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  Plaintiff-appellant agrees with defendant-appellee that this appeal should be decided following an oral argument. This case may represent this Court's first opportunity to apply the recent Supreme Court decision on preemption by section 301 of the Labor-Management Relations Act in Livadas v. Bradshaw, 114 S. Ct. 2068 (1994). Moreover, so far as our research shows, this Court has not yet applied the discussion of removal based on section 301 preemption in Oklahoma Tax Commission v. Graham, 489 U.S. 838 (1989). Finally, the removal issue under 28 U.S.C. § 1445(c) has already engendered substantial division among the circuits and district courts. Accordingly, Humphrey's new appellate counsel considers oral argument appropriate, and asks the Court to allow 15 to 20 minutes per side for that purpose.
DEAN HUMPHREY,
v. No. 94-2568 WMKC SEQUENTIA, INC.,
APPELLANT'S REPLY BRIEF As appellee concedes on page 2 of its brief, this appeal turns on whether appellant's action was properly removed to federal court. Indeed, a court should always examine the question of federal jurisdiction before considering the merits of any claim for injunctive or other relief. Mansfield, Coldwater & Lake Mich. R. Co. v. Swan, 111 U.S. 379, 382 (1884). "If subject matter jurisdiction is lacking in the trial court, our jurisdiction on review is limited to correcting the error of the trial court in entertaining jurisdiction." Baker v. Riss & Co., 444 F.2d 257, 259 (8th Cir. 1971). As part of this interlocutory appeal from denial of a preliminary injunction, the Court has jurisdiction to review the denial of Humphrey's motion to remand to state court, even though the latter denial is not independently appealable. O'Halloran v. University of Washington, 856 F.2d 1375, 1378 (9th Cir. 1988); Beech-Nut v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir. 1973); Kysor Indus. Corp. v. Pet, Inc., 459 F.2d 1010, 1011 (6th Cir. 1972); Mayflower Indus. v. Thor Corp., 184 F.2d 537, 538 (3d Cir. 1950). See also Johnson v. Butler Bros., 162 F.2d 87, 88 (8th Cir. 1947) (appeal from refusal to dissolve preliminary injunction).(1) Humphrey raises two independent objections to removal, either of which would be sufficient to require remand to state court. First, the elements of his retaliation claim do not "substantially depend" on the collective bargaining agreement ("CBA") between appellee Sequentia and the Aluminum Workers union, and so section 301 does not supplant Humphrey's state law claim and create federal jurisdiction over his complaint; nor does the way in which he worded his claim for injunctive relief transform his state law claim into one based on the CBA. Second, even if there would have been original federal jurisdiction, removal was improper because Humphrey's claim is one "arising under the workers compensation laws of [Missouri]." 28 U.S.C. § 1445(c). Because the issue of removal based on preemption is more complicated, and because the Court can avoid addressing that issue if it rules in appellant's favor on the section 1445(c) issue, we address these issues in reverse order. I. REMOVAL VIOLATED 28 U.S.C. § 1445(c) BECAUSE THIS CASE ARISES UNDER THE MISSOURI WORKERS COMPENSATION LAWS. Even if this case presented a federal question, it was improperly removed because it arises under the workers compensation laws of Missouri, and hence removal was barred by 28 U.S.C. § 1445(c). Sequentia does not deny that, as Humphrey's opening brief demonstrated, at 16, the great majority of courts hold that workers compensation retaliatory discharge cases arise under state workers compensation laws, and so are protected from removal by 28 U.S.C. § 1445(c). See also Pettaway v. Wayne Poultry Co., 791 F. Supp. 290 (M.D. Ala. 1992); Kilpatrick v. Martin Eby Constr. Co., 708 F. Supp. 1241 (N.D. Ala. 1989); Green v. Hajoca Corp., 573 F. Supp. 1120 (E.D. Va. 1983). Instead, Sequentia rests its argument on a summary citation to the Seventh Circuit's decision in Spearman v. Exxon Coal USA, 16 F.3d 722 (1994), cert. denied, No. 93-9061 (October 17, 1994), which it asks this Court to follow. Sequentia Br. at 16-17. See also JA 112. In Spearman, however, the majority opinion emphasized that, in Illinois, the claim for workers compensation retaliatory discharge is a common law tort cause of action, based on the public policy set forth in the Illinois Workers Compensation Act, not an express cause of action provided by the workers compensation law itself. 16 F.3d at 725-726. Humphrey's complaint, by contrast, seeks to enforce a cause of action that is expressly set forth in a subsection of the Missouri Workers Compensation Act. In that respect, this appeal is indistinguishable from Jones v. Roadway Express, 931 F.2d 1086 (5th Cir. 1991), which held that the Texas cause of action for workers compensation retaliatory discharge, which is likewise based on an express provision in the Texas Workers Compensation Law, is protected from removal by section 1445(c). Moreover, even apart from the distinction between this case and Spearman, the unanimous opinion of the Fifth Circuit in Jones, and the vigorous dissenting opinion of Circuit Judge Rovner in Spearman, are far more persuasive on the removal issue than the majority opinion in Spearman. That this case "arises under" the workers compensation laws of the state of Missouri may be seen by analogy to the construction of the phrase "arising under" as it appears in 28 U.S.C. § 1331, which gives district courts jurisdiction of cases "arising under" federal law. A claim arises under federal law so long as an element of a well-pleaded complaint would rely on federal law to provide the rule of decision. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); Gully v. First Nat'l Bank, 299 U.S. 109 (1936). In this regard, it does not matter whether the federal rule in question is supplied by federal common law or by a statute. Illinois v. City of Milwaukee, 406 U.S. 91, 99-100 (1972). Nor does it matter whether Congress has provided the precise remedy sought by the plaintiff under the particular circumstances of the case. Caterpillar v. Williams, 482 U.S. 386, 391 n.4 (1987). Indeed, a cause of action that is inferred from a statute creating a duty may, in some cases, be brought as a federal claim in a federal district court. E.g., Cannon v. University of Chicago, 441 U.S. 677 (1979). If causes of action created by federal statutes, as well as federal common law and implied causes of action, are among the "laws" of the United States for the purpose of section 1331, it is hard to see why state claims included in state workers compensation statutes, and other claims created for the purpose of enforcing the public policies of the state workers compensation laws, are not among the claims "arising under" the "workers compensation laws" of that State. II. APPELLANT'S STATE LAW CLAIM FOR RETALIATORY DISCHARGE IS NOT COMPLETELY PREEMPTED BY SECTION 301 OF THE LMRA. A. Retaliatory Discharge Claims Normally Are Not Preempted. Appellant's opening brief showed that Lingle v. Norge, 486 U.S. 399 (1988), held that state law claims are preempted only when they depend on the meaning of a CBA, id. at 406, and that claims under Illinois law alleging discharge in retaliation for the exercise of rights under that state's workers compensation law are not preempted by section 301 of the Labor-Management Relations Act ("LMRA"), because they are not "substantially dependent" on a CBA. Id. at 407. Rather, such claims raise "purely factual questions pertain[ing] to the conduct of the employee and the conduct and motivation of the employer," none of which "requires the court to interpret any term of a CBA." Id. Even if the employer defends by claiming that it had a reason for the discharge that was not retaliatory, the factual issue of whether this claimed reason actually motivated the firing does not turn on the meaning of a CBA, and so the state law claim remains independent of the CBA. Id. Since Lingle was decided, the courts of appeals have uniformly held that claims alleging retaliatory discharge in violation of the workers compensation acts of various other states are similarly "independent" of the CBA, and so are not preempted by section 301. E.g., Krashna v. Oliver Realty, 895 F.2d 111, 115 (3d Cir. 1990) (Pennsylvania); Jones v. Roadway Express, 931 F.2d 1086 (5th Cir. 1991) (Texas); Knafel v. Pepsi-Cola Bottlers, 899 F.2d 1473, 1481-1482 (6th Cir. 1990) (Ohio); Pantoja v. Texas Gas & Transmission Corp., 890 F.2d 955 (7th Cir. 1989) (Illinois); Eldridge v. Felec, 920 F.2d 1434, 1439 (9th Cir. 1990) (Alaska); Griess v. Consolidated Freightways Corp., 882 F.2d 461, 462 (10th Cir. 1989) (Wyoming); Rintone v. Southern Bell Tel. Co., 865 F.2d 1220, 1221 (11th Cir. 1989) (Florida). This Court has repeatedly reached the same conclusion, holding that retaliatory discharge claims under Mo. Ann. Stat. § 287.780 are similarly independent of the CBA, and hence not preempted by section 301. Curl v. General Tel. Co., 861 F.2d 171 (8th Cir. 1988); Wolfe v. Central Mine Equip. Co., 850 F.2d 469 (8th Cir. 1988). Given these holdings, appellee can only succeed in its claim for section 301 preemption if it can show that Humphrey's section 287.780 claim is somehow atypical, i.e., that it implicates the CBA in a way that most retaliatory discharge claims do not. But as we show below in parts B, C, and E of this brief, infra at pages 6 to 15 and 20 to 22, an examination of appellee's effort to distinguish this case from the run of the mill state law retaliation or discrimination case shows that each of its distinctions fails, because each of the ways in which appellee claims this case is different is, in fact, quite typical of the issues that arise in such cases. Moreover, as we show in part D, infra at pages 15 to 20, even if the Sequentia's defensive argument were a sufficient basis for preemption, it would not be ground for removal under governing Supreme Court precedent. B. Missouri's Retaliatory Discharge Cause of Action Does Not Differ from Illinois' Cause of Action at Issue in Lingle. Sequentia asserts that Missouri's retaliatory discharge cause of action differs from the cause of action provided by Illinois because, in Missouri, a plaintiff must show that his exercise of workers compensation rights was the exclusive cause of the employer's retaliatory action. Sequentia Br. at 13; citing Hopkins v. Tip Top Plumbing & Heating Co., 805 S.W.2d 280, 283 (Mo. App. 1991). According to Sequentia's argument, this element permits an employer to claim that, rather than a retaliatory motive, its motive was one permitted by the CBA, and this supposedly make Missouri law different from Illinois law. Id. at 13-14. But there is no difference between Missouri and Illinois retaliatory discharge law that would warrant the conclusion that preemption of the Missouri claim is compelled despite Lingle's holding that Illinois' claim is not preempted. In Missouri, as in Illinois, the cause of action "presents factual questions that relate solely to the conduct and intent of the parties." Compare Cook v. Hussman Corp., 852 S.W.2d 342, 344 (Mo. banc 1993), with Lingle v. Norge, 486 U.S. 399, 407 (1988). In both states, the plaintiff must show that his exercise of workers compensation rights was the cause of the discharge. Compare Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 n.2 (Mo. banc 1984), with Leach v. Lauhoff Grain Co., 51 Ill. App.3d 1022, 366 N.E.2d 1145, 1146 (1977). In both states, the element of causality is defeated if the employer had a motive that was valid and non-pretextual. Compare Wiedower v. ACF Indus., 715 S.W.2d 303, 307 (Mo. App. 1986), with Hartlein v. Illinois Power Co., 151 Ill.2d 142, 601 N.E.2d 720, 728 (1992). And, as in Illinois, the Missouri Supreme Court has squarely held that the cause of action under section 287.780 is not dependent on the meaning of a CBA, and may proceed completely independently of the collectively bargained grievance procedure. Cook v. Hussman Corp., 852 S.W.2d 342, 344 (Mo. banc 1993). Sequentia's argument in this respect represents a direct attack on this Court's holdings in Wolfe v. Central Mining and Curl v. General Tel. Co., supra. After all, this aspect of Sequentia's argument does not attempt to show that Humphrey's claim is somehow different from most other retaliatory discharge claims; instead, it claims that, by their very nature, all claims under section 287.780 are preempted by the LMRA. Rather than attempt to distinguish these cases, Sequentia contends that Wolfe was carelessly decided, that the Court's analysis in the later case of Hanks v. General Motors Corp., 859 F.2d 67 (1988), is inconsistent with Wolfe and thus that it, not Wolfe (or Curl), controls the preemption of workers compensation retaliatory discharge cases. Sequentia Br. at 15. But Hanks is not controlling here. We discuss its significance in more detail in the next few pages, but for present purposes it is sufficient to note that Hanks' cause of action was for intentional infliction of emotional distress, rather than for retaliatory discharge. Even if some aspect of the reasoning in Hanks were in some way inconsistent with the holding in Wolfe, that would not mean that Wolfe had been sub silentio overruled. One panel cannot overrule the decision of a previous panel, and the reasoning of a later case does not overrule the holding of a previous case. Boyer v. County of Washington, 971 F.2d 100, 102 n.4 (8th Cir. 1992). Here Humphrey relies on the holdings in Wolfe and Curl, and unless those holdings are overruled en banc or by the Supreme Court, they remain binding on subsequent panels of this Court. United States v. Kiser, 948 F.2d 418, 422 (8th Cir. 1991). In this regard, it is important to note that, although Sequentia's citation to the 1991 decision in Tip Top to show the burdens of proof under section 287.780 might be taken to imply that Missouri law has changed since this Court rendered its non-preemption rulings in Curl and Wolfe in 1988, Tip Top simply quoted the elements of the claim as they were set forth by the Missouri Supreme Court in Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo. banc 1984). There has been no change in Missouri law since Curl and Wolfe that would warrant overruling those decisions. C. Humphrey's Case Can Be Decided Without Construing the CBA. Sequentia's second argument for preemption is that this case has unusual features that make it necessary to refer to the CBA in order to resolve Sequentia's defenses to Humphrey's claim of retaliation. According to Sequentia, this is shown by the text of Humphrey's complaint, JA 40 ¶¶ 14, 15, which refers to various considerations, such as shop practice with respect to Humphrey's alleged racial remark (which Sequentia used as an excuse for his discharge) which, according to Sequentia, could be resolved through the grievance procedure under the CBA. Sequentia Br. at 8. But just because an employer may defend a retaliatory discharge claim by asserting that its action was justified by the CBA is not, under the cases, a sufficient basis to find preemption. If it were, then no retaliation claims would be safe from preemption, for it is easy for employers merely to assert that they have contractually sufficient reasons for the discharge. Accordingly, appellate courts routinely hold that the mere assertion of contractually based defenses does not cause the preemption of otherwise independent state tort actions. Eldridge v. Felec, 920 F.2d 1434, 1439 (9th Cir. 1990); Pantoja v. Texas Gas & Transmission Corp., 890 F.2d 955, 959-960 (7th Cir. 1989); Smolarek v. Chrysler Corp., 879 F.2d 1326, 1333-1334 (6th Cir. 1989) (en banc); Betty v. Brooks & Perkins, --- Mich. ---, 147 LRRM 2157, 2163-2164 (1994). See also Anderson v. Ford Motor Co., 803 F.2d 953, 957 (8th Cir. 1986) (pre-Lingle case refused to preempt state tort claim, despite defenses based on CBA, because "evaluation of these claims will not require extensive interpretation" of the CBA's terms). As the Fifth Circuit explained in Anderson v. American Airlines, 2 F.3d 590, 596-597 (5th Cir. 1993): [although] either party may still use the CBA to support the credibility of its claims, such reliance does not show that an interpretation of the CBA is necessary to resolve [plaintiff]'s claims. In other words, although [the employer] may defend against Anderson's 8307c claim by arguing that its actions were justified by the CBA and its rules, such reliance does not necessarily transform Anderson's 8307c claim into a claim that requires interpretation of the CBA. These cases are completely consistent with the Supreme Court's decision in Lingle. As the Court said there, it is not merely a tangential reference to a CBA that leads to preemption of the underlying state law claim: as a general proposition, a state law claim may depend for its resolution upon both the interpretation of a CBA and a separate state-law analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but the separate state-law analysis would not be preempted. Lingle, 486 U.S. at 413 n.12 (emphasis added). This dictum in Lingle was reaffirmed this past Term in Livadas v. Bradshaw, 114 S. Ct. 2068 (1994), where it formed the basis for the Supreme Court's holding. Livadas involved a claim for back wages under a California statute that required immediate payment of all wages earned to an employee who is fired, but denied union workers the benefit of the law's protection. The state contended that, because the law required that existing wages continue at the "same rate" until actually paid, it would be necessary to examine and "apply" the CBA in order to determine the correct rate of wages for union workers. Accordingly to defendant, section 301 thus preempted the application of the wage payment statute to union workers, and section 301 preemption, in turn, justified the statutory exclusion of union workers. Livadas argued, for her part, that by denying union workers the benefit of a general labor statute, California penalized workers who exercised the right to join a union. In order to resolve this controversy, the Supreme Court revisited its section 301 preemption jurisprudence, and held that the application of California's wage payment law to union workers was not preempted. The Court acknowledged that Livadas' wage rate could only be derived from the CBA itself, but noted that there was no showing that any dispute existed about how much Livadas should have been paid. In Lingle, the Court said, "we were clear that when the meaning of contract terms is not the subject of dispute, the bare fact that a CBA will be consulted in the course of state-law litigation does not require that claim to be extinguished." 114 S. Ct. at 2078. The Court also observed that, even if "some CBA application" were required in the course of otherwise independent state law litigation, there might be means other than extinguishment of the state law claim to preserve the primacy of the arbitrator as the interpreter of the agreement. Id. at 2078 n.18. Accord, Kohl's Food Stores v. Wisconsin, --- F.2d ---, 147 LRRM 2126, 2128 (7th Cir. 1994) (no preemption even though CBA, as well as other factors, needs to be consulted in order to decide what was "suitable work" to which plaintiff was entitled to return following injury); Dougherty v. Parsec, 872 F.2d 766, 770-771 (6th Cir. 1989) (tort claim may proceed after arbitrator ruled on CBA's meaning). Nor is Sequentia's preemption claim supported by Hanks v. General Motors Corp., 859 F.2d 67 (8th Cir. 1988). Unlike this retaliatory discharge case, Hanks claimed intentional infliction of emotional distress due to her assignment to work for a particular supervisor. This Court held that the pleading of defenses requiring interpretation of the CBA might require preemption of Hanks' state law claims, but the Court did not hold, as Sequentia suggests, that a mere possibility of implication of the CBA is sufficient to require preemption. Instead, the Court ruled that, on remand, the district court should scrutinize both Hanks' claims and General Motors' defenses, and "carefully analyze whether in actuality construction or interpretation of the CBA is required in considering such defenses." Id. at 70 (emphasis added). And, after the remand, this Court denied preemption, despite GM's claim that its action was motivated by a desire to comply with the CBA, because, the Court concluded, no interpretation of the CBA was needed to determine whether that provided a defense to Hanks' claims. Hanks v. General Motors Corp., 906 F.2d 341, 344-345 (8th Cir. 1990). Similarly, in this case, there is no need to construe the CBA, or to resolve any dispute about the meaning of the CBA, in order to decide whether the reason for Humphrey's discharge was his exercise of his rights under the Missouri Workers Compensation Act. In order to show the need to refer to the CBA, Sequentia argues that the complaint itself describes matters that are covered by the CBA. Sequentia Br. at 8-9. But the cases hold that mere references in a complaint to the CBA do not cause the claim to be preempted, so long as the gist of the claim is one of discharge in retaliation for the exercise of a statutory right, and the references to CBA-related matters is confined to showing the extent of the discrimination motivated by retaliatory animus. E.g., Krashna v. Oliver Realty, 895 F.2d 111, 115 (3d Cir. 1990). Moreover, the parts of the complaint cited by Sequentia simply reflect plaintiff's contention that he was being treated differently from other employees, a difference that his complaint alleges was motivated by his filing of a workers compensation claim. Thus, he denies that he made the remarks attributed to him, JA 40 ¶ 13; alleges that other workers who made similar remarks were tolerated, rather than discharged, id. ¶ 15; and asserts that the manner in which the "investigation" of his remarks was conducted was "unusual and extraordinary" by comparison to other situations. Id. ¶ 14. All of these allegations pertain to matters of fact of the sort that are commonly litigated in cases where the ultimate issue is whether plaintiff was being singled out from others because of his protected activity or membership in a protected class. Either the evidence will bear out Humphrey's claim of retaliation or it will not, but it will hardly be necessary to refer to the CBA, not to speak of deciding what the terms of the CBA mean, in order to adjudicate these essentially factual disputes.(2) It may be that such matters could also be litigated under section 301, based on a claim that Humphrey's discipline violated the just cause provision of the CBA. But Lingle v. Norge squarely held that the mere fact that the CBA may provide a parallel remedy for employer conduct is not sufficient to warrant preemption of the state law claim: we disagree with the court's conclusion that such parallelism renders the state-law analysis dependent upon the contractual analysis . . .. [E]ven if dispute resolution pursuant to a CBA, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is "independent" of the agreement for § 301 preemption purposes. 486 U.S. at 408, 410. Sequentia argues that employees who make racial remarks may properly be discharged or demoted, and that the timing of the discharge, on the day that Humphrey returned from the injury for which he had filed his workers compensation claim, was mere coincidence and not evidence of retaliatory motive. We agree with Sequentia that this is the essential factual question that must be adjudicated in this case. If Humphrey's view of the facts is vindicated, he will secure appropriate relief. If Sequentia succeeds in defeating this factual contention, Humphrey will lose, regardless of whether he might have had a valid claim under the CBA. By enacting section 287.780, Missouri has decided that its interests require the protection of its citizens against retaliation when they try to claim the benefits of the state workers compensation program. The state has decided that, to vindicate this public interest, public judges and juries of the workers' peers should be available to vindicate such claims. Humphrey has brought his suit in exercise of that right, and the district court erred in denying him the right to have the question decided in the Missouri state courts. D. Even If Sequentia's Defenses Could Force Preemption of Humphrey's Claim by Section 301 by Implicating the CBA, They Would Not Warrant Removal. Sequentia argues that, because its CBA-related defenses implicate the CBA, the Supreme Court's decision in Caterpillar v. Williams, 482 U.S. 386 (1987), supports removal of this case from state court. As we have argued above, Sequentia's defenses to Humphrey's retaliation claim do not sufficiently implicate the CBA to warrant preemption of that claim by section 301. Even if they did, however, that would not be a sufficient ground for removal of Humphrey's case. To the contrary, the Supreme Court has unanimously decided three times in recent years that federal defenses do not create federal jurisdiction, and so Sequentia's defenses do not transform Humphrey's claim into one that arises under federal law. Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1 (1983); Caterpillar v. Williams, 482 U.S. 386 (1987); Oklahoma Tax Comm. v. Graham, 489 U.S. Ct. 838 (1989). This rule against defensive removal applies even when the argument for preemption is based on the doctrine of "complete preemption" under section 301. Id. In Caterpillar, several employees sued under state law to enforce contracts which, they alleged, had been formed by Caterpillar's promises, made to them as individuals, that they would be protected against layoffs in the event the plant were closed. The promises were allegedly made both at times when the employees held managerial or salaried positions, which were outside the bargaining unit represented by a union, as well as at the time when the employees were demoted to hourly positions that were covered by the CBA. 482 U.S. at 389. Indeed, some of the promises may also have been made after the employees began working as part of the bargaining unit. 482 U.S. at 398 n.12. The Supreme Court affirmed the Ninth Circuit's holding that the case was improperly removed, but it unanimously rejected that court's reasoning. 482 U.S. at 391 n.4. According to the Supreme Court, the need to determine whether a plaintiff's complaint is properly pleaded does not deny a plaintiff the power to remain the master of his or her own claim; the plaintiff may opt to avoid federal jurisdiction by exclusive reliance on state law. 482 U.S. at 392. Even the doctrine of complete preemption does not rob a plaintiff of this right, so long as the state law claim is not substantially dependent on analysis of a CBA. Thus, the Caterpillar plaintiffs had asserted a breach of individual employment contracts, and even if they could also have asserted claims under the CBA, as masters of the complaint, they were free not to do so. 482 U.S. at 393. Because their complaint did not rely on the contract, or even address the relationship between the individual contracts and the collective agreement, the claims did not arise under section 301, and the case could not be removed based on the doctrine of complete preemption. Id. The Court then turned to the impact of Caterpillar's defense, based on the rule of J.I. Case Co. v. NLRB, 321 U.S. 332 (1944), which limits the extent to which employers may adopt individual contracts that are inconsistent with the collective agreement. The Court had noted in Franchise Tax Board that complete preemption under section 301 does not apply whenever a suit merely "relates to" a CBA; it is only state suits to enforce a CBA that "arise under" section 301 and hence are removable. 463 U.S. at 25 n.28. Thus, in Caterpillar, the Court held that, even if the rule of J.I. Case might ultimately be employed so that the CBA superseded the rights that plaintiffs could otherwise have enjoyed under their individual contracts, that federal law defense would have to be litigated in state court: It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state courts will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a section 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule -- that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court. When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendant's option. But a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. If a defendant could do so, the plaintiff would be master of nothing. 482 U.S. at 398-399 (emphasis in original).(3) This analysis was reaffirmed when the Supreme Court explained the significance of Caterpillar in Oklahoma Tax Commission v. Graham, 489 U.S. 838 (1989). The Oklahoma Tax Commission sued the Chickasaw Nation to collect taxes on receipts from one of its enterprises, but the Nation, interposing the federal defense of tribal immunity, removed the case to federal court. The Tenth Circuit found removal appropriate because, even though the complaint did not raise a federal question, "such a question is inherent within the complaint because of the parties subject to this action." 489 U.S. at 840, quoting 846 F.2d at 1260. The Supreme Court unanimously rejected that argument in a peremptory per curiam opinion: In Caterpillar, we ruled that application of the well-pleaded complaint rule defeated federal question jurisdiction, and therefore removability, in a case in which the employees sued on personal state employment law contracts. We refused to characterize these state law claims as arising under federal law even though an interpretation of the collective bargaining agreement might ultimately provide the employer a complete defense to the individual claims, and even though employee claims on the collective bargaining agreement would have been the subject of original federal jurisdiction. The state law tax claims in the present case must be analyzed in the same manner. 489 U.S. at 841 (emphasis added). Caterpillar controls the removal issue in this case. As in Caterpillar, the plaintiff here alleges that his employer has violated a right apart from those created by the CBA. As in Caterpillar, the employer defends on the ground that the CBA between itself and the plaintiff's union gave it the right to discharge the plaintiff. And, as in Caterpillar, the employer removed the case from state to federal court on the theory that, because it is alleging that the CBA negates plaintiff's rights, and that, because the courts will have to examine the CBA in order to resolve that defense, the claim itself arises under section 301 and is removable. Therefore, as in Caterpillar, the defense does not transform the claim itself into a federal claim that is within the district court's original jurisdiction. Accord, Tisdale v. Plumbers Local 704, 25 F.3d 1308, 1313-1314 (6th Cir. 1994); Welch v. General Motors Corp., 922 F.2d 287, 291-292 (6th Cir. 1990); Local 57 v. Bechtel Power Corp., 834 F.2d 884, 889 (10th Cir. 1987). Nor is this analysis in any way inconsistent with Hanks v. General Motors, 859 F.2d 67 (8th Cir. 1988), after remand, 906 F.2d 341 (8th Cir. 1990). In Hanks, removal was based on diversity of citizenship, as well as a theory that section 301 preemption made it a federal question case, id. at 68, and so there was no need to discuss the propriety of removal. Instead, this Court's opinions in both appeals were devoted solely to the question whether Hanks' claims were preempted. And, by the same token, when the Court said in Hanks that preemption should be determined by reference to the defenses as well as the plaintiff's own claims, it was not speaking to the question of whether section 301 preemption based on a defense that implicated a CBA would be a sufficient basis for removal. Thus, this Court must follow the mandate of the Supreme Court in Caterpillar and Oklahoma Tax Commission, which forbid removal because of a defense based on a CBA. And, of course, the state courts may, on remand, consider Sequentia's preemption defenses.(4) E. Humphrey's Prayer for Relief Does Not Warrant Preemption and Removal of His Claim. Sequentia's final argument for removal based on preemption -- and the only ground for preemption endorsed by the district court, JA 111 -- is that Humphrey's prayer for injunctive relief included a phrase requiring that his reinstatement be subject to discharge with just cause. Humphrey's only legal protection against discharge without just cause is to be found in the CBA, not in state law; thus, the district court thought, his entire claim must necessarily be preempted by section 301. This argument fails for several reasons. First, Humphrey's prayer for relief asked only for reinstatement to the job he held before he was subjected to retaliation, subject to all of the seniority and other protections generally enjoyed by persons in that job. Humphrey recognized that, once restored to the status quo, he could still be fired for just cause, and he included that phrase in the prayer for relief to ensure that the requested injunction reinstating him would not bar a later discharge under the CBA. Moreover, there is no dispute between the parties that the CBA does, in fact, provide just cause protection, and hence there is no need to construe the CBA in order to decide whether restoration to such status is appropriate as a form of relief. In this respect, that part of Humphrey's complaint is squarely within the holding of Livadas v. Bradshaw, 114 S. Ct. 2068 (1994), where the Supreme Court decided that a state law cause of action for payment of wages is not preempted, even though the quantity of wages is determined solely by reference to the CBA itself. Similarly, many courts have held that retaliatory discharge claims are not preempted by section 301 or by ERISA even though the amount of damages must be calculated, at least in part, by reference to wage rates, vacations, and health and pension benefits that are established by a CBA or by an employee benefit plan. Burks v. Amerada Hess Corp., 8 F.3d 301, 306 and n.9 (5th Cir. 1993); Cooper v. Springfield Terminal Ry. Co., 635 A.2d 952, 955, 145 LRRM 2231 (Me. 1993); But even if section 301 preemption barred a court from granting one part of the relief sought by Humphrey, on the ground that such portion was dependent on resolution of a dispute about the meaning of the CBA, that would not compel preemption of the remainder of plaintiff's claim. As the Supreme Court said in Lingle v. Norge, the same case could contain questions governed by federal law under section 301, without the underlying state law claim being preempted. 486 U.S. at 413 n.12. Accord, Livadas v. Bradshaw, 114 S. Ct. 2068, 2078 n.18 (1994). Thus, the courts have held that, even if a portion of the relief sought is preempted by section 301, a claim is not completely preempted so long as some relief can properly be awarded, and consequently the case cannot be removed based on federal question jurisdiction. E.g., Anderson v. American Airlines, 2 F.3d 590, 597 (5th Cir. 1993). For all of the foregoing reasons, the court below erred in ruling that it had federal question jurisdiction over this case. Accordingly, all of its decisions relating to the merits of the case should be vacated, and the case should be remanded with instructions to remand it to state court.(5) Because the case was improperly removed from the Circuit Court of Jackson County, Missouri, the district court erred by ruling on the merits of this case. Its orders should be vacated, and the case remanded with instructions to remand the case to the court from which it was removed. Respectfully submitted,
Paul Alan Levy Alan B. Morrison Public Citizen Litigation Group
Thomas J. O'Brien
October 21, 1994 1. When he denied the motion to remand, the district judge indicated orally that his decision would be immediately appealable. Joint Appendix ("JA") at 145-146. Later, however, he declined to certify the case for appeal under 28 U.S.C. § 1292(b). JA 132. 2. The references in Humphrey's complaint which, according to Sequentia, implicate the CBA, simply anticipated Sequentia's defenses based on the CBA. As we discuss more fully in the next section of this brief, such defenses do not warrant removal, even if they were a sufficient basis for preemption of Humphrey's claims. And the law is clear that a plaintiff does not create a federal question by including allegations in his complaint that anticipate federal law defenses. Oklahoma Tax Commission v. Graham, 489 U.S. 838, 840-841 (1989). 3. The Court emphasized, that in characterizing Caterpillar's waiver argument as one arising under the CBA for purposes of argument, it was not intimating any view on the merits of the preemption claim itself. 482 U.S. at 398 n.13. 4. In this regard, we cannot agree with Sequentia's assertion, Br. at 16, that the state courts are a "black hole." We trust that they are equally able and willing to apply federal preemption defenses. Indeed, until corrected by the Supreme Court in Lingle, the state courts regularly held that retaliatory discharge claims were preempted. See cases cited in Cook v. Hussman Corp., 852 S.W.2d 342, 344 (Mo. banc. 1993). 5. Sequentia argues that injunctive relief cannot be awarded under section 287.780. Like the adequacy of Humphrey's evidence of retaliatory motive, this question is one that should be resolved by the Missouri courts on remand. In that regard, however, we note that the remedies available under section 287.780 are to be broadly construed in order to meet the evil at which the statute is directed. Reed v. Sale Mem. Hosp., 698 S.W.2d 931, 940 (Mo. App. 1985), and that other states allow injunctive relief against workers compensation retaliatory discharges. Hartlein v. Illinois Power Co., 209 Ill. App. 3d 948, 568 N.E.2d 520, 525 (1991), rev'd on other grd., 151 Ill.2d 142, 601 N.E.2d 720, 728 (1992). Moreover, the state court in this case was willing to award injunctive relief, in its one ruling before the case was removed. more resources
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