Zack Co. v. Howard

• Decision Date: 10 March 1987
• Docket Number: No. 86 C 7625.,86 C 7625.
• Citation: 658 F. Supp. 73
• Parties: ZACK COMPANY, an Illinois corporation, Petitioner, v. Albert T. HOWARD and Sharon L. Marello, Respondents.
• Court: U.S. District Court — Northern District of Illinois

658 F. Supp. 73

ZACK COMPANY, an Illinois corporation, Petitioner, v. Albert T. HOWARD and Sharon L. Marello, Respondents.

No. 86 C 7625.

United States District Court, N.D. Illinois, E.D.

March 10, 1987.

Joel T. Pelz, Joseph G. Bisceglia, Jenner & Block, Chicago, Ill., for petitioner.

Sandra Van DeKauter, Harvey L. Walner & Associates, Ltd., Chicago, Ill., for respondents.

MEMORDANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

Plaintiffs Albert Howard and Sharon Marello brought this action against defendant Zack Company alleging that they were wrongfully discharged from their jobs in retaliation for notifying authorities of safety irregularities at a nuclear plant site where defendant was a subcontractor. Plaintiffs originally filed their complaint in state court. Defendant removed the case to this court, claiming that plaintiffs' allegations were preempted by federal law, giving this court exclusive jurisdiction over the claims asserted. Presently before the court are defendant's motion to dismiss and plaintiffs' motion to remand. For the reasons stated below, this case is remanded to the state court.

Facts

Plaintiffs were employed by defendant, a heating, airconditioning and ventilation company which had subcontracted to work on several nuclear plant sites. Plaintiffs were hired as document control workers in a federally-mandated quality assurance program to monitor compliance with federal safety regulations. Plaintiffs became aware that defendant was not in compliance with certain quality assurance and document control requirements and notified a utility which was a licensee of the plant of these irregularities. Plaintiffs claim that they were intimidated, harrassed, and ultimately discharged for calling attention to the violations and for threatening to make formal allegations of irregularities to federal authorities. After pursuing their safety-related claims before the Nuclear Regulatory Commission, plaintiffs brought this suit in state court seeking compensatory and punitive damages for retaliatory discharge under Illinois state law.

Defendant removed the case to this court on the basis of federal question jurisdiction, claiming that federal law is an indispensible element of the complaint and that plaintiffs' claims are preempted by the Energy Reorganization Act, 42 U.S.C. §§ 5801, et seq. That Act contains a "whistleblower" section which provides a comprehensive federal remedy for employees in the nuclear industry who are wrongfully discharged for reporting safety violations. 42 U.S.C. § 5851. Defendant has now moved to dismiss on the basis that plaintiffs' claims were not timely under the 30-day limitations period set out in 42 U.S.C. § 5851. Plaintiffs have moved to remand the case to state court, arguing that 42 U.S.C. § 5851 does not preempt their state law claims for retaliatory discharge and that those claims should be allowed to proceed in their own chosen forum.

Discussion

Under 28 U.S.C. § 1441(a) and (b), a defendant may remove a civil action brought in state court to federal court if the action is founded on a claim "arising under" federal law or if the defendant is not a citizen of the state where the action was brought. Removal jurisdiction is thus tied in to the federal court's original jurisdiction over federal question and diversity suits. 28 U.S.C. § 1331, 1332. The general rule is that a case can be removed from state court only if the federal court would have had original jurisdiction over the action had it been brought there initially. Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 189, 22 S.Ct. 47, 48, 46 L.Ed. 144 (1901). Because there is no diversity of citizenship between plaintiffs and defendant, this court need examine only whether the claims asserted are removable as "arising under" federal law.

The starting principle for determining whether claims arise under federal law is that the existence of a federal question must appear on the face of the complaint. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, ___ U.S. ___, 106 S.Ct. 3229, 3332, 92 L.Ed.2d 650 (1986); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974); Nuclear Engineering Co. v. Scott, 660 F.2d 241, 249 (7th Cir.1981). Thus, a defendant's assertion of federal law in the pleadings or in the petition for removal does not in itself create a federal question. Phillips Petroleum Co., supra 415 U.S. at 127-28, 94 S.Ct. at 1003-04; Kansas & Texas Coal Co., supra 183 U.S. at 188, 22 S.Ct. at 48; Nuclear Engineering, supra at 249.

The next principle is that the party who brings a suit is "master" to decide what law he will rely on. Franchise Tax Board, supra 463 U.S. at 22, 103 S.Ct. at 2852. Thus, a plaintiff who has both federal and state causes of action may choose to ignore the federal claims and pursue only the state claims in state court. See Pan American Petroleum Corp. v. Superior Court of Delaware, 366 U.S. 656, 663, 81 S.Ct. 1303, 1307, 6 L.Ed.2d 584 (1961); Great Northern Railway Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239, 62 L.Ed. 713 (1918); Jones v. General Tire and Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). Although a defendant is entitled to have a case removed to federal court if the plaintiff is attempting to avoid having an essentially federal claim adjudicated in a federal forum merely by artfully drafting the complaint in terms of state law, see Nuclear Engineering, supra at 249; Jones, supra at 664, the federal question must be an essential element of the complaint to provide grounds for removal. Phillips Petroleum, supra 415 U.S. at 127, 94 S.Ct. at 1003; Nuclear Engineering, supra at 249; Jones, supra at 664. Indeed, the Supreme Court has stated that

it has been settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.

Franchise Tax Board, supra 463 U.S. at 14, 103 S.Ct. at 2848.

A final principle to be considered is that the removal statute should be construed narrowly and all doubts should be resolved against removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Kansas & Texas Coal Co., supra 183 U.S. at 188, 22 S.Ct. at 48. As the Seventh Circuit has observed, the Supreme Court has been loathe to expand the federal court's removal jurisdiction and has continually refused to recognize exceptions to the general principles discussed above. People of State of Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir.), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982) (noting that almost all Supreme Court decisions expounding the law of removal have been in the context of holding that removal was unwarranted, and citing numerous cases).

Both plaintiffs and defendant in this case have extensively briefed the question whether 42 U.S.C. § 5851 preempts state tort law claims for retaliatory discharge. However, under the decision of the Seventh Circuit in Kerr-McGee, supra, this court need not reach the question of preemption in order to decide whether this case was properly removed to this court.

In Kerr-McGee, the State of Illinois filed a complaint against Kerr-McGee in state court, alleging that Kerr-McGee's operation and maintenance of a factory and waste disposal site violated various Illinois statutes pertaining to the disposal of hazardous wastes. Kerr-McGee removed the suit to this court on the ground that the complaint raised a federal question, and the state moved for remand. This court found that the federal regulatory scheme under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq., had preempted all state regulation of radioactive waste disposal. Since the complaint necessarily involved the interpretation of federal law, this court held that the case was properly removed. Kerr-McGee subsequently moved to dismiss, and this court granted the motion, finding that federal law conferred exclusive jurisdiction on the Nuclear Regulatory Commission to regulate radiation hazards and thus preempted state and local legislative and administrative regulatory schemes.

On appeal, the Seventh Circuit held that because the complaint pleaded only state causes of action, it did not raise a federal question justifying removal to federal court. The court declined to address the question of preemption, finding no basis for concluding that the state had "artfully drafted" its complaint in order to defeat removal. Id. at 577. The court observed that nowhere in its complaint did the state rely on or even allude to federal statutes or caselaw. Id.

Although plaintiffs' complaint in this case does make some mention of federal law, the reference to 42 U.S.C. § 5851 is solely for the purpose of identifying the statutory basis for the federally-mandated quality assurance program in which plaintiffs were employed and under which defendant was required to meet certain standards. The complaint as drafted makes clear that plaintiffs' claims are for retaliatory discharge under state law and do not arise under the federal "whistleblower" statute. Actions for retaliatory discharge, while not grounded in any state statutory scheme, have expressly been recognized by the Illinois Supreme Court on public policy grounds. See Palmateer v. International Harvester Co, 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). Following the decisions in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) and Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), where the Supreme Court...