Opposition Brief — Nokia, Inc. v. Naquin

6°

“substantial federal question” doctrine, the “artful pleading”

doctrine and the theory that, as FCC licensees, Petitioners

were “acting under” a federal officer or agency of the United

States. C.A. App. 360. In attempting to identify a substantial

federal question, the notices of removai asserted that each

“suit essentially attacks the RF emission standards established

by federal regulation.” C.A. App. 361. Petitioners went on to

outline a “comprehensive and uniform regulatory framework

for all wireless telephone services” (C.A. App. 363). While

admitting that Respondents “assert only state law causes of

action” (C.A. App. 366), the removal notices argued that “the

elements of those causes of action will require this Court to

resolve substantial disputed questions of federal law.” C.A.

App. 366.

Respondents filed timely motions pursuant to 28 U.S.C.

§1447(c) to remand each of the four actions for lack of

subject matter jurisdiction. In memoranda opposing the re-

mand motions, Petitioners relied upon the three grounds

stated previously in their notices of removal and also added a

fourth—the “complete preemption” doctrine. Thereafter, on

October 31, 2001, acting on motion of the Petitioners, the

Judicial Panel on Muiltidistrict Litigation ordered transfer of

the cases for consolidated pretrial proceedings in the United

States District Court for the District of Maryland.

On June 21, 2002, following briefing and argument, the

district court denied the Respondents’ motions to remand.

Pet. App. 95a. Characterizing the state-law claims as a “dis-

guised attack on federal regulations” (Pet. App. 54a), the

court ruled that the claims necessarily depend upon resolution

of a substantial federal question. Pet. App. 57a-79a. Other

asserted grounds for removal were considered but rejected.

Pet. App. 79a-95. In finding federal question jurisdiction, the

district court went far beyond the complaints to present a

detailed analysis of the comprehensive nature of federal

regulation of RF emissions, including the text and legislative

history of the Telecommunications Act of 1996. Pet. App.

7

60a-69a. From that analysis the district court concluded that

Respondents’ claims “put the validity of the federal regu-

lations, and the process by which they were developed, di-

rectly in dispute.” Pet. App. 71a. The court added: “Although

none of these claims explicitly challenge the FCC’s radiation

exposure guidelines, an examination of the class plaintiffs

propose and the remedy plaintiffs request reveals that the true

gravamen of these complaints is to attack the lack of a

headset requirement under the federal RF safety rules.” /bid.

These stated concerns led the district court to conclude that

state court adjudication of Respondents’ claims would be

incompatible with the federal regulatory regime:

While state courts ultimately might conclude that they

are preempted from regulating the wireless industry on

the basis of RF concerns, the risk of fifty different states

articulating fifty different rules about whether and to

what extent they may set RF safety standards could

create market instability and prevent the maintenance of

an unimpeded national network of rapid and efficient

telecommunications service, a goa! of significant im-

portance in national commerce and security. With these

federal interests figuring so centrally to [Respondent]

plaintiffs’ case, removal is fully justified.

Pet. App. 76a-77a.

Petitioners next moved pursuant to Rule |2(b)(6), F.R.C.P.,

to dismiss Respondents’ lawsuits on the ground that all of the

claims were preempted by federal law. On March 5, 2003,

without reaching other theories of preemption, the district

court dismissed the actions on the basis of conflict preemp-

tion. In re Wireless Telephone Radio Frequency Emissions

Prod. Liab. Litig. 248 F. Supp. 2d 452 (D. Md. 2003).’ Spe-

> Petitioners’ Appendix does not contain the district court’s opinion

and order dismissing these actions pursuant to Rule 12(b)(6), reported at

248 F. Supp. 2d 452, although the epinion is relevant to the judgments

cifically, the district court ruled that the relief sought was

inconsistent with Congress’s objective of achieving national

uniformity in regulating RF radiation levels for all wireless

communications. /d., 463. The district court incorporated by

reference its earlier opinion upholding federal-question

jurisdiction (id., 457, n.1) and cited many passages from that

opinion as supporting a finding of conflict preemption. /d.,

458-60, 461n.12, 463-65.

A panel of the court of appeals reversed. Pet. App.43a. The

panel was divided over the existence of a substantial federal

question, the dissenting judge being ir accord with the

district court’s analysis of that issue. Pet. App. 43a-47a. The

panel majority (Luttig and Michael, Circuit Judges) held that

removal of these four cases could not be sustained on the

basis of a substantial federal question. Pet. App. 25a. After a

fact-intensive examination of the complaints (Pet. App. 9a-

10, i3a-18a), the majority found “one thing is clear: the

elements of each of the claims depend only on the resolution

of questions of state law.” Pet. App.18a. It held that “[t}he

district court erred by not recognizing that its inquiry was

limited by the well-pleaded complaint rule” (ibid) and in

allowing removal by anticipating the defense of preemption

urged by Petitioners. Pet. App.!9a. In response to arguments

that certain claims raised federal issues, the majority found

that the arguments were either “wrong” (Pei. App. 20a) or a

“mischaracterization” of the claim. Pet. App. 21a. Finally, the

panel! rejected Petitioner’s theory that a “sufficient connec-

tion” of the claims to a federal regulatory scheme might

suffice to establish federal question jurisdiction. Pet. App.

22a-24a.

Having determined that the claims do not arise under fed-

eral law under any of the removal theories, the panel majority

entered by that court and by the court of appeals. Supreme Court Rule

14. 1(1).

9

held that district court lacked subject-matter jurisdiction over

the four cases, making their removal improper. Pet. App. 28a.

Accordingly, the district court lacked power in those cases to

consider or decide the preemption issues raised by Petitioners

in their Rule 12(b)(6) motion to dismiss. /bid. As a result, the

court of appeals returned the cases to the district court for

remand of each case to the state court in which it originated.

Pet. App. 43a. Without dissent, it denied Petitioners’ re-

hearing petition. Pet. App. 99a. In conformity with the

mandate of the court of appeals, the district court remanded

each action to the originating state court, where the action is

now pending."

ARGUMENT

THE DECISION BELOW IS COMPATIBLE WITH

THE PRINCIPLES OF GRABLE AND OTHER

RELEVANT PRECEDENTS IN DETERMINING

THAT THESE CASES DO NOT PRESENT A SUB-

STANTIAL FEDERAL QUESTION; REMAND FOR

RECONSIDERATION OF THE DECISION BELOW

IS UNNECESSARY.

On June 13, 2005, two months after the Fourth Circuit had

rendered its decision and denied a petition for rehearing, this

Court handed down Grable & Sons Metal Prods., Inc. v.

Darue, Eng'g & Mfg., __ U.S. __, 125 S. Ct. 2363 (2005). In

Grable, this Court re-examined the “substantial federal

question” doctrine and concluded that there is “ no single,

precise, all-embracing” test for identifying federal ques-

tions that will support jurisdiction under 28 U. S. C. §1331.

Grable, 125 S. Ct. at 2368, quoting Christianson v. Colt

* Despite the literal terms of 28 U.S.C. § 1447(d), this Court's cer-

tiorari jurisdiction would appear to be unaffected by the district court's

order remanding these four cases and transferring the records to the state

courts, where the cases are now pending. See Aetna Cas. & Sur. Co. v

Flowers, 330 U.S, 464, 466-67 (1947)

-

Ind. Operating Corp., 486 U. S. 800, 821 (1988) (Stevens, J.,

concurring).

Petitioners urge this Court to grant the writ of certiorari,

vacate the judgment below and remand these cases to the

Fourth Circuit for reconsideration in light of Grable. Petition,

at 4, 9-10, 18. For reasons that follow, Respondents disagree

and oppose remand. While lacking the benefit of Grable, the

court of appeals applied the principles recognized in other

relevant precedents of this Court that remain viable and vital

today. The Fourth Circuit panel decision rests upon four

bedrock principles, correctly stated and properly applied in

the majority opinion:

¢ Federal question jurisdiction is determined by the

“well-pleaded complaint” rule, which holds that

courts ordinarily look no further than the plaintiffs’

complaint in determining whether a lawsuit raises

issues of federal law capable of creating federal

question jurisdiction. Pet. App., | la-12a, 18a.

e If federal law does not create the cause of action, the

rule requires a complaint to establish that the plain-

tiffs right to relief necessarily depends on resolution

of a substantial question of federal law, in that federal

law is a necessary element of one of the well-pleaded

claims. Pet. App. 12a, 13a.

e A plaintiff is “master of the claim” and may avoid

federal jurisdiction by exclusive reliance on state law

in drafting the complaint. Pet. App. | 2a.

e A preemption defense that raises a federal question is

inadequate to confer federal jurisdiction. Pet. App.

i9a. A case may not be removed to federal court on

the basis of a federal defense, including the defense of

preemption, even if the defense is anticipated in the

plaintiff's complaint, and even if both parties admit

that the defense is the only question truly at issue in

the case. Pet. App, 13a, 19a.

These propositions are basic and anchored by a century of

federal jurisprudence. If they have deen displaced by Grable,

then it remains for this Court and this Court alone to say so

after plenary review. In the meantime, this Court’s precedents

supporting these propositions are binding upon the Fourth

Circuit, which applied them before to these cases and may be

expected to apply them again if called upon to do so. A

remand to the court of appeals for reconsideration in light of

Grable is unnecessary and a likely waste of judicial re-

sources. We respectfully submit that the decision below is

entirely consistent with Grable and should not be disturbed.

As this Court acknowledges, federal question jurisdiction is

usually invoked by pleading a cause of action created by

federal law. Grable, 125 S. Ct. at 2366. “As a general rule,

absent diversity jurisdiction, a case will not be removable if

the complaint does not affirmatively allege a federal claim.”

Beneficial Nat. Bank v. Anderson, 539 U. S. 1, 6 (2003).

There is a “less frequently encountered” qualification of this

rule, however. Grable, 125 S. Ct. at 2366. This Court has

“recognized for nearly !00 years that in certain cases federal

question jurisdiction will lie over state-law claims that

implicate significant federal issues.” Jd. No bright line can be

drawn but Grable has added focus to the inquiry. Thus, “the

question is, does a state-law claim necessarily raise a stated

federal issue, actually disputed and substantial, which a

federal forum may entertain without disturbing any congres-

sionally approved balance of federal and state judicial re-

sponsibilities.” Grable, 125 S. Ct. at 2368 (emphasis added).

The inquiry posed in Grable should be understood as

resting upon two implicit assumptions. The federal issue (1)

must be “stated” in the plaintiff's own complaint (125 S. Ct.

at 2368) and (2) must constitute an essential element of

plaintiff's state-law claim. See Gulley v. First Nat. Bank in

Meridian, 299 U.S. 109, 112-13 (1936). The quiet title action

in Grable, for example, was premised on a failure of the IRS

12

to give the plaintiff adequate notice, as defined by federal

law. 125 S.Ct. at 2366, 2368. “Whether Grable was given

notice within the meaning of the federal statute is thus an

essential element of its quiet title claim, and the meaning of

the federal statute is actually in dispute; it appears to be the

only legal or factual issue contested in the case.” /d. at 2368

(emphasis added). Obviously, then, Grable presented this

Court with a claim in which a federal issue constituted an

“essential element” of the state-law cause of action.

The “well-pleaded compiaint” rule was tacitly acknowl-

edged in Grable in that a “stated” federal issue was presented.

In these four cases, the court of appeals applied that rule in

line with this Court's prior decisions. Pet. App.12a, 18a-19a.

Ordinarily, federal-question jurisdiction turns on the “well-

pleaded complaint” rule. Aetna Health, Inc. v. Davila, 542 VU.

S. 200, 124 S. Ct. 2488, 2495 (2004); Oklahoma Tax

Comm'n. v. Graham, 489 U. S. 838, 840 (1989). The rule

“has long governed whether a case ‘arises under’ federal law

for purposes of 28 U. S. §1331.” Holmes Group, Inc. v.

Vornado Air. Systems, Inc., 535 U. S. 826, 830 (2002). The

rule operates “on the principle that that federal jurisdiction

generally exists ‘only when a federal question is presented on

the face of the plaintiff's properly pleaded complaint.’” /d.,

831, quoting Caterpillar Inc. v. Williams, 482 U. S. 482 U. S.

386, 392 (1987). The allegations of the complaint are con-

trolling. Whether federal-question jurisdiction exists “must be

determined from what necessarily appears in the plaintiff's

statement of his own claim in the bill or declaration, unaided

by anything alleged in anticipation or avoidance of defenses

which it is thought the defendant may interpose.” Taylor v.

Anderson, 234 U. S. 74, 75-76 (1914). See Aetna Health, 124

S. Ct. at 2494; Oklahoma Tax Comm’n., 489 U. S. at 841;

Christianson v. Colt Ind. Op. Corp., 486 U. S. 800, 808

(1988); Franchise Tax Bd. of California v. Construction

Laborers Vacation Trust, 463 U.S. 1, 10 (1983).

13

The decision below observed that state law created all of

the Respondents’ claims, but the inquiry did not stop there.

Pet. App. 12a. The panel inquired further “whether these

cases fall within the small class of ‘cases in which a well-

pleaded complaint establishes . . . that the plaintiff's right to

relief necessarily depends on the resolution of a substantial

question of federal law, in that federal law is a necessary

element of one of the well-pleaded . . . claims."” Pet. App. 12,

quoting Christianson, 486 U. S. at 808, and Franchise Tax

Bd.,, 463 U.S. at 13. A meticulous count-by-count evaluation

of each state-law claim in the four cases (Pet. App. 12a-18a)

led the panel to conclude that “one thing is clear: the elements

of each of the claims depend only on the resolution of state

law.” Pet. App. 18a. Parts of the complaints targeted by the

Petitioners and by the dissenting judge were also reviewed

and explained in context. Pet. App. 20a-22a.

The Petition attacks this conclusion as contradicting

Grable by applying what they depict as “a bright-line rule

that gives conclusive weight to one factor (such as whether a

particular element of a state law claim turns on federal law)”,

to the exclusion of “other factors” that Petitioners want

considered. Petition, at 11. Grabd/e itself, however, rests upon

a plain finding that a substantial and disputed federal question

constituted “an essential element” of the quiet title claim. 125

S. Ct. at 2368. The “essential element” test is entirely

compatible with Grable’s assurance that the federal question

presented must be substantial, disputed and necessary to

resolve. /bid. If a federal question is not an essential element

of a state cause of action, then it is not placed in “dispute”

and the right to relief does not depend upon its resolution.

Such a claim is not one “arising under the Constitution, laws

or treaties of the United States.” 28 U.S.C. §1331.

Moreover, the reference in Grable to an “essential ele-

ment” was not a stray remark but is supported by precedents

cited in the opinion. For example, Mr. Justice Cardozo is

14

quoted for his famous explanation that the exercise of

federal-question jurisdiction calls for “a common-sense ac-

commodation of judgment to [the] kaleidoscopic situations

that present a federal issue, in a selective process which picks

the substantial causes out of the web and lays the other ones

aside.” Gully, 299 U. S. at 117-18, as quoted in Grable, 125

S.Ct. at 2367. And yet it was Mr. Justice Cardozo’s opin-

ion in Gully that reaffirmed the test, then already “well-

established”, that federal law “must be an element, and an

essential one, of plaintiff's cause of action.” /d., 299 U. S.

at 112 (emphasis added). See Rivet v. Regions Bank of

Louisiana, $22 U. S 470, 475 (1998). Grable also quoted an

earlier opinion for its conclusion that “the facts showing the

plaintiff's title and the existence and invalidity of the

instrument or record sought to be eliminated as a cloud upon

the title are essential parts of the plaintiff's cause of action.”

Hopkins v. Walker, 244 U. S. 486, 490 (1917), as quoted in

Grable, 125 S. Ct. at 2368-69 (emphasis added). In short,

there is sirmply no merit in the contention here that the

decision below went astray in testing the complaints in these

actions in accordance with the “essential element” standard.°

Petit oners urge a wide-ranging consideration of “other

factors” (Petition, at 11) that lie outside the complaint. Ap-

* As they did in their petition for rehearing in the Fourth Circuit,

Petitioners complain that the decision below conflicts with the Fourth

Circuit's earlier decision in Ormet v. Ohio Power Co., 98 F.3d 799 (4th

Cir. 1996), while adding that this Court has “endorsed” Ormct in Grable.

Petition, at 16. The majority opinion, which was authored by a member of

the panel which decided Ormer, carefully distinguished that decision from

the other. Pet. App. 22a-24a. After the decision below had been rendered,

Petitioners sought rehearing and rehearing en banc, inviting the Fourth

Circuit to resolve the asserted conflict with Ormet. No member of the

Court (including the member who wrote the Orme? opinion) requested a

poll on the petition for rehearing en banc. Pet. App.99a. The petition for

rehearing was denied by the panel, without dissent.

15

parently, these “other factors” would include the Petitioners’

own added embellishments regarding the FCC regulatory

scheme, their asserted compliance with FCC regulations, and

even the legislative history of the Telecommunications Act

of 1996. Petition, at 13-14". Petitioners injected these matters

into all four cases in their notices of removal. C.A. App. 360-

367. Defensive submissions that supplement the complaint,

however, if given weight, “would undermine the clarity and

ease of administration of the well-pleaded-complaint doc-

trine” and radically expand the class of removable cases.

Holmes Group, 535 U. S. at 832.

Under the “well-pleaded complaint” rule, as Mr. Justice

Cardozo also has observed, “the controversy must be dis-

closed upon the face of the complaint, unaided by the answer

or by the petition for removal.” Gully, 299 U. S. at 113. See

Caterpillar, 482 U. S. at 392. Over the years, this Court has

rejected proposals that the defendant’s notice of removal, the

defendant's answer or a counterclaim to the complaint should

be consulted before making a determination of federal-

question jurisdiction. Holmes Group, 535 U. S. at 831. See

Franchise Tax Bd., 463 U. S.-at 10-11, n.9; The Fair v.

Kohler Die & Specialty Co, 228 U. S. 22, 25 (1913). Fed-

eral courts are admonished to “examine the ‘well pleaded’

* Although irrelevant to remova! jurisdiction, the Petition’s excursion

into legislative history illustrates the hazards of the journey. The Petition

states that “Congress specifically identified nationally uniform RF

emissions standards as a legislative objective”, and then quotes a

committee report as proof of that statement. Petition, at 13-14 quoting

H.R. Rep. No. 104-204, pt. | (1995), reprinted in 1996 U.S.C.C.A.N. 10,

61. One probiem with the committee report is that it dealt with the siting

of antenna, cell stations, and infrastructure-related equipment, rather than

wireless telephones sold or leased to consumers. /d. A greater problem

facing Petitioners is that the committee report spoke to a bill that was

never enacted.

16

allegations of the complaint and ignore potential defenses.”

Beneficial National Bank, 539 U.S. at 6.

[A] defendant cannot, merely by injecting a federal

question into an action that asserts what is plainly a

state-law claim, transform the action into one arising

under federal law, thereby selecting the forum in which

the claim shall be litigated. If the defendant could do so,

the plaintiff would be master of nothing.

Caterpillar, 482 U. S. at 399 (emphasis in original; fn

omitted).

Another corollary of “[t}he well-pleaded complaint rule

makes the plaintiff the master of the claim; he or she may

avoid federal jurisdiction by exclusive reliance on state law.”

Caterpillar, 482 U. S. at 392 (fn. omitted). It does not suffice

that the facts alleged in support of an asserted state-law claim

would also support a federal claim. Beneficial Nat. Bank, 539

U. S. at 12 (Scalia, J., dissenting). See Caterpillar, 482 U. S.

at 395 (plaintiffs “could have brought suit under [federal

law]; [a]s masters of the complaint, however, they chose not

to do so”). See also Great Northern R. Co. v. Alexander, 246

U. S. 276, 282 (1918)(“the plaintiff may by the allegations of

his complaint determine the status with respect to remov-

ability”); Healy v. Sea Gulf Specialty Co., 237 U. S. 479, 480

(1915)(“the plaintiff is absolute master of what jurisdiction he

will appeal to”); The Fair v. Kohler Die & Specialty Co., 228

U. S. 22, 25 (1913\(“[ojf course the party who brings a suit is

master to decide what law he will rely upon”). Nor does it

“suffice that the facts alleged in support of an asserted state-

law claim do not support a state-law claim and would only

support a federal claim.” Beneficial Nat. Bank, 539 U. S. at

12 (Scalia, J., dissenting; emphasis in original). “Jurisdiction

may not be sustained on a theory that the plaintiff has not

advanced.” Merrell Dow Pharmaceuticals Inc. v. Thompson,

478 U.S. 804, 809, n.6 (1986).

17

In the district court, Petitioners argued at length that the

resolution of claims in these actions under state law would

pose an irreconcilable conflict with federal legislative policies —-—

and FCC regulation. The district court adopted much of their

argument. See discussion, supra at p. 7-8. In so doing, the

district court disregarded a major corollary of the “well-

pleaded complaint” rule. Its ruling was condemned on that

account. Pet. App. 18a-19a. Preemption is a defense to a

complaint and may not be invoked to justify removal.

Beneficial Nat. Bank, 539 U.S. at 6. “A defense that raises a

federal question is inadequate to confer federal jurisdiction.”

Merrell Dow Pharmaceuticals, 478 U. S. at 808. See Rivet,

$22 U.S. at 475 (“[a] defense is not part of a plaintiff's

properly [pjleaded statement of his or her claim’). See

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).

“{S]ince 1887 it has been settled law that a case may not be

removed to federal court on the basis of a federal defense,

including the defense of preemption, even if the defense is

anticipated in the plaintiff's complaint, and even if both

parties concede that the federal defense is the only question

truly at issue.” Franchise Tax Bd., 463 U.S. at 14. See Rivet,

522 U.S. at 475. Caterpillar, 482 U.S. at 393. “By unim-

peachable authority, a suit brought upon a state statute does

not arise under an act of Congress or the Constitution of the

United States because prohibited thereby.” Gully, 299 U.S. at

116. See Rivet, 522 U.S. at 476. In short, the presence of a

federal question “in a defensive argument does not overcome

the paramount policies embodied in the well-pleaded com-

plaint rule—that the plaintiff is the master of the complaint,

that a federal question must appear on the face of the

complaint, and that the plaintiff may, by eschewing claims

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

court.” Caterpillar, 482 U. S. at 398-399.

Petitioners do not question the panel's determination that

conflict preemption was the real thrust of their argument for

removal based on a federal question. Instead, Petitioners shift

ground and assert that their self-proclaimed compliance with

federal regulations has “qualitative significance” that should

count for something. Petition, at 13. As the decision below

recognizes, however, any such compliance constitutes a

defense to claims under the laws of Georgia, Maryland and

New York (Pet. App. 20a), just as it does in most other

jurisdictions. See Geier v. American Honda Motor Co., 529

U. S. 861, 869-70 (2000) (citing Restateme: 4 (Third) of Torts:

Products Liability, §4(b), comment e (1997)); see id., 892-93

(Stevens, J., dissenting).’ Even “the existence of a federal

immunity to the claims asserted does not convert a suit

otherwise arising under state law into one which, in the

Statutory sense, arises under federal law.” Oklahoma Tax

Comm 'n., 489 U.S. at 481.

Nothing in the Grable decision either repudiates or

displaces the “well-pleaded complaint” rule or its several

corollaries. The rule “is the basic principle marking the

boundaries of the federal-question jurisdiction of the federal

district courts.” Metropolitan Life, 481 U.S. at 64. That rule

(and the policies supporting it, see Holmes Group, 535 U.S. at

831-32) is both too firmly established and too recently

articulated to necessitate further review of the rule’s

application in these cases. See Aetna Heaith, 124 S. Ct. 2488

at 2494 (whether a particular case arises under federal law

ordinarily turns on the “well-pleaded complaint” rule). The

statutes controlling federal-question removal jurisdiction, 28

U.S.C. §§1331 and 1441(a), have been amended several times

since the well-pleaded complaint rule was developed. That

rule and its corollaries now form an integral part of the

“congressionally approved balance of federal and state

” Pennsylvania law attaches no legal significance to product com-

pliance. Pet. App. 20a-21a. The Petition also notes two federal decisions

upholding FCC regulation of RF emissions. Petition, at 14, n.2. The

preclusive effect of a prior federal judgment, if any, is a defense that will

not provide a basis for removal. River, 522 U. S. at 478. See Beneficial

Nat. Bank, 539 U.S. at 6.

19

judicial responsibilities” (Grable, 125 S. Ct. at 2368) that this

Court has endeavored to maintain for more than a century.

That balance should not now be disturbed. Having applied

the controlling principles that this Court has developed and

reaffirmed, the decision below does not warrant recon-

sideration by the Fourth Circuit.

CONCLUSION

For each of the foregoing reasons, the petition for a writ of

certiorari should be denied.

KENNETH A. JACOBSEN

Law OFFICES OF

KENNETH A. JACOBSEN

22 West Front Street

Media, Pennsylvania 19063

(610) 566-7930

JOSEPH A. O'KEEFE

O’Keere & SHER, P.C.

15019 Kutztown Road

Kutztown, Pennsylvania 19530

(610) 683-0771

Counsel for Respondent

Francis J. Farina

MICHAEL WEINSTOCK

RICHARD CAPRIOLA

MATTHEW W. CARLTON

Weinstock & Scavo, ?.C.

3405 Piedmont Road, N.E.

Suite 300

Atlanta, Georgia 30305

(404) 231-3999

Counsel for Respondent

Riedy Gimpelson

Respectfully submitted,

HARLEY THOMAS HOWELL

Counsel of Record

WILLIAM F. GATELY

HOWELL & GATELY

One Charles Center, 19th Floor

100 North Charles Street

Baltimore, Maryland 21201

(410) 649-1103

Counsel for Respondents

J. Douglas Pinney and

Patricia S. Colonnel

H. RUSSELL SMOUSE

GLENN E. MINTZER

LAW OFFICES OF PETER G.

ANGELOS, P.C.

One Charles Center

100 North Charles Strect

Baltimore, Maryland 2120)

(410) 649-2000

Counsel for Respondents

J. Douglas Pinney, Patricia S.

Colonnel, Crystall Gilliam,

and Dimitri Mack

FILED

OCT 1125

OFFICE OF THE CiLEPK

No. 05-207 Supeeuncaue” U%

IN THE

Supreme Court of the Anited States

CELLCO PARTNERSHPP, et ai.,

Petitioners,

Vv.

J. DOUGLAS PINNEY, ef ai.,

Respondents.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Fourth Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

ANDREW G. MCBRIDE JOHN H. BEISNER

HELG! C. WALKER Counsel of Record

KATHRYN COMERFORD TODD BRIAN P. BROOKS

JOSHUA S. TURNER SARAH A. GOLDFRANK

WILEY REIN & FIELDING LLP O'MELVENY & Myrers LLP

1776 K Street, NW 1625 Eye Street, NW

Washington, DC 20006 Washington, DC 20006

(202) 719-7000 (202) 383-5300

Counsel for Petitioners

Cellco Partnership, Verizon

Maryland, Inc., and Verizon

Communications Inc.

Additional parties and counsel on in-

side cover and subsequent pages

KENNETH S. GELLER Seamus C. DUFFY

DAVID M. GOSSETT CHRISTOPHER M. ARFAA

MAYER, BROWN, ROWE DRINKER BipoLe & REATH LLP

& Maw LLP One Logan Square

1909 K Street, NW 18th & Cherry Streets

Washington, DC 20006 Philadelphia, PA 19393

(202) 263-3000 (215) 988-2700

Counsel for SBC Communications, Inc.

PAUL D. KRAUSE H. MICHAEL O’ BRIEN

LAURA N. STEEL JASON P. SULTZER

WILSON, ELSER, Moskow!rTz, WILSON, ELSER, MOSKOWITZ,

EDELMAN & Dicker LLP EDELMAN & Dicker LLP

1341 G Street, NW, Suite 500 3 Gannett Drive

Washington, DC 20015 White Plains, NY 10604

(202) 626-7660 (914) 323-7000

Counsel for SANYO North America Corporation and

Matsushita Electrical Corporation of America

CHARLES L. PERRY EUGENE A. SCHOON

ANDREWS KURTH LLP TAMAR B. KELBER

1717 Main Street, Suite 3700 SIDLEY AUSTIN BROWN

Dallas, TX 75201 & Woop LLP

(214) 659-4681 Bank One Plaza

10 S. Dearborn

Counsel for Cellular One Chicago, IL 60603

Group (312) 853-7000

Counsel for T-Mobile USA, Inc.

Powertel, Inc., Powertel/

Atlanta, Inc. and Powertel PCS,

Inc

JOHN J. NAGLE III

Bootie, NAGLE, DoLina, SMITH

& Hoses, P.A.

21 W. Susquehanna Avenue

Towson, MD 21204

(410) 823-1250

Counsel for Communications

Electronics, Inc.

MAUREEN E. MURPHY

Murpny & Murpuy, L.L.C.

14 North Rolling Road

Catonsville, MD 21228

(410) 744-4967

Counsel for Baltimore Business

Communications, Inc.

ROBERT B. GREEN

IRWIN GREEN & DEXTER, LLP.

301 W. Pennsylvania Avenue

Towson, MD 21204

(410) 832-0111

Counsel for Cellular

Telecommunications & Internet

Association

DANIEL S. REINHARDT

STEVEN J. HEWITSON

TROUTMAN SANDERS LLP

5200 Bank of America Plaza

600 Peachtree Street, NE

Atlanta, GA 30308

(404) 885-3000

Counsel for Southern

Communications Services, Inc.

FRANCIS A. CITERA

GREENBERG TRAURIG, LLP

77 West Wacker Drive

Suite 2500

Chicago, [L 60601

(312) 456-8413

Counsel for Sony Electronics

Inc.

JOHN B. ISBISTER

HAROLD M. WALTER

TYDINGs & ROSENBERG LLP

100 East Pratt Street, Suite 2600

Baltimore, MD 21202

(410) 752-9700

Counsel for Samsung

Electronics America, Inc.

PAUL H. VISHNY

PAUL E. FREEHLING

SEYFARTH SHAW LLP

55 East Monroe Street

Suite 4200

Chicago, IL 60603

(312) 346-8000

Counsel for

Telecommunications Industry

Association

KEVIN B. GETZENDANNER

MATTHEW T. COVELL

ARNALL GOLDEN GREGORY,

LLP

171 17th Street NW

Atlanta, GA 30363

(404) 873-8500

Counsel for Mitsubishi

Wireless Communications, Inc.

J. STAN SEXTON

Douc.as S. BECK

SHOOK, Harpy & Bacon, LLP

2555 Grand Blvd.

Kansas City, MO 64108

(816) 474-6550

Counsel for Sprint Spectrum

L.P.

i

TABLE OF CONTENTS

Page

AE IT Ba AREER o l

[<1 |, REPRE EES, CRUE 5 BE PIN ER ES UME: 3

1. THE NARROW AND RIGID TEST AP-

PLIED BY THE COURT OF APPEALS

AND DEFENDED BY RESPONDENTS IS

INCONSISTENT WITH GRABLE AND ITS

Il. UNDER GRABLE, SEVERAL SUBSTAN-

TIAL FEDERAL QUESTIONS ARE EM-

BEDDED IN THESE COMPLAINTS. .........00000:0000 6

A. Reconsideration Ia Light Of Grable

_ ‘Will Change The Jurisdictional Out-

B. Corrective Action is Necessary to

Avoid Propagation of the Pinney

Panel’s Errors in the Fourth Circuit. ........... 10

OB IULATIIIIIN cocescecsscsevecssnsnscsnscvennsesnevescsbseunenposnsnteotocsocnsie 10

TABLE OF AUTHORITIES

Page

CASES

Aetna Cas. & Sur. Co. v. Flowers,

SE SE ee ee ee Se 3

Becnel v. KPMG LLP,

No. 05-6015, 2005 U.S. Dist. LEXIS

17905 (W.D. Ark. Jume 21, 2005) ......ccccccccccecceeececeneeenenes 6

Bourke v. Carnahan,

No. C2-03-144, 2003 U.S. Dist. LEXIS

13399 (S.D. Ohio July 1, 2003) .......... pA 9

Buckman Co. v. Plaintiffs’ Legal Comm.,

RL, a nee x

Cellular Phone Taskforce v. FCC,

A Dh ‘

EMR Network v. FCC,

391 F.3d 269 (D.C. Cir. 2004) (cert.

Po lS ROB Ee 7)

Grable & Sons Metal Prods., Inc. v. Darue

128g 0 Bis Ee ae

Hoffman v

1969.34 575 575 Es 10

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997).......... pa eras ae 3

Jackson v. Purdue Pharma Co.,

Nc , 6:02-cv-1428, 2003 U.S. Dist. LEXIS

6998 (M.D. Fla. April 11, 2003) .........cccccccceceeeeceevereeeee IO

Municipality of San Juan v. Corporacion para

el Fomento Economico de la Ciudad

Capital,

415 F.3d 145 (ist Cir. 2005)............ POMEL ERO EEN ne oon 5

Ormet C v. Ohio Power Co.,

98 F.3d 799 (4th Cir. 1996)....... PRES TEP OETA bs SNES 4

iii

TABLE OF AUTHORITIES

(cont.)

Sutter Health v. Unite Here,

No. 2:05-CV-106 i, 2005 U.S. Dist.

LEXIS 20892 (E.D. Cal. Aug. 10, 2005) ............cccccecevees 9

T&E Pastorino Nur v. Duke

Energy

268 F Supp. 24 1240 SD. os — ad Oe 9

Torres v. Southern Peru C.

tops f | '. | aes 3,4

Wisconsin v. Abbott PRBS

No. 05-C-408-C, 2005 U.S. Dist. LEXIS

22013 (W.D. Wis. Sept. 29, 2005) ........cccccccecccceseeseeeeneees 6

STATUTES AND REGULATIONS

NO eee 3

hE —_ ee ee 7,8

Fe ee FEe Oe ccctrentiimimeaiinin 2

INTRODUCTION

Respondents acknowledge that this Court’s decision in

Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,

125 S. Ct. 2363 (2005), “concluded that there is ‘no single,

precise, all-embracing’ test for identifying federa] questions

that will support jurisdiction under 28 U.S.C. § 1331,” Opp.

at 9 (quoting Grable, 125 S. Ct. at 2368), and that the court

of appeals “lack[ed] the benefit of Grable” when it found

jurisdiction lacking in the four cases that are thé subject of

the petition for writ of certiorari. Opp. at 10. Respondents

also acknowledge that the court of appeals applied what ap-

pears to be a “single, precise, all-embracing” test: “(t]he ‘es-

sential element’ test,” under which an action is subject to

substantial federal question jurisdiction only if “a particular

element of a state law claim turns on federal law.” Opp. at

13 (quoting Pet. at 11). Nonetheless, Respondents urge that

GVR be denied for two reasons: that the “essential element”

test employed by the court of appeals is consistent with pre-

Grable precedent that was left undisturbed by Grable, see

Opp. at 11-17; and second, that, if given the opportunity to

reconsider its decision in light of Grable, the court of appeals

is unlikely to change its result. See Opp. at (i), 17-19. Nei-

ther argument has merit.

Respondents’ first argument reflects a basic misunder-

standing of the nature and purpose of the substantial federal

question doctrine. The substantial federal question doctrine

exists to ensure that federal courts can adjudicate that narrow

category of cases that raise important and disputed issues of

federal law, even though the plaintiff has not elected to seek

relief directly under federal law. Grable dictates that

whether a given case falls within this category is based on a

“contextual enquiry,” 125 S. Ct. at 2370, not based on an in-

quiry that is limited to the words a given plaintiff happened

to use in the complaint, or to the elements of the particular

claims a given plaintiff happened to assert in the complaint.

The substantial federal question doctrine serves as a safety

its decision in light of Grable because they claim reconsid-

eration is not likely to result in a different outcome. As an

initial matter, notwithstanding Respondents’ self-serving

characterization of their own complaints, see Opp. at 4-5, the

themselves reveal substantial connections to the

Federal Communications Commission (“FCC”) regulations

that exclusively govern wireless telephone safety and safety

. But more importantly, the “contextual enquiry”

mandated by Grable requires more than examining the spe-

cific words Respondents happened to use in their complaints,

and here reveals precisely what the district court and dissent-

ing Senior Judge Kiser found below: that each of these four

actions is a thinly disguised challenge to the validity and suf-

ficiency of the FCC's radio frequency (“RF”) safety and test-

ing regulations, and thus are no less subject to federal juris-

diction than were the two challenges to those same regula-

tions brought under the Hobbs Act, 5 U.S.C. §§ 701 ef seq.,

and rejected by the U.S. Courts of Appeals for the Second

and District of Columbia Circuits.

Even granting the possibility that the Fourth Circuit

panel might reach the same result after reconsideration, cor-

rective action is independently justified. The court of ap-

peals should be afforded the opportunity to articulate, consis-

3

tent with Grable, the analysis that courts in the Fourth Cir-

cuit will be required to employ in future cases involving the

substantial federal question doctrine. '

ARGUMENT

I. THE NARROW AND RIGID TEST APPLIED

BY THE COURT OF APPEALS AND DE-

FENDED BY RESPONDENTS IS INCONSIS-

TENT WITH GRABLE AND ITS PROGENY.

Respondents rely heavily on the propositions that pre-

Grable case law recognized a narrow “essential element” test

for substantial federal question jurisdiction, see Opp. at 10-

11, and that Grable does not call that approach into question.

See id. at 12-14. Respondents are incorrect on both counts.

Before Grable, numerous coutts of appeals had recog-

nized substantial federal question jurisdiction in cases where

no specific element of a state-law claim turned on a determi-

nation of federal law. Petitioners previously identified two

examples of cases — Torres v. Southern Peru Copper Corp.,

113 F.3d 540 (Sth Cir. 1997), and In re Otter Tail Power

Co., 116 F.3d 1207 (8th Cir. 1997) - in which courts of ap-

peals found substantial federal question jurisdiction despite

the fact that no specific element of a specific state-law claim

required a determination of federal law. In both cases, the

courts considered al! the connections — explicit and implicit —

between the complaint allegations and underlying federal

' Respondents concede the existence of appellate jurisdiction, while im-

plying that “the literal terms of 28 U.S.C. § 1447(d)" might call this

Court's jurisdiction into question. Opp. at 90.4. The “literal terms of”

Section |447(d) do not apply here at all, since Petitioners are not seeking

review of “[a)n order remanding a case to the State court.” 28 U.S.C. §

1447(d). On the contrary, the jurisdictional order at issue in this case is

an order of the district court denying remand. which order was reversed

and remanded to the district court by the court of appeals and 1s now pre-

sentes to this Court. See Aetna Ca: & Sur. Co v. Flowers, 330 US

464, 466-67 (1947)

4

interests in concluding that substantial federal question juris-

diction existed. The Jorres court, for example, found it

jurisdictionally significant that “the Peruvian government

ha{dj participated substantially in the activities for which”

the defendant was being sued, that the “[Peruvian] govern-

ment extensively regulates the mining industry,” and that the

action “strikes not only at vital economic interests but also at

Peru's sovereign interests by seeking damages for activities

and policies in which the government actively has been en-

gaged.” 113 F.3d at 543. Thus, contrary to Respondents’

suggestion, pre-Grable case law outside the Fourth Circuit

could arise because a plaintiff's state-law claims, although

avoiding citation to federal law, inevitably required adjudica-

tion of the meaning or validity of federal law or because the

rehef sought directly implicated federal law. It is telling that

neither Torres nor Orter Tail, both of which were discussed

in the petition, are addressed in Respondents’ brief.

Of course, before it handed down its decision in this

case, the Fourth Circuit itself had recognized that substantial

federal question jurisdiction could exist even if no specific

element of an asserted state-law cause of action turned on an

interpretation of federal law. See Ormet Corp. v. Ohio

Power Co., 98 F.3d 799 (4th Cir. 1996). While Respondents

correctly point out that one of the three panel judges in Or-

met (though not its author) wrote the opinion below, see

Opp. at 14 n.5, they provide no explanation for how Ormet —

which approved substantial federal question jurisdiction over

a breach-of-contract action because the subject of the con-

tract, tradeable emissions permits, were created by the fed-

eral Clean Air Act — can be squared with the “essential ele-

ment” test adopted by the panel majority below. Given this

Court's citation of Ormet with approval in Grable, see

Grable, 125 S. Ct. at 2366 n.2, the simple fact is that the

opinion below has shifted doctrinal ground under this

Court's feet. This fact alone provides more than sufficient

5

grounds to grant the petition, vacate the judgment below, and

remand in light of Grable.

However unfounded a narrow “essential element” test

was before Grable, Grable and its progeny demonstrate that

such a wooden test is no longer supportable. Gradie itself

makes clear that the mechanical “essential element” test,

simple as it would be to apply, is both too broad and too nar-

row. It is too broad because, taken seriously, it would extend

federal jurisdiction to every case in which a duty alleged to

have been breached was a duty imposed by federal law; nu-

merous negligence per se and nuisance cases could be feder-

alized under the “essential element” standard. Rejecting that

prospect, Grable states that the “mere need to apply federal

law in a state-law claim will [not] suffice to open the ‘arising

under’ door.” 125 S. Ct. at 2367. Yet the “essential ele-

ment” test is also too narrow because it excludes cases in

which a “contextual enquiry” identifies “a serious federal

interest in clairning the advantages thought to be inherent in

a federal forum,” id, unless that federal interest can be spe-

cifically identified to an element of one of the asserted state-

law claims.

Indeed, since this Court’s decision in Grable, the lower

courts have read it to preclude the kind of wooden formalism

practiced by the court below. In Municipality of San Juan v.

Corporacion para el Fomento Economico de la Ciudad

Capital, 415 F.3d 145 (1st Cir. 2005), for example, the First

Circuit cited Grable and found substantial federal question

jurisdiction because “the propriety of [the defendant's] con-

duct turns entirely on its adherence to the intricate and de-

tailed set of federal regulatory requirements, and the funds at

issue are federal grant monies.” /d at 148 0.6. In Wisconsin

? Given the Fourth Circuit's extensive efforts to distinguish Orme: in the

opinion below, see Pet. App. 22a-25a, it is hard to argue that recorsidera-

tion in light of Grable would not affect the result here. If even one mem-

ber of the majority below finds the panel opinioa's treatment of Orme: no

longer sustainable in light of Grable, the result would change.