United States Court of Appeals
For the First Circuit
Nos. 03-2352
03-2551
LOCAL UNION NO. 12004, UNITED STEELWORKERS OF AMERICA; STEPHEN T.
BRADLEY; GARY S. BUMA; PAUL P. EDMONDS; CHARLES H. GRANT, JR.;
RAYMOND LAHAIR, JR.; CHARLES McNEIL; RONALD F. MEZZANO; THOMAS
NUGENT; and THOMAS ST. PIERRE,
Plaintiffs, Appellants / Cross-Appellees,
v.
COMMONWEALTH OF MASSACHUSETTS, MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION; DORCA I. GOMEZ, Commissioner for the
Massachusetts Commission Against Discrimination; WALTER J.
SULLIVAN, JR., Commissioner for the Massachusetts Commission
Against Discrimination; and CYNTHIA A. TUCKER, Commissioner for
the Massachusetts Commission Against Discrimination,
Defendants, Appellees,
PETER D. McGRATH,
Defendant, Appellee / Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Lynch, Circuit Judge.
*
Of the Court of Appeals for the Tenth Circuit, sitting by
designation.
Rudolph Milasich, with whom Harold L. Lichten, Terence E.
Coles, and Pyle, Rome, Lichten & Ehrenberg, P.C. were on brief, for
appellants/cross-appellees.
Robert L. Quinan, Jr., Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for the
Massachusetts appellees.
Donald C. Keavany, Jr., with whom Christopher, Hays, Wojcik &
Mavricos was on brief, for appellee/cross-appellant McGrath.
Michele Granda, Charles P. Wagner, and Charles P. Wagner &
Assocs. were on brief for amici curiae Gay & Lesbian Advocates &
Defenders (GLAD) and the Massachusetts Lesbian & Gay Bar
Association.
July 30, 2004
LYNCH, Circuit Judge. A labor union and several of its
individual members (the Union) seek declaratory and injunctive
relief against the Massachusetts Commission Against Discrimination
(MCAD) to prevent the MCAD from adjudicating a charge of
discrimination by a supervisor against the Union that arose out of
a labor dispute. The sole basis for the Union's federal complaint
is its contention that the MCAD proceeding is preempted by federal
labor law under San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), and related doctrines. The district court
dismissed the complaint for lack of subject-matter jurisdiction.
We reverse and remand for further proceedings consistent with this
opinion.
I.
For purposes of this appeal, we accept as true the well-
pleaded factual allegations in the Union's complaint and draw all
reasonable inferences from those allegations in its favor. Soto-
Negron v. Taber Partners I, 339 F.3d 35, 38 (1st Cir. 2003). Where
the federal complaint is silent, additional details are drawn from
the allegations in the verified complaint filed with the MCAD.
The incidents underlying this case occurred in April
1996, when Commonwealth Gas Company (ComGas) was embroiled in a
bitter labor dispute. Local Union No. 12004 of the United
Steelworkers of America, AFL-CIO (Local 12004), was negotiating a
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successor collective bargaining agreement on behalf of its members,
who are a "bargaining unit" of production and clerical employees.
On April 1, 1996, when the previous collective bargaining
contract expired, ComGas ordered a lockout of all employees who
were members of Local 12004. Local 12004 responded with a
concerted picketing campaign against the company. In addition to
picketing at ComGas facilities, Local 12004 sent some of its
members to set up picket lines at off-site areas where crews
composed of ComGas supervisors and contractors were performing work
ordinarily done by Local 12004 members. The purpose of these
worksite picket lines was "to convince the[] supervisors and
contractors not to perform work and services for ComGas that were
considered to be bargaining unit work."
One of the ComGas supervisors assigned to perform this
bargaining-unit work was Peter McGrath. McGrath, who is gay, was
ordinarily employed as a manager for commercial and industrial
sales at the company's Southboro, Massachusetts headquarters.
Shortly after the lockout began, ComGas instructed McGrath to
assist a distribution crew in Worcester, Massachusetts. The
distribution crew was charged with investigating and repairing
underground gas leaks in the Worcester area, work normally done by
Local 12004 members.
When McGrath's crew started this work, Local 12004
members followed the crew and picketed its worksites. The picket
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lines were rowdy and vulgar. The Union's complaint candidly
describes the pickets' behavior: "The locked out employees would
comment on how fat the scabs were, their lack of intelligence, what
kinds of families they must have come from, their lack of sexual
prowess, and their sexual orientation." All of this, according to
the Union, was calculated to persuade the distribution crew,
including McGrath, not to perform bargaining-unit work during the
lockout.
On May 7, 1996, McGrath filed an action in Massachusetts
Superior Court against the Local 12004 members who had shouted
sexually derogatory comments at him, asserting both Massachusetts
common law and statutory claims. According to the Union, ComGas
funded McGrath's state lawsuit and even provided an attorney to
represent him. Approximately one month later, McGrath filed a
verified complaint against the same Local 12004 members in the MCAD
alleging discrimination on the basis of sexual orientation.
Unusually, the literal terms of the Massachusetts employment
discrimination statute appear to extend to discrimination by lower-
ranked union employees against a supervisor in this context.1
1
The statute makes it unlawful "[f]or a labor organization,
because of . . . sexual orientation . . . to discriminate in any
way against . . . any individual employed by an employer." Mass.
Gen. Laws ch. 151B, § 4(2). It is not immediately clear whether
this prohibition also regulates the conduct of individual members
of a labor organization. But the statute also provides that it is
unlawful "[f]or any person to coerce, intimidate, threaten, or
interfere with another person in the exercise or enjoyment of any
right granted or protected by this chapter." Id. § 4(4A). Taken
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The lockout ended on September 8, 1996, when ComGas and
Local 12004 agreed to a new collective bargaining agreement. The
pickets went back to work and McGrath was subjected to no further
abuse or harassment. Nothing had yet happened in McGrath's state
court litigation, and McGrath voluntarily dismissed that complaint.
The voluntary dismissal, it seems, was part of a general settlement
between ComGas and Local 12004 in which each side agreed to
encourage its members to dismiss pending judicial complaints based
on the dispute.
McGrath did not, however, withdraw his MCAD complaint.
On the contrary, McGrath filed a new verified complaint with the
MCAD in November 1996, this time including Local 12004 itself and
one more individual member (Thomas Nugent) as additional
respondents. The complaint alleged that Local 12004 members had
subjected McGrath to a "continuing pattern of speech and behavior
. . . which is intimidating, threatening and harassing, and which
constitutes discrimination based on sex and sexual orientation."
It further alleged that Local 12004's leadership was aware of the
pickets' "unlawful" behavior and failed to take any action to
prevent it. According to the Union, ComGas funded McGrath's MCAD
in conjunction with the right not to be discriminated against "in
any way" by a union, this provision appears to prohibit individual
acts of discrimination when they are performed by lower-level
subordinates who are acting as agents of the union. This analysis
is consistent with the MCAD's decision, which relied on Beaupre v.
Smith, 50 Mass. App. Ct. 480, 491-92 (2000).
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complaint despite the end of the lockout and continued to fund the
litigation through 2000.
McGrath's two MCAD complaints describe in detail the
verbal abuses to which he was subjected. Most were simply crude
remarks on his sexual orientation.2 However, several comments
involved what McGrath says are false and potentially damaging
assertions -- for example, "Hey, watch out, he's got AIDS, he has
probably given half you guys AIDS by now," and "Look how small
these guys are. You look like little boys. You and Pete [McGrath]
should get together because he likes little boys." In addition,
several of the comments involved physical threats. Some of these
were only vaguely threatening, and may or may not have been
intended as threats of violence (e.g., "Do you want some K-Y up
that hole, sweetie?" or "I might like a piece of that ass myself").
Two incidents described in the MCAD complaints, however,
involved apparently dangerous and threatening conduct. On April 7,
1996, several Local 12004 members allegedly chased McGrath in their
vehicles for several miles. When they finally caught him, they
banged on the side of McGrath's vehicle, pushed the side-view
mirror into the window, and shouted threats that included "We will
put you in a box" and "I will pull your mustache off, you faggot."
2
Examples include "faggot"; "Nice earring, faggot, do you
have a lot more at home?"; "Look in the hole, two scabs and a fag";
"Nice ass, are you going to wear a speedo when you go to
Provincetown this summer?"; and similar fare.
-7-
On another occasion, an unidentified Local 12004 member poured a
liquid onto McGrath's back, causing a burning sensation.
The Union and its members say they filed a motion to
dismiss the MCAD complaint on preemption grounds shortly after the
complaints were filed. In any event, over two years later, on July
9, 1999, an investigating commissioner of the MCAD issued a
probable cause finding3 against the Union and ordered that the case
proceed to a public hearing. The commissioner certified three
questions to the full Commission for determination, including: "Is
the complaint pre-empted by the National Labor Relations Act as
interpreted in San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959)?"4
The full Commission answered the certified questions on
December 11, 2001, holding that MCAD's jurisdiction to adjudicate
McGrath's complaint was not preempted by Garmon. The Commission
acknowledged that, under Garmon, states have no authority to
regulate conduct that is arguably protected under § 7 or arguably
3
Under MCAD procedure, the investigating commissioner must
issue a probable cause finding "[i]f, after appropriate
investigation, the Investigating Commissioner determines that there
is sufficient evidence to support a finding of Probable Cause to
credit the allegations of the complaint." Mass. Regs. Code tit.
804, § 1.15(7)(b). For these purposes, probable cause requires
"sufficient evidence upon which a fact-finder could form a
reasonable belief that it is more probable than not that the
respondent committed an unlawful practice." Id. § 1.15(7)(a).
4
The remaining two questions involved the Union's liability
for harassing acts by its members and the personal liability of
individual employees for harassment based on sexual orientation.
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prohibited under § 8 of the National Labor Relations Act (NLRA).
Cf. Garmon, 359 U.S. at 245-47. Nevertheless, the Commission held
that McGrath's allegations of harassment and threats of violence
implicated the Commonwealth's "compelling state interest in the
maintenance of domestic peace," an interest that the Garmon Court
recognized as a legitimate basis for state regulation. Cf. id. at
247. Further, the Commission held that it was not barred from
considering the Union's less threatening verbal abuses of McGrath
because, the Commission concluded, the NLRA does not protect
racial, ethnic, or homophobic slurs. It also found that McGrath
could not have complained about the conduct to the NLRB.5 Lastly,
the Commission concluded that McGrath's complaint stated a claim
against Local 12004 itself because it provided a sufficient basis
to conclude that the organization knew of its members' harassment
of McGrath and, in effect, ratified their conduct. At present, the
MCAD order has no preclusive effect.6
5
As we explain in Part III, the MCAD's conclusions that the
NLRA does not protect racial, ethnic or homophobic slurs and that
McGrath could not have complained about some of the Union conduct
are both flatly wrong.
6
Because the MCAD proceeding has not reached final judgment,
the Union is not presently blocked by the Massachusetts doctrine of
collateral estoppel from relitigating the issue of Garmon
preemption in federal court. See Martin v. Ring, 514 N.E.2d 663,
664 (Mass. 1987) (collateral estoppel requires, inter alia, a final
judgment on the merits). Massachusetts courts do accord final
decisions of the MCAD preclusive effect, however, so the ultimate
outcome of the MCAD proceeding may well bind the Union in any
subsequent federal court action. See Brunson v. Wall, 541 N.E.2d
338, 340-41 (Mass. 1989).
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More than a year later, on February 27, 2003, having
litigated the preemption question in the MCAD and lost, the Union
filed this action in federal district court. The complaint named
as defendants the MCAD, three MCAD commissioners, and Peter
McGrath. The Union sought a declaratory judgment that the MCAD
proceeding was preempted both under Garmon and under Lodge 76,
International Association of Machinists v. Wisconsin Employment
Relations Commission, 427 U.S. 132 (1976) (hereinafter Machinists),
and an injunction prohibiting the Commission from taking further
action on McGrath's complaint. It also asserted a right to
injunctive relief for preemption under 42 U.S.C. § 1983. In
response, McGrath moved to dismiss the case on Younger abstention
grounds. Younger v. Harris, 401 U.S. 37 (1971). The Commonwealth
of Massachusetts, on behalf of the MCAD and its commissioners,
likewise moved to dismiss for lack of subject-matter jurisdiction
or, in the alternative, for abstention under Younger.
On August 5, 2003, the district court held that it lacked
subject-matter jurisdiction over the Union's complaint. It
reasoned that the Union's preemption claims are inherently
defensive and thus that, under the "well-pleaded complaint" rule,
the case did not arise under the laws of the United States.
Nevertheless, the court went on in dicta to offer the Union
"reassurance" on the merits of its Garmon preemption argument,
opining at length on the relationship between federal labor law and
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state tort law and expressing "confiden[ce]" that the MCAD would
take account of that relationship in adjudicating McGrath's
complaint. The court did not address the question of Younger
abstention.
The Union filed this appeal on September 22, 2003,
approximately two weeks after the thirty-day period for filing an
appeal had expired. See Fed. R. App. P. 4(a). On the Union's
motion, the district court granted an extension of time to file.
McGrath (but not the Commonwealth) cross-appeals the district
court's decision to grant the extension.
II.
A. Timeliness of Appeal
Before addressing the district court's subject-matter
jurisdiction, we must tend to our own. The timely filing of a
notice of appeal is "mandatory and jurisdictional." Browder v.
Dir., Dep't of Corr., 434 U.S. 257, 264 (1978). Nevertheless, the
district court may extend the deadline in limited circumstances
upon a showing of "excusable neglect or good cause." Fed. R. App.
P. 4(a)(5)(A)(ii); Bennett v. City of Holyoke, 362 F.3d 1, 4 (1st
Cir. 2004).
In this case, the thirty-day period expired on September
8, 2003. On September 22, fourteen days later, the Union filed its
notice of appeal and attached a motion for an extension of time.
McGrath opposed the motion; the other defendants did not. The
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district court granted it without comment. McGrath now cross-
appeals the court's order allowing the plaintiffs to file late. We
review a district court's decision to grant an extension of time
under Rule 4(a)(5) for abuse of discretion. Bennett, 362 F.3d at
4.
The grant of the extension was within the discretionary
power of the district court and was not abusive. According to the
Union's Rule 4(a)(5) motion and the attached affidavit, the
attorney who was responsible for preparing the notice of appeal was
preoccupied by the need to care for his infant son, who was
severely ill. Though counsel drafted the notice of appeal before
the thirty-day period expired, he failed to file it. The attorney
represented that he did not become aware of this error until
September 18, 2003, ten days after the original deadline. McGrath
says that these circumstances do not amount to "excusable neglect"
because the plaintiffs were represented by multiple attorneys
throughout the case and so the incapacity of one attorney should
not have prevented a timely filing. There is some force to that
argument, and the district court would not have abused its
discretion if it had denied the Union's Rule 4(a)(5) motion on that
basis. But the court opted to grant the motion instead, and given
the relative brevity of the delay, the attorney's plausible and
uncontested explanation for it, the absence of any discernible
prejudice, and the fact that the Massachusetts defendants did not
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oppose the motion, we conclude that the trial judge did not abuse
her discretion by doing so. See id. at 5 (deferring to the
district court's decision to grant an extension under Rule
4(a)(5)); United States v. Carson, 52 F.3d 1173, 1180 (2d Cir.
1995) (similar); Redfield v. Cont'l Cas. Corp., 818 F.2d 596, 604
& n.3 (7th Cir. 1987) (similar); see also 16A Wright, Miller, &
Cooper, Federal Practice & Procedure § 3950.3 (3d ed. 2004)
("Whether to grant an extension rests largely in the discretion of
the district court. If it finds excusable neglect or good cause
and grants an extension, the court of appeals should not
second-guess this determination and in this way defeat the appeal
. . . .").
B. Subject-Matter Jurisdiction
We turn to the question whether the Union's complaint
triggered the subject-matter jurisdiction of the district court.
Our review is de novo. Stewart v. Tupperware Corp., 356 F.3d 335,
337 (1st Cir. 2004). For the reasons that follow, we hold that the
action arises under federal law for purposes of 28 U.S.C. § 1331
and thus that the district court did have subject-matter
jurisdiction over the case.
1. Preemption Claims
Although styled as a complaint for declaratory judgment,
the Union's complaint in fact seeks both declaratory and injunctive
relief and, in Count II, asserts a claim directly under 42 U.S.C.
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§ 1983. For our purposes, the label of declaratory or injunctive
relief does not much matter. Though the declaratory judgment
device reverses the formal positions of the parties, it does not
alter the rules of federal jurisdiction. Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Accordingly, the
rule in declaratory judgment actions is that "if, but for the
availability of the declaratory judgment procedure, the federal
claim would arise only as a defense to a state created action,
jurisdiction is lacking." Franchise Tax Bd. v. Constr. Laborers
Vacation Tr., 463 U.S. 1, 16 (1983) (quoting 10A Wright, Miller, &
Kane, Federal Practice & Procedure § 2767 (2d ed. 1983)); see also
Penobscot Nation v. Georgia-Pacific Corp., 254 F.3d 317, 321 (1st
Cir. 2001); Playboy Enters., Inc. v. Pub. Serv. Comm'n, 906 F.2d
25, 30 (1st Cir. 1990). So we must determine whether the Union
could assert its preemption claims in a direct action against one
or more of the defendants (i.e., whether the claims could arise in
a non-defensive posture in a non-declaratory action).
The district court dismissed the Union's complaint
because it believed, erroneously, that the Union's preemption
claims are inherently defensive. It is true that "[o]rdinarily
federal pre-emption is raised as a defense to the allegations in a
plaintiff's complaint." Caterpillar, Inc. v. Williams, 482 U.S.
386, 392 (1987) (emphasis added). In such cases, the preemption
defense, even if valid, does not convert the action into one that
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"arises under" federal law for purposes of § 1331. "By
unimpeachable authority, a suit . . . does not arise under an act
of Congress or the Constitution of the United States because
prohibited thereby." Gully v. First Nat'l Bank, 299 U.S. 109, 116
(1936); see Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6
(2003); Caterpillar, 482 U.S. at 393; Franchise Tax Bd., 463 U.S.
at 12.
In many ways, this is simply an application of the "well-
pleaded complaint rule."7 Under that rule, with rare exceptions,
"a suit arises under the Constitution and laws of the United States
only when the plaintiff's statement of his own cause of action
shows that it is based upon those laws or that Constitution."
Beneficial Nat'l Bank, 539 U.S. at 6 (quoting Louisville &
Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)); Penobscot
Nation, 254 F.3d at 321-22. Where a defendant raises preemption as
a defense to a state-law cause of action, "[t]he most one can say
is that a question of federal law is lurking in the background,
just as farther in the background there lurks a question of
7
At oral argument, the parties phrased their arguments in
terms of whether the well-pleaded complaint rule "applies" to the
Union's complaint. That rubric is inapt: the well-pleaded
complaint rule is simply a rule for applying 28 U.S.C. § 1331. It
"applies" in every case in which subject-matter jurisdiction is
asserted under that statute, both in actions originally filed in
federal court and in those removed from state court. See Franchise
Tax Bd., 463 U.S. at 10 n.9. The question in this case is not
whether the rule applies but whether its requirements are
satisfied.
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constitutional law, the question of state power in our federal form
of government." Gully, 299 U.S. at 117. For this reason, a
defendant may not remove a state lawsuit to federal court by
asserting a preemption defense, "even if both parties admit that
the defense is the only question truly at issue in the case."
Franchise Tax Bd., 463 U.S. at 14. This principle is subject to a
few exceptions not applicable here, notably the doctrine of
"complete preemption." See generally Beneficial Nat'l Bank, 539
U.S. at 6-8.
A claim that a state regulation is preempted by a federal
statute, however, need not always arise as a defense when
injunctive relief is sought against state officials. See Franchise
Tax Bd., 463 U.S. at 12 n.12. A plaintiff may assert federal
preemption as an affirmative cause of action to enjoin state
officials from interfering with federal rights. In that context,
a claim of preemption -- though ultimately "defensive" in the sense
that it seeks to prevent harms threatened by state officials --
does constitute a federal question under § 1331. The Supreme Court
expressly approved of such claims in a footnote in Shaw v. Delta
Air Lines, Inc., 463 U.S. 85 (1983):
It is beyond dispute that federal courts have
jurisdiction over suits to enjoin state officials from
interfering with federal rights. See Ex parte Young, 209
U.S. 123, 160-62 (1908). A plaintiff who seeks
injunctive relief from state regulation, on the ground
that such regulation is pre-empted by a federal statute
which, by virtue of the Supremacy Clause of the
Constitution, must prevail, thus presents a federal
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question which the federal courts have jurisdiction under
28 U.S.C. § 1331 to resolve.
Id. at 96 n.14; see also Franchise Tax Bd., 463 U.S. at 20 n.20.
Since Shaw, the Supreme Court has decided a variety of cases that
fit within this jurisdictional principle. See Sloss,
Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev.
355, 380 & n.141 (2004) (collecting cases).
Here, the district court relied not on Shaw but on Public
Service Commission v. Wycoff Co., 344 U.S. 237 (1952). The two
cases are admittedly difficult to reconcile. In Wycoff, the
Supreme Court held that a declaratory judgment action against a
state utility commission did not involve a justiciable controversy.
Id. at 245. Though it declined to reach the question of statutory
subject-matter jurisdiction, the Court added the following oft-
quoted dictum:
Where the complaint in an action for declaratory judgment
seeks in essence to assert a defense to an impending or
threatened state court action, it is the character of the
threatened action, and not the defense, which will
determine whether there is federal-question jurisdiction
in the District Court.
Id. at 248 (emphasis added). This circuit has adhered to the
Wycoff dictum in the past. See Nashoba Communications Ltd. P'ship
No. 7 v. Town of Danvers, 893 F.2d 435, 437-38 (1st Cir. 1990);
Colonial Penn Group, Inc. v. Colonial Deposit Co., 834 F.2d 229,
233 (1st Cir. 1987); Greenfield & Montague Transp. Area v. Donovan,
758 F.2d 22, 26-27 (1st Cir. 1985). We have also recognized the
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tension between Wycoff and the Shaw footnote. See Playboy Enters.,
906 F.2d at 30 (noting that the Supreme Court in Shaw recognized
jurisdiction over claims apparently precluded by Wycoff "[w]ithout
explaining exactly why").
This history does not matter. A recent Supreme Court
case eliminates any doubt about the vitality of the Shaw footnote.
In Verizon Maryland Inc. v. Public Service Commission, 535 U.S. 635
(2002), a telephone company sued a state public utility commission
in federal court. Id. at 640. The complaint sought declaratory
and injunctive relief against the commission, alleging that an
order that the commission had issued against the company was
preempted by federal law. Id. The court of appeals held that the
company's complaint did not present a federal question under
§ 1331. Id. Citing Shaw, the Supreme Court reversed:
We have no doubt that federal courts have jurisdiction
under § 1331 to entertain such a suit. Verizon seeks
relief from the Commission's order "on the ground that
such regulation is pre-empted by a federal statute which,
by virtue of the Supremacy Clause of the Constitution,
must prevail," and its claim "thus presents a federal
question which the federal courts have jurisdiction under
28 U.S.C. § 1331 to resolve."
Id. at 642 (quoting Shaw, 463 U.S. at 96 n.14).
In light of Verizon, the district court in this case
plainly had subject-matter jurisdiction over the Union's complaint.
Like the plaintiff in Verizon, the Union has sued a state
administrative agency for declaratory and injunctive relief,
alleging that the agency has acted in a manner inconsistent with
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federal law. This is not merely the assertion of a federal issue
that, but for the declaratory judgment device, would arise only as
a defense to a state-law cause of action. Verizon and Shaw make
clear that in suits against state officials for declaratory and
injunctive relief, a plaintiff may invoke the jurisdiction of the
federal courts by asserting a claim of preemption, even absent an
explicit statutory cause of action.8
2. Section 1983
There is a further reason why the district court erred in
dismissing the action. The Union's complaint contains two separate
counts: Count I asserts a direct cause of action for preemption,
and Count II asserts a cause of action for preemption under 42
U.S.C. § 1983. The district court's decision did not address the
§ 1983 count.
Almost by definition, a claim under § 1983 arises under
federal law and will support federal-question jurisdiction so long
as it does not "clearly appear[] to be immaterial and made solely
for the purpose of obtaining jurisdiction." Bell v. Hood, 327 U.S.
678, 682-83 (1946); see Penobscot Nation, 254 F.3d at 322. Of
course, § 1983 does not itself confer substantive federal rights;
8
See also Fallon, Meltzer, & Shapiro, Hart & Wechsler's The
Federal Courts & The Federal System 903 (5th ed. 2003) ("While
there may be some lack of harmony in the case law, the rule that
there is an implied right of action to enjoin state or local
regulation that is preempted by a federal statutory or
constitutional provision -- and that such an action falls within
the federal question jurisdiction -- is well-established.").
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it simply provides a remedy for their deprivation. See Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979). So the
Union's § 1983 claim will support jurisdiction in this case if it
colorably asserts that the MCAD deprived the Union of a specific
"right[], privilege[], or immunit[y] secured by the Constitution
and laws." 42 U.S.C. § 1983.9
We conclude that it does. The Supreme Court held in
Golden State Transit Corp. v. City of Los Angeles (Golden State
Transit II), 493 U.S. 103 (1989), that the Supremacy Clause is not
itself a source of rights enforceable under § 1983. See id. at
107. Still, a plaintiff wishing to assert a claim of preemption
may nevertheless invoke § 1983 if the allegedly preempting federal
statute does create such a right. See id. at 107 n.4; Playboy
Enters., 906 F.2d at 32. That test is readily satisfied here. The
Union alleges that the MCAD's adjudication of McGrath's complaint
is preempted not only under Garmon but also under the Machinists
9
The fact that the Union's § 1983 claim may support subject-
matter jurisdiction, of course, does not mean that the relief
sought in Count II is available. In 1996, Congress amended 42
U.S.C. § 1983 to provide that "in any action brought against a
judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable." Federal Courts Improvement Act of 1996, Pub. L. No.
104-317, § 309(c), 110 Stat. 3853. Because there has been no prior
declaratory decree in this case, the Union is not entitled to
injunctive relief on its § 1983 claim against the MCAD
commissioners. But because the Union could in theory be entitled
to declaratory relief, the § 1983 claim may still support federal
jurisdiction.
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doctrine, which recognizes that the NLRA specifically confers on
employers and employees a right to be free from governmental
regulation of the "peaceful methods of putting economic pressure on
one another." Machinists, 427 U.S. at 154. Such a claim is not
frivolous on the facts of this case, given that the MCAD has
asserted jurisdiction to regulate the conduct of Union members
picketing during a labor dispute. And in Golden State II, the
Supreme Court held that the Machinists doctrine embodies a
substantive right under the NLRA that Congress intended to be
enforceable under § 1983. See 493 U.S. at 111-13; see also Livadas
v. Bradshaw, 512 U.S. 107, 133-34 (1994).
Accordingly, because the Union's § 1983 claim is not
"immaterial and made solely for the purpose of obtaining
jurisdiction," Bell, 327 U.S. at 682-83, it is sufficient to confer
federal-question jurisdiction under 28 U.S.C. § 1331.10
III.
Having determined that the district court erred in
dismissing the Union's complaint for lack of subject-matter
jurisdiction, we must turn next to the question whether, under the
doctrine of Younger, the district court should decline to exercise
jurisdiction in deference to the ongoing MCAD proceedings. Because
10
To be clear, we do not hold that the Union is entitled to
prevail on its Machinists preemption claim. We simply hold that
Count II of the Union's complaint asserts a non-frivolous claim for
relief under 42 U.S.C. § 1983 and, consequently, is sufficient to
support federal-question jurisdiction.
-21-
the district court found that it lacked subject-matter
jurisdiction, it did not reach the issue of Younger abstention,
though it did address the substantive question of preemption.11
Two different categories of exceptions to Younger are
potentially involved here. The first is the exception for state
court proceedings brought in bad faith. See Huffman v. Pursue,
Ltd., 420 U.S. 592, 611-12 (1975). The second concerns the
exceptions to Younger that arise out of the preemption doctrine and
the strong national interest in the uniformity of labor laws. See
New Orleans Public Service, Inc. v. City of New Orleans, 491 U.S.
350, 367 (1989) ("NOPSI"). As to the latter, the Younger analysis
is in the end a question of who should decide whether there is some
form of preemption by the federal labor laws: the state courts on
review of any MCAD order, subject to review by certiorari in the
Supreme Judicial Court, or the federal courts, which also have
jurisdiction over the matter. We say "some form" of preemption
because two types of preemption may be implicated by the MCAD
proceedings. First, there is the more typical issue of whether
federal substantive labor law conflicts with Massachusetts law
concerning the legality of the Union's conduct. See, e.g., Golden
11
Even if the district court had determined that it possessed
subject-matter jurisdiction, that ordering of analysis would not be
appropriate. Ordinarily, the Younger question must be decided
before decision on the merits of the underlying claim. See Hicks
v. Miranda, 422 U.S. 332, 346 (1975). The district court correctly
perceived, though, that the Younger and preemption issues are
related.
-22-
State Transit Corp. v. City of Los Angeles (Golden State I), 475
U.S. 608, 614 (1986). Second, there is the fundamentally different
question of Garmon "forum preemption," which concerns whether both
state and federal tribunals (including the MCAD) must "defer to the
exclusive competence of the [NLRB]." Garmon, 359 U.S. at 245.
There is no Supreme Court case directly on point as to the
intersection between Younger and Garmon. The most analogous case
from this circuit, Chaulk Servs., Inc. v. Mass. Comm'n Against
Discrimination, 70 F.3d 1361 (1st Cir. 1995), found Younger
abstention to be inappropriate in a similar, but not identical,
situation. Id. at 1370. Potentially, though, there are
significant differences between Chaulk Services and this case that
may or may not require a different result here.
As all of this suggests, resolution of the Younger
abstention question is extremely complicated. It turns on the
interplay of several different doctrines, including Younger itself,
the exception to Younger for "facially conclusive" preemption that
is left open in NOPSI, and the doctrine of "forum preemption"
established in Garmon. It also may well depend on the answer to
several questions that have not been briefed by any of the parties
and on information not available to us.
For these reasons, we remand the case for further
proceedings on the question of Younger abstention rather than
decide the issue on a blank slate. In the interests of providing
-23-
guidance to the parties and the district court, we frame the basic
issues. At first blush, this case might seem an easy one for
Younger abstention. Under the framework announced by the Supreme
Court in Middlesex County Ethics Committee v. Garden State Bar
Association, 457 U.S. 423 (1982), Younger abstention is ordinarily
required if (1) there is an ongoing state judicial proceeding
involving the federal plaintiff that (2) implicates important
state interests and (3) provides an adequate opportunity for the
federal plaintiff to assert his federal claims. See id. at 432;
Brooks v. N.H. Supreme Court, 80 F.3d 633, 638 (1st Cir. 1996).
The first and third requirements appear to be satisfied here; the
second is tied into the analysis below. But there are several
potentially applicable exceptions to Younger that frustrate any
simple resolution of the issue.
First, abstention under Younger is not appropriate for
prosecutions that are brought in bad faith. Huffman, 420 U.S. at
611 ("Younger . . . do[es] of course allow intervention in those
cases where the District Court properly finds that the state
proceeding is motivated by a desire to harass or is conducted in
bad faith . . . ."). The Union has argued that McGrath's complaint
with the MCAD meets the requirements for this exception. It claims
that ComGas, which it says actively funded the suit through 2000,
is using it as an "economic weapon . . . to harass the picketing
union members and Local 12004" and to evade the requirements of the
-24-
NLRA. They say that the Supreme Court specifically warned against
such behavior in Linn v. United Plant Guard Workers, 383 U.S. 53,
64 (1966). This argument is not a frivolous one; it is
fundamentally fact-bound and should be decided upon in the first
instance by the district court.
The second exception to Younger that may be applicable
here is significantly more complicated, and involves Younger's
requirement that the state judicial proceeding implicate an
important state interest. In NOPSI, the petitioner argued that
Younger does not require abstention in the face of a "substantial"
preemption claim because the state has no legitimate interest in
conducting a preempted proceeding. 491 U.S. at 364. Although the
Supreme Court rejected that argument, it left open the possibility
that Younger abstention might not be appropriate when a claim of
preemption is not merely "substantial" but "facially conclusive."
See id. at 367 (emphasis in original). Since NOPSI, cases from
both this circuit and other circuits have endorsed the existence of
this "facially conclusive" preemption exception to Younger.
Midwestern Gas Transmission Co. v. McCarty, 270 F.3d 536, 539 (7th
Cir. 2001); Communications Telesystems Int'l v. Cal. Pub. Util.
Comm'n, 196 F.3d 1011, 1017 (9th Cir. 1999); Chaulk Servs., 70 F.3d
at 1370.
The Union argues that this exception to Younger applies
here because it is "facially conclusive" that the MCAD proceedings
-25-
were preempted, because all12 of the conduct involved was "arguably
protected" or "arguably prohibited." It is not surprising that the
Union focuses on Garmon "forum preemption," as it is the broadest
form of preemption in this context. Under Garmon, when conduct is
either "arguably protected" by § 7 or "arguably prohibited" by § 8
of the NLRA, "the states as well as the federal courts must defer
to the exclusive competence of the [NLRB] if the danger of state
interference with national policy is to be averted." 359 U.S. at
244-45; Sears, Roebuck & Co. v. San Diego County Dist. Council of
Carpenters, 436 U.S. 180, 221 (1978). Garmon thus enforces
Congress's choice to vest the NLRB with "primary jurisdiction" over
conduct within the scope of the NLRA and thereby ensures a
"uniform, nationwide body of labor law interpreted by a centralized
expert agency." Tamburello v. Comm-Tract Corp., 67 F.3d 973, 976
(1st Cir. 1995). The Supreme Court has explained that in the
context of Garmon preemption, the term "primary jurisdiction" has
a meaning different from its usual import in administrative law:
when Garmon preemption applies, the state courts are permanently
divested of jurisdiction over the controversy. See Sears, Roebuck,
436 U.S. at 199 n.29.
12
This overstates the matter. For example, there may have
been intentional and malicious defamation, which under Linn v.
United Plant Guard Workers, 383 U.S. 53 (1966), the states may
regulate. See id. 63 ("The malicious utterance of defamatory
statements in any form cannot be condoned, and unions should adopt
procedures calculated to prevent such abuses.").
-26-
It is clear that much of the conduct at issue in the MCAD
proceedings seems to be arguably protected or arguably prohibited
under Garmon, and thus potentially to warrant an exception to
Younger under NOPSI. Most notably, there is no question that the
insults and epithets that union members directed towards McGrath
while they were picketing are, at the very least, arguably
protected by § 7 of the NLRA.13 The NLRA clearly protects the right
of picketing workers to use a variety of harsh and insulting speech
-- including racial, ethnic, and homophobic slurs -- in furtherance
of their § 7 right to engage in "concerted activities for the
purpose of collective bargaining or other mutual aid or
protection." 29 U.S.C. § 157. See, e.g., Old Dominion Branch No.
496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S.
264, 283 (1974) ("[F]ederal law gives a union license to use
intemperate, abusive, or insulting language without fear of
restraint or penalty if it believes such rhetoric to be an
effective means to make its point."); Milk Wagon Drivers Union of
Chi., Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293
(1941) (peaceful picketing is protected despite "moment[s] of
animal exuberance"); Nat'l Council of Young Israel, 276 N.L.R.B.
13
The MCAD's December 2001 decision held that the NLRA does
not protect "racial or ethnic slurs shouted by union members during
a strike," and that likewise "there is no protection offered when
the slurs are homophobic." As we explain, this holding gravely
misstates federal law. Further, if such conduct were arguably
prohibited by the NLRA, that too would support preemption.
-27-
1123, 1136 & n.14 (1985) (calling replacement workers "[n]iggers"
was protected conduct under § 7); Ben Pekin Corp., 181 N.L.R.B.
1025, 1028 (1970) ("[O]ffensive, vulgar, defamatory, or opprobrious
remarks uttered during the course of protected, concerted
activities will not automatically destroy the right conferred by
the Act to engage in conduct otherwise safeguarded by its text.").
At the same time, it also may be "facially conclusive" that at
least the alleged instances in which union members made credible
threats of violence against McGrath are arguably prohibited by § 8
of the NLRA. See 29 U.S.C. § 158(b)(1)(A). See, e.g., NLRB v.
Union Nacional de Trabajadores, 540 F.2d 1, 6-7 (1st Cir. 1976) (in
dicta, observing that threats of physical harm by union members
against employees who refused to participate in a strike would be
prohibited under § 8 of the NLRA). Additionally, the Union's
actions may have been arguably prohibited under § 8 of the NLRA
because they took place in front of other bargaining-unit
employees, who in turn might have been coerced into supporting the
picket out of fear of being subjected to similar abuses. See Local
No. 207, Int'l Ass'n of Bridge, Structural, & Ornamental Iron
Workers Union v. Perko, 373 U.S. 701, 707 (1963); Union Nacional de
Trabajadores, 540 F.2d at 6-7. If so, both ComGas and McGrath
could have filed complaints with the NLRB.14
14
It is clear that McGrath or ComGas could have invoked NLRB
jurisdiction (a fact pertinent to the bad faith allegation). The
Commission held that McGrath "has no ability to bring a claim under
-28-
In a similar case, a divided panel of this Court held in
Chaulk Services that abstention was not appropriate because the
state MCAD proceedings were clearly preempted by federal law. In
Chaulk Services, a labor union filed charges with the NLRB on
behalf of a female labor organizer who claimed her employer had
discriminated against her on the basis of her sex. 70 F.3d at
1363. While those NLRB charges were pending, the employee filed a
discrimination charge against the company with the MCAD. When the
MCAD refused to dismiss the proceeding as preempted under Garmon,
the company sued in federal district court to enjoin the MCAD from
adjudicating the complaint. Id. at 1363-64. The district court
abstained under Younger. Id. at 1364. Citing NOPSI's exception
for "facially conclusive" preemption claims, this court reversed,
the NLRA." That is plainly incorrect, as counsel for the MCAD
conceded at oral argument. NLRB regulations provide that "a charge
that any person has engaged in or is engaging in any unfair labor
practice affecting commerce may be made by any person." 29 C.F.R.
§ 102.9 (emphasis added). The regulations provide that the term
"person" has the meaning set forth in section 2 of the NLRA. 29
U.S.C. § 152. The NLRA, in turn, defines person to "include[] one
or more individuals, labor organizations, partnerships,
associations, corporations, legal representatives, trustees,
trustees in cases under title 11 of the United States Code, or
receivers." Id. § 152(1)
At a minimum, both McGrath and ComGas had the right to file a
charge with the NLRB that the Union's conduct was arguably
prohibited under § 8 of the NLRA, id. § 158. See, e.g., Local No.
207, Int'l Ass'n of Bridge, Structural, & Ornamental Iron Workers
Union v. Perko, 373 U.S. 701, 707 (1963) (claims of union
misconduct toward a supervisor may be cognizable under the NLRB
where such conduct would inevitably coerce non-supervisory
employees).
-29-
concluding that "under the Garmon doctrine it is readily apparent
that the Commission is acting beyond its jurisdictional authority
by entertaining [the] complaint, for it is readily apparent that
[the company's] conduct is at least arguably . . . subject to the
NLRA." Id. at 1370 (internal quotation marks omitted).
But Chaulk Services is distinguishable from this case in
at least one potentially important respect.15 In explaining why
Garmon preemption was "facially conclusive," the majority in Chaulk
Services emphasized that when the MCAD assumed jurisdiction and
began its investigations, there was already a pending NLRB
proceeding based on the same incident. See id. at 1368-69. This
case, by contrast, presents nearly the opposite circumstance:
neither side has ever filed a complaint with the NLRB, and the
Union now seeks an injunction against state proceedings that have
been pending for more than eight years.
15
In Chaulk Services the claimed offending conduct was sex
discrimination, which is prohibited by Congress in Title VII in
addition to being prohibited by state law, and so there was no
obvious conflict between state and federal law. Thus, one might
argue that Congress has a lesser interest in exclusive NLRB
jurisdiction in that situation. See Chaulk Services, 70 F.3d at
1374-75 (Lynch, J., dissenting). Here, by contrast, Congress has
not explicitly prohibited sexual orientation discrimination.
Furthermore, unlike in Chaulk Services, the employment
discrimination alleged here is not classic discrimination by an
employer against an employee. Rather, it is discrimination by
lower-level employees against a supervisor. It also took place
during a strike and a lock-out, which has been a traditional area
of federal regulation since enactment of the NLRA.
-30-
The import of this distinction turns largely on at what
point, if ever, the Union had the ability to invoke the primary
jurisdiction of the NLRB. If the Union chose for strategic reasons
to argue the Garmon preemption point to the MCAD when it could have
gone to the NLRB, then its claim that the federal court should not
abstain under the facially conclusive preemption exception
recognized in NOPSI is significantly weaker. Under Sears Roebuck,
there is a strong argument that the rationale for Garmon preemption
is less powerful when a party voluntarily chooses to forego the
primary jurisdiction of the NLRB. See 436 U.S. at 202-03 (holding
that "the primary-jurisdiction rationale does not provide a
sufficient justification for pre-empting state jurisdiction over
arguably protected conduct when the party who could have presented
the protection issue to the Board has not done so and the other
party to the dispute has no acceptable means of doing so" (emphasis
in original)).
Still, we are uncertain when, if ever, the Union had the
ability to invoke the primary jurisdiction of the NLRB. Even if
during the strike itself the Union had not been able to initiate
such proceedings on the ground that its conduct was protected,
perhaps it could have gone to the NLRB after McGrath instituted the
MCAD proceedings. The answers to these questions have not been
briefed, and are potentially of significant relevance in
determining whether Chaulk Services governs here. In any case, the
-31-
difficult issues involved in the Younger abstention question should
be fully briefed and argued by the parties before they are
resolved.
IV.
The extension of time to file an appeal is affirmed, the
judgment of dismissal is reversed, and the case is remanded for
further proceedings consistent with this opinion. So ordered.
-32-
Local Union No. 12004, United Steelworkers v. Massachusetts
Court: Court of Appeals for the First Circuit
Date filed: 2004-07-30
Citations: 377 F.3d 64
Copy Citations