# Opposition Brief — Nokia, Inc. v. Naquin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 998

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0090%3A2. Public record. Not legal advice.