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

FILED

7 q '» MAY 19 2006

OFFICE OF THE CLERK

No. 05-107 SUPREME COURT, U.S.

In the Supreme Court of the Gnited States

WARREN DAVIS, PETITIONER

Vv.

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA (UAW), ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

PAUL D. CLEMENT

Solicitor General

HOWARD M. RADZELY Counsel of Record

Solicitor of Labor GREGORY G. GARRE

NATHANIEL I. SPILLER Deputy Solicitor General

Assistant Deputy Solicitor MATTHEW PD. ROBERTS

MARK S. FLYNN Assistant to the Solicitor

Counsel for Advice and General

Statutory Programs Department of Justice

Department of Labor Washington, D.C. 20580-0001

Washington, D.C. 20210 (202) 314-2217

QUESTIONS PRESENTED

1. Whether the court of appeals had jurisdiction over the

district court’s order remanding petitioner’s claims to state

court.

2. Whether petitioner’s state-law claims are completely

preempted by Title IV of the Labor-Management Reporting

and Disclosure Act of 1959, 29 U.S.C. 481-483.

(I)

TABLE OF CONTENTS

MN ce oe fo an ork Vans cee e wa eae eka es ]

hs Fag ag a wa le ain ee he ae ka 5

I. The appellate jurisdiction question does not warrant

ON ides ska sa OO in ho eee eek hes 6

A. The court of appeals based its jurisdiction on

the established rule that remand orders

declining supplemental jurisdiction are subject

RR an ee a ana ye 6

B. Review is not warranted to address the

reviewability of remand orders declining

supplemental jurisdiction ...................05. 8

C. Any tension among the courts of appeals on

how to ascertain the basis for a remand order

does not warrant review in this case ............. g

D. The Court may wish to hold this case pending

its decisions in Kircher and Osborn ............. 13

II. The complete preemption question is not properly

presented and, in any event, does not warrant plenary

SN eae raece boned Paes eee eRe es 14

A. There is no conflict among the courts of

appeals on whether the LMRDA completely

preempts state-law claims challenging union

wo CEE Re A oe nr ree ar me wr ey eee ran 16

Bb. The complete preemption question presented

by petitioner is not properly before the Court .... 16

C. The novel and abstract nature of the complete

preemption question also counsels against

DN basen oa oa ands oekeeea aap ae ces cas 17

Rea see get iy Re ees Gree ert PTR 8, SP ara aa 20

(IIT)

IV

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 898 U.S. 144 (1970) ....... 17

Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) ....... 15

Amoco Petroleum Additives Co., In re, 964 F.2d 706

ass va ken ios AS dee Oe 10

Archuleta v. Lacuesta, 131 F.3d 1359 (10th Cir.

ee aoe oa sa ea va ak a OR 10

Avco Corp. v. Aero Lodge No. 735, Int'l Ass’n of

Machinists, 390 U.S. 557 (1968) ................ 18, 19

Balazik v. County of Dauphin, 44 F.3d 209 (3d Cir.

es PB Led das kas ok RARER ON 10

Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d

I oo add can ea dadvnkdhgun agua 10

Beneficial Nat'l Bank v. Anderson, 539 U.S. 1

ae ay in bua h ik kad eee 14,15

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988) .... 6

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)... 15, 19

Cogdell v. Wyeth, 366 F.3d 1245 (11th Cir. 2004) ....... 10

Copling v. Container Store, Inc., 174 F.3d 590 (5th

ee ei Ga sna dose kus eee 1]

Davis v. UAW:

274 F. Supp. 2d 922 (E.D. Mich. 20038) .............. 2

390 F.3d 908 (6th Cir. 2004), cert. denied,

TE gag Ge.) ners 2

DaWalt v. Purdue Pharma, L.P., 397 F.3d 392 (6th

I eG tl fg an ae MRA KR Se 7,8

Dunlop v. Bachowski, 421 U.S. 560 (1975) ww... ee 1,19

Cases—Continued: Page

First Nat'l Bank of Pulaski v. Curry, 301 F.3d 456

ES Ti INE eae Oe ee 4.5.7

Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) .............. 15, 18

Heaton v. Monogram Credit Card Bank, 231 F.3d

994 (5th Cir. 2000), cert. denied, 533 U.S. 915

rend eke uae nausea bb ae <4: 11,12

Kontrick v. Ryan, 540 U.S. 443 (2004) ................ 12

Lindsey v. Dillard’s, Inc., 306 F.3d 596 (8th Cir.

RRS SER Oe se 2 ee 10

Local No. 82, Furniture & Piano Moving v. Crowley,

ee re ee 1,18

Mangold v. Analytic Servs., Inc., 77 F.3d 1442 (4th

EEE eee nr ee ere ee 10

Pullman Co. v. Jenkins, 305 U.S. 534 (1939) .......... 13

Spielman v. Merrill Lynch, Pierce, Fenner & Smith,

mm Ge Ge Le | re 10

Sullivan v. Finkelstein, 496 U.S. 617 (1990) ........... 12

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

ne a Re Se eee 4, 6,8

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

SE Ra need Se ee 6,7,8, 9

Tillman v. CSX Transp., Inc., 929 F.2d 1023 (5th

Cir.), cert. denied, 502 U.S. 859 (1991) ............. 11

Trbovich v. United Mine Workers of Am., 404 U.S.

GN, Oe ee 1,19

United States v. Sisson, 399 U.S. 267 (1970) ........... 12

VI

Statutes: Page

Employee Retirement Income Security Act § 502(a),

Ra RE kod ss Sab dw dskhes ede kan eeneus 18

Labor-Management Reporting and Disclosure Act of

1959, 29 U.S.C. 401 et seq.:

Tit. I, 29 U.S.C. 411 et seq.:

rE EEE Gee acs bss uae cu dcanaescdes 2

Rtn EE 44 cds chad ie h Redden wen ewes 2

Tit. IV, 29 U.S.C. 481 et seq.:

PG REE ea Ki duc dcdend cadeaarineddas 1

Ne RG ID oo sa nshak wake eae eenwne 1,19

See, EE oki cs bien ova nedewadns 1, 18, 19

EE Se ee er er mr ery 1,19

RAN MEE eso vive tele bndachcecchennaue 1,19

Labor-Management Relations Act § 301, 29

Rs ME ake heh x WSR ee le ndea ce eeeenei ets 18

Securities Litigation Uniform Standards Act of 1998,

Pub. L. No. 105-353, 112 Stat. 3227:

SS FD eceankeu cde ease evavecesaens 13

ee Te ocd dehen Seedecaseuadhances 13

SE saen SEE A kee ekCd enn ccdeduns gus 15

Wee are FTE Tt oon ac hot bd cts ciasadcs. 14

A SEE nhc nK dace desi Dr aederaveneieeees 6,8

te NE cd vu uacaapeeanbakuVectevakeunupes 14

RR EE 65.ehk Venkk adver dawned kve bee hada aan 6

BRE POUR, Sci era dienbanndaweuddnxuas passim

SOE ei 5 onde cae avec geaeesnewens passim

Vil

Miscellaneous: Page

16 James W. Moore et al., Moore’s Federal Practice

NC Ps CO STi a ae ra 7

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. Title IV of the Labor-Management Reporting and Dis-

closure Act of 1959 (LMRDA), 29 U.S.C. 481-483, establishes

substantive rules governing union elections and provides com-

prehensive procedures for enforcing those rules. Trbovich v.

United Mine Workers of Am., 404 U.S. 528, 531 (1972). A

union member alleging violations of Title IV may file a com-

plaint with the Secretary of Labor. 29 U.S.C. 482(a). The

Secretary must investigate the complaint, determine if there

is probable cause to believe that a violation of Title IV has

occurred and not been remedied, and, if so, file suit to obtain

relief in United States district court. 29 U.S.C. 482(b) and (c).

Title IV is explicit that “[tjhe remedy provided by this [ti-

tle] for challenging an election already conducted shall be

exclusive.” 29 U.S.C. 483. Accordingly, there is no private

right of action to challenge the validity of a union election.

Local No. 82, Furniture & Piano Moving v. Crowley, 467 U.S.

526, 544 (1984). However, a union member may challenge the

Secretary's decision not to bring suit, Dunlop v. Bachowski,

421 U.S. 560 (1975), and may intervene in a suit brought by

the Secretary, Trbovich, 404 U.S. at 536.

2. Petitioner held an elected position—Director of Region

2—within respondent International Union, United Automo-

bile, Aerospace & Agricultural Implement Workers of Amer-

ica (UAW). Pet. App. 2a, 14a. After announcing his intention

not to run for reelection and endorsing his assistant director,

petitioner arranged at the UAW’s Constitutional Convention

(1)

2

for his assistant to withdraw from the election and to nomi-

nate him instead. /d. at 2a-3a. Petitioner won the election

unopposed. /d. at 3a.

Petitioner was a member of an unofficial caucus of UAW

officers who had informally agreed not to seek office after age

65. Pet. App. 3a. Several members of the caucus were an-

gered by petitioner’s surprise decision to run again for office

at age 67. /bid. Those members issued a press release stat-

ing that petitioner had lied about his plans for retirement and

schemed “to deny an honest election to the membership.” /d.

at 10a. The press release called upon UAW convention dele-

gates to eliminate Region 2, redistribute its members among

three other regions, and hold new elections in the reconsti-

tuted regions. /d. at 3a. The delegates voted to eliminate

Region 2 and divide it among the other regions. /bid. Elec-

tions were held for directors of the new regions, but petitioner

did not run in those elections. C.A. App. 328.

3. a. Petitioner sued the UAW in federal district court

alleging a violation of Title I of the LMRDA, 29 U.S.C.

411(a)(1) and (2). Pet. App. 3a. The district court dismissed

the suit on the ground that it challenged the validity of the

UAW’s elections and thus was within the exclusive jurisdic-

tion of the Secretary under Title IV. Davis v. UAW, 274 F.

Supp. 2d 922 (E.D. Mich. 2003). The court of appeals af-

firmed the dismissal. Davis v. VAW, 390 F.3d 908 (6th Cir.

2004), cert. denied, 125 S. Ct. 1984 (2005).

b. Petitioner also filed a Title IV complaint with the Secre-

tary in which he contended that the climination of Region 2

was invalid and that he should be installed as Region 2 Direc-

tor. The Department of Labor conducted an investigation and

determined that there had been no violation of Title IV. C.A.

App. 328-330. The Department reasoned that the UAW’s

governing rules did not impose an age limitation on candidacy

for union office and that the convention delegates followed the

procedures mandated by the UAW’s constitution when they

voted to eliminate Region 2. /d. at 329-330. Petitioner did not

seek judicial review of the Department’s determination.

4. In June 2003, petitioner filed this suit in Ohio state

court against respondents. Petitioner alleged age discrimina-

tion, conspiracy to discriminate on the basis of age, wrongful

discharge, retaliation, libel, and defamation, all in violation of

Ohio law. Pet. App. 4a. He sought declaratory and injunctive

relief, including an order directing respondents to reinstate

him as Region 2 Director, as well as back pay, damages, and

attorney’s fees. C.A. App. 16. Respondents removed the case

to federal district court. Pet. App. 4a. As relevant here, they

contended that petitioner’s claims were completely preempted

by Title IV of the LMRDA because the claims would require

a determination of the validity of the UAW’s elections. /67d.

Petitioner filed a motion to remand the case, and the district

court granted the motion. /d. at 12a-32a.

The district court first observed that “the exclusive remedy

for challenging the results of a [uJnion election is by pursuing

administrative procedures prescribed by the Secretary of

Labor.” Pet. App. 29a. The court noted that respondents

argued that, in order to decide “one aspect of the relief sought

by [petitioner]: reinstatement,” the court would be forced “to

choose between conflicting Union election results.” /bid. The

court suggested that the reinstatement claim may therefore

have provided the court with “federal preemption jurisdic-

tion.” Jd. at 30a. The court believed, however, that petitioner

had abandoned his request for reinstatement in his briefing

on the remand motion, thus “mooting” that potentially ade-

quate ground for “LMRDA preemption.” /bid.' The court

concluded that none of petitioner’s remaining grounds for

' The court was apparently mistaken. See Pet. App. 7a. Both parties

agree that petitioner has not abandoned his claim for reinstatement. Pet.

6; Pet. C.A. Br. 11; Resp. C.A. Br. 38.

4

relief implicated “federal preemption jurisdiction,” “necessar-

ily impl{ied] * * * that one or more of the Union’s election

results were invalid,” or was inconsistent with the LMRDA.

Id. at 30a-31la. The court therefore determined that removal

of the case was “not well-taken,” and it remanded the case to

state court. Jd. at 32a.

5. The court of appeals reversed and remanded the ease to

the district court with instructions to dismiss petitioner’s

claims as precluded by the LMRDA. Pet. App. la-1la.

The court first addressed its jurisdiction over the appeal in

light of 28 U.S.C. 1447(d), which precludes appellate review of

remands authorized by 28 U.S.C. 1447(c), such as remands for

lack of subject matter jurisdiction at the time of removal. Pet.

App. 6a; see Thermtron Prods., Inc. v. Hermansdorfer, 423

U.S. 336 (1976). The court determined that, “[wlhere a dis-

trict court had proper jurisdiction at the time of removal, but

events occurring after removal make remand te the state

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

the district court’s remand order.” Pet. App. 6a (citing First

Nat'l Bank of Pulaski v. Curry, 301 F.3d 456, 459 (6th Cir.

2002) (reviewing district court order that remanded supple-

mental state claims after having resolved federal claims)).

Here, the court of appeals concluded, the district court

believed it possessed subject matter jurisdiction at the time

of the removal. Pet. App. 7a. The court of appeals reasoned

that, in deciding to remand the case, the district court “plainly

relied” on its belief that petitioner had, subsequent to re-

moval, “expressed his intent to abandon [his] claim” for rein-

statement. /bid. Because the district court remanded the

case only after finding that this post-removal event had de-

prived it of jurisdiction (7.e., eliminated the only federal issue

* Because the district court “conelude{d] it does not have jurisdiction

over the case,” the court declined to rule on respondents’ motions to dismiss

the case and to transfer venue. Pet. App. 13a-14a.

5

from the case), the court of appeals concluded that it had ap-

pellate jurisdiction over the remand order. Jd. at 7a-8a (citing

First Nat'l Bank of Pulaski, 301 F.3d at 460).

As to the merits of the remand order, the court of appeals

concluded that petitioner’s state-law claims were properly re-

moved to federal court and were preempted by the LMRDA.

Pet. App. 8a-lla. The court reasoned that the claims of age

discrimination, wrongful discharge, and retaliation “logically

hinge on [petitioner’s] assertion that he was lawfully elected,”

and claims for “post-election relief are relegated to the exclu-

sive jurisdiction of the Secretary of Labor.” Jd. at 10a. The

court determined that the remaining claims for libel and slan-

der would likewise “necessarily require a court to revisit” the

Secretary’s determination that the UAW elections were valid.

Id. at lla. ‘The court therefore held that those “claims are

also preempted by Title IV of the LMRDA.” Jbid.

DISCUSSION

The court of appeals concluded that it had appellate juris-

diction based on the well-settled rule that remand orders de-

clining to exercise supplemental jurisdiction are subject to

appellate review. That conclusion was based on the unique

circumstances of this case and does not implicate any conflict

among the courts of appeals that warrants this Court’s ple-

nary review. The court of appeals’ determination that this

case was properly removed to federal court also does not war-

rant review. There is no conflict among the courts of appeals

on whether the LMRDA completely preempts state-law

claims challenging the validity of union elections. The ques-

tion whether there can be complete preemption when the

plaintiff cannot invoke an alternative federal cause of action

is not properly before the Court. In any event, this case is not

an appropriate vehicle through which to resolve that abstract

question. The petition for a writ of certiorari should therefore

6

be denied. Alternatively, the Court may wish to hold the peti-

tion pending the Court’s decisions in Kircher v. Putnam

Funds Trust, No. 05-409 (argued Apr. 24, 2006), and Osborn

v. Haley, cert. granted, No. 05-593 (May 13, 2006), which in-

volve the application, in different contexts, of 28 U.S.C.

1447(d).

I. THE APPELLATE JURISDICTION QUESTION DOES NOT

WARRANT PLENARY REVIEW

A. The Court Of Appeals Based Its Jurisdiction On The

Established Rule That Remand Orders Declining Sup-

plemental Jurisdiction Are Subject To Appellate Review

Section 1447(d) provides that “[a]n order remanding a case

to the State court from which it was removed is not

reviewable on appeal or otherwise.” 28 U.S.C. 1447(d).’ This

Court has stated, however, that Section 1447(d) must be read

nm part materia with 28 U.S.C. 1447(e) and therefore bars

appellate review only of remands based on the grounds cov-

ered by Section sages Thermtron Prods., Inc. v. Hermans-

dorfer, 423 U.S. 336, 345-346 (1976); Things Remembered, Inc.

v. Petrarca, 516 US. ‘124, 127-128 (1995). If a remand is based

on a ground not covered by Section 1447(c), Section 1447(d)

does not necessarily foreclose appellate review. Thermtron,

423 U.S. at 345; Things Remembered, 516 U.S. at 127.

One ground for remand not covered by Section 1447(c) is

a remand of supplemental state-law claims for one of the rea-

sons set forth in 28 U.S.C. 1367(¢c). For example, when the

federal claim in a case is dismissed or abandoned, the district

court may remand the case if the court concludes that it is

inappropriate to retain jurisdiction over the state-law claims.

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 543, 357 (1988).

* Section 1447(d) excepts from its scope remands in civil rights cases

removed under 28 U.S.C. 1443. That exception is not implicated here.

7

Although this Court has not addressed the question, see

Things Remembered, 516 U.S. at 129-130 (Kennedy, J., con-

curring), the courts of appeals have uniformly concluded that

remands declining supplemental jurisdiction are subject to

appellate review. See 16 James W. Moore et al., Moore’s Fed-

eral Practice § 107.44[2][d], at 107-262 n.53.5 (3d ed. 2006)

(citing cases).

The court of appeals relied on that rule in concluding that

it had appellate jurisdiction here. The court observed that the

district court “plainly relied” on petitioner’s purported aban-

donment of his reinstatement claim “in remanding the case.”

Pet. App. 7a. “Because the district court remanded |the] case

only after finding that [this] post-removal event had deprived

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

cluded that appellate jurisdiction was proper. /bid. The court

explained that, “[w]here a district court had proper jurisdic-

tion at the time of removal, but events occurring after re-

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

does not bar appellate review.” /d. at 6a. The court sup-

ported that proposition with a citation to First National Bank

of Pulaski v. Curry, 301 F.3d 456, 459 (6th Cir. 2002), a case

in which it had reviewed a district court order remanding

supplemental state claims after the court had resolved the

federal claims in the case.

Some language in the opinion below could be read to sug-

gest that the decision rested on different reasoning. See, e.g.,

Pet. App. 7a (referring to a conclusion by the district court

that “subject matter jurisdiction had been lost” rather than a

discretionary decision by that court not to exercise supple-

mental jurisdiction). But the court of appeals has clarified its

rationale in a subsequent decision. In DaWalt v. Purdue

Pharma, L.P., 397 F.3d 392 (2005), the Sixth Circuit stated

that the post-removal event “doctrine is implicated only when

a district court makes a discretionary remand of pendent

8

state-law claims following the dismissal of a claim or a party.”

Id. at 401. The court cited this case as an example, describing

it as a case “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.” Jbid. (quoting Pet. App. 7a).

DaWalt therefore makes clear that this case does not stand

for any broader proposition in the Sixth Circuit.

B. Review is Not Warranted To Address The Reviewability

Of Remand Orders Declining Supplemental Jurisdiction

Petitioner contends (Pet. 16-20) that this Court should

grant certiorari to decide whether the court of appeals was

correct in concluding that remand orders declining supple-

mental jurisdiction are subject to appellate review. But there

is no reason for this Court to address that question. Peti-

tioner himself acknowledges that all of the courts of appeals

that have addressed the issue agree that remand orders de-

clining supplemental jurisdiction are reviewable. Pet. 10; Pet.

Reply 4. Moreover, the uniform view of the courts of appeals

appears to be consistent with this Court’s decisions, which

suggest that appellate review is barred only for the categories

of remand orders described in Section 1447(c)—7.e., those

based on lack of subject matter jurisdiction and those based

on other defects in removal. See Thermtron, 423 U.S. at 346;

Things Remembered, 516 U.S. at 127; 28 U.S.C. 1447(c).

Even if this Court’s guidance were needed on the question

whether remand orders declining supplemental jurisdiction

are subject to appellate review, this case would not be an ap-

propriate vehicle through which to provide that guidance.

Although the court of appeals treated the case as one in which

the district court had declined jurisdiction under 28 U.S.C.

1367(c), it acknowledged that the district court had operated

9

on the erroneous belief that petitioner had abandoned his

reinstatement claim. See note 1, supra. Moreover, rather

than simply correct that error and remand to the district

court, the court of appeals went on to rule that petitioner’s

claims were properly removed, an issue that would not other-

wise have been appealable. If the district court had realized

that the reinstatement claim had not been abandoned or the

court of appeals had done no more than correct that error and

remand, then the district court would have had only two op-

tions: (1) retain jurisdiction over the entire case on the theory

that the LMRDA completely preempts the reinstatement

claim or (2) remand the ease on the theory that there is no

complete preemption and therefore the court lacked jurisdic-

tion at the time of removal. Neither option would have in-

volved a remand under Section 1367(c), and neither option

would have produced an immediately appealable order.

This Court should not address the propriety of appellate

review of remand orders under Section 1367(c) in a case that,

but for the district court’s acknowledged factual error, could

not possibly involve a valid remand under that Section. The

peculiarity created by the district court’s mistaken belief that

petitioner had abandoned the reinstatement claim makes this

a poor vehicle through which to address that issue.

C. Any Tension Among The Courts Of Appeals On How To

Ascertain The Basis For A Remand Order Does Not

Warrant Review In This Case

Petitioner contends (Pet. 11-15) that the Court should

grant review because the courts of appeals disagree on

whether they may look beyond the face of a remand order to

determine the actual basis for the remand. Although there

may be some tension among the courts of appeals on how to

ascertain the basis for a remand order, this Court’s review of

that question in this case would be premature.

10

Contrary to petitioner’s portrayal of a deep split among

the courts of appeals, those courts generally agree that they

may analyze a remand order to determine if there is a non-

Section 1447(c) basis for the remand, even if the district court

has stated that it lacks jurisdiction or has cited 28 U.S.C.

1447(c) or (d). See Cogdell v. Wyeth, 366 F.3d 1245, 1247-1249

(11th Cir. 2004); Lindsey v. Dillard’s, Inc., 306 F.3d 596, 599

(8th Cir. 2002); Archuleta v. Lacuesta, 131 F.3d 1359, 1362

(10th Cir. 1997); Mangold v. Analytic Servs., Inc., 77 F.3d

1442, 1450 (4th Cir. 1996); Baldridge v. Kentucky-Ohio

Transp., Inc., 983 F.2d 1341, 1349 (6th Cir. 1993). Cf. Spiel-

man Vv. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F od

116, 128 (2d Cir. 2003) (analyzing ambiguous order to « eter-

mine basis for remand); /n re Amoco Petroleum Additives

Co., 964 F.2d 706, 708 (7th Cir. 1992) (same).'

Statements in some cases suggest that the Fifth Circuit

takes a more restrictive approach and views the district

court’s characterization of its remand order as controlling.

The Fifth Circuit has said that “[rJeviewability of a remand

order depends entirely upon the trial court’s stated grounds

‘ Petitioner contends (Pet. 12, 15) that the Tenth Circuit treats a

district court’s good-faith statement that it lacked jurisdiction as con-

clusively establishing that the remand order was based on Section 1447(c).

That is ineorrect. In Archuleta, the Tenth Circuit held that, notwith-

standing “|a| district court’s assertion that it lacks subject matter juris.

diction, and even explicit references to § 1447(c),” the court of appeals “will

determine by independent review the actual grounds upon which the district

court believed it was empowered to remand.” 131 F.3d at 1362. Petitioner

also misreads the Third Circuit’s statement in Balazik v. County of

Dauphin, 44 F.3d 209, 213 (1995), that appellate “review is forestalled only

when the stated reasons for the remand include procedural or jurisdictional

defects.” In making that statement, the court meant only that “review is

not proscribed even if a remand could have been ordered based on a

§ 1447(c) ground, but was not.” /bid. The court nowhere suggested that

it could not analyze a remand order to determine the basis on which the

district court actually remanded the case.

11

for its decision to remand.” Tillman v. CSX Transp., Inc., 929

F.2d 1023, 1026 (5th Cir.), cert. denied, 502 U.S. 859 (1991).

That court of appeals has also said that it will deny appellate

review pursuant to Section 1447(d) where the district court

has stated that it is remanding for lack of jurisdiction, unless

“the district court [has] ‘clearly and affirmatively’ relie{d] on

a non-§1447(c) basis” for the remand. Heaton v. Monogram

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

Copling v. Container Store, Inc., 174 F.3d 590, 596 (5th Cir.

1999)), cert. denied, 533 U.S. 915 (2001).

The apparent tension in methodology between the Fifth

Circuit and the other courts of appeals does not warrant this

Court’s review at this time. First of all, it is not clear that this

kind of disparate methodology gives rise to the type of circuit

split that merits this Court’s review. Unlike disagreements

on broader issues of law, this kind of methodological dispute

may have more impact on how district court judges draft re-

mand orders than on the rights of the parties.

Second, it is also unclear how much practical difference

there is between the two approaches. Like the other courts

of appeals, the Fifth Circuit recognizes that it must examine

the remand order to determine whether the district court

intended to state a Section 1447(c) ground for remand and

that there may be ambiguities in the order that require reso-

lution. For exampie, in Heaton, the court of appeals under-

took “a plain and common sense reading” of the remand order

before concluding that the “order reveals that [the district

court] stated a § 1447(c) basis for remand,” and the court of

appeals analyzed the order to determine that there was no

“‘mislabeling’ of the basis for remand.” 231 F.3d at 997-998.

Moreover, in describing a prior decision, the court explained

tnat “elucidation of the grounds for remand was required in

order to determine the district court’s reasons for remanding”

12

because “the remand order * * *

what ambiguous.” /d. at 998.

Third, even if the Fifth Circuit’s different approach may

have a practical impact, that court might still align itself with

the other courts of appeals without this Court’s intervention.

The Fifth Cireuit has not addressed the issue in an en banc

opinion. And there is some tension between the Fifth Cir-

cuit’s approach and this Court’s cases on appellate jurisdic-

tion. This Court’s cases indicate that “(t]he label attached by

the District Court to its own opinion does not, of course, de-

cide * * * the jurisdictional issue,” and that the appellate

court must “determin[e}] * * * the appealability of the trial

court’s action not by the name the court gave [its decision} but

by what in legal effect it actually was.” United States v.

Sisson, 399 U.S. 267, 279 n.7 (1970) (citations omitted); see

Sullivan v. Finkelstein, 496 U.S. 617, 628 n.7 (1990) (stating

that “[t]he label used by the District Court * * * cannot

control the order’s appealability in this case”).

If the Fifth Circuit’s approach proves both significant and

persistent, this Court could grant review in an appropriate

case from the Fifth Circuit to correct the problem. This case,

however, is not a good one in which to resolve any tension

between the Fifth Circuit and the other courts of appeals.

The Sixth Circuit may well have decided this case the same

way even if it followed the Fifth Circuit’s approach. Al-

though the court of appeals here clearly engaged in some exe-

gesis, it looked to the text of the district court’s order in as-

certaining the basis for the remand. The remand order did

not invoke Section 1447(c) and did not state that the district

court lacked jurisdiction at the time of removal.’ On the con-

was at first glance some-

* The district court stated that it was not ruling on certain motions

“(gliven that [it] coneludes it does not have jurisdiction over the case.” Pet.

App. 13a-l4a. But courts sometimes use the term jurisdiction imprecisely.

See Kontrick v. Ryan, 540 U.S. 443, 454 (2004). And it is far from clear

13

trary, as the court of appeals noted, the remand order “plainly

relied” on petitioner’s purported abandonment of his claim for

reinstatement. Pet. App. 7a. The court of appeals therefore

concluded that the order indicated that the district court be-

lieved it had jurisdiction at the time of removal and thus was

not relying on Section 1447(c). See zbid. Instead, the court of

appeals determined, the remand was clearly based on a non-

Section 1447(c) ground—the district court’s conclusion that a

post-removal event had eliminated any federal claims from

the case and “|made] remand to the state courts appropriate.”

Id. at 6a; see id. at Ta-8a.

D. The Court May Wish To Hold This Case Pending Its De-

cisions in Aircher and Osborn

As petitioner observes (Pet. 13-14), there is a conflict

among the courts of appeals regarding appellate jurisdiction

over remand orders issued under the Securities Litigation

Uniform Standards Act of 1998 (SLUSA). Thai conflict is not

presented here but is at issue in Kircher, No. 05-409. Specifi-

cally, Kircher presents the question whether 28 U.S.C.

1447(d) precludes appellate jurisdiction over remand orders

issued after the district court has determined that claims,

which were originally removed under SLUSA’s removal provi-

sion, do not fall within the scope of SLUSA’s preemption pro-

vision. See 15 U.S.C. 77p(c) and (d)(4), 78bb(f)(8)(D). The

Court’s resolution of that question is likely to turn primarily

on factors unique to the SLUSA statutory scheme. Nonethe-

less, to the extent the Court’s decision in Kircher sheds light

on the proper interpretation of Section 1447(d), the Court

that the district court here meant that it did not have jurisdiction at the

time of removal, which is the eritical inquiry under Section 1447(c¢),

Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939), as opposed to meaning

that it no longer had jurisdiction because it had decided to remand the

state-law claims.

14

may wish to hold the petition in this case pending that deci-

sion.

The Court may also wish to hold the petition in this case

pending the Court’s decision in Osborn, No. 05-593. In that

case, this Court has asked the parties to brief the question

whether Section 1447(d) bars appellate review of an order

that overturns the substitution of the United States for a fed-

eral employee defendant under the Westfall Act, 28 U.S.C.

2679(d), and also remands the case to state court. Like

Kircher, Osborn may provide guidance on how to interpret

Section 1447(d). The Court may therefore wish to defer ac-

tion on this case until the Court has resolved Osborn as well.

However, because of the different contexts in which Section

1447(d) arises in this case and in Osborn and Kircher, and

because this case does not independently warrant review, it

would also be appropriate for the Court to deny the petition

rather than carry this case on the Court’s docket for a lengthy

period of time.

ii. THE COMPLETE PREEMPTION QUESTION IS NOT

PROPERLY PRESENTED AND, IN ANY EVENT, DOES

NOT WARRANT PLENARY REVIEW

Petitioner also seeks review (Pet. 20-26) of the court of ap-

peals’ ruling on the merits of the removal question that this

case was properly removed to federal court. The issue framed

by petitioner is not properly presented and, in any event, does

not warrant this Court’s review.

Under 28 U.S.C. 1441(b), a civil action filed in state court

may be removed to federal court if the plaintiffs claim

“aris[es| under” federal law. See Beneficial Natl Bank v.

Anderson, 539 U.S. 1, 6 (2003). Whether an action arises un-

der federal law is determined by the well-pleaded complaint

rule, which requires that a federal question be presented by

the plaintiff's properly-pleaded complaint. Because a defense

15

is not part of the plaintiff's well-pleaded statement of his

claim, and federal preemption is ordinarily only a defense,

preemption generally does not provide a basis for removal.

Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004). Pre-

emption does provide a basis for removal, however, when a

federal cause of action occupies the field within which the

plaintiff's claim arises and therefore “wholly displaces” any

state-law causes of action on which the plaintiff might other-

wise rely. Beneficial Nat'l Bank, 539 U.S. at 8. Where such

“complete preemption” exists, the plaintiff's properly-pleaded

claim “necessarily arises” under federal law even if the plain-

tiff purports to base the claim entirely on state law. /d. at 9;

see Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (cit-

ing Franchise Tax Bd. v. Construction Laborers Vacation

Trust, 463 U.S. 1, 24 (1983)). Generally, there are two preregq-

uisites for complete preemption: (1) Congress must have cre-

ated an “exclusive cause of action,” and (2) the plaintiff's claim

must “come[] within the scope of that cause of action.” Bene-

ficial Nat'l Bank, 539 U.S. at 8-9; see Franchise Tax Bd., 463

U.S. at 24; Caterpillar, 482 U.S. at 388-399.

Petitioner contends that the LMRDA does not completely

preempt his state-law claims because, although it gives the

Secretary of Labor an exclusive cause of action to challenge

the UAW’s election on petitioner's behalf, the statute does not

give petitioner himself a cause of action. That issue does not

warrant review. There is no conflict among the courts of ap-

peals on whether there can be complete preemption by the

LMRDA. Indeed, no court, including the Sixth Cireuit in this

case, has squarely addressed the issue. And the abstract

question whether there can ever be complete preemption

when the plaintiff himself lacks a federal cause of action is not

properly presented by this case, because it was not pressed or

passed upon below.

16

A. There Is No Conflict Among The Courts Of Appeals On

Whether The LMRDA Completely Preempts State-Law

Claims Challenging Union Elections

The Sixth Circuit in this case is the only court of appeals

that has addressed the propriety of removing ostensible state-

law claims to federal court based on Title IV of the LMRDA.

Even that court, however, did not conduct a traditional com-

plete preemption analysis as set out in this Court’s eases. See

Pet. App. 8a-lla. Instead, the court of appeals referred ge-

nerically to preemption and may have decided this case based

on the erroneous premise that ordinary preemption is suffi-

cient to justify removal. See id. at lla (reasoning that re-

mand was improper because petitioner’s claims were “pre-

empted by Title IV of the LMRDA”). Thus, there is no con-

flict among the courts of appeals on whether the LMRDA

satisfies the requirements for complete preemption. Indeed,

no court of appeals has squarely addressed that question. It

would therefore be premature for this Court to address the

issue here.

B. The Complete Preemption Question Presented By Peti-

tioner Is Not Properly Before The Court

Petitioner contends (Pet. 20-26) that the Court should

grant review to resolve a conflict in the courts of appeals over

whether a claim can be completely preempted by a federal

statute that does not provide the plaintiff with a private cause

of action. That issue is not properly presented in this case.

Petitioner did not argue in the court of appeals that there

is no complete preemption here because the LMRDA does not

provide him with a cause of action. Petitioner does not dis-

pute his failure to raise that issue below, but he contends that

the issue is merely “a new argument” in support of his claim

that there is no complete preemption. Pet. Reply 6. Far from

being an additional argument in support of that claim, how-

17

ever, the cause-of-action question is the only complete-pre-

emption issue that petitioner asks this Court to resolve. The

question presented in the petition is framed entirely in terms

of whether complete preemption can occur “absent a determi-

nation that Congress created an alternative private right of

action.” Pet.i. Because petitioner did not present that issue

to the court of appeals, that court did not address the issue.

This Court does not generally address issues that were

neither pressed nor passed upon in the court below. See, e.g.,

Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970).

There is no reason for the Court to make an exception here.

C. The Novel And Abstract Nature Of The Complete Pre-

emption Question Also Counsels Against Review

Even if the complete preemption question raised by peti-

tioner were properly presented, this case would not be an

appropriate one in which to address it. The question whether

a federal statute can completely preempt a plaintiff’s state-

law claims if it does not provide the plaintiff with a cause of

action should not be addressed in the abstract. Rather, it

should be addressed in the context of a specific statute, and in

light of judicial decisions carefully construing the statute,

because the answer to the question may vary depending on

the particular features of the statutory scheme. No court of

appeals has addressed the cause-of-action question in the

context of the LMRDA. There is no reason for this Court to

attempt to resolve it in the first instance."

The LMRDA falls within tae class of federal statutes that

displace state causes of action, provide a substitute federal

“ Moreover, the Court could not address the complete preemption issue

without first deciding whether the court of appeals correctly exercised

appellate jurisdiction, a question which, as explained above, implicates

idiosyneratie aspects of the decision below and is not worthy of plenary

review.

18

cause of action, but strictly limit the class of plaintiffs who can

invoke that cause of action. The LMRDA creates an exclusive

federal cause of action to challenge union elections but allows

only the Secretary of Labor to invoke that cause of action.

See 29 U.S.C. 482(b); Local No. 82, Furniture & Piano

Moving v. Crowley, 467 U.S. 526, 544 (1984). For that cate-

gory of statutes, the first prerequisite for complete pre-

emption is clearly met: there is an exclusive federal cause of

action. The complete preemption inquiry therefore can be

understood as turning on whether the second requirement is

met, 2.e., whether the plaintiffs claim comes within the scope

of the federal cause of action. See p. 15, supra.

Some of this Court’s precedents indicate that the fact that

a particular plaintiff is not entitled to invoke a cause of action

means that his claim is not within the scope of that cause of

action. For example, in Franchise Tax Board, this Court held

that Section 502(a) of the Employee Retirement Income Secu-

rity Act (ERISA), 29 U.S.C. 1132(a), did not completely pre-

empt a suit for back taxes by a state tax board against an em-

ployee benefit plan because the suit did not “come|| within the

scope of one of ERISA’s causes of action.” 463 U.S. at 25.

The Court reasoned that Section 502(a) does not provide a

cause of action to anyone other than “participants, beneficia-

ries, or fiduciaries,” and therefore “[a] suit for similar relief

by some other party [like the tax board] does not ‘arise under’

that provision.” Jd. at 27.

Other of the Court’s precedents, however, suggest that a

plaintiff's ineligibility to invoke a federal cause of action does

not conclusively establish that his claim is outside the scope

of that cause of action. In Avco Corp. v. Aero Lodge No. 735,

International Ass'n of Machinists, 390 U.S. 557 (1968), this

Court held that an employer’s state lawsuit seeking an injunc-

tion prohibiting a union from striking fell within the scope of

Section 301 of the Labor-Management Relations Act, 29

19

U.S.C. 185, and was completely preempted, even though the

Norris-LaGuardia Act barred the employer from seeking the

injunction under Section 301. See 390 U.S. at 560-561. Avco

demonstrates that a plaintiff's ostensible state-law claim may

come within the scope of a federal cause of action and be com-

pletely preempted, even if the cause of action does not provide

the plaintiff with a remedy. Caterpillar, 482 U.S. at 391 n.4.

Avco thus supports an argument that a plaintiff's claim may

fall within the scope of a federal cause of action and be com-

pletely preempted, even if the plaintiff is unable to state a

valid claim under the cause of action, provided that the plain-

tiff’s claim is within the field regulated by the cause of action.

Moreover, when the limits on the federal cause of action are

an integral part of the federal scheme, it would seem

counterintuitive to find a claim to be not completely pre-

empted preciseiy because it seeks relief antithetical to the

pervasively federal regime.

There is a reasonable argument that private-party claims

challenging union elections fall within the field addressed by

the LMRDA’s exclusive cause of action. The LMRDA makes

clear that the remedy it provides is the exclusive means to

challenge those elections. 29 U.S.C. 483. Although only the

Secretary can bring suit to challenge election results, the Sec-

retary’s suit is triggered by a complaint filed by a private

party who is aggrieved by the results. 29 U.S.C. 482(a). The

Secretary is required to bring suit if there is probable cause

to believe that there has been an unremedied violation of the

LMRDA that may have affected the outcome of the election.

29 U.S.C. 482(b) and (c). The aggrieved party may seek judi-

cial review of a decision by the Secretary not to bring suit and

may intervene in a suit once it has been brought. See Dunlop

v. Bachowski, 421 U.S. 560, 566 (1975); Trbovich v. United

Mine Workers of Am., 404 U.S. 528, 536 (1972).

20

Given the unique nature of the LMRDA’s remedial scheme

and the case law discussed above, whether the cause of action

provided by the LMRDA gives rise to complete preemption is

not free from doubt. Because that question has not arisen

with any frequency, has not yet been squarely addressed by

any court of appeals, and is not properly presented in this

case, this Court should not undertake to resolve the question

here.

CONCLUSION

The petition for a writ of certiorari should be denied. Al-

ternatively, the Court may wish to hold the petition pending

the Court’s decisions in Kircher, No. 05-409, and Osborn, No.

05-593.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

GREGORY G. GARRE

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to. the Solicitor

General

HOWARD M. RADZELY

Solicitor of Labor

NATHANIEL I. SPILLER

Assistant Deputy Solicitor

MARKS. FLYNN

Counsel for Advice and

Statutory Programs

Department of Labor

MAY 2006