Board of Ed. of Atlanta v. AMERICAN FED. OF S., C. & ME

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Citation401 F. Supp. 687
Docket NumberCiv. A. No. C75-1975A.
Decision Date24 October 1975

Warren C. Fortson and Prentiss Q. Yancey, Jr., of Smith, Cohen, Ringel, Kohler & Martin, Homer L. Deakins, Jr., and Gregory B. Tobin, of Thompson, Ogletree & Deakins, Atlanta, Ga., for plaintiff.

Robert J. Martin, Jr., and Robert S. Giolito, of Adair, Goldthwaite, Stanford & Daniel, Theodore G. Frankel, of Haas, Holland, Levison & Gibert, Atlanta, Ga., for defendants.


EDENFIELD, Chief Judge.

On October 10, 1975, plaintiffs herein filed in the Superior Court of Fulton County, Georgia, a civil action, File No. C-12166, for injunctive relief and a declaratory judgment. The verified complaint alleged that defendants had for approximately one month been demanding (1) that plaintiff enter into a collective bargaining agreement, recognizing defendant American Federation of State, County and Municipal Employees (AFSCME) as the exclusive bargaining agent for certain of plaintiff's employees, (2) that plaintiff recognize defendant Atlanta Association of Educators (AAE) as the exclusive negotiating agent for certain certified personnel, and (3) that plaintiff accede to certain demands of both unions with regard to compensation, hours, and terms and conditions of employment of their respective members who are employed by plaintiff. The complaint alleged further that plaintiff had responded to all these demands ". . . by contending that the granting of such demands . . . would violate the laws and public policy of the State of Georgia." Complaint, at 3.

According to the complaint, defendants responded to plaintiff's refusal to accede to their demands by engaging in activities intended to bring about a strike by plaintiff's employees. Consequently, plaintiff sought a temporary restraining order from the state court in order to avert "immediate and irreparable injury, loss and damage . . . to the Plaintiff, its employees and the school children and citizens of the City of Atlanta by preventing the Plaintiff from operating the public schools of the City of Atlanta and its other facilities." Complaint, at 3-4.

On October 14, 1975, the next regular working day for this court, defendants filed in this court a petition for removal of the case from state court pursuant to Title 28, United States Code, sections 1441 and 1443. The petition alleged that the school board, by virtue of its complaint in state court, was seeking ". . to abridge rights guaranteed the petitioners defendants under the First and Fourteenth Amendments to the United States Constitution in specific violation of Title 42, United States Code, Sections 1981, 1983 and 1985(3)."

Later the same day, plaintiff countered with a motion to remand to state court instanter or, in the alternative, to grant a temporary restraining order. Plaintiff asserted therein that this court lacked jurisdiction inasmuch as the case did not present the kind of situation contemplated by either of the federal removal statutes. A hearing was held during the afternoon of October 14, at which hearing the court heard extended argument from counsel for all the parties on the questions of removability, applicability of the Norris-LaGuardia anti-injunction statute, 29 U.S. C. § 101 et seq., and the merits of the legality of a strike by employees of the plaintiff school board. Inasmuch as the preliminary question of jurisdiction appeared quite close and obviously warranted further consideration by the court before ruling thereupon, the court exercised its discretion under United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), to grant plaintiff's alternate motion for a temporary restraining order. The order by its terms specified that it was to remain in effect until this court's rulings on the defendants' petition for removal and the plaintiff's petition to remand to state court, or for ten days, whichever period were shorter; it specified further that the restraining order was being entered solely "for the purpose of maintaining the status quo until this court could rule on the question of its own jurisdiction." The court is now prepared to rule on that question.

Defendant unions, seeking to proceed in this federal forum upon removal from state court, bear the burden of establishing their right to do so. J. J. Ryan & Sons, Inc. v. Continental Ins. Co., 369 F.Supp. 692 (D.S.C.1974). When seeking to invoke the general removal statute, 28 U.S.C. § 1441, that burden consists of proving that the action arises under federal law. Beacon Moving & Storage, Inc. v. Teamsters Local 814, 362 F.Supp. 442 (S.D.N.Y. 1972); only cases of which federal district courts have original jurisdiction can be so removed. 28 U.S.C. § 1441(a). With regard to sustaining that burden of proving the existence of a federal question for purposes of removal, the rule is well-settled and closely related to the rule laid down in Louisville & Nashville R. R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908), concerning the establishment of federal question jurisdiction by original process, 28 U.S.C. § 1331. Stated simply, a federal district court's original federal question jurisdiction must be posited upon the plaintiff's pleading of his own case, and not by defendant's response or even plaintiff's anticipation of a federal element in that response. See, e. g., PAAC v. Rizzo, 502 F.2d 306 (3d Cir. 1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975), Milligan v. Milligan, 484 F.2d 446 (8th Cir. 1973), Spring City Flying Service, Inc. v. Vogel, 281 F.Supp. 594 (E.D.Wis.1968).

In the case at bar, the complaint fails to state even the remotest federal element. It sets forth a straightforward dispute between an employer (who is not subject to the provisions of the National Labor Relations Act, 29 U.S.C. § 152(2)) and two unions over the question of whether exclusive recognition and bargaining agreements violate state law or public policy. There was not the slightest hint that any federal law or right is involved in this case until the petition for removal was filed by defendants, asserting plaintiff's abridgment of their first and fourteenth amendment rights. This raising of alleged federal elements in the removal petition is clearly insufficient to support original federal question jurisdiction:

". . . It is for the plaintiffs to design their case as one arising under federal law or not, and it is not within the power of the defendants to change the character of plaintiffs' case by inserting allegations in the petition for removal. It is fundamental that the action is not one arising under federal law where the federal question is supplied by way of defense. Citations omitted." Warner Bros. Records, Inc. v. R. A. Ridges Distributing Co., 475 F.2d 262, 264 (10th Cir. 1973). See also Romick v. Bekins Van & Storage Co., 197 F.2d 369 (5th Cir. 1952), Appalachian Power Co. v. Region Properties, Inc., 364 F.Supp. 1273 (W.D.Va.1973).

Removal jurisdiction cannot be predicated upon such a derivative foundation as that presented here.

This court is, of course, mindful of the rule that the existence of a federal question depends upon the "real nature of the claim asserted by the plaintiff in his complaint," regardless of a plaintiff's possible efforts to artfully characterize his claim as purely non-federal. See, e. g., Oquendo v. Dorado Beach Hotel Corp., 382 F.Supp. 516 (D.P.R.1974), Beacon Moving & Storage, Inc. v. Teamsters Local 814, 362 F.Supp. 442 (S.D. N.Y.1972). Even, however, considering that broader rule, this court is unable to conclude that the case at bar revolves even indirectly around the need to vindicate federal rights. Notwithstanding defense counsel's arguments to the contrary, this case does not appear to fundamentally involve the federally-recognized right to join a labor union, see AFSCME v. Woodward, 406 F.2d 137 (8th Cir. 1969), McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968), Atkins v. Charlotte, 296 F.Supp. 1068 (W.D.N.C.1969) (three-judge). Plaintiff does not contest that right. This case concerns not that federal right, but rather the alleged rights of labor unions under Georgia law to gain exclusive recognition by a school board. Federal law and federal rights are not, if they are involved at all in this case, at the core of plaintiff's cause of action. Accordingly, the petition to remove to federal court cannot stand insofar as it rests upon 28 U.S.C. § 1441.

Defendants also grounded their petition for removal upon 28 U.S.C. § 1443. That statute provides for the removal of an action commenced in state court to the federal district court when that action is:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

Defendants claim that they are entitled to remove plaintiff's action to federal court because plaintiff is allegedly abridging defendants' first and fourteenth amendment rights in specific violation of 42 U.S.C. §§ 1981, 1983, and 1985(3).

This court need not, and indeed cannot, reach the merits of the allegations with regard to abridgment of defendants' rights inasmuch as this court concludes that defendants have failed to demonstrate that this case is removable under § 1443, and therefore this court is without jurisdiction over the subject matter thereof.

The key aspect of § 1443 removal is that the state civil or criminal action must arise as the result of someone's being denied, or being prosecuted for the exercise of, his...

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