People of State of Ill. ex rel. Barra v. Archer Daniels Midland Co.

• Decision Date: 04 April 1983
• Docket Number: No. 82-2187,82-2187
• Citation: 704 F.2d 935
• Parties: 114 L.R.R.M. (BNA) 2957, 96 Lab.Cas. P 14,194 PEOPLE OF the STATE OF ILLINOIS ex rel. John A. BARRA, State's Attorney of Peoria County, Illinois, Plaintiff-Appellant, v. ARCHER DANIELS MIDLAND COMPANY, Defendant-Appellee. National Labor Relations Board, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 935

704 F.2d 935

114 L.R.R.M. (BNA) 2957, 96 Lab.Cas. P 14,194

PEOPLE OF the STATE OF ILLINOIS ex rel. John A. BARRA State's Attorney of Peoria County, Illinois Plaintiff-Appellant, v. ARCHER DANIELS MIDLAND COMPANY, Defendant-Appellee National Labor Relations Board, Intervenor-Appellee.

No. 82-2187.

United States Court of Appeals Seventh Circuit.

Argued Jan. 21, 1983.

Decided April 4, 1983.

Patricia Rosen, Asst. Atty. Gen., Civil Appeals Div., Chicago, Ill., for plaintiff-appellant.

Roy G. Davis, Davis & Morgan, Peoria, Ill., for defendant-appellee.

David R. Marshall, Washington, D.C., for N.L.R.B.

Before PELL, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

In 1980 Archer Daniels Midland Company began hiring building contractors to work on the renovation of a plant that it owned in Peoria, Illinois. At first it hired just contractors who employed only union labor, but in December 1981 it awarded a contract to a nonunion contractor. Two months later the union representing the employees of a competing contractor who had wanted the job threw up a picket line at the plant. None of the employees of the union contractors working at the plant would cross the picket line, so Archer Daniels Midland hired nonunion contractors to take their place.

On March 18, 1982, the State's Attorney of Peoria County filed a suit in state court, in the name of the State of Illinois, against Archer Daniels Midland. The complaint alleged that one of the nonunion contractors, Payne & Keller, Inc., "are [?] reputed to be [employ?] 'strikebreakers' as defined in" the Illinois Strikebreakers Act, Ill.Rev.Stat.1981, ch. 48, p 2e-h. Passed in 1975 but never the subject of a reported case, the Act makes it a misdemeanor "knowingly [to] employ any professional strikebreaker in the place of any employee during any period when a lockout or strike is in progress." p 2f. A professional strikebreaker is defined as "any person who repeatedly and habitually offers himself for employment on a temporary basis" to replace a worker who has stopped working because of a strike (defined in p 2e(d) to include picketing that causes anyone not to perform any services) or a lockout. p 2e(c). The complaint alleged that acts of violence at the plant since the picketing had begun had required deploying "substantial members [numbers?] of the City of Peoria Police Department to preserve order, protect property and prevent bodily injury," but it did not say who had committed those acts. The complaint further alleged that union officers had requested the State's Attorney to bring criminal charges against Archer Daniels Midland under the Illinois Strikebreakers Act but that "substantial doubt exists whether [the Act] is preempted by" sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. Secs. 157, 158--in which event it would be invalid under the supremacy clause. The complaint requested the court, pursuant to Illinois' declaratory judgment procedure, Ill.Rev.Stat.1981, ch. 110, p 2-701, to "enter an Order determining whether [the Illinois Act] has been and is preempted by Federal law."

Archer Daniels Midland removed the case to federal district court. Rather than petition to remand the case to state court, the State's Attorney filed an amended complaint in federal court. The amended complaint is virtually identical to the original one except that it adds an allegation that the State's Attorney "will and is prepared to file [criminal] charges against Archer Daniels Midland." In its answer, Archer Daniels Midland denied that the Illinois Strikebreakers Act was applicable to the events at its Peoria plant, since the alleged "professional strikebreakers" were not its employees but employees of an independent contractor whom it had hired for the job.

Archer Daniels Midland moved for summary judgment dismissing the State's Attorney's complaint and the district judge granted the motion. He refused to decide whether the Act was applicable to the events at Peoria; this question, he ruled, involved genuine issues of material fact and therefore could not be decided on a motion for summary judgment. See Fed.R.Civ.P. 56(c). But he held that the Act was indeed preempted by the federal labor laws, thus reaching the same conclusion as has been reached in every other decision cited to us on the validity of state laws limiting an employer's right to hire replacement workers in labor disputes covered by federal law. See Illinois v. Federal Tool & Plastics, 62 Ill.2d 549, 344 N.E.2d 1 (1975); U.S. Chamber of Commerce v. New Jersey, 89 N.J. 131, 445 A.2d 353 (1982); Alton Box Board Co. v. City of Alton, 77 L.R.R.M. 2123 (S.D.Ill.1971). He entered a declaration to that effect as his final judgment in the case, and the state appeals.

One of the amici curiae argues that we have no subject-matter jurisdiction. Its argument is as follows. A case is removable from state to federal court only (with immaterial exceptions) if the plaintiff could have brought his suit in federal court in the first place, 28 U.S.C. Sec. 1441, and the state could have done that here only if its claim arose under a federal statute or the Constitution, 28 U.S.C. Sec. 1331. It did not; it arose under the Illinois Strikebreakers Act and therefore could not have been brought in federal court originally and therefore was not removable.

The argument overlooks the fact that after the case was removed, the state--apparently content to litigate in federal court the suit it had brought in state court--filed an amended complaint. If that complaint properly invoked the jurisdiction of the federal court it is immaterial that the original complaint may not have stated a removable claim. Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702-03, 92 S.Ct. 1344, 1347-48, 31 L.Ed.2d 612 (1972); Stone v. Stone, 632 F.2d 740, 742 (9th Cir.1980). But the argument can easily be refashioned: the amended complaint is not within the jurisdiction of the federal court because the claim it states arises under the Illinois Strikebreakers Act rather than under federal law.

The argument would be unanswerable, at least until the Supreme Court decides Franchise Tax Bd. of State of Calif. v. Construction Laborers Vacation Trust for So. Calif., 679 F.2d 1307 (9th Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 567, 74 L.Ed.2d 930 (1982), if the complaint did not request a declaration of rights under federal law. In this circuit, at least, it is beyond argument that a claim for an injunction based on state law does not arise under federal law merely because the claim may be preempted by federal law. Illinois v. Kerr-McGee Chem. Corp., 677 F.2d 571 (7th Cir.1982); People of the State of Illinois v. General Elec. Co., 683 F.2d 206, 208 (7th Cir.1982). But the state did not ask for an injunction here; it asked for a declaration that it could proceed with its plans without violating federal law. So we must consider whether a suit under the Declaratory Judgment Act, 28 U.S.C. Sec. 2201, is a proper vehicle for determining whether a state law claim has been preempted by federal law. (It is immaterial that the amended complaint does not mention the Declaratory Judgment Act but instead asks for a declaratory judgment under the Illinois Civil Practice Act, which is inapplicable to suits in federal court. A properly removed case can be litigated in federal court without the filing of an amended complaint changing procedural references from state to federal law.)

The proposition that a suit can be maintained in federal rather than state court only by virtue of the Declaratory Judgment Act may seem to contradict the statement found in many decisions, notably Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878, 94 L.Ed. 1194 (1950), that the Act "did not extend the [federal courts'] jurisdiction." But the statement cannot have been intended literally. The Act accomplished nothing if it did not allow some suits to be brought in federal court that could not have been brought there previously, see Borchard, Declaratory Judgments 232-33 (2d ed. 1941)--suits that otherwise would have been brought, if at all, in state court. A notable example is a patent infringer's suit for a declaration that the patent is invalid. See Hanes Corp. v. Millard, 531 F.2d 585, 592 (D.C.Cir.1976); Sticker Industrial Supply Corp. v. Blaw-Knox Co., 367 F.2d 744, 746-47 (7th Cir.1966); E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852, 854 (7th Cir.1937); 10A Wright, Miller & Kane, Federal Practice and Procedure Sec. 2767 at pp. 739-40 (1983). A patentee spreads the word that some firm is making an infringing product. Sales of the firm's product dry up because customers fear being sued for infringement. But the patentee does not sue--maybe because of well-founded doubts of the patent's validity--instead allowing threats and rumor to discourage the infringer. Although he has no federal claim, the infringer can bring a federal declaratory judgment action against the patentee, seeking a declaration that the patent is invalid. The Declaratory Judgment Act thus enables a potential defendant in a suit by the patentee that may never be brought to precipitate that lawsuit. If it were not for the Act the infringer's only remedy would be a suit for unfair competition under the Lanham Act or, more probably, under state law; and if the suit were based on state law alone it could not be brought in federal court under 28 U.S.C. Sec. 1331.

The principle of the patent cases has been used to sustain federal jurisdiction of nonpatent declaratory judgment actions, notably in Serio v. Liss, 300 F.2d 386, 389 (3d Cir.1961), and in our recent decision in State of Wisconsin v. Baker, 698 F.2d 1323, 1329-30 (7th Cir.1983). In Baker, the members of an Indian tribe claimed the right under treaty--a federal right--to restrict nonmembers' access to navigable waters within its reservation, and had promulgated penalties for violating...