dissenting.
I dissent because the Judicial Code does not undertake to bring such an action as this within the original jurisdiction of the federal district courts. The pertinent statute, Section 1337 of the Judicial Code, provides that the district courts “shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce * * *.”
The right asserted by Serio as plaintiff in this case against the defendant union and its president is necessarily his right to continue as business agent pursuant to the union constitution and regulations. This is plainly a right created by state law. Federal law enters the picture only as a possible source of an affirmative defense. More particularly, the defendants may assert that a provision of the Landrum-Griffin Act, 1959, 73 Stat. 536, 29 U.S.C., Supp. II 1959-1960, § 504, makes it the union’s duty to discharge Serio. Of course by pleading in his complaint that this is the union’s legal position, plaintiff is merely anticipating a defense.
In such a situation we are bound by the repeated rulings of the Supreme Court that when a plaintiff’s “cause of action” or “claim for relief” is based on state law, the case is not one “arising under any Act of Congress” merely because defendant probably will invoke an affirmative defense based upon a federal statute. See Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194; Gully v. First National Bank, 1936, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Louisville & Nashville R. R. v. Mottley, 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; Metcalf v. Watertown, 1888, 128 U.S. 586, 9 S.Ct. 173, 32 L.Ed. 543. The Court reaffirmed this doctrine only a few weeks before the argument of the present appeal. See Pan American Petroleum Corp. v. Superior Court, 1961, 366 U.S. 656, 663-664, 81 S.Ct. 1303, 6 L.Ed.2d 584. Moreover, the language of the Pan American Petroleum case and the Skelly Oil case *392makes it clear that a plaintiff who asserts a right conferred by state law cannot bring his case within federal jurisdiction by pleading matter in anticipation of an affirmative defense that the defendant may assert under an Act of Congress.
I would, therefore, vacate the judgment below and remand the cause for dismissal for want of jurisdiction. It is not necessary to go beyond this question to express or discuss the very great difficulty I have in avoiding the conclusion that this is a collusive suit as against the union. It is also questionable whether the Secretary of Labor is suable here.