Jottings By An Employer's Lawyer

Monday, July 11, 2005

When 2/3 Of Your Panel Are Supreme Court Possibilities

Talk about a high powered panel. Depending on whose list and when you look at it, you have one on the 'short' list to replace Justice O'Connor in Judge Luttig and one on the at least "mentioned and recommended" list in Judge Wilkinson. So it it is interesting to see how they handle a question of federal jurisdiction, which in some respects is the first limitation on an activist judge.

Although it is a basic that was drilled into those of us who were fortunate to have Professor Bernie Ward for federal courts, it is nevertheless a mantra that needs repeating, federal courts are courts of limited jurisdiction. Thus the first decision a federal court must always make is whether it is empowered to hear the case.

Here the facts arise out of a wrongful termination suit brought by two ex-employees, one who claimed she was terminated when she refused to ask a friend who happened to be a deputy sheriff to arrest a union organizer. The suit was filed in state court, but removed to federal court by the employer who claimed that the wrongful discharge claim allegedly brought under West Virginia state law was pre-empted by federal law, namely the National Labor Relations Act.

The district court agreed and dismissed the wrongful termination claim, while remanding a state wage claim to the state courts. On appeal, the former employees challenged the dismissal. Judge Wilkinson drew the honors of explaining the difference between "total pre-emption", where state law is entirely displaced by federal law, thus giving the federal courts jurisdiction, and merely "pre-empted" by state law such that there may be a valid defense, but no federal jurisdiction. It sounds more complicated than it really is, as Judge Wilkinson is able to explain in his well crafted opinion. Lontz v. Tharp (4th Cir. 7/1/05) [pdf].

Judge Wilkinson makes his point on why this issue is important:
If this distinction amounted to deciding which court had the honor of dismissing the case, it might appear to be a dispute over trifles. But even if the structural allocation of authority could be dismissed as trivial, we think more is at stake. For instance, the removal-cum-dismissal urged by defendants is predicated on the assumption that sections 7 and 8 do in fact preempt the state law claims. But what if that assumption is faulty? Garmon itself made clear that not every state law claim that touches on sections 7 and 8 is in fact preempted. [cites omitted] If it turned out that the plaintiffs’ claims here are among those not preempted, removal and dismissal unconstitutionally deprive the plaintiffs of the opportunity to make their case, and deprive West Virginia of the right to vindicate its own non-preempted laws.
Ultimately what the Court hints may well happen is that the West Virginia court to which the case is being remanded will hold that the matter is pre-empted by the NLRA, under the so called Garmon pre-emption test, but that is for the state court to decide. Since there is not complete pre-emption, the federal court had no power to make that (or any other) decision.

Maybe not a big test, but for those looking for judges who understand the limits to their powers, clearly a passing score. My only complaint - Judge Wilkinson's use of "conflation," which while accurately used is a word whose time has come out of nowhere in the last few years, but at least for me, has more than worn out its welcome.

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