Opposition Brief — Davis v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America

No. 05-107

IN THE

Supreme Court of the Anited States

WARREN DAVIS,

Petitioner.

¥.

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW), et al.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DANIEL W. SHERRICK

Counsel of Record

General Counsel

International Union, UAW

8000 E. Jefferson Avenue

Detroit, MI 48214

(313) 926-5216

JAMES B. COPPESS

815 Sixteenth Street, NW

Washington, DC 20006

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

Page

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(1)

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TABLE OF AUTHORITIES

CASES

Page

Adickes v. S.H. Kress & Co., 398 U.S. 144

(eR aR SCO RC OE nD 15

Adkins v. Illinois Central Railroad, 326 F.3d 828

ra ahi cada sadaganidnenineey 9

Baker v. Kingsley, 387 F.3d 649 (7th Cir. 2004)... 14, 15

Beneficial Nat'l Bank v. Anderson, 539 U.S. |

ee gece as suns osuacsaswessniuubsucasded cksiiisans 15, 16, 17

Briarpatch Ltd. v. Phoenix Pictures, Inc., 373

eee es PED vncsceviesnnsconssennascacesecesones 16

Davis v. International Union, U.A.W., 274

F.Supp.2d 922 (E.D. Mich. 2003)... 4

Davis v. International Union, U.A.W., 390 F.3d

I MEI, NOE oss ccksssnscccnnesesoncacsansenesnandnvss’ 2

Dawalt v. Purdue Pharma, L.P., 397 F.3d 392

I I scala ccepaissantayivouandn'cavevinclvannie 9

First Nat’l Bank of Pulaski v. Curry, 301 F.3d

TEE, CONE Dor cissncnenscasucsecivesesesveensssansadarss 9

Furniture Moving Drivers v. Crowley, 467 U.S.

isa dc sisistahadancncnpeanengneanaraisiobaniseaeancan 3

Heaton vy. Monogram Credit Card Bank, 231

Phe Fk 1S a): | nto 11,12

New v. Sports & Recreation, Inc., 114 F.3d 1092

I ai ai cislncsnanessibisendcivesawiuionsvnes 14

Pennsylvania Dept. of Corrections v. Yeskey, 524

Sr Gm APTI cies shckeaeuscaudsbawdnadaseeensanaiarenenne 15

Poore v. American-Amicable Life Ins. Co., 218

Pee ROT CE MAE, BUD cicnecesccssscsersenecscssecnens v)

Rubel v. Pfizer, Inc., 361 F.3d 1016 (7th Cir.

tcl beta webiste a sees dacsealppi 10

Solely v. First Nat'l Bank of Commerce, 923 F.2d

ME, FB vsvtrca siicknscnanaaxscedsescunchindaactinas 10

Stevens v. Brink’s Home Security, Inc., 378 F.3d

BE ists cae ice th ceiaiiasentnrnrsiscncssicors 14

iil

TABLE OF AUTHORITIES—Continued

Page

Thermtron Products, Inc. v. Hermansdorfer, 423

halts. SN EF NE dnssncacscrassadcsdeiiscdpcecsenaeleeenand 8

Trbovich v. Mine Workers, 404 U.S. 528 (1971)... 3,17

Washington Suburban Sanitary Commission v.

CRS/Sirrine, Inc., 917 F.2d 834 (4th Cir.

sks oy, Sant clacat ks etree Caskites entacgae eakaa tora 14

STATUTES

Federal

po EAE. 5 aie By. |) See enn PREaN MeaE TEM DDE 13

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Be ee iia, IN aa cbc Gia khsing haagededsconbiaca begat ches 3,4, 16

Be a cence beacatede nha 4

State

Ohio Rev. Code §4112.02 ......................000 aseseassons §

REGULATIONS

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MISCELLANEOUS

Moore’s Federal Practice (3d ed.) ............ccseeeeeeees 10, 14

Richard H. Fallon, Jr., et al., The Federal Courts

and the Federal System (Sth ed. Supp. 2003)... 16

IN THE

Supreme Court of the United States

No. 05-107

WARREN DAVIS,

Petitioner,

V.

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (UAW), ef al.

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

STATEMENT

The instant case is the third in a set of legal proceedings

initiated by Warren Davis in an effort to overturn a decision

by the delegates to the 2002 convention of the International

Union, United Automobile, Aerospace and Agricultural Im-

plement Workers of America, AFL-CIO (UAW) that denied

Davis a union office to which he claims to have been duly

elected.

The relevant background facts are succinctly stated in the

opinion of the court of appeals:

“At the 2002 Constitutional Convention of the Inter-

national Union of the United Automobile Workers of

5

on

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 amend-

ment also had the effect of setting aside Warren Davis's

reelection as a regional director... .

* * *

“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 Con-

vention in June of 2002. Due to an apparent last-minute

change of heart, however, Davis arranged for his assis-

tant to nominate Davis and then withdraw from the race,

resulting in Davis winning the election unopposed.

“Dunng 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 agree-

ment not to seek elective office after reaching 65 years

of age. Angered by Davis's surprise tactics at the con-

vention 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 UAW

Constitutional Convention, which promptly dissolved

Davis's region the day after his reelection.” Pet. App.

2a-3a.

See also Davis v. International Union, U.A.W., 390 F.3d 908,

909 (6th Cir. 2004), cert. denied, 125 S.Ct. 1958 (2005) (de-

scription of same facts in an earlier case brought by Davis).

3

“Title [V of the [Labor Management Reporting and Disclo-

sure Act] specifically regulates the conduct of elections for

union officers.” Furniture Moving Drivers v. Crowley, 467

U.S. 526, 539 (1984). This Court has described the Title IV

regulatory scheme as follows:

“Title IV of the statute establishes a set of substantive

rules governing union elections, LMRDA § 401, 29

U S.C. § 481, and it provides a comprehensive procedure

for enforcing those rules, LMRDA § 402, 29 U.S.C.

§ 482. Any union member who alleges a violation may

initiate the enforcement procedure. He must first ex-

haust any internal remedies available under the consti-

tution and bylaws of his union. Then he may file a

complaint with the Secretary of Labor, who ‘shall in-

vestigate’ the complaint. Finally, if the Secretary finds

probable cause to believe a violation has occurred, he

‘shail . . . bring a civil action against the labor organi-

zation’ in federal district court, to set aside the election if

it has already been held, and to direct and supervise a

new election..... [W]ith respect to an election already

conducted, ‘[t]he remedy provided by [Title IV] . . . shall

be exclusive. LMRDA § 403, 29 U.S.C. § 483.”

Trbovich v. Mine Workers, 404 U.S. 528, 531 (1971).

On October 23, 2002, Davis brought suit under Title | of

the LMRDA challenging the decision of the UAW conven-

tion to abolish his office. On August 1, 2003, the district

court dismissed Davis’s LMRDA Title | lawsuit on the fol-

lowing grounds:

“In essence, the complaint challenges the propnety of

a vote to amend the UAW constitution. The vote was

taken as part of an election process and resulted in a re-

run election. Despite plaintiff's characterization of the

relief sought, reinstatement of Region 2 would essen-

tially validate the results of an election already con-

ducted in which Davis was elected director. At the

same time, this court would have to invalidate the post-

amendment elections of successful candidates in the

4

redrawn Regions 2B, 8 and 9. Such post-election relief

must be sought exclusively with the Secretary of Labor

in accordance with 29 U.S.C. § 483. The contemplated

relief challenges an election already conducted, and thus,

the court lacks subject matter jurisdiction pursuant to the

limitations of Title IV of LMRDA.” Davis v. Interna-

tional Union, U.A.W., 274 F.Supp.2d 922, 925 (E.D.

Mich. 2003), aff'd 390 F.3d 908 (6th Cir. 2004), cert.

denied, 125 S.Ct. 1958 (2005).

On May 15, 2003, Davis filed a complaint with the Secre-

tary of Labor requesting that the Secretary secure Davis’s

installation to union office. On November 5, 2003, the Secre-

tary dismissed Davis’s complaint on the following grounds:

“With respect to whether the delegates violated your

nght to hold union office under section 401(e) of the

LMRDA, 29 U.S.C. §481(e), the Department of Labor

regulations at 29 C.F.R. §452.46 state in pertinent part

that a union may not establish qualifications for office

that are ‘inconsistent with any other Federal law’ and

may not ‘establish a retirement age or comparable age

restriction on candidacy since this would be inconsistent

with the Age Discrimination in Employment Act of

1967, as amended’ (ADEA). Under the ADEA, it is

unlawful for a labor organization to discriminate against

any individual because of his age. 29 U.S.C §623(c).

Within the ADEA, there is an exception for certain

employees who hold ‘high policymaking position(s].’

See the ADEA regulations at 29 C.F.R. §1625(d)(2)

(quoting the legislative history in H.R. No. 95-959, n. 9,

which state that the exception was intended to apply to

‘heads of major departments or divisions’).

“Although the Department’s investigation disclosed

the existence of an informal agreement among members

of a caucus of members not to run for UAW Inter-

national office after reaching 65 years of age, it further

established that the UAW has no governing rule impos-

ing an age limitation on candidates for office. Similarly,

5

the vote of the delegates to reorganize the regions did

not establish a ‘qualification[ ]’ on the nght to be a can-

didate or to hold office and you [Davis] were provided

with an opportunity to run for office in a reconstituted

region. See 29 U.S.C. §401(e). The reorganization,

which eliminated your Region, was the result of a vote

of the delegates, not the application of a union rule.

There was, thus, no violation of the LMRDA.” Sixth

Circuit Jt. App. 329-330.

Finally, on June 4, 2003, Davis filed the instant case in

the Court of Common Pleas for Cuyahoga County, Ohio.

Davis’s state court complaint alleged, inter alia, that he “was

successfully elected as Director of Region 2 on June 5, 2002”

and that the UAW Convention delegates subsequently voted

“to eliminate the position held by Mr. Davis because of his

age and the plaintiff's refusal to comply with the age dis-

criminatory UAW rule and custom prohibiting members over

the age 65 from running for International Union office and

holding staff employment in the union.” Sixth Circuit Jt.

App. 9.' To remedy the allegedly unlawful denial of office,

the Complaint demanded “[a]n order directing defendant UAW

to reinstate plaintiff to the position which he would have held

had the discrimination complained of herein not occurred”

and “[a]n order awarding plaintiff all back pay and/or

bonuses to which he is entitled to as a result of defendants’

unlawful actions and inactions.” /d. at 16.

The defendants removed Davis’s case to federal court,

“assert[ing] that the adjudication of Davis’s state-law claims

would necessarily require a determination regarding the va-

lidity of the UAW election, an exclusively federal question

under Title 1V of the LMRDA.” Pet. App. 4a.

‘In addition to raising this claim for age discrimination in violation of

Ohio Rev. Code § 4112.02, Davis’s state court complaint raised a mynad

of other state law claims that are not pertinent to the questions presented

by the petition for certioran.

6

in determining whether Davis's complaint raised a federal

question, the district court began by observing that LMRDA

Title IV provides “the exclusive remedy for challenging the

results of a Union election.” Pet. App. 29a. In this regard,

the court noted, the “[{d]efendants argue[d] 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

[LMRDA Title [V].” /bid. The court concluded that this

point had been “moot[ed],” because “[i]n response to the de-

fendants’ LMRDA argument, Davis concedes that the remedy

of reinstatement is not available to him.” /d. at 30a.

Turning to “whether Davis's prayer for back pay, alone, gives

nse to LMRDA preemption,” ibid., the district court

concluded that it did not, because “[a]n award of damages

that includes back pay would not necessarily imply . . . that

one or more of the Union’s election results were invalid,” id.

at 3la-32a.

Having determined that “Davis’s state-law claims do not

attack the ultimate validity of any Union election results,” the

district court concluded that “the defendants’ removal of the

case to this court was not well-taken” and granted “Davis's

motion to remand.” Pet. App. 32a.

In reviewing the district court’s order, the court of appeals

first considered whether it was “barred by 28 U.S.C. § 1447(d)

from hearing the UAW’s appeal from the district court’s

remand order.” Pet. App. Sa. In deciding this question, the

court of appeals applied the well-settled rule that “[wJhere a

district court had proper jurisdiction at the time of removal,

but events occurring after removal make remand to the state

courts appropriate, § 1447(d) does not bar appellate review of

the district court’s remand order.” /d. at 6a. Under that rule,

Davis later denied that he had made this concession, but the district

court did not take account of his denial.

-

and “[{bJecause the district court remanded this case only after

finding that a post-removal event had deprived it of subject

matter jurisdiction,” the court of appeals concluded that it had

“appellate jurisdiction over the district court’s remand order.”

Id. at 7a-8a.

Turning to the merits, the court of appeals “disagree[d]”

with “the district court[’s] conclu{sion] 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 an-

swered in order to adjudicate Davis’s claims.” Pet. App. 8a.

Rather, the court of appeals determined that “Davis’s state-

law claims in question, including his requested remedy of

back pay, logically hinge on his assertion that he was lawfully

elected.” /d. at 10a. For that reason, the court of appeals

“reverse[d] the district court’s remand of Davis’s state-law

claims and remand[ed] with instructions to dismiss the claims

on the basis that they are precluded by the LMRDA.” /d. at

lla.

ARGUMENT

Neither of the two Questions Presented—the first going to

the jurisdiction of the court of appeals to review the remand

order in this case, and the second going to the merits of the

court of appeals’ ruling that the remand here was improper—

warrants this Court’s review. The petition for certioran should

be denied.

1. The court of appeals’ ruling that there is “appellate

jurisdiction [in this case] over the district court’s remand

order,” Pet. App. 7a-8a, is voth legally sound and entirely

consistent with the decisions of this Court and of the other

circuit courts. Equally to the point, the Sixth Circuit’s read-

ing of the district court’s remand order is entirely sound and

consistent, in interpretative approach, with the decisions of

the other courts of appeals. Contrary to the Petitioner, the

8

court of appeals did not “*second-guess’ the opinion of [the]

district judge” in an effort to go behind the “stated reason” for

a remand order. Pet. 11. Thus, the decision below does not

even raise the question tendered by the Petitioner with the

claim that “the courts of appeals are deeply divided.” /bid.

(a) The court of appeals relied upon two settled legal

propositions in concluding that it had jurisdiction to review

the remand order in this case.

The first, and more general, of these propositions is that 28

U.S.C. § 1447(d), which limits appellate review of remand

orders, must be read in conjunction with 28 U.S.C. § 1447(c),

which states the grounds for remand. As the court of appeals

put it:

“Although . . . 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, . . .

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

v. Hermansdorfer, 423 U.S. 336 (1976), dictate[s] that

$§ 1447(c) and (d) must be read together. Section

1447(c) directs the district court to remand a removed

case ‘if at any time before final judgment it appears

that the district court lacks subject matter jurisdiction.’

[Rjeading § 1447(d) in conjunction with (c), .

§ 1447(d) prohibits review only of remand orders issued

pursuant to a finding, under § 1447(c), that the district

court lacked junsdiction.” Pet. App. 5a-6a (quotation

marks, ellipses and citations omitted).

The second legal proposition—which is a corollary of the

first—is that an unreviewable remand pursuant to § 1447(c)

is a remand based on lack of subject matter jurisdiction at

the time of removal and not a remand based on some other

ground:

“For a case 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

9

then remand on that basis; otherwise, § 1447(d) will not

prohibit appellate review of the district court’s remand

order. Where a district court had proper jurisdiction at

the time of removal, but events occurring after removal

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

does not bar appellate review of the district court's

remand order.” Pet. App. 6a (citations omitted).

The conclusion that follows from these propositions is 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.” Pet. App. 8a, quoting First Nat'l Bank of Pulaski

v. Curry, 301 F.3d 456, 460 (6th Cir. 2002). Citing the in-

stant case as an example, the Sixth Circuit recently explained

that this “post-removal-event” doctrine justifies “reviewing

the district court’s remand order when a party had ‘expressed

his intent to abandon a claim,’ thus converting a case over

which the court had subject matter jurisdiction into a case

that the district court could remand in its discretion under

§ 1367.” Dawalt v. Purdue Pharma, L.P., 397 F.3d 392, 401

(6th Cir. 2005).

As explained in Dawalt and as applied in the instant case,

the “post-removal-event” doctrine has been universally ac-

cepted by the circuit courts. See Adkins v. Illinois Central

Railroad, 326 F.3d 828, 832-833 (7th Cir. 2003) (reviewing

circuit precedent); Poore v. American-Amicable Life Ins. Co.,

218 F.3d 1287, 1291-92 (11th Cir. 2000) (same). Indeed, the

Petitioner does not argue to the contrary but rather proceeds

on the assumption that the “post-removal-event” doctrine is

correct. See Pet. 11 (“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’’).

10

(b) Given the dichotomy between appealable remand or-

ders and unappealable remand orders, the courts of appeals

must determine in each particular case whether the remand

order was based on the § 1447(c) lack of subject matter juris-

diction ground or on some other ground. According to the

Petitioner, in making that determination “the courts of ap-

peals 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.” Pet. 11.

The Petitioner overstates the conflict among the circuits

with respect to this second level issue of the correct method

for interpreting district court remand orders. It is true that

“the Fifth Circuit has taken a strict approach” of interpreting

remand orders according to their terms. 16 Moore’s Federal

Practice (3d ed.) § 107.44[2][c]fi] pp. 107-255. However,

most of the circuits that the Petitioner would array against the

Fifth Circuit are similarly “strict” in their interpretative ap-

proach. See, e.g., Rubel v. Pfizer, Inc., 361 F.3d 1016, 1020

(7th Cir. 2004) (“If the judgment is one remanding for lack of

jurisdiction, the reasoning in the opinion is not independently

reviewable.”). And, as we show, the court of appeals fol-

lowed the “strict” approach in interpreting the remand order

in this case.

In distinguishing itself from “the Ninth Circuit{, which]

will look beyond the language of the remand order to all

the sutrounding circumstances, in determining whether the

[remand] order” was based on a non-§ 1447(c) ground, the

Fifth Circuit has stated that it “will only review remand or-

ders if the district court affirmatively states a non-1447(c)

ground for remand.” Solely v. First Nat’l Bank of Commerce,

923 F.2d 406, 408 (Sth Cir. 1991) (quotation marks and cita-

1]

tions omitted). But the court of appeals here did not enter this

contested terrain by “look[ing] beyond the language of the

remand order to all the surrounding circumstances.” /bid.

Far from “second-guessing” the district court’s opinion, the

court of appeals proceeded on the basis that “the real reason

for remand” in this case was the “stated reason” appearing in

the district court’s opinion. Pet. 11. This is the approach

advocated by the “strict” Fifth Circuit—and accepted as

proper by every other circuit—which holds that whether a

district court has “stated a § 1447(c) basis for remand” is to

be determined on the basis of “[a] plain and common sense

reading of the . . . remand order.” Heaton v. Monogram

Credit Card Bank, 231 F.3d 994, 997 (Sth Cir. 2000).

“(T]he opinion of [t]he district judge” in this case does not

provide a “a stated reason [for the remand] that facially com-

plies with section 1447(c).” Pet. 11. The district court did not

cite § 1447(c) as providing the basis for remand. Nor did the

district court use § 1447(c)’s operative phrase—“lacks sub-

ject matter jurisdiction”—in explaining the remand.

Rather than invoke § 1447(c) or refer to a lack of subject

matter jurisdiction at the time of removal, the district court

squarely based the remand order on a non-§ 1447(c) ground,

the occurrence of a post-removal-event:

“The UAW removed this case to the district court, ar-

guing that there was federal question jurisdiction over

Davis’s claim for reinstatement because the claim con-

stituted a request for postelection relief under the exclu-

sive 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

12

was filed over a month after the case was removed from

the state court.

“On this point the district court may have been mis-

taken, however, because Davis did not amend his com-

plaint to remove his claim for reinstatement and has

made clear his intention to preserve the claim. Regard-

less, 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.” Pet. App. Ta-8a.°

It was precisely because “the district court remanded this

case only after finding that a post-removal event had deprived

it of subject matter jurisdiction” that the court of appeals con-

cluded it could “exercise appellate jurisdiction over the dis-

trict court’s remand order.” Pet. App. 8a.

The most the Petitioner can say in response to the court

of appeals’ reading of the district court’s opinion is that

“[a]nother 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 juris-

diction.” Pet. 15. The proposition that there may be “another

interpretation of the district court’s opinion” falls far short of

establishing that the court of appeals’ interpretation is not the

“plain and common sense reading of the . . . remand order,”

Heaton, 231 F.3d at 997, and hence the strict-interpretation

reading of the district court’s order. And, the truth is that the

Petitioner’s proffered interpretation of the district court’s or-

der cannot be squared with the district court’s “stated reason”

for remanding this case. Jd. 11.

* The district court explained why it had left two motions for the state

court to decide by noting that it had “conclude[d] it does not have juris-

diction over the case.” Pet. App. 13a-14a. In context, it is apparent that

the district court reached this conclusion on the basis that the plaintiff had

dropped his claim for reinstatement and did so after the plaintiff's post-

removal expression of an intent to drop that claim.

13

The district court recognized that LMRDA Title IV pro-

vides “the exclusive remedy for challenging the results of a

Union election,” Pet. App. 29a, and that court decided that

“removal of this case was not well-taken” only after deter-

mining that that “Davis’s state-law claims do not attack the

ultimate validity of any Union election results,” id. at 32a.

The district court determined that “Davis’s prayer for back

pay, alone, [did not] give[] rise to LMRDA preemption,” id.

at 30a, because “[a]n award of damages that includes back

pay would not necessarily imply that one or more of the

Union’s election results were invalid,” id. at 3la-32a. But the

same cannot be said of an order reinstating Davis to elected

office. That remedy would, as the district court acknowl-

edged, validate the results of the election Davis won and

invalidate the results of the subsequent elections held in the

reconfigured regions. /d. at 29a. The sole reason given by

the district court for disregarding this basis for LMRDA pre-

emption was that “Davis concede[d] that the remedy of rein-

statement is not available to him.” /d. at 30a. And, this

“concession”—to the extent it was made at all—was made

after removal “[ijn response to the defendants’ LMRDA

argument” against remand. /bid.

(c) Having failed to advance a plausible interpretation of

the remand order as based on § 1447(c), the Petitioner changes

tack and argues that review should be granted to determine

whether the appellate courts “have jurisdiction to review re-

mand decisions that are based on section 1367(c) once the

admittedly federal claims on which removal was based have

been removed from the case.” Pet. 17. That is not a question

warranting this Court’s attention.

The Petitioner grudgingly admits that “the courts of ap-

peals have generally concluded” that there is jurisdiction

to review such remand decisions. Pet. 17 (citing decisions

of the Third and Seventh Circuits). The truth of the mat-

ter is that no fewer than eight circuits have addressed

14

this question, and every one has held that “28 U.S.C.

§ 1447(d) is inapplicable to remand order[s] made pursuant to

28 U.S.C. § 1367(c).” 16 Moore’s Federal Practice (3d ed.)

§ 107.44[2][d] pp. 107-262-263 n. 53.5 (citing precedent from

the Third, Fourth, Fifth, Sixth, Eighth, Ninth and Eleventh

Circuits). Thus, as the Seventh Circuit has observed, “appel-

late jurisdiction to review [a § 1367(c) remand order] is

firmly established.” Baker v. Kingsley, 387 F.3d 649, 656 (7th

Cir. 2004).

The Petitioner’s sole ground for bringing this well-settled

circuit court law to this Court is that two sets of “decisions

[—one set involving § 1447(e) and the other set involving

§ 1445—] 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.” Pet. 17-18. This is a complete non

sequitur.

The first set of decisions stands for the unremarkable

proposition that, in reading § 1447(d} in para materia with

the other subsections of § 1447, “there is no ‘reason to treat

the grounds for remand authorized by § 1447(e) in a different

way than the Supreme Court treated the grounds authorized in

§ 1447(c).’” Stevens v. Brink's Home Security, Inc., 378 F.3d

944, 948 (9th Cir. 2004), quoting Washington Suburban Sani-

tary Commission v. CRS/Sirrine, Inc., 917 F.2d 834, 836 n. 5

(4th Cir. 1990). And, the second set of decisions does no

more than reveal some disagreement among the circuits over

whether “a remand pursuant to § 1445(c) is based on a proce-

dural defect rather than a lack of subject matter jurisdiction,”

New v. Sports & Recreation, Inc.; 114 F.3d 1092, 1097 n. 7

(11th Cir. 1997), a point which is significant in determining

whether a motion for remand under § 1447(c) must be made

within thirty days of removal, id. at 1096-97.

In short, neither set of decisions has anything to do with—

much less provides a basis for calling into question—the

15

legally distinct set of decisions “firmly establish[ing]” that

there is “appellate jurisdiction to review [a § 1367(c) remand

order].” Baker, 387 F.3d at 656.

2. Having spent twenty pages arguing that the court of

appeals lacked jurisdiction to review the remand order in this

case, the petition ends with a five page coda arguing that this

Court should review the appellate court’s ruling that removal

was proper on “complete preemption” grounds. Pet. 20-25.

There is no basis for this Court to review the court of appeals’

ruling.

Significantly, the Petitioner does not quarrel with the gen-

eral proposition that “Title IV of the LMRDA mandates that

challenges to a previously conducted union election may only

be brought by the Secretary of Labor.” Pet. App. 84. Nor

does the Petitioner deny that “the indisputably federal ques-

tions of ‘whether Davis was elected’ and ‘whether the defen-

dants eliminated Davis’s position’ [would] need [to] be an-

swered in order to adjudicate Davis’s claims.” /bid.

Rather, the Petitioner argues, at the most abstract level, that

for “‘a federal statute wholly [to] displace[] [a] state law

cause of action through complete preemption,”” it is not suffi-

cient that the federal statute both preempts state law and

provides a substitute federal remedy, as LMRDA Title IV

most assuredly does, but that it is necessary for “Congress

[to] create a federal, private cause of action that it intended to

substitute for [the] state cause of action.” Fet. 21, quoting

Beneficial Nat’! Bank v. Anderson, 539 U.S. 1, 8 (2003).

The Petitioner did not raise this “private cause of action”

argument in the court of appeals below. “Where issues are

neither raised before nor considered by the Court of Appeals,

this Court will not ordinarily consider them.” Pennsylvania

Dept. of Corrections v. Yeskey, 524 U.S. 206, 212-213 (1998),

quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n. 2

(1970). And, the Petitioner has cited no extraordinary

16

circumstances that would justify making an exception in

this case.

For the sake of completeness, we note that there is no case

law that is contrary to the court of appeals’ LMRDA Title IV

complete preemption ruling or that endorses the Petitioner’s

gloss on the “complete preemption” doctrine. Indeed, the

decisions the Petitioner cites read Beneficial Nat’l Bank v.

Anderson, supra, “to extend the complete preemption doc-

trine to any federal statute that both preempts state law and

substitutes a federal remedy for that law, thereby creating an

exclusive federal cause of action.” Briarpatch Ltd. v. Phoenix

Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004), citing

Richard H. Fallon, Jr., et al., The Federal Courts and the

Federal System 22 (Sth ed. Supp. 2003) (Anderson “suggests

that any federal statute that both preempts state law and

provides a substitute federal remedy creates ‘an exclusive

cause of action’ that falls within the complete preemption

doctrine.”’).

As we have already suggested, there is no question that,

with respect to union elections, LMRDA Title IV “both pre-

empts state law and substitutes a federal remedy for that law.”

Briarpatch Ltd., 373 F.3d at 305. LMRDA § 403 addresses

both points in terms:

“No labor organization shall be required by law to con-

duct 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 title. Existing rights 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 title. The remedy

provided by this title for challenging an election already

conducted shall be exclusive.” 29 U.S.C. § 483.

The “exclusive” method for “challenging an election al-

ready conducted” is “a civil action against the labor organiza-

17

tion 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.” 29 U.S.C. § 482(b). This civil

action may be brought only by the Secretary of Labor acting

on a complaint by a member of the labor organization and

upon a finding by the Secretary that there is “probable cause

to believe that a violation of [Title IV] has occurred and has

not been remedied.” 29 U.S.C. § 482(a) & (b).

“(T]he proper relationship between state and federal reme-

dies” for “illegal election conduct” was a matter of “great

concern” to Congress during the debates leading up to enact-

ment of the LMRDA. T7rbovich, 404 U.S. at 534 n. 6. And,

in deciding to vest jurisdiction over suits “to set aside [an]

invalid election” exclusively in “the district court of the

United States,” 29 U.S.C. § 482(b), the LMRDA Congress

specifically rejected a proposal “provid[{ing] that enforcement

suits could be filed in either state or federal courts,” Trbovich,

404 11.8. at 533 n. 6. It thus could not be more clear that

“Congress intended the federal cause of action to be exclu-

sive.” Anderson, 539 U.S. at 9 n.5.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

DANIEL W. SHERRICK

Counsel of Record

General Counsel

International Union, UAW

8000 E. Jefferson Avenue

Detroit, MI 48214

(313) 926-5216

JAMES B. COPPESS

815 Sixteenth Street, NW

Washington, DC 20006