state law

claims that were filed along with federal law claims, following

the dismissal of claims over which there was at least arguably

original jurisdiction, and over which the district courts had

supplemental jurisdiction under Section 1367(a). The reason

for limiting § 1447(d) in Thermtron was to give the courts of

appeals the authority to rein in “rogue” decisions by district

judges who remand cases to state court without any statutory

authority. In other circumstances, when remands are fully

supported by statutory authority, a ban on appellate review

limits both the needless imposition on the power of the

sovereign states to afford a local forum for their citizens who

suffer wrongs under state law, and the avoidable delays in the

litigation of those state-law issues when the decision to remand

is appealed. These considerations apply equally to remands of

state law issues under § 1367(c), especially when it is only one

small aspect of the case that the district court deemed federal

and whose elimination from the case destroyed the onginal

basis for removal. Here, even reading the district court’s

decision as the court of appeals did, the district judge

considered that one aspect of the relief sought on one cause of

action — the prayer for reinstatement — presented a stronger

argument for removal than severai other claims that the district

court expressly held provided no basis for removal.

Since Cohill was decided, Congress has given district

courts express authority for the remand of state law claims that

remain in a case after the federal claims have been dismissed.

Although the courts of appeals have generally concluded that

they have jurisdiction to review remand decisions that are based

on section 1367(c) once the admittedly federal claims on which

removal was based have been removed from the case, e.g., In re

Amoco Petroleum Additives Co., 964 F.2d 706, 708-09 (7° Cir.

1992); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 223

(3d Cir. 1995), some courts of appeals have construed

Thermtron to forbid appellate review of remands based on

statutory authority other than section 1447(c). For example,

many courts of appeals agree that section 1447(d) extends to

prohibit review of remands pursuant to 28 U.S.C. § 1447(e) as

well as section 1447(c). E.g., Stevens v. Brink’s Home Security,

378 F.3d 944, 948 (9" Cir. 2004); Matter of Florida Wire &

Cable Co., 102 F.3d 866, 868 (7 Cir. 1996). (“The Court’s

opinion in Things Remembered, as well as Justice White’s

dissenting opinion in Cohill, make it clear that the important

distinction is between remand orders authorized by statute,

which are nonreviewable, and those that are not, which are

reviewable.”). Similarly, the majority rule bars review of

remands based on 28 U.S.C. § 1445, New v. Sports &

Recreation, 114 F.3d 1092, 1095-1097 (11" Cir.1997) (no

appellate jurisdiction to review remands based on section

1445(c)); In re CSAX Transp, 151 F3d 164, 167 (4" Cir. 1998)

(agreeing that section 1445(a) remands can ordinarily not be

reviewed on appeal, but allowing appeal because the remand

was based on reasons about the application of the FELA that are

seriously wrong), although the Fifth Circuit view is to the

contrary. In re Excel. Corp., 106 F.3d 1197, 1200 (5" Cir.

1997) (section 1445(c) remands may be reviewed under

Thermtron which bars review only if based on section 1447(c)).

These decisions support the contention that section 1447(d) is

not limited to protecting against review of remands under only

one small subsection of the Congressional scheme governing

removal and remand.

Moreover, the fact that some circuits have concluded

that they need to decide whether the district court was really

thinking about a post-removal event in deciding whether there

is subject matter jurisdiction, and thus whether they have

jurisdiction to review the remand decision, see pages 11-12,

supra, discussing Dillard’s and Poore, has added to the

needless complications that have come to attend the

determination of whether section 1447(d) bars appellate review.

Yet if this Court were to rule that remands following the

elimination of the claims over which there was subject matter

jurisdiction at the time of removal are also authorized by

statute, the animating concerns behind Thermtron would not

require any exception to section 1447(d). For this reason alone,

the Court should grant certiorari to decide whether remands

pursuant to the statutory authorization provided by section

1367(c) are subject to appellate review or whether they stand on

the same footing under section 1447(d) as remands pursuant to

the statutory authorizations provided by section 1447(c) and

other remand statutes.°

‘Even assuming that jurisdiction to review the remand

order was appropriate under section 1367(c), because the

remand was based on the purported relinquishment of the

“reinstatement” claim, almost every circuit has held that

because section 1367(c) states that a district court “may”

remand for one of several reasons, such remand decisions are

discretionary, and hence appellate review is only for abuse of

discretion. Hinson v. Norwest Financial South Carolina, 239

F.3d 611, 617 (4" Cir. 2001); Giles y NYLCare Health Plans,

172 F.3d 332, 339 (5" Cir. 1999); Executive Software v. United

(continued...)

* * *

Since Thermtron and Cohill were decided, there has

been a steady increase in the number of appeals from remands

to state court, requiring the courts of appeals to decide whether

section 1447(d) bars review in the circumstances of the

particular case. A Westlaw search identified 250 cases in the

past ten years in which courts of appeals had to construe and

apply section 1447(d). Among the reported cases, the majority

of cases allowed review; even counting the unreported cases,

more than 40 percent of the appealed remands were found to be

within the court’s appellate jurisdiction.° Although it cannot yet

be said that section 1447(d) states the exception rather than the

rule, at the very least it is clear that instead of the express bar

against remands that section 1447(d) would appear on its face

to represent, the ccurts of appeals are burdened with an

uncertain standard that must be applied to the facts of each case

while the litigants wait to learn whether state law claims will be

decided in a state or federal forum. The Court should grant

‘(...continued)

States District Court, 24 F.3d 1545, 1556-1557 (9" Cir. 1994);

In re Prairie Island Dakota Sioux, 21 F.3d 302, 304 (8" Cir.

1994). Without any attention to the standard of review,

however, the court below plunged directly into a de novo

review of the remand decision and the district court’s analysis

of the preemption issues that were presented by the remanded

claims.

‘Out of 148 reported decisions since 1995 addressing

the propriety of hearing an appeal from a remand order (not

involving removal under section 1443), review was found

proper in 83 cases. Among the 102 unreported decisions, 19

cases were found to be within the court of appeals’ jurisdiction.

review to decide whether this class of appeals should be

eliminated altogether, because § 1447(d) bars review of

Statutory remands under § 1367(c), or at least to clarify the

Circumstances in which such remands can be reviewed, by

insisting on an aouse of discretion standard and adopting the

majority rule that when a district judge states a reason for

remand that is facially authorized by section 1447(c), the courts

of appeals should investigate no further to determine the “real”

reason for the remand.

B. Review Should Be Granted to Decide

Whether a Federal Statute Can “Completely

Preempt” a State Claim, Thus Transforming

It Into a Federal Claim That Can Be

Removed From State Court, Where the

Federal Statute Does Not Afford a Private

Right of Action Within the District Court’s

Original Jurisdiction.

The decision below deepens the conflict among the

lower courts about the kinds of federal laws that provide a basis

for “complete preemption” of state law claims, and thus can

make state claims removable to federal court.

The normal rule is that the existence of a federal-law

defense to a state-law claim, including the defense of

preemption, does not cause the state-law claim to arise under

federal jaw, and hence is neither a basis for filing the claim in

federal court under federal question jurisdiction nor for

removing the claim to federal court. Caterpillar v. Williams,

482 U.S. 386, 393 (1987); Franchise Tax Bd. v . Construction

Laborers Vacation Trust, 463 U.S. 1 (1983). The Court has,

however, identified a handful of federal preemption defenses as

being so powerful that they not only extinguish state law

claims, but transform them into federal-law claims that can,

therefore, be removed to federal court. Avco Corp. v.

Machinists Lodge 735, 390 U.S. 557 (1968). “Thus, a state

clam may be removed to federal court in only two

circumstances — when Congress expressly so provides, such as

in the Price-Anderson Act, or when a federal statute wholly

displaces the state-law cause of action through complete

preemption.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,

8 (2003). Complete preemption is a very narrow exception to

the rule that preemption is only a defense that does not warrant

removal, id. at 5; Metropolitan Life Ins. Co. v. Taylor, 481 U.S.

58, 67 (1987) (concurring opinion), and this Court has

identified only three federal preemption defenses that rise to

this level — preemption by section 301 of the Labor

Management Relations Act (“LMRA”), Avco, supra,

preemption by sections 85 and 86 of the National Bank Act,

Beneficial, supra; and preemption by section 502 of the

Employee Retirement Income Security Act (ERISA”).

Metropolitan Life, supra.

In seeking to identify the essential characteristics that

confine complete preemption claims to a narrow class of cases,

several lower courts have held that a federal statute cannot be

completely preemptive if Congress did not create a federal,

private cause of action that it intended to substitute for a state

cause of action. E.g., Briarpatch Ltd. v. Phoenix Pictures, 373

F.3d 296, 304-405 (2d Cir. 2004) (Copyright Act); Hoskins v.

Bekins Van Lines, 343 F.3d 769, 775 (5™ Cir. 2003) (Carmack

Amendment); Opera Plaza Residential Parcel Homeowners

Ass’n v. Hoang, 376 F.3d 831, 839 (9" Cir. 2004)

(Telecommunications Act of 1996); Wayne v. DHL Worldwide

Express, 294 F.3d 1179, 1184 (9" Cir. 2002) (Airline

Deregulation Act); Williams v. Midwest Express Airlines, 315

F. Supp.2d 975, 979 (E.D. Wis. 2004) (same); Burton v.

Southwood Door Co., 395 F. Supp.2d 629, 637-638 (S.D. Miss.

2003) (Federal Omnibus Transportation Employee Testing

Act). Similarly, in the ERISA context, courts routinely held

that, because “a vital feature for complete preemption is the

existence of a federal cause of action that replaces the state

cause of action,” complete preemption extends only to claims

for relief that could have been sought under ERISA section 502,

King v. Marriott Int'l, 337 F.3d 421, 425 (4" Cir. 2003), and

that the state plaintiff would have had standing to file under

section 502. Pascack Valley Hospital v. Local 464A UFCW

Welfare Reimb. Plan, 388 F.3d 393, 400 (3d Cir. 2004); Felix

v. Lucent Technologies, 387 F.3d 1146, 1158 (10" Cir. 2004)

The fact that the federal statute may give regulatory

authority to a federal agency, which in turn has the authority to

institute an enforcement proceeding in district court, does not

mean that the enforcement scheme completely preempts state

claims, even if the regulatory scheme is established as the

exclusive means of enforcement in the area. Opera Plaza v.

Hoang, supra, 376 F.3d at 838-839; Schmeling v. NORDAM, 97

F.3d 1336, 1342-1344 (10" Cir. 1996). See also Lontz v. Tharp,

— F.3d—, 2005 WL 1539282 (5" Cir., July 1, 2005), at *5-*6.

Otherwise, every case of claimed “field preemption” could

support removal of the allegedly preempted state claims to

federal court. But complete preemption is not “a crude measure

of the breadth of the preemption (in the ordinary sense) of a

state law by a federal law, but rather . . . a description of the

specific situation in which a federal law not only preempts a

state law to some degree but also substitutes a federal cause of

action for the state cause of action, thereby manifesting

Congress's intent to permit removal.” Jd. at 1342, quoted in

Lucent Technologies, supra, 387 F.3d at 1156-1157.

Such decisions comport with the theoretical basis for the

doctrine of complete preemption — that Congress has created a

cause of action that actually displaces the state cause of action

and “converts it” into the federal cause of action that is within

the district court’s original jurisdiction. Aetna Health v. Davila,

542 U.S. 200, 124 S. Ct. 2488, 2496 (2004). Moreover, each

of the federal statutes that this Court has found to completely

preempt state claims does, in fact, create a cause of action

litigable in federal court that the plaintiff could have had

standing to bring.’

There are, however, several lower court decisions

which, in accord with the Sixth Circuit’s decision below

(although in conflict with other federal courts), have found

complete preemption by certain federal statutes that do not

create such a cause of action over which district courts would

have had original jurisdiction. For example, the Eighth Circuit

has held that the Railway Labor Act (“RLA”) preempts some

state claims that are arguably based on an interpretation of a

collective bargaining agreement (“CBA”) in the railway or

airline industries, even though the statute does not create a

federal cause of action. Deford v. Soo Line, 867 F.2d 1080,

1086 (8" Cir. 1989). See also, e.g., Anderson v. American

Airlines, 2 F.3d 590, 595 (8 Cir. 1993) (RLA can completely

preempt, but removal reversed because particular state claims

at issue did not require interpretation of CBA). Many other

circuits, however, hold that the RLA does not completely

preempt state law claims, reasoning that, unlike the LMRA, the

RLA does not create a federal cause of action to enforce

"In very special circumstances not applicable here, a

federal court may have federal question jurisdiction over a state

law claim that depends on the construction of a federal statute

that does not itself create a cause of action, where the federal

interest in providing jurisdiction is strong enough to warrant

such jurisdiction. Grable & Sons Metal Prods. v. Darue

Engineering & Mfg., 125 S. Ct. 2363 (2005). However, in a

Grable-type case, the federal interest does not displace the state

claim and warrant a finding of complete preemption.

contracts. E.g., Geddes v. American Airlines, 321 F.3d 1349,

1354-1355 (11" Cir. 2003); Railway Labor Execs Ass’n v.

Pittburgh & Lake Erie RR Co., 858 F.2d 936, 942 (3d Cir.

1988); Price v. PSA, 829 F.2d 871, 876 (9" Cir. 1987).

Similarly, the Seventh Circuit has held that even for

claims on which the Federal Communication Act (“FCA”) does

not create a federal cause of action, the FCA provision that “no

State or local government shall have any authority to regulate,”

47 U.S.C. § 332(c)(3), is sufficient to show Congressional

intention to authorize complete preemption, Bastien v. AT & T

Wireless Services, Inc., 205 F.3d 983, 986-987 (7th Cir.2000),

and some district courts have agreed. E.g., Philips v AT&T

Wireless, 2004 WL 1737385 (S.D. Iowa, July 29, 2004);

Vermont v. Oncor Communications, 166 F.R.D. 313, 318-319

(D. Vt. 1996). Most lower courts, however, hold that the

FCA’s restrictions on state regulation of rates and services of

telephone companies do not completely preempt all state suits

about such matters. E.g., Marcus v. AT&T Corp., 138 F.3d 46,

54 (2d Cir.1998); In re Wireless Telephone Federal Cost

Recovery Fees Litigation, 343 F. Supp.2d 838, 845 (W.D. Mo.

2004); Bryceland v. AT & T Corp., 122 F. Supp.2d 703, 707-

709 (N.D. Tex. 2000); Bauchelle v. ATT Corp., 989 F. Supp.

636, 644-646 (D.N.J. 1997).

Similarly in this case, the Sixth Circuit upheld removal

based on preemption by a federal statute that does not provide

any cause of action for individual union members that might

displace a state claim and convert it into a federal claim within —

the district court’s original jurisdiction. At most, an individual

member can file an administrative complaint with the Secretary

of Labor, and the Secretary will take enforcement action if she

finds a violation of Title IV. Far from finding that Title [V of

the LMRDA supplants Davis’ state claims with federal claims

of which the district court had subject matter jurisdiction, the

court below directed that the district court dismiss those claims

for lack of subject matter jurisdiction. Pet. App. 10a. Thus, the

decision below deepens the conflict among the lower courts

about whether a federal statute can completely preempt state

claims without providing a cause of action that the plaintiff

could have brought in federal court in the first instance.

Even in terms of ordinary conflict preemption (as

opposed to complete preemption), the Sixth Circuit’s

preemption holdings are dubious, because this Court has held

that Title IV does not preclude the enforcement of other statutes

that could make the rules governing elections illegal.

Steelworkers v. Sadlowski, 457 U.S. 102, 117 n.10 (1982).

Moreover, Davis’ claims are not directed at overturning the

votes that were held to determine which candidates would fill

the positions that were created after his position was abolished

— he objects to the decision to redistrict his position out of

existence, which he claims was done for a discriminatory

purpose, and to defamatory comments about him that were

made to encourage delegates to vote to abolish that position.

Although preemption principles no doubt require that New York

Times standards be applied to his defamation claims, Linn v.

Plant Guards Local 114, 383 US 53, 64-65 (1966), this Court

has refused to hold that the mere fact that statements were made

in the course of a labor controversy bars any and all

enforcement of state libel laws, regardless of the presence of

actual malice and actual damage. /d. Nor has any other lower

court so held. And the limited nature of Davis’ administrative

remedy bars the application of collateral estoppel to prevent

Davis from bringing state law claims that might call into

question the findings about respondents’ statements that

supported the Secretary’s decision not to find any violation of

Title IV. Indeed, in union elections as in other labor disputes,

claimed false or even malicious campaign statements about the

contending parties are not a basis for overturning the election.

They may, however, form the basis for a libel suit.

In any event, neither the Secretary’s exclusive power

under 29 U.S.C. § 483 to set aside a union election that has

already been conducted, nor the Secretary’s finding that Title IV

was violated, provides a basis for complete preemption of

Davis’ state law age discrimination and defamation claims. The

Court should grant review to decide whether a statute such as

Title IV of the LMRDA, which does not provide any federal,

private right of action for litigants like Davis, can completely

preempt state claims and hence afford a basis for removal of

those claims from state court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Paul Alan Levy

Counsel of Record

Public Citizen Litigation Group

1600 - 20" Street, NW

Washington, DC. 20009

(202) 483-9578

David G. Oakley

Kramer and Associates, L.P.A.

3214 Prospect Avenue East

Cleveland, Ohio 44115-2600

(216) 431-5300

Counsel for Petitioner

July 15, 2005

APPENDIX

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 04a0432p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WARREN DAVIS,

Plaintiff-Appellee,

v. No.04-3131

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW); UAW

REGION 2B; RONALD GETTELFINGER;

and LLOYD MAHAFFEY,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 03-01311—Kathleen McDonald O’ Malley, District

Judge.

Argued: September 22, 2004

Decided and Filed: December 15, 2004

Before: KEITH, MOORE, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge. At the 2002

Constitutional Convention of the International Union of the

United Automobile Workers of America (UAW),

convention delegates adopted an amendment to the UAW

Constitution that dissolved one of the UAW’s geographic

regions and redistributed its members among three

neighboring regions. The amendment also had the effect of

setting aside Warren Davis’s reelection as a regional

director, a result that Davis contends was motivated by

illegal age discrimination. Davis therefore sued the UAW

and two of its officers, Ronald Gettelfinger and Lloyd

Mahaffey, in Ohio state court, alleging state-law claims of

age discrimination, conspiracy to discriminate on the basis

of age, wrongfu! discharge, retaliation, libel, and slander.

The UAW removed the case to the United States

District Court for the Northern District of Ohio, asserting

that Davis’s state-law claims sought postelection relief and

were therefore preempted by Title IV of the federal

Labor-Management Reporting and Disclosure Act

(LMRDA), 29 U.S.C. §§ 481-83 (2004). Finding that there

was no federal preemption, the district court remanded the

case to the Ohio state court. For the reasons set forth below,

we REVERSE the district court’s remand of Davis’s

state-law claims and REMAND with instructions to

dismiss the claims on the basis that they are all precluded by

the LMRDA.

I. BACKGROUND

A. Factual background

Davis served for 19 years as an elected member of

the governing board of the UAW. After deciding to run for

Congress in 2002, Davis announced his intention to vacate

his office in the UAW and endorsed his assistant director

for his soon-to-be-vacant position. The election for the

office, for which Davis’s assistant was the sole candidate,

was held at the UAW’s Constitutional Convention in June

of 2002. Due to an apparent last-minute change of heart,

however, Davis arranged for his assistant to nominate Davis

and then withdraw from the race, resulting in Davis winning

the election unopposed.

During his many years of service with the UAW,

Davis had been part of an unofficial caucus of politically

powerful members who adhered to an informal agreement

not to seek elective office after reaching 65 years of age.

Angered by Davis’s surprise tactics at the convention and

his acceptance of an elected position at the age of 67,

several members of the unofficial caucus issued a press

release calling upon the UAW convention delegates to

eliminate Davis’s region, redistribute its members among

three other regions, and hold new elections. This proposal

was adopted by the UA W Constitutional Convention, which

promptly dissolved Davis’s region the day after his

reelection.

B. Procedural background

Davis sued the UAW in the United States District

Court for the Eastern District of Michigan, alleging a

number of federal claims related to the UAW’s elimination

of his region and the resulting termination of his elected

office. Davis v. UAW, 274 F. Supp. 2d 922 (E.D. Mich.

2003). The court dismissed the case after finding that it

lacked subject matter jurisdiction over Davis’s

election-related claims because there had been no finding of

probable cause by the Secretary of Labor as required by

Title IV of the LMRDA, 29 U.S.C. §§ 481-83. The

Michigan district court’s dismissal of Davis’s case was

upheld by this court on appeal. Davis v. UAW, 2004 WL

2812623 (6th Cir. Dec. 9, 2004).

In the present action, Davis has sued the UAW and

two of its officers in Ohio state court, advancing state-law

claims of age discrimination, conspiracy to discriminate on

the basis of age, wrongful discharge, retaliation, libel, and

slander, all arising out of the events at the Convention.

These state-law causes of action are premised on the

assertion in his complaint that he “was successfully elected

as Director” at the UAW Convention and that the UAW’s

subsequent actions in reorganizing his region improperly

deprived him of his rightful office.

The UAW removed the case to the district court,

offering two separate grounds in support of removal. First,

the UAW contended that, in deciding Davis’s state-law

claims, the court would be required to interpret the UAW

Constitution, thus making the action completely preempted

by the Labor Management Relations Act (LMRA), 29

U.S.C. § 185 (2004). Second, the UAW asserted that the

adjudication of Davis’s state-law claims would necessarily

require a determination regarding the validity of the VAW

election, an exclusively federal question under Title IV of

the LMRDA.

The district court remanded the action to the state

court after concluding that it lacked subject matter

jurisdiction over the case. In so doing, it found that the

UAW’s federal preemption claims based on the LMRA

were without merit, a decision that the UAW has not

challenged on appeal. The district court also rejected the

UAW ’s contention that Davis’s state-law claims were

preempted by Title IV of the LMRDA, causing it to remand

the case back to the state trial court. This timely appeal

followed.

II. ANALYSIS

A. Jurisdiction to review the district court’s remand

order.

A threshold question in this case is whether

appellate jurisdiction exists to review the remand order of

the district court. As a general rule, remand orders constitute

final judgments for purposes of federal appellate jurisdiction

and may be reviewed unless some independent bar to

appellate review exists. Quakenbush v. Allstate Ins. Co., 517

U.S. 706, 712 (1996) (establishing that remand orders are

“immediately appealable under §1291 because they

conclusively determine a disputed question that is

completely separate from the merits of the action’)

(quotation marks omitted).

Davis contends that we are barred by 28 U.S.C. §

1447(d) from hearing the UAW’s appeal from the district

court’s remand order. Section 1447(d) states that “[a]n order

remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise... .”

Despite the sweeping language of this section, however,

“(t]he Supreme Court stated long ago. . . that the § 1447(d)

proscription is not as broad as it seems.” Baidridge v.

Kentucky-Ohio Trans., Inc., 983 F.2d 1341, 1343 (6" Cir.

1993).

One significant limitation on the reach of § 1447(d)

was explored by this court in Long v. Bando Manufacturing

of America, Inc., 201 F.3d 754 (6th Cir. 2000), where

appellate review of a remand order was sought. Although

acknowledging that “the plain language of 28 U.S.C. §

1447(d) suggests that remand orders concerning cases

removed pursuant to 28 U.S.C. § 1441 are never

reviewable,” Long, 201 F.3d at 758, this court concluded

that the Supreme Court’s ruling in Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336 (1976), dictated that “§§

1447 (c) and (d) must be read together... .” Long, 201 F.3d

at 758. Section 1447 (c) directs the district court to remand

a removed case “[i]f at any time before final judgment it

appears that the district court lacks subject matter

jurisdiction ... .” After reading § 1447(c) in conjunction

with (c) the court in Long concluded “that § 1447(d)

prohibits review only of remand orders issued pursuant to a

finding, under § 1447(c) that the district court lacked subject

matter jurisdiction.” 201 F.3d at 758.

In determining “the nature and scope of’ remand

under §1447(c), this court has “interpreted that provision as

necessarily tied to a temporal reference point, namely, the

time of removal.” Van Meter v. State Farm Fire & Cas.

Co.,1 F.3d 445, 450 (6 Cir. 1993). For acase to be deemed

remanded pursuant to § 1447(c), the district court must find

that subject matter jurisdiction was lacking at the time of

removal and then remand on that basis; otherwise, §

1447(d) will not prohibit appellate review of the district

court’s remand order. See First Nat’l Bank of Pulaski v.

Curry, 301 F.3d 456, 460 (6" Cir. 2002) (stating that “§

1447(d) means only that a remand order is unreviewable on

appeal when the case was remanded based on the district

court’s conclusion that it lacked subject matter jurisdiction

over the removed case at the time of removal’) (emphasis

in original). Where a district court had proper jurisdiction at

the time of removal, but events occurring after removal

make remand to the state courts appropnate, § 1447(d) does

not bar appellate review of the district court’s remand order.

See Letherer v. Alder Group, LLC, 328 F.3d 262 (6th Cir.

2003) (exercising appellate review where the district court

remanded after concluding that a stipulation between the

parties had obviated the need to address the federal

question); First Nat’l Bank of Pulaski, 301 F.3d at 459

(reviewing a remand order where the district court had

resolved the federal claims and then remanded the case after

finding that it “lacked jurisdiction to adjudicate the

remaining state claims”).

We conclude that § 1447(d) does not bar our

appellate review of the remand order in the present case

because the district court possessed subject matter

jurisdiction at the time of removal. The UAW removed this

case to the district court, arguing that there was federal

question jurisdiction over Davis’s claim for reinstatement

because the claim constituted a request for postelection

relief under the exclusive jurisdiction of the LMRDA. Only

after finding that Davis had “conceded] that the remedy of

reinstatement [was not available to him” did the district

court conclude that the case must be remanded because

subject matter jurisdiction had been lost. The district court

found that Davis had expressed his intent to abandon this

claim in his memorandum supporting his remand motion,

which was filed over a month after the case was removed

from the state court.

On this point the district court may have been

mistaken, however, because Davis did not amend his

complaint to remove his claim for reinstatement and has

made clear his intention to preserve the claim. Regardless,

the district court plainly relied on Davis’s alleged

concession in remanding the case, finding that it “goes a

long way toward mooting the defendants’ argument” of

preemption by the LMRDA. Because the district court

remanded this case only after finding that a post-removal

event had deprived it of subject matter jurisdiction, we may

exercise appellate jurisdiction over the district court’s

remand order. See First Nat'l Bank of Pulaski, 301 F.3d at

460 (stating that “a remand order is reviewable on appeal

when the district court concludes that the action was

properly removed but that the court lost subject matter

jurisdiction at some point post-removal”).

B. Federal preemption by Title IV of the LMRDA

1. Davis’s state-law claims for age discriwination,

conspiracy, wrongful termination, and retaliation

The UAW contends that remand was improper

because Davis’s complaint raised exclusively federal

questions regarding the validity of the union election, the

UAW’’s tactics therein, and the appropriateness of Davis’s

reinstatement as a remedy. Specifically, the UAW argues

that Davis’s claims of age discrimination, conspiracy,

wrongful termination, and retaliation all seek postelection

relief. Title [TV of the LMRDA mandates that challenges to

a previously conducted union election may only be brought

by the Secretary of Labor. 29 U.S.C. § 483; Trbovich v.

United Mine Workers, 404 U.S. 528, 533 (1972).

The district court’s application of the LMRDA is

reviewed de novo. Argentine v. United Steel Workers,

AFL-CIO, 287 F.3d 476, 482 (6" Cir. 2002). In remanding

the present action, the district court concluded that Davis’s

claims were not preempted by the LMRDA because the

indisputably federal questions of “whether Davis was

elected” and “whether the defendants eliminated Davis’s

position” need not be answered in order to adjudicate

Davis’s claims. We respectfully disagree. For instance, it is

difficult to imagine how the state court could adjudicate

whether Davis was wrongfully terminated without first

finding that he held a position in the UAW. This apparent

difficulty is confirmed by the fact that the district court felt

compelled to address the validity of the UAW election in its

remand order, noting that “the Union does not seriously

assert that Davis was not elected” and that “the defendants

have never denied (and have no basis for denying) that

Davis was elected pursuant to a regular and orderly process

provided for under the Union Constitution.” To the contrary,

the UAW vigorously contests the validity of Davis’s

election.

We agree with the district court’s conclusion that the

preemptive scope of the LMRDA is narrow but disagree that

Davis’s claims are not within that narrow scope. For

example, the district court held that Davis’s request for

damages in the form of back pay “would not necessarily

imply, as defendants assert, that one or more of the Union’s

election results were invalid.” But the cases relied upon by

the district court do no more than support the proposition

that the LMRDA permits an employee to file an age

discrimination claim for back wages when improperly

discharged by the union; they offer no authority for the

court’s holding that an employee is not preempted when

filing a similar claim in the context of an allegedly unfair

union election.

Conversely, the two other courts that have addressed

this issue in the context of a union election have held that

the LMRDA preempts such a claim because “[p]laintiffs can

only prevail on . . . the claim for back pay[] if the court

determines that the election was improper.” Calciano v.

United Bhd. of Carpenters & Joiners, No. 92-5715, 1993

WL 138827 at *4 (S.D.N.Y. Apr. 23, 1993); see also

Bermingham v. Castro, No. 98-15859, 1999 WL 644342 at

*2 (9th Cir. Aug. 24, 1999) (holding that damages in the

form of “lost income . . .effectively challenge the validity of

10a

the election already conducted, which is an area in which

Title IV provides the exclusive remedy”).

Davis’s state-law claims in question, including his

requested remedy of back pay, logically hinge on his

assertion that he was lawfully elected. As the district court

in Michigan correctly concluded, claims for postelection

relief are relegated to the exclusive jurisdiction of the

Secretary of Labor by the LMRDA. Davis v. UAW, 2004

WL 2812623 (6" Cir. Dec. 9, 2004). Davis’s claims for age

discrimination, conspiracy, wrongful termination, and

retaliation should therefore be dismissed by the district court

for lack of subject matter jurisdiction.

2. Davis’s state-law claims for libel and slander

Davis’s remaining causes of action for libel and

slander arise from a press release issued at the UAW

Convention, wherein certain delegates alleged that Davis

lied about his plans for retirement and employed an

“immoral, deliberate, and fraudulent scheme to deny an

honest election to the membership.” Similar sentiments

were also vocalized by some of the delegates shortly after

the election.

In order for Davis to establish a prima facie case for

libel or slander, he must show that the delegates’ statements

regarding the impropriety of his actions in the election were

false. See Celebrezze v. Dayton Newspapers, Inc., 535

N.E.2d 755, 759 (Ohio Ct. App. 1988) (holding that falsity

is an essential element of an Ohio common law defamation

claim). To determine whether the statements are false,

however, the validity of the election and Davis's tactics

therein must be examined.

But this inquiry has already been conducted by the

Secretary of Labor in responding to Davis’s Title IV

lla

complaint. After acknowledging that some delegates had

“privately published and distributed a pamphlet

condemning [Davis’s] stratagem and purposes,” the

Secretary nevertheless found that the delegates’ actions at

the Convention had not violated Davis’s election-related

rights. Because Davis’s claims for libel and slander would

necessarily require a court to revisit this finding, these

claims are also preempted by Title IV of the LMRDA. Cf

Henegar v. Banta, 27 F.3d 223, 226-27 (6" Cir. 1994)

(holding that the Railway Labor Act “preempts state law

claims based on libel and slander” because the “court would

inevitably have to interpret the terms of the collective

bargaining agreement,” a task within the exclusive

jurisdiction of the National Railroad Adjustment Board);

Miller v. Norfolk & W. Ry. Co., No. 89-4101, 1990 WL

163302, at *5 (6th Cir. Oct. 25, 1990) (unpublished)

(finding libel and slander claims preempted by the Railway

Labor Act where, “[a]lthough defamation was not an issue

before the [administrative] board,” the defamation claim

was “based upon a matrix of facts that [was inextricably

intertwined with the collective bargaining agreement”).

lil. CONCLUSION

For all of the reasons set forth above, we

REVERSE the district court’s remand of Davis’s state-law

claims and REMAND with instructions to dismiss the

claims on the basis that they are precluded by the LMRDA.

12a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WARREN DAVIS, : Case No. 1:03CV1311

Plaintiff, : JUDGE

: O’MALLEY

v. : MEMORANDUM &

: ORDER

UNITED :

AUTOMOBILE,

AEROSPACE AND :

AGRICULTURAL :

IMPLEMENT

WORKERS OF

AMERICA, et al.,

Defendant.

Plaintiff Warren Davis originally filed this action

in state court against the following defendants: (1) United

Automobile, Aerospace and Agricultural Implement

Workers of America (“the Union”); (2) Region 2B of the

Union (“Region 2B”); (3) Union President Ronald

Gettelfinger; and (4) Region 2B Director Lloyd Mahaffey.

In his complaint, Davis alleges that, in 1983, he was

elected to the position of Director of Region 2. Davis

further alleges that the UAW has an unwritten rule that a

person may not hold the position of Director after age 65.

Davis decided not to adhere to this rule, and ran for re-

election in June of 2002, even though he was older than 65.

\ Davis won the election. Davis alleges that the defendants

13a

then punished him for violating the age rule. Davis alleges

this punishment came primarily in two forms: (1) the

defendants broke up Region 2, distributed its members to

other regions (including Region 2B), and eliminated the

position of Director of Region 2; and (2) the defendants

issued a defamatory press release, attacking Davis and

seeking to lower his reputation with Union members.

Davis also alleges the defendants took these actions in

retaliation for Davis’s having urged other Union members

to disregard the unwritten age rule.

Based on these allegations, Davis stated the

following claims: (1) age discrimination, in violation of

Ohio Rev. Code §4112.02; (2) wrongful discharge, in

violation of Ohio public policy; (3) libel; (4) defamation;

(5) retaliation, in violation Ohio Rev. Code §4112.02; and

(6) conspiracy to discriminate on the basis of age.

Currently pending are the following motions: (1)

motion by defendants to dismiss the complaint for lack of

subject matter jurisdiction and for failure to state a claim

upon which relief can be granted (docket no. 5); (2)

defendants’ motion to transfer venue to the United States

District Court for the Eastern District of Michigan (docket

no. 6); and (3) motion by Davis to remand (docket no. 12).

For the reasons stated below, the motion to remand is

GRANTED, and this case is REMANDED to the

Cuyahoga County, Ohio Court of Common Pleas, where it

was originally filed. Given that the Court concludes it

l4a

does not have jurisdiction over the case, the Court does not

tule on the other motions, leaving them for the state court.’

In his motion to remand, Davis boils his complaint

down to its essence in two paragraphs, as follows:

Plaintiff Warren Davis was a

member of UAW since 1954, and became

the Director of Region 2, and elected

position, in 1983. Pursuant to UAW rule

and custom, Plaintiff was expected to retire

at age sixty-five. This policy is a blatant

violation of Ohio iaw, and federal law,

prohibiting discrimination on the basis of

age. Plaintiff declined to retire, ran for re-

election, and was re-elected by popular vote

to the Region 2 Director position.

Thereafter, the named Defendant

publicly chastised Mr. Davis because of

his refusal to leave quietly at age sixty-five,

and vocally defended their unlawful policy

of seeking “new and fresh” leadership,

meaning persons under age sixty-five.

Ultimately, Defendants eliminated

Plaintiff s position by eliminating Region 2

'The Court does note, however, that the basis for defendants/

motion to transfer venue has become virtually moot, as the“related

case”pending in the United States District Court for the Eastern

District of Michigan has been dismissed. The dismissal is currently on

appeal.

15a

entirely; Defendants also made defamatory

statements during and after their campaign

to get rid of Mr. Davis.

Memo. In support at 1 (emphasis in original). Davis then

explains that, even though the defendants’s actions

allegedly violated “Ohio law, and federal law, prohibiting

discrimination on the basis of age,” he chose to state “six

causes of action, all of which are based state law,” and not

to state any federal law claims. Jd. (emphasis added).

Despite Davis’s choice to bring only state-law

claims, the defendants removed the action to this Court.

Defendants give two reasons why this case is properly

removed to this court. First, defendants assert that

“adjudication of Davis’[s] claims implicate and will

require substantial interpretation of numerous provisions of

UAW’s Constitution, making this action one that is

completely preempted by LMRA Section 301 and thus

properly removable.” Response at vi (citing Section 301

of the Labor Management Relations Act (“LMRA”), 29

U.S.C. §185. Second, defendants assert that “Title IV of

the Labor-Management Reporting and Disclosure Act

[“LMRDA”], 29 U.S.C. §§481-483, completely preempts

Davis’[s] claim for installation in elective union office, the

pay and benefits incident to that office, and the invalidation

of conflicting results in other union elections.” Jd. The

Court examines these two arguments separately.

A. LMRA Preemption.

As defendants note, LMRA “preempts state law

rules that substantially implicate the meaning of collective

bargaining agreement terms.” DeCoe v. General Motors

l6a

Corp., 32 F.3d 212, 216 (6" Cir.1994). Under the principle

of LMRA preemption, “a suit in state court alleging a

violation of a provision of a labor contract must be brought

under §301 and be resolved by reference to federal law.”

Id. (quoting Allis-Charmers Corp.v. Lueck, 471 U.S. 202,

210 (1985)). To determine whether a plaintiff's state law

claims are, in fact, subject to LMRA preemption, this

Court must take a two-step approach:

First, the district court must examine

whether proof of the state law claim

requires interpretation of collective

bargaining agreement terms. Second, the

court must ascertain whether the right

claimed by the plaintiff is created by the

collective bargaining agreement or by state

law. If the right both is borne of state law

and does not invoke contract interpretation,

then there is no preemption. However, if

neither or only one criterion is satisfied,

section 301 preemption is warranted.

Id. (citations omitted). Further, “[i]n order to make the

first determination, the court is not bound by the ‘well-

pleaded complaint’ rule, but rather, looks to the essence of

the plaintiff's claim, in order to determine whether the

plaintiff is attempting to disguise what is essentially a

contract claim as a tort.” Jd. (citation omitted). If the

plaintiff can prove all of the elements of his claim without

the necessity of contract interpretation, then his claim is

independent of the labor agreement. Dougherty v.

Parsec, Inc., 872 F.2d 766, 770 (6" Cir. 1989). “[N]either

a tangential relationship to the CBA nor the defendant’s

assertion of the contract as an affirmative defense will turn

17a

an otherwise independent claim into a claim dependent on

the labor contract.” DeCoe, 32 F.3d at 216 (citation

omitted).? When undertaking this analysis, the Court must

strictly construe the notice of removal and resolve all

doubts against removal. Her Majesty the Queen in Right

of Province of Ontario v. City of Detroit, 874 F.2d

332,339 (6") Cir.1989). In addition, “[t]he party seeking

removal bears the burden of establishing its right thereto.”

Id. (citing Wilson 339 v. Republic Iron & Steel Co., 257

U.S. 92, 97-98 (1921).

In this case, the defendants recite four different

reasons why the Court will have to interpret the Union

Constitution in order to dispose of Davis’s claims. First,

the Court will have to examine the Constitution to

determine whether Davis was “properly elected” to the

position of Director of Region 2. Second, the Court will

have to examine the Constitution to determine whether

Davis is a “bona fide executive or high policymaker,”

“which could exempt him from protection under the Ohio

"In this case, the defendants premise their LMRA preemption

arguments not on the implication of the meaning of a collective

bargaining agreement, but on the implication of the meaning of the

Union Constitution. The LMRA preemption analysis, however,

remains the same. See United Ass'n of Journeymen and Apprentices

of Plumbing and Pipefitting Industry of U.S. and Canada, AFL CIO

v. Local 334, United Ass'n of Journeymen and Apprentices of

Plumbing and Pipefitting Industry of U.S. and Canada, 452 U.S. 615

(1981) (holding that a dispute implicating a union constitution could

be subject to LMRA preemption); Wooddell v. International Broth.

Of Elec. Workers, Local 71, 502 U.S. 93 (1991) (holding that a claim

by a union member that union officers violated the union’s constitution

could be subject to LMRA preemption).

18a

Age Discrimination statute. Third, the Court will have to

determine whether the defendants’ allegedly defamatory

remarks were privileged by the “free speech clause”

contained in the Union’s ethical code. And fourth, the

Court will have to examine the Constitution to determine

whether Davis is entitled to reinstatement, which he

requests in his prayer for relief. As explained below, the

Court disagrees with the defendants on each count — none

of Davis’s claims require anything more than a tangential

reference to the Constitution, and will not require

substantial interpretation of its terms and provisions.

Addressing the first point, the defendants note that

Davis alleges explicitly in his complaint that he was

“properly elected” under the Union Constitution, and that

the defendants “violated” the Constitution when they

arranged for the position of Director of Region 2 to be

eliminated. The defendants insist that proof of these

allegations “‘indubitably will require interpretation of the

Constitution’s terms.” Response at 9. The Court,

however, disagrees that it will have to interpret the

Constitution in order for Davis to prove his claims. As

Davis points out, the defendants have never denied (and

have no basis for denying) that Davis was elected pursuant

to a regular and orderly process provided for under the

Union Constitution. Admittedly, because the defendants

have filed a motion to dismiss, the defendants have not

formally answered Davis’s allegation regarding his having

been elected. But the Union does not seriously assert that

Davis was not elected, and the Union never took any action

challenging the validity of the election. Indeed, in the

internal Union appeal brought by Davis to challenge the

elimination of Region 2, the Union described the relevant

19a

facts and noted that “Davis was elected by acclamation.”

Union Decision at 1 (Apr. 15, 2003).’

More important, the critical question in this case is

not whether Davis was elected, nor is it whether the

defendants eliminated Davis’s position. Both of these

questions are questions of fact, and are not under serious

dispute. Indeed, the critical question is not even whether

the defendants violated the Union Constitution by

eliminating Region 2; while this question may have some

evidentiary value, it is not a question that must be

answered for Davis to prove all of the elements of his

claims. In other words, Davis’s claims for defamation, age

discrimination, and retaliation do not require proof that

the Union violated its own Constitution. Rather, the

central question is whether the defendant’s actions —

regardless of whether they violated the Union Constitution

— were motivated by discriminatory and/or maliciously

defamatory intent. The question of whether the defendants

eliminated Region 2 because: (1) it was no longer needed,

(2) they felt Davis acted unethically during his political

maneuvering, (3) they wanted to discriminate against Davis

based on age, or (4) for some other reason, does not require

a fact-finder or a Court to interpret the Union Constitution.

On this point, the Court finds instructive the case of

Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th

Cir.1989), cert. denied, 493 U.S. 992 (1989). In Smolarek,

one of the plaintiffs (Fleming) claimed that, after he

suffered an injury at work, his employer (Chrysler)

: Interestingly, the same decision notes that, although Davis

also asserted that the elimination of Region 2 violated age

discnmination laws, that was an issue for a court to decide. /d. at 4.

20a

purposely gave him “job assignments inconsistent with his

limitations,” harassed him, and finally terminated him. /d.

at 1328. Fleming filed a grievance, asserting that his

termination was the product of illegal discrimination and

in violation of the CBA. Fleming also filing a complaint

in state court, asserting claims for : (1) violation of the

Michigan statute that outlawed discrimination against the

handicapped (known as “HCRA”); (2) retaliation for

stating an intention to file a worker’s compensation claim;

(3) breach of the implied duty of good faith and fair

dealing; and (4) intentional interference with employment

relations. Although all of these claims were premised on

state law, Chrysler removed the case to federal court, citing

LMRA preemption. The Sixth Circuit Court of Appeals,

however, held that the case had to be remanded to state

court. The Smo/arek court reasoned as follows:

To defend against the HCRA charge,

Chrysler must show that its actions were

motivated by some factor other than

Fleming’s handicap. We recognize that

Chrysler is likely to assert as its defense to

Fleming’s claim that it based its actions on

the provisions of the labor agreement

regarding reinstatement and

accommodation. Even this defense,

however, does not require a finding of

preemption. In order to resolve the HCRA

claim in light of this defense, a court need

only decide whether Chrysler took actions

adverse to Fleming because of his handicap

or rather solely because Chrysler felt bound

by the union agreement to take the actions

or for some other legitimate reason. It is

2la

not necessary to decide at the outset

whether or not Chrysler’s interpretation of

the agreement is correct as a matter of

federal labor law. The question is a factual

one: What was Chrysler’s motivation?

Under [Lingle v. Norge Div. of Magic Chef,

Inc., 486 U.S. 399, 108 S. Ct.1877 (1988)],

therefore, Fleming’s HCRA claim 1s

sufficiently “independent” of the collective

bargaining agreement to escape § 301

preparation, for “resolution of the state-law

claim does not require construing the

collective-bargaining agreement.” 108 S.

Ct. at 1882 (emphasis added) (footnote

omitted).

Smolarek, 879 F.2d at 1334.

Also, in Smolarek, the court examined 4a

discrimination claim by a different plaintiff (Smolarek),

who asserted that, after he suffered a seizure at work, his

employer of 30 years terminated him illegally. Jd. at 1328.

Smolarek did not assert a claim that Chrysler violated the

CBA. Rather, Smolarek filed a complaint in Michigan

state court, alleging handicap discrimination under HCRA

and workers’ compensation retaliation. Defendant

Chrysler removed the case, citing LMRA preemption;

Chrysler argued that Smolarek’s claim was “substantially

dependent’ on interpretation of the collective bargaining

agreement’s provisions regarding an employee’s right to

reinstatement following disability leave.” Jd. at 1332.

Chrysler even characterized Smolarek’s discrimination

claim as, in actuality, a disguised claim for breach of CBA.

22a

Id. The Sixth Circuit Court of Appeals rejected Chrysler’s

arguments, and held remand was appropriate:

The fact that the collective bargaining

agreement contains a provision regarding

reinstatement does not compel a finding of

§301 preemption.*** Even if Smolarek

may have been able to charge Chrysler

under these circumstances with a violation

of the collective bargaining agreement, he

did not choose to do so and this does not

mean that §301, even if applicable but not

utilized by plaintiff, preempts the claim.***

Chrysler may, in its own defense,

assert that its treatment of Smolarek was

allowed or required by the terms of the

collective bargaining agreement and

therefore was not based on Smolarek’s

handicap. The assertion of a defense

requiring application of federal law,

however, does not support removal to

federal court:

It is true that when a

defense to a state claim is

based on the terms 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

§301 question, in a

defensive argument does

23a

not overcome. the

paramount polices

embodied in the well-

pleaded complaint rule—

that the plaintiff is the

maser 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 court.

Id. at 1332-33 (quoting Caterpillar, Inc. v. Williams, 482

U.S. 386,398-99 (1997)). See also Knafei v . Pepsi-Cola

Bottlers of Akron, Inc., 899 F. 2d 1473, 1483 (6™ Cir.

1990) (“Whether Pepsi harassed Knafel so outrageously as

to cause her emotional distress and physical injury is a

question that the district court can decide without

interpreting the collective bargaining agreement. The

LMRA does not deprive an empioyee of all common law

rights of action”); LaPointe v. United Autoworkers Local

600, 8 F.3d 376, 381 (6th Cir. 1993) (“the ADEA action is

not preempted by section 301 of the Labor Management

Relations Act because ‘employees have the right not to be

discriminated against on the basis of age or handicap

without regard to the collective bargaining agreement’s

language about an employee’s rights”).

The holding of Smolarek applies directly to this

case. It is true that the defendants will certainly point to

(indeed, have pointed to) certain provisions in the Union

Constitution and argue that those provisions, and not any

24a

discriminatory motive, excuse or explain why they took the

actions they did. But this defense does not require

substantial interpretation of the Constitution itself. Even

if there is some interpretation of the Constitution that is

required, it will be minimal and tangential to the claims

Davis asserts. Simply, Davis’s stated causes of action are

“state[-law] claim[s], sufficiently set out as separate and

apart from a [claim of violation of the Union Constitution],

and thus avoid[] preemption.” Jd. at 1331. As such, the

defendants’ removal of this case to federal court based on

LMRA preemption, premised on the need to interpret the

Union Constitution’s provisions regarding Davis’s

election, was not properly grounded.

Essentially the same analysis applies to the

defendants second point—that, because Davis has alleged

he is not a bona fide executive or high policymaker, the

Court will have to interpret the Union Constitution. As

defendants note, the Ohio Age Discrimination statute states

that it is not illegal “for any employer ... or labor

organization to ... [rjetire an employee who has attained

sixty-five years of age who, for the two-year period

immediately before retirement, is employed in a bona fide

executive or a high policymaking position...,” if the

employee is entitled to an annual pension of at least

$44,000.00. Ohio Rev. Code §4112.02(0)(3). Davis

affirmatively alleges he does not fall within this exception.

Complaint at 910. The defendants assert that the Union

Constitution contains a number of provisions defining the

power of the International Executive Board, of which

Davis was a member; accordingly, the defendants insist

that “[e]ach of these Constitutional provisions must be

interpreted against the statutory definitions of bona fida

executive and high policymaker.” Response at 11-12.

25a

Once again, however, the defendants’ reliance upon the

Constitution as an affirmative defense does not turn

Davis’s independent claims into labor contract claims.

Whether Davis meets the legal requirements for the “bona

fide executive” exemption will require a simple factual

analysis. The question of what powers the Union

Constitution gave to Davis may well have important

evidentiary value regarding the applicability of the

exemption set out in §4112.02(0)(3). But the extent of the

duties and responsibilities accorded to Davis under the

Union Constitution is not a question that requires

substantial interpretation of that document, nor is it a

question that must be answered for Davis to prove all of

the elements of his claims.

The defendants’ third point is that the “Ethical

Practices Code” (“EPC”) contained in the Union

Constitution arguably invested them with a legal privilege

to issue their allegedly defamatory remarks, and the Court

will have to interpret the EPC to determine the scope of

this privilege. This argument is also unavailing. The

provision to which the defendants point states:

Each member have full freedom of

speech.*** Each member shall have the

right freely to criticize the policies and

personalities of Union officials; however,

this night does not include the right to

undermine the Union as an institution; to

vilify other members of the Union and its

elected officials or to carry on activities

with complete disregard of the rights of

other members and the interests of the

”°

26a

Constitution at 140, EPC §1. As an initial matter, this

provision explicitly /imits the free speech “rights” of Union

members, excluding the right to “vilify” other

members—which obviously incorporates exclusion of the

“right” to defame or slander. Thus, any arguable privilege

of the defendants to criticize Davis is exactly contiguous

with Davis’s common-law right to be free from

defamation. Further, an ethical code promulgated by a

union cannot supercede state law. Unlike the situation in

DeCoe, 32 F.3d at 216, the defendants’ remarks in this case

were not made during the course of grievance procedures

required by a collective bargaining agreement. While the

defendants’ statements in DeCoe were arguably

contractually mandated, and thus arguably privileged, the

EPC in this case merely sets out aspirations. Interpretation

of the CBA was required in DeCoe to determine the scope

of the plaintiff's rights; interpretation of the EPC in this

case 1s not required to determine whether the defendants

defamcd Davis. Again, the question of whether the

defendants violated the EPC may have some evidentiary

value, but it is not a question that must be answered for

Davis to prove all of the elements of his defamation claims.

Finally, the defendants’ fourth point is that Davis

seeks, among other things, reinstatement, and the Court

will have to interpret the Union Constitution “to determine

whether the Constitution amendment that eliminated

Davis’[s] former region was properly enacted in the

manner required by the Constitution.” Response at 13.

The defendants add that the Court will also have “ to

determine whether Davis is eligible to hold office under the

terms of the UAW Constitution, given his subsequent

retirement from Ford Motor Company.” Jd. The relief

Davis seeks, however, is not an essential element of any of

27a

his claims. “If the plaintiff can prove all of the elements of

his claim without the necessity of contract interpretation,

then his claim is independent of the labor agreement.”

DeCoe, 32 F.3d at 216. The defendants’ argument that

Davis, if he prevails on his substantive claim, is not

entitled to reinstatement, is more in the line of assertion of

an affirmative defense. Whether Davis is entitled to

reinstatement is a question that neither a Court nor a jury

will address, if at all, until after Davis has proved “all of

the elements of his claim{s].” Jd. Thus, LMRA preemption

is not premised properly on Davis’s prayer for

reinstatement.‘

As the Sixth Circuit has explained, an age

discrimination action normally “is not preempted by

section 301 of the Labor Management Relations Act

because ‘employees have the right not to be discriminated

against on the basis of age or handicap without regard to

the collective bargaining agreement’s language about an

employee’s rights.”” LaPointe v. United Autoworkers

Local 600, 8 F.3d 376, 381 (6" Cir. 1993) (quoting O Shea

v. Detroit News, 887 F.2d 683, 687 (6 Cir.1989). “It is

irrelevant to the preemption question whether or not the

employer can defend by showing it had the right under the

collective bargaining agreement to do what it did.” O ’Shea,

887 F.2d at 687. In this case, the defendants have not

shown that any of Davis’s state-law claims require

interpretation of the Union Constitution, or invoke rights

4 Moreover, Davis essentially moots the defendants’ argument

regarding LMRA preemption and reinstatement by conceding that the

remedy of reinstatement is not available to him. As discussed below,

Davis make this concession during the course of arguing the viability

of LMRDA preemption jurisdiction

28a

created by the Constitution, or are in some other way

dependent on the Constitution. At best, the defendants

show that their affirmative defenses will require reference

to the Constitution. This is not enough to obtain federal

jurisdiction under LMRA preemption.

B. LMRDA Preemption.

The defendants also argue that, in addition to being

preempted by LMRA, Davis’s claims are preempted by

LMRDA. Congress passed LMRDA “in large part to

address the growing problems of racketeering, crime, and

corruption in the labor movement.” Brown v. Hotel &

Restaurant Employees & Bartenders Int’] Union Local No.

54, 468 U.S. 491, 505 (1984). Unlike the case with

LMRA, LMRDA preemption is quite narrow. Defendants

concede, as they must, that “Congress did not intend to

occupy the entire field of regulation, as the text of

LMRDA explicitly makes reference to continued viability

of state laws.” O'Hara v. Teamsters Union Local No.

856, 151 F.3d 1161 (9" Cir. 1998) (citing 29 U.S.C.

§523). Indeed, “Congress expressly provided two broad

anti-preemption provisions in the LMRDA in response to

objections initially raised by then Sen. John F. Kennedy

(D-Mass). ” Fulton Lodge No.2 of Int’l Assn. of Machinists

and Aerospace Workers AFL-CIO v. Nix, 415 F.2d 212,

215 (Sth Cir. 1969)(citing 29 U.S.C.§$413 and 523)

(footnotes omitted, emphasis added); see Brown, 468 U.S.

at 505-06 (characterizing §523(a) of LMRDA as “an

express disclaimer of pre-emption of state laws regulating

the responsibilities of union officials, except where such

pre-emption is expressly provided”).

29a

Despite the narrowness of LMRDA preemption, it

does exist to the extent “expressly provided” by Congress.

In particular, 29 U.S.C. §§481-83 provides that the

exclusive remedy for challenging the results of a Union

election is by pursuing administrative procedures

prescribed by the Secretary of Labor. The defendants seek

to bring this case within the ambit of LMRDA preemption

by focusing, again, primarily on one aspect of the relief

sought by Davis: reinstatement. After Davis was elected

as Director of Region 2, the delegates to the Union’s

Constitutional Convention voted to amend the Constitution

and eliminate Region 2, and with it Davis’s position.

Defendants argue that Davis, by seeking reinstatement, is

essentially challenging the results of the Union

Constitutional Convention delegates’ vote, which he may

not do by any means other than those set out in 29 U.S.C.

§§481-83. Defendants further note that, for Davis to

obtain the Court-ordered reinstatement he seeks, a Court

would have to choose between conflicting Union election

results: “the results of the first election in which Davis was

(elected as] Director of Region 2, and the results of

[subsequent] elections, in which other persons were elected

to serve redrawn jurisdictions which include among them

portions of the UAW membership formerly in Region 2.”

Motion to dismiss at 12. Again, defendants note that “only

the Secretary of Labor may bring an action seeking the

installation in union office ofa disappointed union member

such as Davis, or related relief.” Jd. Indeed, defendants

argue that even Davis’s prayer for an award of back pay

shows the propriety of their removal of this case under

LMRDA preemption principles, because a back pay award

would necessarily be attributabteto Davis’s valid election

as Director of Region 2.

30a

In response to the defendants’ LMRDA argument,

Davis concedes that the remedy of reinstatement is not

available to him. Reply at 13. This goes a long way

toward mooting the defendants’ argument. The question

remains, however, whether Davis’s prayer for back pay,

alone, gives rise to LMRDA preemption. The defendants

do cite a single unreported case lending some support to

this position. See Bermingham v. Castro, 1999 WL

644342 at *2 (9" Cir. /999) (“although Bunting is not

seeking to set aside the December 1989 election, the

damages that he seeks for lost income and benefits

attributable to the business agent position effectively

challenge the validity of the election already conducted,

which is an area in which Title IV provides the exclusive

remedy’).

The Court concludes, however, that the nature of

the relief requested by Davis, alone, does not create federal

preemption jurisdiction. The LMRDA is careful to state

that, “except as explicitly provided to the contrary, nothing

in this chapter shall reduce or limit the responsibilities of

any labor organization or any officer...of a labor...

organization...under the laws of any State ....” 29 U.S.C.

§523(a). “Generally speaking, [Ohio] law imposes a

responsibility on employers, including unions, to refrain

from discharging an employee on the basis of ...age over

40.” Smith v. International Brotherhood of Electrical

Workers, 109 Cal.App.4th 1637, 1653, 1 Cal.Rptr.3d 374,

385 (Cal. Ct. App.2003) (emphasis added). As the Smith

Court noted,

[b]ecause the LMRDA does not “explicitly

provide to the contrary,” these

responsibilities [not to discriminate or

3la

retaliate] are neither “reduced” nor

“limited” by the provisions of the Act. As

a logical corollary, neither are the state’s

means of enforcing these responsibilities

reduced or limited by the Act. Therefore,

the LMRDA does not preempt an action

against union for unlawful discharge based

on age....

Id. Moreover, there is no direct conflict between federal

law and the state laws allegedly violated by the defendants

in the present case. “Nothing in the LMRDA even

remotely condones the practice of ... age discrimination on

the part of elected union officials.” Jd. To adopt the

defendants’ argument, merely because Davis prayed for

back pay as one measure of the damages he suffered due to

the defendants’ allegedly illegal actions, he may not pursue

his state law claims against them. This argument reads too

much into Davis’s prayer for relief.

Ultimately, if Davis proves that the defendants

subjected him to illegal discrimination, retaliation, and/or

defamation, he is entitled to compensatory damages.? A

state court can surely instruct a jury regarding the proper

measure of those damages, according to State law. An

award of damages that includes back pay would not

necessarily imply, as defendants assert, that one or more of

the Unions election results were invalid. An award of

damages that includes back pay would not necessarily

imply, as defendants assert, that one or more of the

sThe Court expresses no opinion as to whether Davis might

be entitled to punitive damages.

32a

Union’s election results were invalid. Such an award

could also (and would probably more accurately) imply

that, regardless of the validity of the election, the

defendants worked to obtain those results by pursuing

discriminatory, retaliatory, and/or defamatory actions.

Davis’s state-law claims do not attack the ultimate validity

of any Union election results; rather, his claims challenge

the means by which the defendants secured those results.

The LMRDA simply does not preempt state-law claims

accusing a Union defendant of illegal acts and seeking

appropriate relief. See Bloom v. General Truck Drivers,

Office, Food & Warehouse Union, Local 952, 783 F.2d

1356, 1361 (9° Cir. 1986) (examining LMRDA and

holding that to protect a defendant from a claim of

wrongful discharge “by preempting a state cause of action

based on it does nothing to serve union democracy of the

rights of union members; it serves only to encourage and

conceal such [illegal] acts and coercion by union leaders”).

In sum, the Court concludes that neither LMRDA

nor LMRA preempt Davis’s state law claims.

Accordingly, the defendants’ removal of the case to this

Court was not well-taken, and Davis’s motion to remand

must be granted. Finally, the Court concludes that, in the

circumstances presented, an award to Davis of attorneys’

fees and costs under 28 U.S.C. §1447 is not appropriate.

IT IS SO ORDERED.

s/Kathleen M. O’ Malley

KA fHLEEN McDONALD O’MALLEY

UNITED STATES DISTRICT JUDGE

33a

No. 04-3131

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WARREN DAVIS, FILED

Plaintiff-Appellee FEB. 28", 2005

Vv LEONARD GREEN,

CLERK

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, (UAW), ET AL.

Defendants-Appellants.

BEFORE: KEITH, MOORE, and GILMAN, Circuit

Judges.

The court having received a petition for rehearing

en banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submission

and decision of the case. Accordingly, the petition is

denied.

ENTERED BY ORDER OF THE COURT

34a

Leonard Green

Leonard Green, Clerk

3Sa

28 U.S.C. § 1367 provides as follows, in pertinent part:

Section 1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as

expressly provided otherwise by Federal statute, in 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 UI of the United States Constitution. Such

supplemental jurisdiction shall include claims that involve

the joinder or intervention of additional parties.

* * *

supplemental jurisdiction over a claim under subsection (a)

(1) the claim raises a novel or complex issue of

State law,

(2) the claim substantially predominates over the

claim or claims over which the district court has original

jurisdiction,

(3) the district court has dismissed all claims over

which it has original jurisdiction, or

(4) in exceptional circumstances, there are other

compelling reasoris for declining junsdiction.

28 U.S.C. § 1447 provides as follows, in pertinent part:

36a

Section 1447. Procedure after removal generally

*x* * *

defect other than lack of subject matter jurisdiction must

be made within 30 days after the filing of the notice of

removal under section 446(a). If at any time before final

judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded. An order

remanding the case may require payment of just costs and

any actual expenses, including attorney fees, incurred as a

result of the removal. A certified copy of the order of

remand shall be mailed by the clerk to the clerk of the State

court. The State court may thereupon proceed with such

case.

(d) An order remanding a case to the State court from

which it was removed is not review able on appeal or

otherwise, except that an order remanding a case to the

State court from which it was removed pursuant to section

1443 of this title shall be review able by appeal or

otherwise.

29 U.S.C. § 482 provides as follows, in pertinent part:

Section 482. Enforcement

(a) Filing of complaint; presumption of validity

of challenged election

A member of a labor organization -

(1) who has exhausted the remedies available under

the constitution and bylaws of such organization

and of any parent body, or

(2) who has invoked such available remedies

without obtaining a_ final decision within three

37a

calendar months after their invocation, may file a

complaint with the Secretary within one calendar

month thereafter alleging the violation of any

provision of section 481 of this title (including

violation of the constitution and bylaws of the

labor organization pertaining to the election and

removal of officers). The challenged election shall

be presumed valid pending a final decision thereon

(as hereinafter provided) and in the interim the

affairs of the organization shall be conducted by

the officers elected or in such other manner as its

constitution and bylaws may provide.

(b) Investigation of complaint; commencement

of civil action by Secretary; jurisdiction; preservation

of assets

The Secretary shall investigate such complaint and,

if he finds probable cause to believe that a violation of this

subchapter has occurred and has not been remedied, he

shall, within sixty days after the filing of such complaint,

bring a civil action against the labor organization as an

entity in the district court of the United States in which

such labor organization maintains its principal office to set

aside the invalid election, if any, and to direct the conduct

of an election or hearing and vote upon the removal of

officers under the supervision of the Secretary and in

accordance with the provisions of this subchapter and such

rules and regulations as the Secretary may prescribe. The

court shall have power to take such action as it deems

proper to preserve the assets of the labor organization.

election; certification of election to court; decree;

certification of result of vote for remeval of officers

38a

If, upon a preponderance of the evidence after a

trial upon the merits, the court finds -

(1) that an election has not been held within the

time prescribed by section 481 of this title, or

(2) that the violation of section 481 of this title may

have affected the outcome of an election, the court

shall declare the election, if any, to be void and

direct the conduct of a new election under

supervision of the Secretary and,:so far as lawful

and practicable, in conformity with the constitution

and bylaws of the labor organization. The

Secretary shall promptly certify to the court the

names of the persons elected, and the court shall

thereupon enter a decree declaring such persons to

be the officers of the labor organization.

*“* *

29 U.S.C. § 483 provides as follows:

Section 483. Application of other laws; existing rights

and remedies; exclusiveness of remedy for challenging

election

No labor organization shall be required by law to

conduct elections of officers with greater frequency or in

a different form or manner than is required by its own

constitution or bylaws, except as otherwise provided by

this subchapter. Existing nghts and remedies to enforce

the constitution and bylaws of a labor organization with

respect to elections prior to the conduct thereof shall not be

affected by the provisions of this subchapter. The remedy

provided by this subchapter for challenging an election

already conducted shall be exclusive.

39a

Section 4112.02 of the Ohio Revised Code provides, in

pertinent part:

§ 4112.02. Unlawful discriminatory practices.

(O) With regard to age, it shall not be an unlawful

discriminatory practice and it shall not constitute a

violation of division (A) of section 4112.14 of the Revised

Code for any employer, employment agency, joint

labor-management committee controlling apprenticeship

training programs, or labor organization to do any of the

following:

(1) Establish bona fide employment qualifications

reasonably related to the particular business or occupation

that may include standards for skill, aptitude, physical

capability, intelligence, education, maturation, and

experience;

(2) Observe the terms of a bona fide seniority system or

any bona fide employee benefit plan, including, but not

limited to, a retirement, pension, or insurance plan, that is

not a subterfuge to evade the purposes of this section.

However, no such employee benefit plan shall excuse the

failure to hire any individual, and no such seniority system

or employee benefit plan shall require or permit the

involuntary retirement of any individual, because of the

individual's age except as provided for in the “Age

Discrimination in Employment Act Amendment of 1978,”

92 Stat. 189, 29 U.S.C.A. 623, as amended by the “Age

Discrimination in Employment Act Amendments of 1986,”

100 Stat. 3342, 29 U.S.C.A. 623, as amended.

40a

(3) Retire an employee who has attained sixty-five years of

age who, for the two-year period immediately before

retirement, is employed in a bona fide executive or a high

policymaking position, if the employee is entitled to an

immediate nonforfeitable annual retirement benefit from a

pension, profit-sharing, savings, or deferred compensation

plan, or any combination of those plans, of the employer of

the employee, which equals, in the aggregate, at least

forty-four thousand dollars, in accordance with the

conditions of the “Age Discrimination in Employment Act

Amendment of 1978,” 92 Stat. 189, 29 U.S.C.A. 631, as

amended by the “Age Discrimination in Employment Act

Amendments of 1986,” 100 Stat. 3342, 29 U.S.C.A. 631,

as amended;

(4) Observe the terms of any bona fide apprenticeship

program if the program is registered with the Ohio

apprenticeship council pursuant to sections 4139.01 to

4139.06 of the Revised Code and is approved by the

federal committee on apprenticeship of the United States

department of labor.

Section 4112.14 of the Ohio Revised Code provides as

follows:

§ 4112.14. Age discrimination by employers.

(A) No employer shall discriminate in any job opening

against any applicant or discharge without just cause any

employee aged forty or older who is physically able to

perform the duties and otherwise meets the established

requirements of the job and laws pertaining to the

relationship between employer and employee.

4la

(B) Any person aged forty or oider who is discriminated

against in any job opening or discharged without just cause

by an employer in violation of division (A) of this section

may institute a civil action against the employer in a court

of competent jurisdiction. If the court finds that an

employer has discriminated on the basis of age, the court

shall order an appropriate remedy which shall include

reimbursement to the applicant or employee for the costs,

including reasonable attorney's fees, of the action, or to

reinstate the employee in the employee's former position

with compensation for lost wages and any lost fringe

benefits from the date of the illegal discharge and to

reimburse the employee for the costs, including reasonable

attorney's fees, of the action. The remedies available under

this section are coexistent with remedies available pursuant

to sections 4112.01 to 4112.11 of the Revised Code;

except that any person instituting a civil action under this

section is, with respect to the practices complained of,

thereby barred from instituting a civil action under division

(N) of section 4112.02 of the Revised Code or from filing

a charge with the Ohio civil mghts commission under

section 4112.05 of the Revised Code.

section and any remedies available pursuant to sections

4112.01 to 4112.11 of the Revised Code shall not be

available in the case of discharges where the employee has

available to the employee the opportunity to arbitrate the

discharge or where a discharge has been arbitrated and has

been found to be for just cause

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.