USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 96-2311
BIW DECEIVED, ET AL.,
Plaintiffs, Appellants,
v.
LOCAL S6, INDUSTRIAL UNION OF MARINE
AND SHIPBUILDING WORKERS OF AMERICA,
IAMAW DISTRICT LODGE 4,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Jed Davis, with whom Linda Christ, Jim Mitchell and Jed
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Davis, P.A. were on brief, for appellants.
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Ralph L. Tucker, with whom James W. Case and McTeague,
________________ _______________ _________
Higbee, McAdam, Case, Watson and Cohen were on brief, for
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appellee.
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December 30, 1997
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SELYA, Circuit Judge. In this procedural motley, a
SELYA, Circuit Judge.
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band of plaintiffs the eponymous BIW Deceived locks horns
with Local S6 of the Industrial Union of Marine and Shipbuilding
Workers (the Union) over issues pertaining to removal and remand.
The peculiarities of this engagement impel us to adumbrate our
necessarily circuitous decisional path. After delineating the
relevant facts and procedural history, we address whether the
plaintiffs have waived their right to appeal either by inviting
the judgment or by failing to seek our intervention at an earlier
date. Finding no default, we proceed to the merits a journey
that requires us to touch upon doctrinal aspects of preemption
under federal labor law and to explore a question of first
impression concerning the exercise of federal question
jurisdiction in the context of the artful pleading doctrine. At
journey's end, we conclude that the plaintiffs' complaint
presents a colorable federal question and that, therefore, the
district court did not err when it refused to return the case to
a state venue.
I. BACKGROUND
I. BACKGROUND
Because this action stumbled near the starting gate,
the record is stunted and the facts before us are sparse. We
present them as best they present themselves.
In the fall of 1995, Bath Iron Works (Bath or BIW)
hired a number of electricians and pipefitters. The Union
participated in the job interviews pursuant to the terms of an
existing collective bargaining agreement (the CBA). The
2
plaintiffs allege that during these interviews the Union told
them that they would "be employed at least until the expiration
of the current Union contract [August 1997]" and "probably until
the end of the decade;" that Bath "had more work for
electricians and pipefitters than it could handle;" and that Bath
"was hiring fewer electricians and pipefitters than it needed, so
that the employees would be assured of continuing employment."
The plaintiffs further allege that they relied on these
blandishments, accepted offers of employment, and left other jobs
to move to Maine and work for Bath. But, the plaintiffs say, the
Union had led them down a primrose path; they were laid off early
in 1996.
II. PROCEDURAL HISTORY
II. PROCEDURAL HISTORY
Angered by this fecklessness, the former employees
joined together to form "BIW Deceived" and sue the Union in a
Maine state court.1 Their complaint alleged negligence,
fraudulent misrepresentation, fraud in the inducement, infliction
of emotional distress, loss of consortium, intentional
nondisclosure, and unjust enrichment. The Union promptly removed
the action to the federal district court. When the plaintiffs
sought remand on the ground that their suit involved only state-
law claims, the Union responded by asserting that all the
plaintiffs' claims were subject to preemption under the National
____________________
1Two of the plaintiffs are former employees' spouses. Since
their claims for loss of consortium are derivative, we refer to
the informal plaintiff class as if it were composed solely of ex-
employees.
3
Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., and/or the
__ ____
Labor Management Relations Act (LMRA), 29 U.S.C. 185 et seq.
__ ____
Judge Carter resolved the removal/remand dispute in the
Union's favor. He denied the plaintiffs' motion, asserting in a
two-page order that "the claims for relief set forth in the
Complaint are all derivative from and dependent for their
resolution upon duties defined and imposed by federal law, which
law occupies the field and, by mandate of Congress, closes the
field to state regulation."
That order produced a strange reaction: the plaintiffs
moved for entry of final judgment in the defendant's favor. They
reasoned that, in refusing to remand, the district court had
"conclu[ded] that federal law preempts all state claims," and
that this conclusion "le[ft] nothing more to be litigated" in
that court. Judge Carter denied this motion without elaboration.
Shortly thereafter, Magistrate Judge Cohen presided
over a status conference during which the plaintiffs represented
that they had "no interest in [pressing] any federal-law claims"
and that they desired the entry of final judgment in order to
"appeal the [district court's] preemption ruling." The Union
agreed not to oppose the entry of judgment in its favor. The
next day, the plaintiffs moved for reconsideration and for entry
of final judgment, specifically "abandon[ing] any and all federal
claims." This time Judge Carter granted their motion and entered
final judgment, without prejudice to the plaintiffs' right to
seek review. This appeal followed.
4
III. APPELLATE JURISDICTION
III. APPELLATE JURISDICTION
It is a federal court's obligation to assure itself of
the existence of subject matter jurisdiction even if no party
presses the question. See American Policyholders Ins. Co. v.
___ _________________________________
Nyacol Prods., Inc., 989 F.2d 1256, 1258 (1st Cir. 1993).
____________________
Consequently, we consider whether the odd procedural posture of
this case undermines our appellate jurisdiction.
In several circuits a party who consents to the entry
of judgment forfeits any right to appeal from that judgment.
See, e.g., Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d
___ ____ ________________________ ________________
1134, 1137 (5th Cir. 1992); Clapp v. Commissioner, 875 F.2d 1396,
_____ ____________
1398 (9th Cir. 1989). We have taken a slightly more
latitudinarian approach: while acknowledging that, with few
exceptions, "a party to a consent judgment is thereby deemed to
waive any objections it has to matters within the scope of the
judgment," Coughlin v. Regan, 768 F.2d 468, 469-70 (1st Cir.
________ _____
1985),2 we nevertheless have suggested that "it is possible for a
party to consent to a judgment and still preserve [its] right to
appeal" a previous ruling on a contested matter in the case, as
long as it "reserve[s] that right unequivocally." Id. at 470.
___
Such a reservation occurred here. The record makes manifest that
the plaintiffs sought the entry of final judgment solely to
facilitate an appeal of the district court's refusal to remand
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2The specific exceptions mentioned by the Coughlin court
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involve "a showing of either lack of actual consent, fraud in
obtaining consent, lack of federal jurisdiction, or mistake."
768 F.2d at 470.
5
the suit. Their initial motion for entry of final judgment asked
the court to enter a "final and appealable judgment;" the
magistrate's report of the status conference related that the
plaintiffs "simply seek the entry of final judgment so that they
may appeal the court's preemption ruling;" and the renewed motion
for entry of final judgment solicited the entry of a "final
judgment, without prejudice to the plaintiffs' right to seek
appeal."
This evidence clearly shows the plaintiffs' unequivocal
intention. Under Coughlin, then, we have discretion to accept
________
the appeal insofar as it relates to a prior (contested) order
notwithstanding the plaintiffs' later consent to the entry of the
final judgment itself. See Coughlin, 768 F.2d at 470. In this
___ ________
instance, we are inclined to exercise that discretion in the
plaintiffs' favor.
Even so, our appellate jurisdiction is not free from
doubt. The parties treat this appeal as if Judge Carter
dismissed the suit because the various causes of action were
preempted, but this is an inaccurate characterization of what
actually transpired. There was no dismissal: while Judge Carter
expressed his belief that the plaintiffs' claims were preempted,
the only ruling that he made on a contested matter consisted of
denying the plaintiffs' motion to remand. This ruling did not
require a finding of preemption; it only required a finding that
the Union had made a colorable showing of federal jurisdiction.
See infra Part V. That the judge's remarks swept more broadly
___ _____
6
does not alter the reality of events. It is settled beyond
peradventure that a party can appeal only from an adverse order
or judgment, not from a judge's ruminations. See Logue v. Dore,
___ _____ ____
103 F.3d 1040, 1047 (1st Cir. 1997); In re Admin. Warrant, 585
_____________________
F.2d 1152, 1153 (1st Cir. 1978). The plaintiffs could have
waited until the Union filed a dispositive motion (say, a motion
to dismiss or for summary judgment), but they chose not to do so.
Thus, the district court's order denying the plaintiffs' motion
to remand is the only order that is even potentially reviewable
in this proceeding.
The district court entered that order on July 3, 1996,
and the plaintiffs did not file their notice of appeal until
October 25, 1996. In some circuits, a disappointed suitor must
appeal the denial of a motion to remand within the standard
appeal period (here, thirty days, see Fed. R. App. P. 4(a)(1)),
___
or else forever hold his peace. See Marshall v. Manville Sales
___ ________ ______________
Corp., 6 F.3d 229, 231 (4th Cir. 1993) (noting that the Fourth
_____
Circuit will not "disturb a district court's final judgment on
the basis of a defective removal when the plaintiff ha[s] failed
to seek an interlocutory appeal of the order denying remand");
Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 713 (9th
_________ ____________________________
Cir. 1990) (holding that an objection to removal "is not
preserved unless an interlocutory appeal is filed challenging the
district court's order denying remand"). Other circuits
including this one generally consider orders refusing remand to
be interlocutory orders, and thus a plaintiff whose remand
7
request has been rebuffed possesses no immediate right of appeal,
but retains the right to press his point by taking an end-of-case
appeal after the entry of final judgment. See Neal v. Brown, 980
___ ____ _____
F.2d 747, 747 (D.C. Cir. 1992); Carriere v. Sears, Roebuck & Co.,
________ ____________________
893 F.2d 98, 100 n.2 (5th Cir. 1990); Brough v. United
______ ______
Steelworkers, 437 F.2d 748, 749 (1st Cir. 1971). Accordingly,
____________
the entry of final judgment in this case paved the way for
appellate consideration of the order denying the motion to remand
and BIW Deceived's timely appeal is properly before us.
IV. THE LEGAL FRAMEWORK
IV. THE LEGAL FRAMEWORK
There are three interlocking pieces to the applicable
legal framework. We trace their contours.
A. Preemption.
A. Preemption.
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In the labor-law arena, preemption the displacement
of state law by the force of federal law is a familiar
phenomenon. Several different strains of preemption flourish in
this field, each possessing somewhat different roots and each
casting a uniquely configured shadow. Two of these preemption
theories bear upon the instant case.
1.
1.
__
Section 301 of the LMRA, 29 U.S.C. 185, confers
federal jurisdiction over "[s]uits for violation of contracts
between an employer and a labor organization representing
employees in an industry affecting commerce." From this austere
beginning, the Supreme Court determined that it had the authority
to craft a federal common law that would effect section 301's
8
objectives. See Textile Workers Union v. Lincoln Mills, 353 U.S.
___ _____________________ _____________
448, 451 (1957). The Court subsequently declared that section
301 preempts a state-law claim "if the resolution of [that] claim
depends upon the meaning of a collective-bargaining agreement."
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06
______ ________________________________
(1988).
We recently visited this corner of the law in Flibotte
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v. Pennsylvania Truck Lines, ___ F.3d ___ (1st Cir. 1997) [No.
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97-1197]. Citing United Steelworkers v. Rawson, 495 U.S. 362,
___________________ ______
369 (1990), and Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220
____________________ _____
(1985), respectively, we explained that a state-law claim can
depend upon the meaning of a collective bargaining agreement in
either of two distinct ways: on the one hand, a claim can allege
the violation of a duty that arises from the CBA itself, or, on
the other hand, a claim can require a court to interpret a
specific provision of the CBA. See Flibotte, ___ F.3d at ___
___ ________
[slip op. at 9]. "If a state-law claim depends upon the meaning
of the collective bargaining agreement in either of these ways
that is, under Rawson's `duty' rubric or under Allis-Chalmers's
______ ______________
`interpretation' rubric it is preempted." Id.
___
Though section 301 is omnipotent within its sphere, it
is not endlessly expansive. The Court has warned that it "cannot
be read broadly to pre-empt nonnegotiable rights conferred on
individual employees as a matter of state law," Livadas v.
_______
Bradshaw, 512 U.S. 107, 123 (1994), and that "purely factual
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questions about an employee's conduct or an employer's conduct
9
and motives do not require a court to interpret any term of a
collective-bargaining agreement," Hawaiian Airlines, Inc. v.
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Norris, 512 U.S. 246, 261 (1994) (citation and internal quotation
______
marks omitted). These cautions do not shrink the scope of
section 301 preemption, but simply emphasize that, for a claim to
arise under federal law, it must depend upon the meaning of the
collective bargaining agreement.
2.
2.
__
Preemption also can occur by operation of the so-called
duty of fair representation (DFR). A union acting in its
representative capacity owes this duty to those on whose behalf
it acts. See Ford Motor Co. v. Huffman, 345 U.S. 330, 337
___ _______________ _______
(1953). The duty derives from the union's status qua exclusive
___
bargaining agent. It implicates section 9(a) of the NLRA,3 and
"includes a statutory obligation to serve the interests of all
members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty, and
to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177
____ _____
(1967).
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3Section 9(a) provides in pertinent part:
Representatives designated or selected for
the purposes of collective bargaining by the
majority of the employees . . . shall be the
exclusive representatives of all the
employees . . . for the purposes of
collective bargaining in respect to rates of
pay, wages, hours of employment, or other
conditions of employment . . . .
29 U.S.C. 159(a).
10
A complaint that states a DFR claim "allege[s] a breach
by the Union of a duty grounded in federal statutes and . . .
federal law therefore governs [the] cause of action." Id.
___
Consequently, state law is preempted whenever a plaintiff's claim
invokes rights derived from a union's duty of fair
representation. See Condon v. Local 2944, 683 F.2d 590, 594-95
___ ______ __________
(1st Cir. 1982) (stating that "[a] union's rights and duties as
the exclusive bargaining agent in carrying out its
representational functions" collectively comprise a field in
which "the policy of the law is so dominated by the sweep of
federal statutes that legal relations which [those rights and
duties] affect must be deemed governed by federal law having its
source in those statutes, rather than by local law") (citation
and internal quotation marks omitted).
B. Standard of Review.
B. Standard of Review.
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Although the parties gloss over the point, we emphasize
that the only appealable order that the district court entered
during the short life of this case is the order denying the
plaintiffs' motion to remand. The denial of a motion to remand a
removed case to the state court involves a question of federal
subject matter jurisdiction and thus engenders de novo review.
See Rivet v. Regions Bank, 108 F.3d 576, 582 (5th Cir.), cert.
___ _____ ____________ _____
granted on other grounds, 118 S. Ct. 31 (1997); County of St.
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Charles v. Missouri Family Health Council, 107 F.3d 682, 684 (8th
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Cir.), cert. denied, 118 S. Ct. 160 (1997).
_____ ______
In this instance, the Union effected removal under 28
11
U.S.C. 1441(b) (permitting the removal of civil actions over
which United States District Courts have original federal
question jurisdiction). Hence, our review must focus on "whether
the federal district court would have had original jurisdiction
of the case had it been filed in that court." Grubbs v. General
______ _______
Elec. Credit Corp., 405 U.S. 699, 702 (1972); accord Chicago v.
__________________ ______ _______
International College of Surgeons, 66 U.S.L.W. 4041, 4043 (U.S.
__________________________________
Dec. 15, 1997). In the course of this inquiry, the removing
party bears the burden of persuasion vis- -vis the existence of
federal jurisdiction. See Dukes v. U.S. Healthcare, Inc., 57
___ _____ ______________________
F.3d 350, 359 (3d Cir. 1995).
C. Federal Question Jurisdiction.
C. Federal Question Jurisdiction.
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Federal district courts have original jurisdiction over
"federal question" cases that is, cases "arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C.
1331. The gates of federal question jurisdiction are
customarily patrolled by a steely-eyed sentry the "well-pleaded
complaint rule" which, in general, prohibits the exercise of
federal question jurisdiction if no federal claim appears within
the four corners of the complaint. See International College of
___ ________________________
Surgeons, 66 U.S.L.W. at 4043; Gully v. First Nat'l Bank, 299
________ _____ _________________
U.S. 109, 113 (1936). At first blush, this rule appears to augur
well for the plaintiffs, who maintain that their complaint
alleges only state-law claims. Appearances, however, often are
deceiving.
Whereas preemption by federal law is a defense that
12
ordinarily does not give rise to federal question jurisdiction,
see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987),
___ _________________ ________
"Congress may so completely pre-empt a particular area that any
civil complaint raising this select group of claims is
necessarily federal in character," Metropolitan Life Ins. Co. v.
__________________________
Taylor, 481 U.S. 58, 63-64 (1987). Section 301 preemption
______
operates in this way. No less an authority than the Supreme
Court has declared that "the pre-emptive force of 301 is so
powerful as to displace entirely any state cause of action for
violation of contracts between an employer and a labor
organization." Franchise Tax Board v. Construction Laborers
____________________ _____________________
Vacation Trust, 463 U.S. 1, 23 (1983) (citation and internal
_______________
quotation marks omitted). The upshot is that any such suit must
be regarded as "purely a creature of federal law, notwithstanding
the fact that state law would provide a cause of action in the
absence of 301." Id.
___
This powerful preemption principle propels a
significant exception to the well-pleaded complaint rule the
artful pleading doctrine. The doctrine empowers courts to look
beneath the face of the complaint to divine the underlying nature
of a claim, to determine whether the plaintiff has sought to
defeat removal by asserting a federal claim under state-law
colors, and to act accordingly. See Federated Dep't Stores, Inc.
___ ____________________________
v. Moitie, 452 U.S. 394, 397 n.2 (1981) (explaining that in an
______
appropriate case "the removal court will seek to determine
whether the real nature of the claim is federal, regardless of
13
plaintiff's characterization") (quoting 14 Wright, Miller, &
Cooper, Federal Practice and Procedure 3722 at 564-66 (1976)).
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In other words, a plaintiff may not, by the expedient of artful
pleading, defeat a defendant's legitimate right to a federal
forum. See Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d
___ _____________________ __________________
1401, 1406 (9th Cir. 1992) (discussing the artful pleading
doctrine in the context of section 301 preemption). If the claim
appears to be federal in nature that is, if it meets the
applicable test for one that arises under federal law then the
federal court must recharacterize the complaint to reflect that
reality and affirm the removal despite the plaintiff's professed
intent to pursue only state-law claims. See Metropolitan Life,
___ _________________
481 U.S. at 64.
In this respect, we believe that DFR preemption
operates in much the same fashion as section 301 preemption.
While we have not heretofore inquired whether DFR preemption,
like section 301 preemption, works an exception to the well-
pleaded complaint rule, the answer seems obvious. Because
federal law completely governs the duties owed by an exclusive
collective bargaining representative to those within the
bargaining unit, see Vaca, 386 U.S. at 183, and because this
___ ____
manifestation of congressional will so closely parallels
Congress's intentions with regard to section 301, see Avco Corp.
___ __________
v. Aero Lodge No. 735, 390 U.S. 557, 561-62 (1968) (citing
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Lincoln Mills, 353 U.S. at 457), we hold that a district court
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possesses federal question jurisdiction when a complaint, though
14
garbed in state-law raiment, sufficiently asserts a claim
implicating the duty of fair representation. We also hold, as a
logical corollary, that DFR preemption warrants resort to the
artful pleading doctrine. Accord Richardson v. United
______ __________ ______
Steelworkers, 864 F.2d 1162, 1169 (5th Cir. 1989) ("We hold that
____________
where the NLRA federal law duty of fair representation,
actionable in federal court, preempts a state-law claim, the suit
asserting such a claim . . . may be removed to federal court just
as the suit asserting state law claims preempted by section 301 .
. . may be removed under Avco and its progeny.").
____
V. THE LITMUS TEST
V. THE LITMUS TEST
The foregoing articulations of complete preemption, the
standard of review, and the artful pleading doctrine are helpful,
but they do not tell us how certain a court must be that an
artfully pleaded complaint contains a federal question before
denying a motion to remand. Although our research has not
revealed any ready-made solution to this dilemma, we conclude
that the artful pleading doctrine permits a district court to
recharacterize a putative state-law claim as a federal claim when
a review of the complaint, taken in context, reveals a colorable
federal question within a field in which state law is completely
preempted. We summarize the reasoning that undergirds this
conclusion.
As a matter of common practice, a district court
confronted with a question of subject matter jurisdiction reviews
15
a plaintiff's complaint not to judge the merits, but to determine
whether the court has the authority to proceed. When conducting
this inquiry, the court only asks whether the complaint, on its
face, asserts a colorable federal claim. See Aldinger v. Howard,
___ ________ ______
427 U.S. 1, 7 (1976) ("[W]here federal jurisdiction is properly
based on a colorable federal claim, the court has the right to
decide all the questions in the case . . . .") (citation and
internal quotation marks omitted); Northeast Erectors Assoc. v.
_________________________
Secretary of Labor, 62 F.3d 37, 39 n.1 (1st Cir. 1995) (observing
__________________
that "federal question jurisdiction exists once the plaintiff has
alleged even a colorable federal claim"). As colorability is the
litmus test for the existence vel non of federal question
___ ___
jurisdiction, we see no reason why a court should not apply
precisely the same standard when called upon to determine whether
a complaint demands recharacterization under the artful pleading
doctrine. Indeed, because the critical inquiry when reviewing
the denial of a motion to remand is "whether the federal district
court would have had original jurisdiction of the case had it
been filed in that court," Grubbs, 405 U.S. at 702, the use of
______
any other standard would be incongruous.4
____________________
4Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175
_____ _________________________________
(1909), is not to the contrary. Though the Siler Court stated in
_____
dictum that "the Federal question must not be merely colorable or
fraudulently set up for the mere purpose of endeavoring to give
the court jurisdiction," id. at 191-92, the Court used the word
___
"colorable" in a different sense than we do today. "Colorable"
has two definitions: it may mean "seemingly valid or genuine,"
or it may mean "intended to deceive." Webster's New Collegiate
________________________
Dictionary 220 (1981). The Siler Court unquestionably used the
__________ _____
word in the latter sense, in a discussion about spurious claims.
See Siler, 213 U.S. at 191-92; compare Penn Mut. Life Ins. Co. v.
___ _____ _______ _______________________
16
This formulation is reinforced by the principles
articulated in Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804
________________________ ________
(1986). There, the Supreme Court stressed that "determinations
about federal jurisdiction require sensitive judgments about
congressional intent, judicial power, and the federal system."
Id. at 810. Employing the colorability standard soothes such
___
sensitivities, for where there is complete preemption, there
necessarily has been a triad of judicial determinations: that
Congress intended federal law to occupy the whole of a regulatory
field; that federal judicial power properly extends to actions
originally filed in state courts to the extent that they touch
upon that field; and that the exercise of such federal power does
not offend principles of federalism. See Franchise Tax Board,
___ ___________________
463 U.S. at 23.
VI. THE MERITS
VI. THE MERITS
Having fashioned the standard by which we must gauge
the propriety of removal and remand, we conclude without serious
question that the instant complaint reveals a colorable question
of federal law and that, therefore, the district court did not
err when it denied the motion to remand.
We start with the plaintiffs' negligence claim and its
relationship to section 301 of the LMRA. This claim can survive
Rawson-based preemption under section 301 only if the Union acted
______
____________________
Austin, 168 U.S. 685, 695 (1898) (noting appellate jurisdiction
______
wherever there is a claim that a state law contravenes the
Constitution, as long as the claim is "real and colorable, not
fictitious and fraudulent"). We use the word in the "seemingly
valid or genuine" sense.
17
"in a way that might violate the duty of reasonable care owed to
every person in society." Rawson, 495 U.S. at 371. The claim
______
asserts that, during the recruitment interviews, the Union
breached its duty of care to the interviewees. At oral argument,
counsel for BIW Deceived gave this a gloss, acknowledging that
the Union participated in the interview process pursuant to the
CBA. This being so, it is plausible (indeed, likely) that the
CBA details the nature and limits of the Union's participation in
the interview process and that the Union, therefore, would have
had a duty of care separate from any duty owed by third parties.
So viewed, the Union stands accused of violating a duty of care
that flowed to it pursuant to the CBA, and the plaintiffs' state-
law negligence claim, when recharacterized, passes the
colorability test. It is thus arguably preempted. See Rawson,
___ ______
495 U.S. 371-72 ("Pre-emption by federal law cannot be avoided by
characterizing the Union's negligent performance of what it does
on behalf of the members of the bargaining unit pursuant to the
terms of the collective-bargaining contract as a state-law
tort.").
Even were we to assume for argument's sake that the
plaintiffs' negligence claim, so recharacterized in light of
section 301, does not raise a colorable federal claim, we still
would be bound to affirm the district court's denial of remand on
the ground that the claim also is arguably preempted via the duty
of fair representation. The fact that the plaintiffs were not
members of the Union at the time the statements were made does
18
not command a contrary conclusion for a union owes a duty of fair
representation to nonmembers whom it has undertaken
constructively to represent. See, e.g., Steele v. Louisville &
___ ____ ______ ____________
Nashville R.R. Co., 323 U.S. 192, 204 (1944); Nedd v. United Mine
__________________ ____ ___________
Workers, 556 F.2d 190, 200 (3d Cir. 1977); Amalgamated Transit
_______ ___________________
Union Div. 822, 305 N.L.R.B. 946, 949-50 (1991). Here, taking
_______________
the facts as limned by the plaintiffs, the Union plainly acted in
a representational capacity during the recruitment process.
Indeed, the plaintiffs, in their complaint, speak of the "special
relationship" that existed between them and the Union, and their
theory of the case seemingly hinges on their ability to establish
a symbiotic relationship of advocacy and dependence at the time
of the interviews. Under these circumstances, the negligence
claim, when recharacterized, sufficiently resembles a DFR claim
to pass the colorability test and thus support the exercise of
federal question jurisdiction.
Let us be perfectly clear. Because of the nearly empty
record, we cannot say with certitude whether we would find
ultimately that federal preemption applies in the instant case.
At this stage of the proceedings, however, we need not go that
far; to uphold the district court's exercise of federal question
jurisdiction, we need only conclude that, despite the plaintiffs'
state-law stylings, the complaint articulates at least one
colorable federal claim. Properly recharacterized, the
plaintiffs' complaint falls into this category.
To this point, we have trained our sights on the
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negligence claim. While we believe that, for the most part, the
other claims contained in the plaintiffs' complaint similarly
state claims that, when recharacterized, are colorably federal in
nature, we need not probe the point too deeply. A federal court
that exercises federal question jurisdiction over a single claim
may also assert supplemental jurisdiction over all state-law
claims that arise from the same nucleus of operative facts. See
___
28 U.S.C. 1367(a); see also International College of Surgeons,
___ ____ _________________________________
66 U.S.L.W. at 4043-44; Roche v. John Hancock Mut. Life Ins. Co.,
_____ _______________________________
81 F.3d 249, 256 (1st Cir. 1996). Therefore, removal was
appropriate.
VII. CONCLUSION
VII. CONCLUSION
We need go no further. For the reasons stated herein,
we conclude in the course of de novo review that the district
court correctly exercised federal question jurisdiction when it
denied the plaintiffs' motion to remand. Consequently, the
judgment to which the plaintiffs consented must stand.
Affirmed.
Affirmed.
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