concurring:
Despite the lawyers’ obfuscating advocacy, the question in this case is straightforward: Does Interstate Petroleum’s complaint, or any amendment of it, constructive or otherwise, seek to vindicate or resolve a federal right for which Congress provided subject matter jurisdiction in the district court? The record indicates that no such right was ever at issue and therefore that the district court did not have subject matter jurisdiction over this case.
This jurisdictional issue does not concern whether a declaratory judgment action can be brought under the Petroleum Marketing Practices Act (“PMPA”) or whether Interstate Petroleum constructively amended its complaint. The question, rather, is whether Interstate Petroleum’s oral suggestion that it was seeking a declaratory judgment under the PMPA, without identifying any ' PMPA issue sought to be resolved, could justify the federal jurisdiction conferred by the PMPA even if we can assume that any such issue was pled, tried, or decided in this case. To me, the answer is clearly no.
While Morgan, d/b/a Green Acres Gas & Grocery (“Morgan”), was a franchisee, as that term is defined by the PMPA, see 15 U.S.C. § 2801(4), and Interstate Petroleum was similarly a franchisor, see id. § 2801(3), the dispute between them that was presented to the district court and decided by it was not one arising under the PMPA. Rather, as I demonstrate, the dispute was a garden variety breach-of-contract claim under state law over which the district court did not have subject matter jurisdiction.
At the outset, it is important to understand the scope of the PMPA and the scope of the federal interest protected by that Act. The PMPA was enacted “to protect petroleum franchisees from arbitrary or discriminatory terminations and nonre-newals.” Mobil Oil Corp. v. Va. Gasoline Marketers & Auto. Repair Ass’n, 34 F.3d 220, 223 (4th Cir.1994). It fulfilled its purpose by establishing “minimum Federal standards governing the termination and nonrenewal of franchise relationships for the sale of motor fuel by the franchisor or supplier of such fuel ... [by prohibiting] a franchisor from terminating or failing to renew a franchise without satisfying certain notice provisions and without stating a reason for termination sanctioned by the act.” Checkrite Petroleum, Inc. v. Amoco Oil Co., 678 F.2d 5, 7 (2d Cir.1982) (internal quotation marks and citations omitted). In Checkyite Petroleum, the plaintiff, who was a petroleum broker acting in the marketing chain between Amoco and Amoco’s dealers, sought to assert rights under the PMPA when it was terminated by Amoco. In concluding that the broker was not a “distributor” or “retailer” as used in the PMPA’s definition of “franchisee,” the court denied the broker a remedy, noting that the Act should be construed strictly because “the statute in question is in derogation of common law rights.” Id. at 8. The court observed that the legislative history of the Act expresses “no congressional intent to go beyond[its] plain terms.” Id. at 10.
It is only for vindication of the limited rights protected in 15 U.S.C. §§ 2802 and 2803 that the PMPA confers subject matter jurisdiction on district courts. Section 2805 authorizes a franchisee to “maintain a civil action against [a] franchisor [who violates 15 U.S.C. § 2802 or § 2803] ... in the district court[s] of the United States.” 15 U.S.C. § 2805(a).
The facts in this case do not present a case or controversy arising under the PMPA. Interstate Petroleum, by a contract with Morgan, dated April 29, 1993, agreed to sell Morgan gasoline on credit, provided that Morgan obtain a $31,500 ir*224revocable letter of credit. When Morgan failed to deliver the letter of credit and to satisfy its ongoing indebtedness to Interstate Petroleum, the parties entered into a “Mutual Consent to Termination Agreement,” dated December 12, 1994. In this second agreement, Morgan again agreed to make monthly payments against its indebtedness to Interstate Petroleum and to obtain a letter of credit, this time by January 1995. Again, Morgan breached its contractual undertakings, and Interstate commenced this action for breach of both contracts.
Even though Interstate Petroleum sought to rely on the PMPA for federal jurisdiction, no provision under the PMPA supported Interstate Petroleum’s claims for breach of contract. The PMPA provides limited rights to a franchisee who is terminated discriminatorily or without statutorily required notice. Moreover, in its complaint, Interstate Petroleum did not seek to resolve any claim that Morgan, as franchisee, had asserted under the PMPA. On the contrary, the pleadings indicate that the parties mutually agreed to terminate the relationship, rendering moot any PMPA issue, if one had ever been alive. Thus, the entire dispute between the parties in this case centered on Interstate Petroleum’s efforts to enforce its contractual rights in the two contracts with Morgan and to require Morgan to honor its financial commitments. It is therefore understandable that this case was commenced as a breach of contract claim, tried as a breach of contract claim, and decided as a breach of contract claim — facts that are conclusively established by the record.
First, in its complaint, Interstate Petroleum asserted solely a breach of contract claim, asking for damages and injunctive relief “as a direct and proximate result of Defendants’ breach of the Contract of Sale and continuous failure to specifically perform thereunder.” The complaint makes no reference to any PMPA right that had been asserted by Morgan and that Interstate Petroleum was trying to resolve. Moreover, Interstate Petroleum never filed a motion to amend its complaint to make such a reference. This is not surprising because there was no issue ever raised between the parties that the PMPA had been violated.
Second, when Interstate Petroleum presented the case to the jury, counsel for Interstate Petroleum described the nature of the action to the jury, describing it as a simple contract case:
When you go up to begin your deliberations, you will have with you a special verdict slip, which ultimately will be the papers that will reflect what you have decided to be your verdict in this case. There will be a series of a few questions for you to decide. The first question to you will be whether you find that the defendants, Robert and Vickie Morgan, breached their contract of sale with Interstate Petroleum, dated [April] 29, 1993. That was Exhibit 2 and you will have that to look at; and, also, whether they breached the subsequent termination agreement that the parties entered into. And you will recall the Morgans having executed that on December 12, 1994, and that is Exhibit Number 16.
(Emphasis added). In explaining to the jury its burden of proof, Interstate said that it must prove three things in order to recover, “That there was a contract, that the Morgans in this case breached a term or requirement of that contract, and we also have to prove Interstate’s losses and expenses, what in law is known as the damages in this case.” After completing his closing argument, counsel for Interstate Petroleum concluded with the same theme:
*225[O]n behalf of my clients, I would request that you enter your verdict in this case in favor of Interstate Petroleum, the plaintiff in this case, in an amount— after you find, the breach of contract has occurred, in an amount that you find to be fair and reasonable to • compensate my clients for the breach of promise and for their losses that they have sustained. Thank you very much, Ladies and Gentlemen.
(Emphasis added).
Third, in requesting jury instructions, Interstate Petroleum submitted requests to the court only on a breach-of-contract theory under West Virginia law. Its first request is typical:
You are instructed to assume that the defendants’ failure to provide an irrevocable letter of credit in this case constituted a material breach of their contract with the plaintiff, Interstate Petroleum Corporation. Accordingly, your sole task will be to determine the amount of damages which you find to be fair and reasonable in order to compensate Plaintiff, Interstate, for its losses, expenses and lost profits.
(Emphasis added).
Fourth, when the district court actually instructed the jury, it did so only on the common law of contracts. And, consistently, when it submitted the case to the jury, it gave the jury only one question to answer on liability, that for breach of contract:
Do you find that Robert C. Morgan and Vickie L. Morgan, d/b/a Green Acres Gas & Grocery, breached the Contract of Sale dated April 29, 1993, or the Termination Agreement dated December 12, 1994?
(Emphasis added).
Finally, the jury returned a verdict deciding only that Morgan had breached its contracts and awarding damages, and that verdict became the judgment in the case.
In short, any PMPA claim that Morgan may have had or that Interstate Petroleum may have said it wanted to resolve through a declaratory judgment was never pled in any complaint or amended complaint, never tried to the jury, never decided by the jury, and never reflected in any judgment. From beginning to end, the case was a state common-law breach-of-contract case.
The dissenting opinion suggests that the parties reached an agreement to amend the pleadings and try the case as a declaratory judgment action under the PMPA. While there can be no doubt that the parties discussed a declaratory judgment under the PMPA and even agreed that Interstate Petroleum could have a PMPA issue resolved in the case, presumably in an attempt to agree on subject matter jurisdiction, no such issue under the PMPA was ever articulated; indeed none existed for articulation. There simply was no PMPA case or controversy. And even if there were such a controversy, the discussions between counsel and the court never matured into anything more than just talk. And their talk is all that the dissenting opinion parades. Critically absent from the dissent’s discussion about whether this was a federal case is the articulation of a viable issue under the PMPA. Even then, none was ever pleaded, tried, argued, or decided. Any federal claim suggested by the dissent is therefore a phantom claim based on an unknown issue.
This case does not involve a case or controversy under federal law, nor does it have the clear invocation of federal subject matter jurisdiction that we require. There is no statement of a claim or dispute over a claim relating to any violation by Interstate Petroleum of 15 U.S.C. § 2802 or § 2803, the only claims over which the *226PMPA gives federal courts jurisdiction. See 15 U.S.C. § 2805(a). Because there was no claim arising under the PMPA, the district court never had federal jurisdiction, and it could not have entered the judgment in this case. Accordingly, I concur in the majority opinion and judgment.