# Opposition Brief — Lundeen v. Canadian Pacific Railway Co (No. 06-528) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1612%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2006 ## Text No. 06-528 IN THE Supreme Court of the United States ee WILSON-EPES PRINTING CO INC — (202) 789-0096 - WasH NGTON.D C 20001 1OM LUNDE&cN. ef a/ Petitioners. Vv. CANADIAN PACIFIC RAILWAY COMPANY. ef al. Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit BRIEF INOPPOSITION TO PETITION FOR WRIT OF CERTIORARI PMOTHY ROBERT THORNTON Counsel of Ri rd SCOTT G. KNUDSON KEVIN M. DECKER BRIGGS AND MORGAN, PLA. 2200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 (612) 977-8400 Attorneys for Respondents Canadian Pacific Railway Company, et al QUESTION PRESENTED Whether the decision below correctly adheres to unani- mous circuit court precedent by confirming the complete pre- emptive effect of the Federal Railroad Safety Act, without regard to the relief available after removal jurisdiction attaches? ii PARTIES TO THE PROCEEDINGS Petitioners are Tom and Nanette Lundeen, individually and on behalf of Molly and Michael Lundeen, minors; Melissa Todd; Irene Clare Korgel; Trent and Randi Lou Westmever; Darla M. Just; Mary Beth Gross, individually and on behalf of Brett Gross, a minor; Mark and Sandra Nesbit; LeRoy Slorby; Ray Lokoduk; JoAnn Flick; Wilfred and Geraldine Dahly; Marilyn Carlson; Gerald Wickman; Dion and Brenda Darveaux, individually and on behalf of Kendall Darveuax, a minor; Shelly Hingst; Bobby and Mary Smith; Richard Muhlbradt; Doug Weltzin; Nathan and Nichole Freeman, individually and on behalf of Ashlyn Freeman, a minor; Charlotte Goerndt; Leo Gleason; Judy Deutsch, individually and on behalf of Tyrone Deutsch, a minor; Denise Duchsh- erer, Leo Duchsherer, and Joshua Duchsherer; Larry and Carol Crabbe; Rebecca M. Behnkie, individually and on behalf of Nathaniel Behnkie, a minor; Charles and Sandra Swenson; Larry and Tami Schafer, individually on behalf of Jenna Schafer, a minor; John Salling, individually, and Lorenda Poissant Salling, individually and on behalf of Sebastian Poissant, a minor; Rachelle Todosichuk:; Lonni Shigley; and Richard McBride and Linda McBride. Respondents are Canadian Pacific Railway Company, Canadian Pacific Limited, Canadian Pacific Railway Limited, and Soo Line Railroad Company. ill RULE 29.6 STATEMENT Canadian Pacific Railway Company is a ‘ial subsidiary of Canadian Pacific Railway Limited; Soo Line Railroad Company is an indirect wholly-owned subsidiary of Canadian Pacific Railway Company. Canadian Pacific Limited changed its name to Fairmont Hotels & Resorts Inc. as of October 1, 2001, and since that date has no relationship to Canadian Pacific Railway Limited, Canadian Pacific Railway Company or Soo Line Railroad Company. No other publicly held corporation owns 10% or more of the shares of either Canadian Pacific Railway Company, Canadian Pacific Railway Limited, or Soo Line Railroad Company. TABLE OF CONTENTS QUESTION PRESENTED........ssssssocsscsssssssscceesssssssse PARTIES TO THE PROCEEDINGS .........sssssesssseeeeees LE FRG BEAT UIMIINE assent stirs victecsectdcranes TABLE OF AUTHORITIES......sssssssssssssssecessssssseeese NG IE csc csseeierrcreisistrsesnetincrtepeater fs (RA ae ee eM BSS RESPONDENTS’ STATEMENT OF THE CASE....... UA TOEN ices lnintasestescnrtincsopinsniigeniuchicivteinisianiiae I. II. B. C. The Lundeen district court proceedings....... The appellate proceedings ..................::00008 THE WRIT SHOULD BE DENIED.............cccccossscoesees CIRCUIT COURTS AGREE -ABOUT COMPLETE FRSA PREEMPTION ................. I. A. B. Complete preemption removal is_ well ING estovhesecdlisvedphctnttubcnssisitsncteacaevens The FRSA makes railroad regulatory oversight nationally uniform ......... iad . Federal court is open for completely preempted FRSA claim...............cccccsssrssseess Non-FRSA precedents do not repel the statute’s jurisdictional force..............cc000 (v) aon uu +f} +f LH fH 10 12 VI TABLE OF CONTENTS—Continued E. Certiorari review is not justified.................. Il. FEDERAL REMEDY AVAILABILITY IS ke SR eee eneerne A. A substitute federal remedy is not the Jurisdictional sine Qua NON........c.c.cceceeccece0e- B. Grable lays the federal remedy prerequi- SIE CONLENTIONS UO TES .......0c0cccecsersecereereseeese C. Settled precedent challenges do not WalTant CertiOrarl FEVIEW ............cccceeceseeseeees STENT EI IIIITT -stilis Woscitieisanighiercsisaiinlielacessauidhadindanensia castle 22 24 Vil TABLE OF AUTHORITIES CASES Page Allende v. Soo Line R.R. Co., No. 03-3093, slip op. (D. Minn. Jan. 29, 2004)............cccccccesserrseees 5 Avco Corp. v. Aero Lodge No. 735, Int’l Ass'n of Machinists & Aerospace Workers, 390 U.S. 8 | __. RERRRSEREL SEEN IRC nea, G8 toc ete mS passim Bates v. Dow Agrosciences LLC, 544 U.S. 431 TTI alicnliscsseorshiideantedigiandibeideaianaddaledaddiisaitaseaddghabinires 15 Beneficial Nat'l Bank v. Anderson, 539 U.S. | 6. ARRAS ES Se APM ae AR ee AL ek 15, 16, 22 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 Ie a isch cikcpdiascasicdtsicaiceposlisetaite bibscenie innate 6 Caterpillar, Inc. vv. Williams, 482 U.S. 386 5 Ian eceakiediitnisinasiieniieilseupsiionesicolbnabiatiictasaanidiiacabapebda passim Chapman v. Lab One, 390 F.3d 620 (8th Cir. » ____ REERERIRER Eee ael Cn LK om COP IIe TF one Ds 6-7, 14 CSX Transp., Inc. v. Easterwood, 507 U.S. 658 Oat aicaliiccevisscicaadinsibesiionsaalacalial iocsinbbiinsdeeiosiiaiiaaniaiaiie passim CSX Transp., Inc. v, Williams, 406 F.3d 667 ct esl Ae. | SPEIRS ere eee aaciiideeteabinnatlali 10 Deford v. Soo Line R.R. Co., 867 F.2d 1080 (8th Cir.), cert. denied, 492 U.S. 927 (1989)............ 1] Franchise Tax Bd. v. Constr. Laborers Vacation FOE Re Wastes BEA ita niticnttettenniniiainiiciinis 9 Gaming Corp. of Am. v. Dorsey & Whitney, 88 Fe EE Als 6 ID inceconsnstntnicttnincitnernesemives 6, 8 Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005).................. passim In re Derailment Cases, 416 F.3d 787 (8th Cir. ST iainnthiidinniceebiniiiiliuiiadcctdiinssataabiaaaihiesibidabiiiiaidasoies 6 Vill TABLE OF AUTHORITIES—Continued Page In re: the Soo Line Co. Derailment of Jan. 18, 2002 in Minot, ND, No. MC 04-007726, slip op. (Minn. Dist. Ct. Dec. 21, 2005) 0.0... 5 Lundeen v. Canadian Pac. Ry. Co., 342 F. Supp. Be See ED. BAD, BOO iicisciosccsesecmenes, Ko Lundeen v. Canadian Pac. Ry. Co., 447 F.3d 606 ER, PN sctitetnicdinssinitimedaniciis Passim Lundeen v. Canadian Pac. Ry. Co., No. 04-3220, 2005 WL 563111 (D. Minn. Mar. 9, 2005)........ 1,6 M. Nahas & Co., Inc. v. First National Bank of Hot Springs, 930 F.2d 608 (8th Cir. 1991)........ 8 Mehl v. Canadian Pac. Ry. Ltd., 227 F.R.D. 505 ee, 5. | RONEN Ae RI Ry 4 Merrell Dow Pharms., Inc. v. Thompson, 478 Rate Pe COTY siinniccdanadiipilbueslumuuae ates 22 Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 CRIT Beirwnsaceitinsetacuitensicadidiaaiacietiaad amen meee 8-9 Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 GR cenicinesisnensigaiaaideeneaadmi ia tae 12, 16-17 - Peters v. Union Pac. R.R. Co., 80 F.3d 257 (8th als Bea icsininvnveseysbessinapineaniies iain ene passim Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41 CR PIFE Disiasbeininsesieeapnaciedubiass heii picasa 8 Quackenbush v. Allstate Ins. Co., 517 U.S. 706 EF FPR Dhcccvissnsbiindetsisetishithcantansdaicashin tiiacacamaaioaiataaaea 6 Rayner v. Smirl, 873 F.2d 60 (4th Cir.), cert. denied, 493 U.S. 876 (1989)... cccccccccescessecseeees passim Rogers v. Tyson Foods, Inc., 308 F.3d 785 (7th OWT SNE Pv voccesicessisisiusdiicede aati pr obncee ns 16-17 1X TABLE OF AUTHORITIES—Continued Page Schmeling v. NORDAM, 97 F.3d 1336 (10th Cir. a centeupesiehionanens 20 Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568 (Sth Cir. 2004), cert. denied, 544 U.S. 992 ESE SESS A Oe 14-15 Swift & Co. v. United States, 276 U.S. 311 I cadapcesusonensevonns 19 Williams v. Caterpillar Tractor Co., 786 F.2d | Ee 19 STATUTORY PROVISIONS TT iiss cltaciiiectdnberaitionarsddveneenipionidoncesa 16 I occa cininlininnetibevdcceeeusbinceweres l ITT sed aici bivhipnleiioeiesenioonbenoneneces I TID cases as aceicecniscasacitsopnsntonuesettecdent’ 39 SITE IIIT i ivnistediasbesansedutnideessestessetaservecsnsors 5-6 TTT cust seksedecoinesceersedesonsebsesetensenoneosoes 12 ET i TTT snsccssdaskcecnsrcscshovevcvenresvesvossonsosess | I isa iid entietrdactnsesecedenndobineenstotons 2 IIE IID osctictiidincevesvecsenerrecsesieversovncovaerenvers passim TET TIN © sidseedGucecechartecswasseceqsqnootivesonesteese 11 8 ME | aT sed daiennehotientideets 1] SEITE IEE BE scipntcuccteereripsenseccetvesecsereeesecocoesees 11-12 RR 8 2 ie | | 5 Re Ee 2 iy) | a ae 5 OTHER FEDERAL AUTHORITIES OT Ee 7 Se Xx TABLE OF AUTHORITIES—Continued Page ead Sie Daihen 10 Oe dt aie etic PP sinisiecsinbceccesocieasianeilaseniaiiintacs 7 OP CF the § BES AI DD cesiccrnciovcncositecsincrtnininsenens 7 a pe hs Th cxsecsctinisecitecevientinintnainiaaeniieeasie 13-14 TFC ti NITED shniechctininsiistsiiindleaailias thine 13-14 H.R. Rep. No. 103-180 (1993), reprinted in 1994 Satan ichintissivndeneatiaasiebinieeiisiae et 12 H.R. Rep. No. 91-1194 (1970), reprinted in 1970 SF aD: OY snecntiisccinpisiceetaleidinsiats oii passim Us ic Wb: liclccinesenendestevialinedateathtialadnbckn oe passim OPINIONS BELOW The decision of the United States Court of Appeals for the Eighth Circuit affirming removal on complete preemption grounds is reported at 447 F.3d 606 and reproduced in petitioners’ appendix (“Pet. App.”) at la-29a. The order denying rehearing en banc and rehearing by the panel is unreported, but reproduced at Pet. App. 53a. The decision of the United States District Court for the District of Minnesota denying an initial motion to remand is reported at 342 F. Supp. 2d 826; the ultimate remand after express references to federal law were excised from the complaint is unreported, but available at 2005 WL 563111. The district court’s decisions are reproduced at Pet. App. 30a- . 42a and Pet. App. 43a-52a, respectively. | : JURISDICTION Petitioners timely sought to invoke this Court’s jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED This Petition implicates the Federal Railroad Safety Act (49 U.S.C. § 20101, et seg.) and provisions of Title 28 affording federal question removal jurisdiction (28 U.S.C. §§ 1331 & 1441). RESPONDENTS’ STATEMENT OF THE CASE The nation’s railroads are the paradigm of interstate commerce, prompting this Court to long ago recognize that federal oversight “is practically indispensable to the operation of an efficient and economical national railway system.” S. Pac. Co. v. Arizona, 325 U.S. 761, 771 (1945). Congress made that indispensable federal governance “exclusive” with the enactment of the Federal Railroad Safety Act (“FRSA”). 2 The FRSA vests the Federal Railroad Administration (“FRA”) with plenary authority to “prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103 (emphasis added). To safeguard against local interference Congress preempted all state laws based upon subject matters “covered” by FRA standards. 49 U.S.C. § 20106. This extraordinary preemptive force reflects both the supremacy of federal law and superiority of a unitary federal forum: [SJafety in the nation’s railroads [is not] advanced sufficiently by subjecting the national rail system to a variety of enforcement in 50 different judicial and administrative systems. * k [Indeed,] the railroad industry has very few local characteristics. Rather, in terms of its operations, it has a truly interstate character calling for a uniform body of regulation and enforcement... . To subject a carrier to enforcement before a number of different state administrative and judicial systems in several areas of operation could well result in an undue burden on interstate commerce. H.R. Rep. No. 91-1194 (1970), reprinted in 1970 U.S.C.C.A.N. 4104, 4109, 4110-11. Petitioners decry the extension of federal jurisdiction to claims “covered” by FRA regulations, but every circuit opin- ion addressing the jurisdictional impact of the FRSA holds the preemption effected to be “complete” so as to permit removal. Lundeen v. Canadian Pac. Ry. Co., 447 F.3d 606, 607 (8th Cir. 2006); Peters v. Union Pac. R.R. Co., 80 F.3d 257, 262 (8th Cir. 1996); Rayner v. Smirl, 873 F.2d 60, 66 (4th Cir.), cert. denied, 493 U.S. 876 (1989).' In an attempt ' Complete pr emption does not require that “covered” claims “must be removed,” “m » only be brought in federal court,” or “must be heard in 3 to invent a schism in authority petitioners castigate the Lundeen court for not mechanicaily following other hold- ings that have cabined the jurisdictional implications of substantially different statutory schemes to cases in which federal remedies are substituted for preempted state claims. Pet. at 13-23. Nothing about the distinct approaches to preemption that discrete statutes have produced is “compelling.” Sup. Ct. R. 10. The jurisdictional boundaries of the FRSA cannot be surveyed through the prisms of divergent statutory regimes. On the contrary, the result is dictated by the language of the statute, and not surprisingly the FRSA’s broad terms have prompted circuit courts to unanimously recognize the statute’s complete preemptive effect. Furthermore, the Court has rejected the premise for this Petition: a federal remedy is not a prerequisite to the exercise of federal question jurisdiction by way of complete preemption or otherwise. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 317-18 (2005); Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 n.4 (1987). With the circuit courts speaking as one and the federal remedy prerequisite a fiction, this case 1s not a worthy vehicle for illuminating the scope of federal jurisdiction; the path is already well lit. federal in federal court.” Petition (“Pet.”) at 2. Rather, as with all 28 U.S.C. § 1441 removals resort to a federal forum is at a defendant’s option 4 BACKGROUND I. THE ACCIDENT On January 18, 2002, a Canadian Pacific Railway train derailed near Minot, North Dakota. Amended Complaint, { VIII. Several tank cars carrying anhydrous ammonia released their lading. /d. According to petitioners: The Minot Derailment was caused by an ineffective and inadequate inspection and maintenance pro- gram by Defendant CPR. CPR’s inspection and maintenance program failed to identify or replace cracked joint bars before those joint bars com- pletely fractured. Id. at § XVI. Petitioners seek redress for personal injuries and property damages allegedly sustained. /d. at ] XXXVIII. Il. THE ENSUING LITIGATION This litigation ended up before the Eighth Circuit after a most circuitous jurisdictional journcy. An overview of the complex proceedings below follows. A. The first Minot derailment lawsuits. Even before debris from the derailment could be cleared a putative class action was launched in North Dakota federal court. See Mehl v. Canadian Pac. Ry. Ltd., 227 F.R.D. 505, 507 (D.N.D. 2005). A class encompassing these petitioners was later certified. Jd. at 515, 522. * The pleadings determine whether the subject matter of the claims is “covered” for FRSA preemption purposes. CSX Transp., Inc. v. Easter- wood, 507 U.S. 658, 665 (1993) (assuming the complaint “states a valid cause of action”). Thus the “facts” upon which the preemption analysis must be based are drawn from the complaint, reproduced in respondents’ appendix (“Resp. App.”’) at la-19a. 5 Approximately one year after the accident, dozens of North Dakotans shopped individual lawsuits in a forum far from Minot — the Hennepin County, Minnesota district court. See, e.g., Allende v. Soo Line R.R. Co., No. 03-3093, slip op. (D. Minn. Jan. 29, 2004) (Resp. App. at 20a-54a). The claimants fled their home state because North Dakota tort reforms curb punitive damages and eliminate joint and several liability. N.D. Cent. Code § 32-03.2-02; N.D. Cent. Code § 32-03.2- 11(4).? Besides that, a jury drawn from metropolitan Minneapolis was perceived to be more sympathetic. The state court lawsuits were promptly removed to federal court on complete preemption grounds. The federal court remanded, believing that removal jurisdiction is foreclosed by the FRSA’s failure to afford a substitute federal remedy for the preempted state claims. Allende, slip op. at 18-20. Unfortunately, that denial of federal jurisdiction escaped appellate scrutiny. 28 U.S.C. § 1447(d). B. The Lundeen district court proceedings. Following Allende, litigation from Minot — including petitioners’ cases — deluged the Minnesota court. The Allende precedent precluded removal of the subsequent case filings on complete preemption grounds. Petitioners, how- ever, provided a path to the federal courthouse by pleading federal environmental claims. Lundeen v. Canadian Pac. Ry. Co., 342 F. Supo. 2d 826, 829 (D. Minn. 2004). This group of cases was promptly removed. The district court rejected petitioners’ first request for remand because the federal claims expressed on the face of the complaints invoked federal question jurisdiction. /d. at 829-31. A second remand motion succeeded after petitioners > Petitioners’ stratagem ultimately failed: the Minnesota state court rejected punitive damages and applied North Dakota law. Jn re: the Soo Line Co. Derailment of Jan. 18, 2002 in Minot, ND, No. MC 04-007726, slip op. at 1, 3 (Minn. Dist. Ct. Dec. 21, 2005} (Resp. App. at 55a-72a). 6 were allowed to purge all federal references. Lundeen v. Canadian Pac..Ry. Co., No. 04-3220, 2005 WL 563111, at *3 (D. Minn. Mar. 9, 2005) (Pet. App. at 43a-52a). Because federal jurisdiction had been initially accepted the second remand order was discretionary and, therefore, appealable. See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996) (remands not pursuant to 28 U.S.C. § 1447 subject to appellate review); Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 541-42 (8th Cir. 1996) (remand of supplemental state claims appealable). C. The appellate proceedings. The remand order was challenged as an affront to the forum shopping admonition in Carnegie-Mellon Univ. vy. Cohill, 484 U.S. 343, 357 (1988). After the briefing had closed, this Court affirmed the propriety of removal based upon underlying substantial federal questions, notwithstand- ing the absence of a parallel federal cause of action. Grable, 545 U.S. at 317-18. Shortly thereafter the Eighth Circuit decided In re Derailment Cases, which confirmed the pervasive implications of the FRSA in analogous derailment litigation. 416 F.3d 787, 793-94 (8th Cir. 2005). Reacting to these precedents the appellate court asked for supplemental briefing. Lundeen v. Canadian Pac. Ry. Co., No. 05-1918, slip order (8th Cir. Feb. 13, 2006) (Resp. App. at 73a). After further consideration the court enabled the juris- dictional effect of the FRSA to be realized. That result flowed from two Eighth Circuit pronouncements regarding the FRSA’s complete preemption ramifications: Peters v. Union Pac. R.R. Co., 80 F.3d 257 (8th Cir. 1996) (affirming removal); and Chapman v. Lab One, 390 F.3d 620 (8th Cir. 2004) (reversing removal). Prior to those decisions the Fourth Circuit had similarly recognized the jurisdictional effect of the FRSA. Rayner v. Smirl, 873 F.2d 60 (4th Cir.), cert. denied, 493 U.S. 876 (1989). 7 Sinn’ the FRSA had already been understood to have complete preemptive effect, the Lundeen panel merely needed to assess whether FRA regulations “covered” the subject matter of the claims as was the case in Peters and Rayner, or not as in Chapman. Lundeen, 447 F.3d at 613-14. Using negligent inspection allegations as a template, the Eighth Circuit found petitioners’ claims to be subsumed by numer- ous federal standards. In particular, federal regulations establish a specific inspection protocol including how, 49 C.F.R. § 213.233(b), when, §§ 213.233(c) & .237(a)-(c), and by whom, §§ 212.203, 213.7 & .233(a), track inspections must be conducted; the regulations establish a national railroad safety program intended to promote safety in all areas of railroad operations, § 212.101(a); federal and state inspectors determine the extent to which the railroads, shippers, and manufacturers have fulfilled their obligations with respect to, among other things, inspection, § 212.101(b)(1); and railroads face civil penalties for violations, § 213 App. B. It is clear the FRA regulations are intended to prevent negligent track inspection and there is no indication the FRA meant to leave open a state law cause of action. Id. at 614 (emphasis added). This regulatory “coverage” of track inspections rendered the litigation removable. At the Eighth Circuit petitioners entreated for the imposi- tion of the same complete preemption prerequisite now heralded before this Court — i.e., the substitution of a federal remedy for the preempted state claims. Following this Court’s guidance the appeliate court rejected petitioners’ pleas and allowed the FRSA’s preemptive force to displace “covered” claims: “The issue of whether complete preemption exists is separate from the issue of whether a private remedy is created under a federal statute. Cater- 8 pillar|,482 U.S. at 391 n.4]. Complete preemption can sometimes lead to dismissal of all claims in a case. Although courts may be reluctant to conclude that Congress intended plaintiffs to be left without recourse, see M. Nahas & Co., Inc. v. First Na- tionai Bank of Hot Springs, 930 F.2d 608, 612 (8th Cir. 1991), the intent of Congress is what controls. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 45, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987) (citations omitted).” Id. at 613 n.4 (quoting Gaming Corp., 88 F.3d at 542). A petition for en banc reconsideration was turned away. Pet. App. 53a. THE WRIT SHOULD BE DENIED I. CIRCUIT COURTS AGREE ABOUT COM- PLETE FRSA PREEMPTION Complete preemption removal is firmly rooted in Supreme Court jurisprudence. The acknowledgement of complete preemption under the FRSA does not break new ground: the Fourth and Eighth Circuits have endorsed the statute’s juris- dictional implications and no other circuit court has disagreed. Such unanimity is antithetical to the “compelling reasons” necessary to justify certiorari review. Sup. Ct. R. 10. A. Complete preemption removal is well estab- lished. Complete preemption arises when “the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’”” Cater- pillar, 482 U.S. at 393 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). The doctrine is an exception 9 to the general bar against removal on account of a federal defense. /d. The seminal precedent, Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace Workers, delineates the controlling analysis. 390 U.S. 557 (1968). The Avco union removed a strike injunction lawsuit, arguing that § 301 of the Labor Management Relations Act (“LMRA”) over- whelmed the state law claim. /d. at 558-59. This Court agreed: An action arising under § 301 is controlled by federal substantive law even though it is brought in a state court.... It is thus clear that the claim under this collective bargaining agreement is one arising under the “laws of the United States” within the meaning of the removal statute. Id. at 560 (citing 28 U.S.C. § 1441(b)). Notably, the practical recourse available after removal was not a federal lawsuit; rather, the union was only accountable through a contractual dispute resolution process. The lack of judicial relief after removal was, ssonetheless, irrelevant: “(t]he necessary ground of decision [in Avco] was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action [within its scope].” Fran- chise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23 (1983) (emphasis added). Accord Metropolitan Life, 48} U.S. at 64. Hence, the breadth of a federal statute’s preemptive “power” — not the availability of federal redress — is the touchstone of complete preemption, as Caterpillar and Grable \ater confirmed. See infra at 18-23. 10 B. The FRSA makes railroad regulatory oversight nationally uniform. The preemptive effect of the FRSA is no less than the stat- ute considered in Avco. Congress federalized regulation of the nation’s rail transportation system regulation as follows: Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in_force_a_ law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), pre- scribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order: (1) 1s necessary to eliminate or reduce an essen- tially local safety or security hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate com- merce. 49 U.S.C. § 20106 (emphasis added). Accord 49 C.F.R. § 213.2. Pursuant to this explicit mandate state law is displaced whenever “regulations issued by the Sccretary cover the subject matter of the .. . allegations.” Easterwood, 507 U.S. at 665 (emphasis added). See also CSX Transp., Inc. v. Williams, 406 F.3d 667, 672 (D.C. Cir. 2005) (“The FRSA preemption provision ... authorizes the court only to deter- mine whether the regulation covers the subject matter . . . 1CCTA was to provide oversight for the safety of the contrary, the Senate Report’s impact state- des tnat 48a A wide variety of businesses and consumers would be covered and potentially impacted by this bill. They include rail carriers, certain pipeline carriers (those transporting commodities other than oil, gas, Or water), trucking companies, intercity bus companies, water carriers, freight forwarders, and transportation brokers, and their various customers. Government employees who work for the ICC and FMC would also be affected by this bill. Id. at *17. The Report contains no language to suggest that residents in areas surrounding rail lines who sustain personal injuries from a railroad’s unsafe operation of its trains, would be affected by this legislation. In sum, the legislative history of the ICCTA supports the position that the focus of the ICCTA - and the STB is on economic regulation of rail transportation and not the regulation of railway safety. “Although states retain the police powers reserved by the Constitution, the Federal scheme of economic regulation and deregulation is intended to address and encompass all such regulation and to be completely exclusive.” H.R. Rep. No. 104-311. Moreover, a finding by this Court that the ICCTA and the STB has exclusive jurisdiction over the safety of the railways would run contrary to,the FRSA. Congress enacted the Fed- eral Railroad Safety Act in 1970 “to promote safety in al! areas of railroad operations.” 45 U.S.C. § 421. In order to achieve this goal, “the Act authorized the Secretary of Transportation to ‘prescribe, as necessary, appropriate rules, regulations, orders and standard for all areas railroad safety.” Burlington Northern Railroad Co. y. State of Minnesota, 882 F.2d 1349, 1351 n. 5 (8th Cir. 1989) (quoting 45 U.S.C. § 431). The Secretary of Transportation has delegated this authority to the Federal Railroad Administrator (“FRA”). Jd. (citing 49 C_F.R. § 1.49(m) (1988)).'' As such, a finding by ' 49 C.F.R. § 1.49 provides in relevant part: 49a this Court that the STB has the exclusive jurisdiction over train safety, would be in direct conflict with Congress’ dele- gation to the Secretary of Transportation (and by the Secre- tary, to the FRA), the authority over railroad safety. “A primary rule of statutory construction is that when a court interprets multiple statutes dealing with a related subject or object, the statutes are in pari material and must be considered together.” Linguist v. Bowen, 813 F.2d 884, 888 (8th Cir. 1987) (citing United States v. Freeman, 44 U.S. (3 How.) 556, 564-65; 11 L.Ed. 724 (1845)). A proper analysis “reads the parts of a statutory scheme together, bearing in mind the congressional intent underlying the whole scheme.” Id. at 889 (citations omitted). “While the STB must adhere to - federal policies. encouraging ‘safe and suitable working conditions in the railroad industry,’ the 1CCTA and its legis- lative history contain no evidence that Congress intended for the STB to supplant the FRA’s authority over rail safety.” Tyrrell v. Norfolk Southern Rv. Co., 248 F.3d 517. 523 (6th Cir. 2001) (citation omitted). Instead, the “agencies’ comple- mentary exercise of their statutory authority” demonstrates Congress intent for the ICCTA and the FRSA to be construed in pari material. Id. The STB and the FRA in their 1998 Safety Integration Plan rulemaking recognized that their joint responsibility for promoting rail safety, but at the same time found that “the FRA exercised primary authority over rail safety matters under 49 U.S.C. § 20101 et seq., while the STB handled economic regulation and environmental impact assessment.” Tyrrell, 248 F.3d at 523 (citing Regulations on Safety Integration Plans Governing Railroad Consolidations, The Federal Railroad Administrator is delegated authority to— £ 6 (m) Carry out the functions vested in the Secretary by the Federal Railroad Safety Act of 1970 (Title I] of Pub.L. 91-458); 84 Stat. 971, 45 U.S.C. 421 ef. seqg.).... 50a Mergers, and Acquisitions of Control; and Procedures for Consideration of Safety Integration Plans in Cases Involving Railroad Consolidations, Mergers, and Acquisitions of Con- trol, STB Ex Parte No. 574, FRA Docket No. SIP-1, Notice No. 1, 63 Fed. Reg. 72,225 (Dec. 31, 1998)).' As stated previously, the ICCTA provides that its purpose, in part, is to promote safe rail transportation. 49 U.S.C. § 10101(3), (8). Section 10101 establishes “the basic policy directive against which all of the statutory provisions the Board administers must be evaluated.” See F inal Rule, STB Ex Parte No. 574, FRA Docket No. 1999-4985. This policy applies to every transaction under the STB’s jurisdiction. /d. However, 49 U.S.C. § 10101 does not establish on its face that the STB has exclusive jurisdiction over safety; only that it must consider issues of safety in transactions under its Jurisdiction. In sum: Based on the federal railway statutes, the STB and FRA’s jurisdictional management, and the resulting regulatory systems, Congress ‘vested the FRA with primary authority over national rail safety policy and assigned the STB the duty to encourage ‘safe and suitable working conditions’ for railway employces through its assessment of individual railway proposals subject to its authority. Tyrrell, 248 F.3d at 523. Finally, in determining the jurisdiction of the STB, it is also helpful to look at the agency’s own understanding of its jurisdiction under the ICCTA. According to the STB, the is See also Regulations on Safety Integration Plans Governing Rail- road Consolidations, Mergers, and Acquisitions of Control; and Pro- cedures for Consideration of Safety integration Plans in Cases Involving Railroad Consolidations, Mergers, and Acquisitions of Control, STB Ex Parte No. 574, FRA Docket No. 1999-4985, Notice No. 4 (Mar. 8, 2002) (“Final Rule, STB Ex Parte No. 574, FRA Docket No. 1999-4985"). 5la functions it retained over rail regulation pursuant to 1995 enactment of the ICCTA are as follows: Common Carrier Obligation. Exemptions. Rail Mergers. Line Transfers, Leases, and Trackage Rights. Line Sales to Noncarriers. Labor Protection. Rate Regulation for Common Carriage, including: Public Disclosure of Rates and Service Terms. Advance Notice of Rate Increases or Changes in Service Terms. Maximum Rate Reasonable- ness for Captive Traffic. Contracts for Transportation of Agricultural Products requirements, including: Filing of Summaries. Protest and Matching Rights. Equipment Limitations. Rail Cost Adjustment Factor (RCAF) Com- putation. Reasonableness of Practices. Rate Discrimina- tion Car Supply and Interchange. Emergency Service Orders. Competitive Access. Line Constructions, includ- ing Line Crossings. Line Abandonments, including: Fi- nancial Assistance. Rails-to-Trails. Public Use Provision for Right-of-way. Feeder Line Development Program. Collective Ratemaking (and Antitrust immunity) InterLocking Officers and Directors Recording Liens. Data Collection and Oversight{] See Surface Transportation Board,-Who’s Who and What Does it Do?, available at http:/lwww.stb.dot.gov/Publica tions/whoswho.htm#Functions. Based on this list of retained functions, it cannot be gleaned that the STB believes it has ‘retained jurisdiction over railway safety or accidents involv- ing railroads. Moreover, according to the STB, “[i]n the per- formance of its functions, the Board is charged with promot- ing, where appropriate, substantive and procedural regulatory reform in the economic regulation of surface transportation, and with providing an efficient and effective forum for the resolution of disputes.” Jd. It is apparent that the STB be- lieves that it is charged with economic, and not safety, regula- 52a tion of surface transportation.'*> Given the requirement that the ICCTA and the FRSA must be construed in pari material, the STB’s perception of its own jurisdiction, and the legisla- tive history of the ICCTA, this Court finds that rail safety does not fall under the primary jurisdiction of the STB. For all of these reasons, a finding that the ICCTA com- pletely preempt plaintiffs’ personal injury negligence claims is not appropriate in this case. IV. Plaintiffs’ Request for Attorneys’ Fees and Costs Under 28 U.S.C. § 1447(c), “{a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Under the language of Section 1447(c), the Court has discre- tion to order the payment of costs and attorneys’ fees. See Moline, 259 F.Supp.2d at 905. While this Court concludes, and recommends, that remand is necessary in this case, the question appears to be one of first impression in this Circuit, and presents a close question. Therefore, as an exercise of discretion, this Court recommends that plaintiffs’ request for an award of attorneys’ fees and costs be denied. V. Conclusion This Court finds that neither the FRSA nor the ICCTA completely preempt plaintiffs’ personal injury negligence claims. The FRSA and its accompanying regulations, provide extensive control over railroad safety. However, defendants have not cited to, nor has this Court been able to find, any part of FRSA, or its accompanying regulations, that provide plaintiffs with a mechanism to redress the harms they have ' The STB’s interpretation of its jurisdiction of the ICCTA is Sup- ported by the legislative history surrounding the ICC, the predecessor to the STB. In 1967, the ICC had virtually all of its regulatory authority over railroad safety transferred to the Department of Transportation, while it retained jurisdiction over economic regulation. 53a allegedly suffered. In addition, there is nothing within the legislative history of the FRSA that demonstrates Congress’ intent to completely preempt personal injury claims resulting from the actions of railroads. As for the ICCTA, it, like the FRSA, does not contain a mechanism for the plaintiffs to address the harms they have sustained. The ICCTA’s power lies with the authority of STB whose primary function pertains to the economic regulation and not the regulation of safety of railroads. Further, the legislative history of ICCTA undermines any assertion that plaintiffs’ personal injury claims are preempted under this Statute. Since the FRSA and the ICCTA do not completely preempt plaintiffs claims, this case should be remanded to state court. RECOMMENDATION For the reasons set forth above, it is recommended that: 1. Plaintiffs’ Motion to Remand [Docket No. 8] be GRANTED, and that matter be remanded to the Minnesota District Court, Fourth Judicial District; and 2. Plaintiffs’ request for attorneys’ fees and costs be DENIED. Dated: January 29, 2004 /s/ JANIE S. MAYERON Janie S. Mayeron United States Magistrate Judge Pursuant to Local Rule 72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties on or before February 13, 2004 a copy of this Report, written objections which specifically identify the portions of the Report to which objections are made and the bases for each objection. 54a Unless the parties stipulate that the District Court is not required by 28 U.S.C. § 636 to review a transcript of the hearing in order to resolve all objections made to this Report and Recommendations, the party making the objections shall timely order and file a complete transcript of the hearing on or before February 13, 2004." * See S. Rep. 104-176, 1995 WL 701522 at *3. 55a APPENDIX C [FILED 05 DEC 21] STATE OF MINNESOTA DISTRICT COURT FOURTH COUNTY OF HENNEPIN JUDICIAL DISTRICT CASE TYPE: Personal Injury In re the Soo Line Railroad Court File No. 04-007726 Company Derailment of January 18, 2002 in Minot, ND MEMORANDUM OF LAW REGARDING CHOICE OF LAW I. INTRODUCTION Defendants from the January 18, 2002 derailment outside Minot, North Dakota have moved this Court for partial summary judgment on choice of law. This Court has issued an order granting Defendants’ motion to apply the substantive laws of North Dakota to all actions arising out of the January 18, 2002 derailment outside of Minot, North Dakota. This Memorandum memorializes this Court’s rationale for granting Defendants’ motion. Il. APPEARANCES: J. Gordon Rudd, Esq., Zimmerman Reed, P.L.L.P., 651 Nicollet Mall, Suite 501, Minneapolis, MN 55402, Mike Miller, Esg., Solberg, Stewart, Miller, Johnson, Tjon, Kennelly and O’Keeffe, LTD., 1129 5™ Avenue South, P.O. Box 1897 Fargo, ND 58107, George G. Eck, Esq., Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, Kristy L. Albrecht, Esq., Benjamin Hasbrouck, Esq., Dorsey & Whitney LLP, 51 North Broadway, Suite 402, Fargo, ND 58102, Ronald J. Barezak, 56a Paula M. Jossart, Yaeger, JungBauer, Barczak & Vucinovich, 745 Kasota Av | >, Minneapolis, MN 55414, Daniel A. O’Fallon, Robin. Saplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue South, Minneapolis, MN 55402-2015, Richard G. Hunegs, Steven M. Hunegs, Randal W. LeNeave, Hunegs, Stone, LeNeave, Kvas & Thornton, P.A., 1650 International Centre, 900 Second Avenue South, Minneapolis, MN 55402, and Gregory N. McEwen, McEwen Law Firm, Ltd., 1600 Pioneer Building, 336 N. Robert Street, Saint Paul, MN 55101, appeared on behalf of the moving plaintiffs (hereinafter, “Plaintiffs”), Timothy R. Thornton, Esq., Scott G. Knudson, Esq., Thomas J. Basting, Jr.. Esq. and Kevin M. Decker, Esq., Briggs and Morgan, 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, appeared on behalf of Defendants Canadian Pacific Railway Company, Canadian Pacific Limited, Canadian Pacific Railway Limited, Soo Line Railroad Company, Terry Kroll, and Michacl Hanson (hereinafter, “Railroad Defendants”). Ill. FACTS AND PROCEDURAL POSTURE A. The derailment. These cases involve events that took place in the early morning hours of January 18, 2002, when a train owned by Canadian Pacific Railway, on_ its way from Edmonton, Alberta to St. Paul, Minnesota, derailed outside of the city of Minot, North Dakota. The derailment occurred at approximately 1:39 a.m., when a Canadian Pacific Railway freight train with 2 locomotives and 112 cars derailed 31 freight cars near Minot, North Dakota. Seven of 15 cars that were carrying anhydrous ammonia catastrophically failed, creating a vapor plume about 5 miles long, and 2 1/2 miles wide, which affected approximately 15,000 residents near the derailment site and a portion of the city of Minot. ~5S7a NTSB Press Release, June 28, 2002. The accident “resulted in one fatality, over 300 injuries and the displacement of residents for up to 30 days.” Id. It is undisputed that the fatality mentioned in the preceding quote is John T. Grabinger. B. The ensuing litigation. Since January 18, 2002 almost two-hundred separate lawsuits have been filed by North Dakota residents claiming they were injured by the toxic cloud. In addition, there are two class-action cases currently pending. Approximately 160 of the individual cases were consolidated before the undersigned by Order of Judge Kevin Burke dated June 18, 2003. This Court has also been assigned one of the two class- action cases stemming from the derailment. This Court has stayed that class action. The other class action is pending in the Federal District Court of North Dakota. Early in the litigation Plaintiffs indicated that they intended to move for leave to add a claim for punitive damages. This Court has, concurrent with this Court’s decision herein, denied Plaintiffs’ motion, regarding punitive damages, under both North Dakota and Minnesota law. It should be noted that there are significant substantive differences between North Dakota and Minnesota punitive damages law. For instance, North Dakota tort reform efforts have capped punitive damages awards at “two times the amount of compensatory damages or two hundred fifty thousand dollars, whichever is greater.” N.D.C.C. § 32-03.2-11(4). Minnesota, on the other hand, has no such statutory cap. See Minn. Stat. § 549.20. A second difference is that the threshold a plaintiff has to meet in order to add a claim for punitive damages is higher under North Dakota law. In North Dakota, a plaintiff must prove by clear and convincing evidence that the defendant acted with oppression, fraud, or actual malice. See N.D.C.C. § 32-03.2- S8a 11(1). In contrast, Minnesota law requires a plaintiff to prove by clear and convincing evidence that the defendant acted with deliberate disregard of the plaintiff's rights. Minn. Stat. § 549.20, subd. I. The Railroad Defendants moved for summary judgment on the choice of law question. The Railroad Defendants argue that North Dakota’s interest in this litigation overwhelm any interest Minnesota might have. In fact, the Railroad Defendants assert that Minnesota’s policy against forum shopping overcomes any interest that Minnesota might have in applying its punitive damages law, and further that constitutional limitations on punishing out-of-state conduct precludes Minnesota from applying its punitive damages law to the out-of-state conduct that underlies this litigation.’ Plaintiffs argue that the law of the forum must apply because punitive damages are merely a remedy and thus not subject to a choice of law analysis. Plaintiffs further assert that Minnesota law should apply even under choice of law analysis because: (1) the Soo Line Railroad Company, one of the Railroad Defendants, was incorporated in Minnesota and has strong historic ties to Minnesota: (2) the corporate conduct giving rise to the motion to add a claira for punitive damages occurred in Minnesota: and (3) Minnesota has a strong interest in compensating tort victims. ' C. The situs of the Railroad Defendants’ activities. The place where relevant activities took place is important to the choice of law consideration. The accident took place on the western edge of the town of Minot and injured exclusively Minot residents. All of the environmental cleanup and activities relating to persons injured by the derailment took place in Minot. Basic track maintenance is likewise the responsibility of local North ' See this Court’s Memorandum of Law Denying Punitive Damages. 59a Dakota crews who are assigned to particular “sections” along the Canadian Pacific’s mainline. Six section crews totaling nineteen employees are charged with performing basic maintenance on the “Portal Subdivision,” which runs from Portal, North Dakota to Harvey, North Dakota and includes the location where the train derailed on January 18, 2002. Overall supervision of the maintenance work done on the “Portal Subdivision” takes place in Minnesota. Soo Line Railroad Company has historic ties to Minnesota, having been headquartered here since 1915. There are approximately 1,000 employees in the Twin Cities area and multiple aspects of Soo Line Railroad operations are handled in Minnesota, including: General Assistance, Accounting, Canadian Pacific (US) Finance, Commercial Development, Copy Center, Corporate Secretary, Canadian Pacific Police Services, Customer Service Team/Revenue, Freight Claims, Legal Services, Real Estate, and Public Affairs/Regional Carriers. Funding for both basic and program maintenance is allocated by management in Calgary, Alberta, Canada. The same Calgary management also establishes the applicable standards, policies, and .procedures for both basic track maintenance and program projects. IV. DISCUSSION OF LAW A. Summary judgment standard. Summary judgment is the proper mechanism for deciding important legal issues such as choice of law. Under the Minnesota Rules of Civil Procedure, summary judgment ts properly granted when: [T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that either party is entitled to judgment as a matter of law. 60a Minn. R. Civ. P. 56.03. A material issue of fact is one which would affect the outcome of the case. Pischke v. Kellen, 384 N.W. 2d 201, 205 (Minn. Ct. App. 1986) (citing Rathbun v. W.T. Grant Co., 219 N.W. 2d 641, 646 (Minn. 1974)). Summary judgment has been characterized as a “blunt instrument” that “should be employed only where it is perfectly clear that no issue of fact is involved in the cause of action.” Donnay v. Boulware, 144 N.W. 2d 711, 716 (Minn. 1966). The Minnesota Supreme Court has stated that the “burden is on the moving party to show the absence of any material fact.” Bixler v. J.C. Penny Co., Inc, 376 N.W. 2d 209, 215 (Minn. 1985) (citing Barilla vy. Clapshaw, 237 N.W.2d 830, 831 (Minn. 1976)); see Thiele v. Stich, 425 N.W. 2d 580, 583 (Minn. 1988) (the burden is on movant to establish that no genuine issue of material fact exists). When determining whether the moving party has sustained its burden, the court must view the evidence in a manner most favorable to the nonmoving party. See Sauter v. Sauter, 70 N.W. 2d 351, 353 (Minn. 1955); Ritter v. MA. Monenson Co., 352 N.W. 2d 110, 112 (Minn. Ct. App. 1984) (citing Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971)). All doubts and factual inferences must be resolved against the moving party and in favor of the nonmoving party. Nord vy. Herreid, 305 N.W.2d 337, 339 (Minn. 1981); see Dempsey v. Jaroscak, 188 N.W.2d 779, 781-82 (Minn. 1971). It is only when the movant has satisfied its burden must the nonmoving party then show the existence of a genuine issue of material fact. Bixler, 376 N.W.2d at 215 (citing Continental Sales and Equipment Co. v. Town of Stuntz, 257 N.W.2d 546, 550 (Minn. 1977). If the nonmoving party fails to present specific facts indicating that a genuine issue of material fact exists, summary judgment is proper. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). In order to successfully oppose a 6la r summary judgment, the nonmoving party cannot ‘ mere averments or denials set forth in its pleadings, )resent specific facts showing that there is a genuine Minn. R. Civ. P. 56.05; see Hunt, 384 N.W.2d the nonmoving party cannot rely on mere general ats of fact.). Moreover, “[t]he court is not required to nonmoving party by drawing unreasonable ' City of Savage v. Varey, 358 N.W.2d 102, 105 \pp. 1984). \ choice of law determination is required. threshold matter, Plaintiffs dispute whether a choice nalysis is even necessary, especially in the context of damages. A choice of law analysis is required for f substantive law. Davis v. Furlong, 328 N.W.2d Minn. 1983). ‘sota case law is silent on the issue of whether iamages are substantive or procedural. Nonetheless, »sota Federal Court has found that statutes of fal! in the procedural category. See Glover v. Merck 345 F.Supp.2d 994, 998-99 (D. Minn. 2004). : distinct difference, however, between the operation tes of limitation and motions to add claims for lamages. A determination of whether a statute of ipplies works to either allow or completely deny a . or her day in court. A claim for punitive damages ther hand, does not extinguish the action altogether, determines what damages a plaintiff is able to shopping is an underlying concern with both mitation and punitive damages claims, but again differences. Regarding statutes of limitation, choose the forum that does not bar their claims tutes of limitation problems (as was the ‘case in This will give them a day in court that they would 62a otherwise not or no longer have. In cases like these involving the January 18, 2002 Minot derailment, plaintiffs will select a forum based on whether the forum caps punitive damages and the threshold a plaintiff has to meet in order to add a punitive damages claim. This does not give plaintiffs a day in court - they would otherwise not have, but rather facilitates their ability to seek more substantial monetary awards, in particular exemplary damages. See Schumacher — y. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004) (plaintiff injured in lowa sued in Minnesota to avoid lowa Statute which barred claim). Moreover, many Plaintiffs involved in the instant derailment undoubtedly have suffered injuries, grievously in a number of cases, and the Railroad Defendants’ exposure to significant damages is very real - with or without punitive damages. As mentioned above, the standard for being allowed to bring a claim for punitive damages is lower in Minnesota and there is no cap on punitive damages here. The marked differences between Minnesota’s and North Dakota’s punitive damages laws;* the strong North Dakota interest in this case, which will be further discussed later: and the selection of Minnesota as the forum by many of the most seriously injured Plaintiffs, lead almost inexorably to the conclusion that punitive damages should be analyzed as being substantive in nature, if only to discourage forum shopping. Such conclusion is not without support. Courts in other States have addressed punitive damages as a matter of * This Court has denied Plaintiffs’ motion to add punitive damages claims under both the North Dakota and the Minnesota standards. The fact that the outcome ended at the same point does not diminish the fact that North Dakota’s threshold question for punitive damages is significantly higher than Minnesota's. In fact, this Court noted that the decision to deny punitive damage claims was not nearly as difficult under North Dakota law as it was under Minnesota law. 63a substantive law. See Harlan Feeders, Inc. v. Grand Laboratories, Inc., 881 F.Supp. 1400, 1408 (N.D. Iowa 1995) (“[N]o authority . . . runs contrary to the proposition that punitive damages are a matter of substantive law . . .”); Naughton v. Bankier, 691 A.2d 712, 716 (Md. Ct. App. 1997) (punitive damages for choice of law purposes are substantive in nature). Numerous cases - including those upon which Plaintiffs rely - have analyzed punitive damages under choice of law principles, which necessarily presupposes that such claims are substantive in nature. See Johnson v. Occidental Fire and Cas. Co. of NC, 954 F.2d 1581, 1585 (11th Cir. 1992); Enron Corp. v. Lawyers Title Inc. Corp., 940 F.2d 307, 312 (8th Cir. 1991); In re Air Crash Disaster Near Chicago, 111., 644 F.2d 594 (7th Cir. 1991); In re Aircraft Accident at Little Rock, Ark., 231 F. Supp.2d 852 (E.D. Ark. 2002); Mayes v. Gordon, 536 F. Supp. 2 (E.D. Term. 1981); Barr v. Interbay Citizens Bank, 635 P.2d 441 (Wash. 1981). Cases applying the Erie doctrine - itself a choice of law rule - also illustrate that punitive damages are substantive matters. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989) (“in a diversity action . . . when state law provides the basis of decision, the propricty of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining the amount, are questions of state [substantive) law.”) (emphasis added). See also Griffin v. Red Run Lodge, Inc., 610 F.2d 1198, 1206 n.7 (4th Cir. 1979) (availability of punitive damages clearly a matter of substantive law); Myers v. Richland County, 288 F .Supp.2d 1013, 1021 (D.N.D. 2003) (“exemplary damages statutes provide a substantive right and therefore state law applics.”). 64a C. The choice of law analysis points to North Dakota. Minnesota courts apply a three part test to decide which state’s laws apply: (1) is there an actual conflict between the States’ laws; (2) can the laws of both states be constitutionally applied; and (3) which state’s laws are favored by the five Milkovich’ factors. Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 469-70 (Minn. 1994). 1. Actual conflicts exist. As mentioned above, a conflict exists in this case between Minnesota and North Dakota law on the issue of punitive damages. North Dakota has a cap on punitive damages and the threshold for adding a punitive damages claim is higher. See Jacobson v. Universal Underwriters Ins. Group, 645 N.W.2d 741, 745 (Minn. Ct. App. 2002) (conflict existed between Minnesota law, which provided for recovery of pecuniary loss - including financial support, comfort, guidance, and protection that decedent would have provided- ~and Iowa law, which based damages on the estimated net value of the decedent’s estate). North Dakota tort reforms have created additional conflicts with Minnesota law concerning liability exposure. For example, a North Dakota tortfeasor’s liability is several only. N.D.C.C. § 32-03.2-03. Minnesota. on the other hand, still imposes joint and several liability. Minn. Stat. § 604.02 (2004). A conflict of law exists when there is potential, even if slight, for two states’ legal standards to affect the parties differently. Lommen v. City of E. Grand Forks, 522 N.W.2d 148, 149 (Minn. Ct. App. 1994). North Dakota and Minnesota laws plainly conflict in establishing Defendants’ exposure to and liability for damages. > Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973). 65a 2. Applying both States’ laws. The second factor - whether each state’s laws can be applied so as to afford due process to the parties - favors neither party. As discussed above, both Minnesoia and North Dakota have sufficient contacts such that the law of either state could be constitutionally applicd. This Court has previously heard motions relating to whether jurisdiction is proper in Minnesota and has ruled that Minnesota has sufficient contacts to allow the case to go forward here. This Court has also indicated on several occasions that North Dakota may have stronger interests in secing the cases tried there, since the derailment happened in North Dakota and all of the persons injured are North Dakota residents. That North Dakota may have stronger interests does not mean, however, that suit cannot be brought here. This Court has already ruled that it can. 3. The Milkovich factors favor application of North Dakota law. The actual determination of which state’s laws govern involves application of the five Milkovich factors: (1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the state’s governmental interest; and (5) application of the “better rule of law.” Jepson, 513 N.W.2d at 470. Like Minnesota, North Dakota applies these factors to choice-of-law analysis. See Issendorf v. Olson, 194 N.W.2d 750, 754-55 (N.D. 1972). In tort actions, the first three factors are usually not controlling. Schwartz v. Consol. Freightways Corp. of Del., 221 N.W.2d 665, 668 (Minn. 1974) (“As pointed out in Milkovich, only the last two [factors] are relevant to tort cases.”).* “Maintenance of interstate and international order” 4°” ‘ ses aa o ° Predictability is normally relevant only to “consensual transactions where the parties desire advance notice of which state law will govern in future disputes.” Nodak Mud. Ins. Co. v. American Family Mut. Ins. Co., 66a becomes significant, however, when there is evidence of forum shopping. Jepson, 513 N.W.2d at 471-72: see Hague v. Allstate Ins. Co., 289 N.W.2d 43, 49 (Minn. 1978), aff'd, 449 U.S. 302 (1981). The fifth and final factor - “application of the better rule of law”—applies only “when the other four factors are not dispositive.” Reed v. Univ. of N.D., 543 N.W.2d 106, 109 (Minn. Ct. App. 1996) (citing Myers v. Gov't Employees Ins. Co., 225 N.W.2d 238, 244 (Minn. 1974)). This means that the second, fourth and possibly the fifth factor are applicable to the instant case. a. Evidence of forum shopping. Forum shopping is generally disfavored. Petroleum Co. v. Shutts, 472 U.S. 797, 820 (1985) (“{P]laintiffs desire for forum law is rarcly, if ever controlling.”); Jepson, 513 N.W.2d at 471-72 (“Minnesota does not have an interest in encouraging forum shopping.”). The selection of Hennepin County, as discussed above suggests forum shopping on the part of Plaintiffs. Stenzel v. State Farm Mut. Auto. Ins. Co.., 379 N.W.2d 674, 676 (Minn. Ct. App. 1986) (“Forum shopping becomes a greater concern as contacts with the state diminish. ). The recent decision in Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004) supports the application of North Dakota law. In Schumacher, a son was kicked in the face by his father’s horse at an Iowa horse show. /d. at 688. The case was filed in Minnesota where both the father and son resided, and where the father owned and raised horses. /d. 604 N.W.2d 91, 94-95 (Minn. 2000). And “simplification of the judicial task” is not a concem when both states’ laws are relatively clear. /d. Finally, maintenance of interstate and international order is generally not important when, as here, both states have laws directly on point that limit the likelihood of ad hoc interference. /d. 67a Despite the obvious ties to Minnesota, summary judgment was granted based on the immunity that lowa law provided against injuries caused by domesticated animals. /d. at 689. The Minnesota Court of Appeals was particularly concerned about the “maintenance of interstate order” because of the forum shopping implications. /d. at 690-91. The court found that “[t]his factor addresses whether applying Minnesota law would manifest disrespect for lowa or impede the interstate movement of people and goods.” /d. at 690 (citing Jepson, 513 N.W.2d at 471). The Court of Appeals stated that “[e]vidence of forum shopping or evidence that application of one state’s law would promote forum shopping, would be an attempt to evade, and would indicate disrespect for, lowa law.” /d. at 690-91 (citation omitted). The Schumacher court concluded that applying Minnesota law would encourage forum shopping because “[a]n lowa citizen injured while participating in a domesticated animal activity would be quick to ascertain the state residence of the animal owner and to sue in any state that does not grant immunity to such owners for domesticated animal activities.” Id. at 691. The court recognized that “[b]y passing the immunity statute, Iowa has stated its public policy interest in encouraging participation in agricultural activities, like this horse show, because such participation benefits lowa’s economy.” /d. This factor favors North Dakota law. b. Advancement of the states’ interests In addition to the discouragement of forum shopping, the advancement of the states’ interest supports application of North Dakota law. The state in which the incident occurred plays an important role when addressing the advancement of ; ; 5 the states’ governmental interests.” Furthermore, due process > Minnesota courts do not however, automatically apply the law of the state in which the accident occurred, as was historica! practice under a /ex loci delecti analysis. Milkovich, 203 N.W.2d at 410-13. 68a protections preclude Minnesota from having an interest in the assessment of punitive damages in this litigation. Thus advancement of the states’ interests analysis favors application of North Dakota law. (1) North Dakota’s compelling interest. This Court has already assessed the comparative state interests in this litigation. Turning to the case law, the Nodak case involved a Minnesota motorist’s no-fault insurer bringing a subrogation claim against a North Dakota resident’s liability insurer arising out of an automobile collision in North Dakota. 604 N.W.2d at 92-93. The North Dakota motorist’s insurer sought a declaration that Minnesota law governed. /d. Applying Milkovich, the Minnesota Supreme Court readily concluded that the laws of the state in which the accident occurred, North Dakota, should govern. Id. at 94-97, The Court of Appeals in Nodak had “determined that [the fourth Milkovich] factor favors application of North Dakota law because the accident occurred in North Dakota.” /d. at 95 (citation omitted). In reaching this conclusion the appeals court relied upon American Family Mutual Ins. Co. vy. Farmers Ins. Exchange, 504 N.W.2d 307, 309 (N.D. 1993), which held that the laws of the state in which the accident occurred, North Dakota, should govern because the other factors favored neither state’s laws. Like the court of appeals, the Minnesota Supreme Court found the reasoning in American Family persuasive because “when all other relevant choice-of-law factors favor neither state’s law, the state where the accident occurred has the strongest governmental interest.” Nodak, 604 N.W.2d at 96. In so holding, the court noted that this analysis did not reintroduce the /ex loci delecti doctrine. Jd. Rather, the rationale of both supreme courts was based upon each state’s interest in addressing “accidents within its borders”: hence 69a “where all other relevant choice-influencing factors balance out, the forum with the greater interest is the forum where the accident occurred. /d. (citation omitted). In this case the only other relevant choice of law consideration is the previously discussed forum shopping, which strongly favors application of North Dakota law. Thus under Nodak the state where the accident occurred - North Dakota - reinforces this Court’s conclusion that North Dakota law should apply. Citing a host of cases arising out of airline disasters, Plaintiffs contend that Soo Line Railroad’s incorporation in Minnesota should be dispositive of the choice of law analysis. Those cases, however, turn on the “fortuitousness” of the crash site. See, e.g., Air Crash Disaster at Sioux City, lowa, on July 19, 1989, 734 F. Supp. 1425, 1431 (N.D. Ill. 1990) (“Under any theory of liability, the fact that the accident occurred in Iowa was a mere fortuity.”). Given the randomness of where an aircraft comes down, courts making choice of law determinations in those cases give the state of the accident no weight in the analysis. Instead, those courts emphasize the state of incorporation. In this case, unlike the airplane disaster cases, the accident occurred at a specific place where Plaintiffs allege that the track had been negligently inspected and maintained.° Planes fly ° everywhere and can crash anywhere; trains run on fixed rails and derail from those locations. Thus in many respects the fortuity in the Minot derailment is the railroad’s state of incorporation, much more so than the state where the accident occurred. Unlike victims of a place crash who are injured where the aircraft happens to come down, plaintiffs in this © The complaints contain a number of allegations of negligence by the Railroad Defendants, in addition to the two mentioned here. These are discussed in this Court’s Order on Federal Preemption issued alongside this Order. 70a case have a very definitive and strong connection to the place where their injuries occurred - they live in North Dakota. The airline disaster cases are, therefore, distinguishable. (2) Constitutional issues Plaintiffs suggest that Minnesota’s interest in compensating tort victims should prevail over the North Dakota contacts in this case. See, e.g., Jepson, 513 N.W.2d at 472. But punitive damages have less to do with compensating tort victims than discouraging certain corporate behavior: “[p]unitive damages are intended to punish a defendant, or to make an example of a defendant’s wrongdoing, not to reward an otherwise- compensated plaintiff.” Williamson vy. Prasciunas, 661 N.W.2d 645, 653 (Minn. Ct. App. 2003). Recent United States Supreme Court cases shed light on the issue of punitive damages rights. State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of North America, Inc. v Gore. 517 U.S. 559 (1996). In BMW, a consumer bought a new car that had been repainted before it was purchased. 517 U.S. at 563. At trial, BMW was shown to have had sold at least 983 refinished cars nationwide, including 14 in the plaintiffs home state. /d. BMW argued that conduct in other states was not relevant, but the trial court disagreed, allowing the jury’s award of $4,000 in compensatory damages and $4 million in punitive damages. /d. at 565. But because punitive damages are allowed only to “further a State’s legitimate interests punishing unlawful conduct and deterring its repetition,” the Supreme Court reversed. /d. at 568 (emphasis added). States have no legitimate interest in imposing economic sanctions for wrongful conduct occurring in other states. BMW, 517 U.S. at 572. Otherwise, “Alabama would be infringing on the policy choices of other States.” /d Therefore, the Court held: “the economic penalties that a State ... inflicts on those who transgress its laws, whether the T7la penalties take the form of legislatively authorized fines or judicially imposed punitive damages, must be supported by the State’s interest in protecting its own consumers and its own economy.” /d. This conclusion was recently reaffirmed in State Farm. The State Farm jury awarded punitive damages against an insurance company for bad faith handling of auto claims. 538 U.S. at 413. The plaintiff charged that the company’s oppressive claims practices were nationwide in scope. /d. at 414. Relying on BMW, the insurer sought to exclude out-of- state conduct, but was denied. /d. The jury awarded $2.6 million in compensatory damages and $145 million in punitives. As in BMW, the Supreme Court recognized that a state does not “have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State’s jurisdiction. Jd. at 421. A state’s authority to punish is circumscribed because: “A basic principle of federalism is that each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each State alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction.” Jd. at 422 (citation omitted). Having conclusively limited the basis upon which punitive damages can be awarded, the Court reversed. Id. at 428. Lower courts have followed suit.’ This factor favors North Dakota law. ’ White v. Ford Motor Co., 312 F.3d 998, 1020 (9th Cir. 2002) (“punitive damages award unconstitutionally allowed a Nevada jury to punish Ford for out-of-state conduct”); Johansen v. Combustion Eng g, Inc., 170 F.3d 1320, 1333 (11th Cir. 1999) (“The Supreme Court has instructed that punitive damages must be based upon conduct in a single state - the state where the tortious conduct occurred - and reflect a legitimate state interest in punishing and deterring that conduct.”), 72a c. Application of the better rule of law As discussed previously, the “better rule of law” factor is irrelevant unless the other factors favor neither state. This factor is of limited utility, as the Minnesota Supreme Court “has not placed any emphasis on this factor in nearly 20 years.” Nodak, 604 N.W.2d at 96. Given the conclusions previously reached, analysis of this factor is unnecessary. CONCLUSION Minnesota and North Dakota both have interests in the litigation in these cases. The January 18, 2002 derailment happened in North Dakota and all of the injured persons reside there. At the same time, the cases involve a defendant with ties to Minnesota going back over eighty years, with employees in Minnesota and considerable operations here. All of the factors used by Minnesota courts to address the choice of law issue unanimously weigh in favor of applying North Dakota law. North Dakota law shall therefore be applied to all cases before this Court stemming from the January 18, 2002 derailment. TNL Continental Trend Res., Inc. v. OXY USA Inc., 101 F.3d 634, 637 (10th Cir. 1996) (BMW “prohibit[s| reliance upon inhibiting unlawful conduct in other states”); Ace v. Aetna Life Ins. Co., 40 F.Supp.2d 1125, 1133 (D. Alaska 1999) (BMW means that “Alaska must leave some room within which the other states can exercise their own interests in defining the precise extent of and in deterring wrongful conduct”); EEOC v. Wal-Mart Stores, Inc., 11 F.Supp.2d 1313, 1326 (D.N.M. 1998) (punitive damages award must relate to conduct occurring within the state); People ex rel Lockyer v. R.J. Reynolds Tobacco Co., 11 Cal. Rptr. 3d 217, 347 (Ct. App. 2004) ( State does not have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State’s jurisdiction.”). 73a APPENDIX D UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Nos. 05-1918MN, et al. TOM LUNDEEN, ETC., ef al., Appellees, V. CANADIAN PACIFIC RAILWAY COMPANY, ef al., Appellants. Appeals from the United States District Court for the District of Minnesota The parties are directed to file additional briefs as to whether the remand to state court was appropriate notwithstanding the forum shopping argument briefed to the panel. The briefs should address whether there is federal jurisdiction through jurisdictional or “complete” preemption. Additionally, the bricfs should examine such cases as Merrell Dow Pharma- ceuticals, Inc. v. Thompson, 478 U.S. 804 (1986), and Grable & Sons Metal Products, Inc. v. Dame Engineering & Manu- facturing, 125 S. Ct. 2363 (2005), for whether federal juris- diction lies regardless. The briefs shall be filed simultaneously and are due on March 3, 2006-—— February 13, 2006 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit 74a APPENDIX E No. 05-107 In the Supreme Court of the Gnited States WARREN DAVIS, PETITIONER Vv. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), ETAL. 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 Howarp M. RADZELY Counsel of Record Solicitor of Labor GREGORY G. GARRE NATHANIEL I. SPILLER Deputy Solicitor General Assistant Deputy Solicitor MATTHEW D. ROBERTS Mark S. FLYNN Assistant to the Solicitor Counsel for Advice and General Statutory Programs Department of Justice Department of Labor Washington, D.C. 20530-0001 Washington, D.C. 20210 (202) 514-2217 75a QUESTIONS PRESENTED Whether the court of appeals had jurisdiction over the irt’s order remanding petitioner’s claims to state ether petitioner’s state-law claims are completely ted by Title IV of the Labor-Management Reporting sure Act of 1959, 29 U.S.C. 481-483. (1) 76a TABLE OF CONTENTS Statement Discussion 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 supplemental jurisdiction are subject to appellate review . Review is not warranted to address the reviewability of remand orders declining supplemental jurisdiction . Any tension among the courts of appeals on how to ascertain the basis for a remand order does not warrant review in this case D. The Court may wish to hold this case pending its decisions in Kircher and Osborn The complete preemption question is not properly presented and, in any event, does not warrant plenary review A. There is no conflict among the courts of appeals on whether the LMRDA completely preempts state-law claims challenging union elections . The complete preemption question presented by petitioner is not properly before the Court . . The novel and abstract nature of the complete preemption question also counsels against Conclusion Tla IV TABLE OF AUTHORITIES Cases: Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ....... 17 Aetna Health Ine. v. Davila, 542 U.S. 200 (2004) ....... 15 Amoco Petroleum Additives Co., In re, 964 F.2d 706 CE, TOD xan nnnscvidéstaticersateuee 10 Archuleta v. Lacuesta, 131 F.3d 1359 (10th Cir. TE) ccncecouesdsdecvessess (000800000 tee 10 Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557 (1968) ..........-0 eee 18, 19 Balazik v. County of Dauphin, 44 F.3d 209 (3d Cir. TOD sc ciukisiesededkecvenceeksextseneeieeeeee 10 Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d SOAs Gis Cle. TEGED ac conc ckacadcasnseeeseeoasers 10 Beneficial Nat Bank v. Anderson, 539 U.S. 1 CEE. ncccccovecnkeccacetaness skeet 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 Ce, BU cco cones veesevesee eevise scenes usuniaas ll Davis v. UAW: 274 F. Supp. 2d 922 (E.D. Mich. 2008) ...........25. 2 390 F.3d 908 (6th Cir. 2004), cert. denied, TOES. Ch, TRG TRG) voce we cd cceccavencetessive 2 DaWalt v. Purdue Pharma, L.P., 397 F.3d 392 (6th Cle Sc kon vcdacscsdurdendsasiebennns eeences 7,8 Dunlop v. Bachowski, 421 U.S. 560 (1975) .......--. 1,19 78a Cases—Continued: Page First Natl Bank of Pulaski v. Curry, 301 F.3d 456 enka easeveccscsscccccccecss 4,5,7 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983) ..........00.. 15, 18 Heaton v. Monogram Credit Card Bank, 231 F.3d 994 (5th Cir. 2000), cert. denied, 533 U.S. 915 EE I 11,12 Kontrick v. Ryan, 540 U.S. 443 (2004) ................ 12 Lindsey v. Dillard’s, Inc., 306 F.3d 596 (8th Cir. TCG Gh a heeecccccsccccccccceccces 10 Local No. 82, Furniture & Piano Moving v. Crowley, PNT EUIED cscs cee cccc cece sevccccecs 1,18 Mangold v. Analytic Servs., Inc., 77 F.3d 1442 (4th Ne ec cies ccccvcccccse 10 Pullman Co. v. Jenkins, 305 U.S. 584 (19389) .......... 13 Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Ine. , 882 F.3d 116 (2d Cir. 2008) .................8. 10 Sullivan v. Finkelstein, 496 U.S. 617 (1990) ........... 12 Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. ee aw ececccccces 4, 6,8 Things Remembered, Inc. v. Petrarca, 516 U.S. 124 eee esos se cvecescevccecvers 6, 7,8, 9 Tillman v. CSX Transp., Inc., 929 F.2d 1023 (5th Cir.), cert. denied, 502 U.S. 859 (1991) ............. 1] Trbovich v. United Mine Workers of Am., 404 US. ee icc ce ececccccececcecs 1, 19 United States v. Sisson, 399 U.S. 267 (1970) ........... 12 Statutes: Employee Retirement Income Security Act § 502(a), 29 U.S.C, 1132(a) Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 401 et seg.: Tit. I, 29 U.S.C. 41] et seq.: 29 U.S.C. 411(a)(1) 29 U.S.C. 411(a)(2) Tit. IV, 29 U.S.C. 481 et seq.: 29 U.S.C. 481-483 29 U.S.C. 482(a) 29 U.S.C. 482(b) 29 U.S.C. 482(c) 29 U.S.C. 483 Labor-Management Relations Act § 301, 29 U.S.C. 185 Securities Litigation Uniform Standards Act of 1998, Pub. L. No. 105-353, 112 Stat. 3227: 15 U.S.C. 77p(e) 15 U.S.C. 77p(d)(4) 15 U.S.C. 78bb(f}(3)(D) Westfall Act, 28 U.S.C. 2679(d) 28 U.S.C. 1367(e) 28 U.S.C. 1441(b) 28 U.S.C. 1443 28 U.S.C. 1447(c) passim 28 U.S.C. 1447(d) passim 80a Vii Miscellaneous: Page 16 James W. Moore et al., Moore’s Federal Practice (3d ed. 2005) 8la 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 “[t]he 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 US. at 536. 2. Petitioner held an elected position—Director of Region 2—within respondent International Union, United Automo- bile, Aerospace & Agricultura! 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. Jd. at 2a-3a. Petitioner won the election unopposed. Jd. 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.” Jd. 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. Jd. at 3a. The delegates voted to eliminate Region 2 and divide it among the other regions. Jbid. 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 1 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. UAW, 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 elimination 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 83a 3 procedures mandated by the UAW’s constitution when they voted to eliminate Region 2. Id. 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. /bzd. Petitioner filed a motion to remand the case, and the district court granted the motion. Jd. 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.” Jbid. 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-31a. 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 case to the district court with instructions to dismiss petitioner’s claims as precluded by the LMRDA. Pet. App. la-11a. 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, “[w]Jhere a dis- trict court had proper jurisdiction at the time of removal, but events occurring after removal make remand to the state courts appropriate, § 1447(d) does not bar appellate review of the district court’s remand order.” Pet. App. 6a (citing First Nat’ 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.¢., eliminated the only federal issue ? Because the district court “conclude|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. 85a 5 from the case), the court of appeals concluded that it had ap- pellate jurisdiction over the remand order. /d. 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.” /d. 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).2 This Court has stated, however, that Section 1447(d) must be read in pari materia with 28 U.S.C. 1447(c) and therefore bars appellate review only of remands based on the grounds cov- ered by Section 1447(c). Thermtron Prods., Inc. v. Hermans- dorfer, 423 U.S. 336, 345-346 (1976); Things Remembered, Inc. v. Petrarca, 516 U.S. 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. 348, 357 (1988). * Section 1447(d) excepts from its scope remands in civil rights cases removed under 28 U.S.C. 1443. That exception js not implicated here. 87a 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, “[wJhere 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.” Jd. 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, ¢.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.” Ibid. (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)—i.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 89a 9 rroneous belief that petitioner had abandoned his ‘atement claim. See note 1, supra. Moreover, rather ply correct that error and remand to the district irt of appeals went on to rule that petitioner’s - were properly removed, an issue that would not other- en appealable. If the district court had realized nstatement claim had not been abandoned or the ‘ appeals had done no more than correct that error and tnen the district court would have had only two op- retain jurisdiction over the entire case on the theory |.MRDA completely preempts the reinstatement r 2 remand the case on the theory that there is no ‘© preemption and therefore the court lacked jurisdic- ‘ime of removal. Neither option would have in- , remand under Section 1367(c), and neither option ‘oduced an immediately appealable order. urt should not address the propriety of appellate ‘ remand orders under Section 1367(c) in a case that, » cistriet court’s acknowledged factual error, could bly involve a valid remand under that Section. The reated by the district court’s mistaken belief that er nad abandoned the reinstatement claim makes this cle through which to address that issue. \ny Tension Among The Courts Of Appeals On How To \scertain The Basis For A Remand Order Does Not Warrant Review In This Case tioner contends (Pet. 11-15) that the Court should review because the courts of appeals disagree on r they may look beyond the face of a remand order to rine the actua! basis for the remand. Although there me tension among the courts of appeals on how to n the basis for a remand order, this Court’s review of n 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. Merrili Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 128 (2d Cir. 2003) (analyzing ambiguous order to deter- mine basis for remand); In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir. 1992) (same).4 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 incorrect. 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.” 13] 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 jurisdictiona! defects.” In making that statement, the court meant only that “review is not proscribed even if a remend 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. 9la 1] 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[dJ on a non-§1447(c) basis” for the remand. Heaton v. Monogram Credit Card Bank, 231 F.3d 994, 997 (5th 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 example, 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 ‘hat “elucidation of the grounds for remand was required in order to determine the district court’s reasons for remanding” 02a 12 because “the remand order * * * was at first glance some- 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 Circuit 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 «ecided this case the same way even if it followed the Fift’: 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- ° The district court stated that it was not ruling on certain motions “(gjiven that [it] concludes it does not have jurisdiction over the case.” Pet. App. 13a-l4a. But courts sometimes use the term jurisdiction imprecisely. See Konirick 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 7a-8a. D. The Court May Wish To Hold This Case Pending Its De- cisions in Kircher 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). That 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 fal) within the scope of SLUSA’s preemption pro- vision. See 15 U.S.C. 77p(c) and (d)(4), 78bb(f)(3)(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 critical inquiry under Section 1447(c), Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939), as opposed to meaning that it no ionger had jurisdiction because it had decided to remand the state-law claims. 94a 14 may wish tc 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. il. 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 Nat'l 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, 5389 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. Jd. 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 prereq- 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 Circuit 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. 96a 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 cases. 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 11a (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- 97a 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.¢., 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 the 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 idiosyneratic 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, 7e., whether the plaintiff's 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 Jawsuit 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 federa] 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- tiffs 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 precisely 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 probabie 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). 100a 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 MARK S. FLYNN Counsel for Advice and Statutory Programs Department of Labor MAY 2006 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1612%3A2. Public record. Not legal advice.