Ila v. Davis, 476 U.S. 380 (1986)

JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE STEVENS, and JUSTICE O’CONNOR join, concurring in part and concurring in the judgment.

The Court holds that appellant Union’s federal preemption claim must be considered on the merits by Alabama courts even though the Union never once raised the claim in the Alabama trial court until a post-trial motion following an adverse jury verdict. By allowing a defendant to save its preemption claim until after it sees the verdict, this ruling poses a sufficient threat to orderly judicial proceedings that it can be justified only if Congress has mandated such a result. Because Congress clearly has not mandated any such result, I disagree with Part II of the Court’s opinion.

Appellee Davis sued the Union in the Circuit Court of Mobile County, alleging fraud and misrepresentation. Davis had been first a trainee ship superintendent and then a ship superintendent in the employ of Ryan-Walsh Stevedoring Co. in Mobile. Although the ship superintendents were theoretically superior to the longshoremen, they were paid less salary and their compensation was generally lower than that of the longshoremen, who worked for hourly wages.

One of Davis’ fellow ship superintendents contacted the Union to see about the possibility of organizing the superintendents and affiliating with the Union. At a meeting of the superintendents to discuss that possibility, several of them expressed a fear of being discharged for participating in union-related activities. Testimony at trial indicated that one Benny Holland, a union representative, had assured the superintendents that the Union would get them their jobs back with backpay if they were discharged. As a result of the meeting, a number of the ship superintendents, including Davis, signed pledge cards and an application for a union charter from the ILA.

Sure enough, first another superintendent and then Davis were discharged by Ryan-Walsh, and the Union did not succeed in getting them their jobs back, with or without backpay. Davis then filed this suit, which the Union defended on the merits throughout the trial; at the conclusion of the trial, the jury returned a verdict in Davis’ favor for $75,000. Only at this point, in a motion for judgment notwithstanding the verdict, did the Union first raise its preemption claim, a technique that the Court now sanctions.

The Supreme Court of Alabama refused to consider the claim, observing that Alabama Circuit Courts are courts of general jurisdiction having authority to try, inter alia, cases involving fraud and misrepresentation. That court held that the Union’s preemption claim was an affirmative defense under the Alabama Rules of Civil Procedure, and had to be affirmatively pleaded in order to be considered. I agree with this Court that Congress could, if it wished, forbid Alabama to impose any such procedural rule, but I am convinced that Congress has done no such thing.

The Court relies on what it apparently considers to be the similar case of Kalb v. Feuerstein, 308 U.S. 433 (1940). There, Congress did provide quite explicitly that state courts should be deprived of jurisdiction in cases where mortgage foreclosure proceedings in those courts were also the subject of a petition in bankruptcy in federal court. Congress said:

"(o) Except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner, the following proceedings shall not be instituted, or if instituted at any time prior to the filing of a petition under this section, shall not be maintained, in any court or otherwise, against the farmer or his property, at any time after the filing of the petition under this section, and prior to the confirmation or other disposition of the composition or extension proposal by the court:

* * * *

"(2) proceedings for foreclosure of a mortgage on land . . . or for recovery of possession of land."

Id. at 440-441 (quoting Frazier-Lemke Act) (emphasis deleted).

In the present case, by contrast, Congress has never said a word about preemption of state court jurisdiction. This Court, in a long line of cases beginning with Garner v. Teamsters, 346 U.S. 485 (1953), has enunciated a judicial doctrine of preemption in labor relations cases based on the implied intent of Congress. But, as the Court noted in Garner:

The national Labor Management Relations Act, as we have before pointed out, leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.

Id. at 488 (footnote omitted).

Thus, when the Court speaks of the preemption of "subject matter jurisdiction" here, it must rely on a far more dimly refracted version of congressional intent than did the Kalb Court: not what Congress said, but what this Court thinks Congress might have said had it been confronted with the situation. This is far too thin a reed to support the perverse application of the doctrine in the present case.

The Court also places undue reliance upon its opinion in Construction Laborers v. Curry, 371 U.S. 542 (1963). There, the claim of federal preemption had been properly presented by the union at every stage of Georgia proceedings. This Court, on direct review of a judgment of the Supreme Court of Georgia, held that Congress had denied to the Georgia courts the authority to issue an injunction because the matter was "within the exclusive powers of the National Labor Relations Board." Id. at 546-547. The Court’s opinion in Curry refers to state court "jurisdiction," but, as Justice Frankfurter explained, "the term `jurisdiction’ . . . is a verbal coat of . . . many colors." United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 39 (1952) (dissenting opinion). The Court’s opinion today implicitly suggests that the word "jurisdiction" is to lawyers what a term like Bombycilla cedrorum (cedar waxwing) is to ornithologists: a description of one and only one particular species recognized throughout the world. We all know that the term "jurisdiction" does not partake of that specialized a meaning.

Nothing in Curry, and certainly nothing in Kalb, foreordains the result in this case. State court judges and trial courts of general jurisdiction in Alabama and in the other 49 States are experts primarily in state law, not federal law. Indeed, with the advancing march of federal legislation in areas heretofore left to state law, it would be an impossible task for any judge -- federal or state -- to keep abreast of the various areas in which there might be federal preemption. Here Alabama, by application of a neutral statute with a precise counterpart in the Federal Rules of Civil Procedure, has said that a defendant who wishes to claim federal preemption as a defense to state court exercise of jurisdiction may not wait to raise that claim until after the case has gone to verdict. The Court, saying otherwise, allows a sophisticated defendant, as in the present case, to gamble on obtaining a favorable verdict and raise a preemption defense only if it loses on the merits. To me, this result defies common sense; if Congress had ordained it, I would reach it, albeit with reluctance. But it is this Court, not Congress, that has ordained the result. I believe the Court is mistaken in doing so, and I therefore cannot join Part II of its opinion.

Having concluded that National Labor Relations Act preemption is "jurisdictional," and hence may be raised at any time, the Court goes on to decide that the Union has not carried its burden of showing that the conduct at issue here was "arguably" protected or prohibited by the Act. With this I agree. Accordingly, I join Parts I and III of the Court’s opinion, and concur in the judgment.

1. Justice Harlan, whose concurrence in Garmon indicated his initial hesitancy to accept its categorical treatment of particular claims, came to embrace its approach, recognizing that any other would require this Court, as the final court of review, to monitor every case in which a preemption claim is raised:

Nor can we proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy. This Court is ill-equipped to play such a role, and the federal system dictates that this problem be solved with a rule capable of relatively easy application, so that lower courts may largely police themselves in this regard.

Motor Coach Employees v. Lockridge, 403 U.S. 274, 289-290 (1971).

2. Similarly, the fact that the Board had asserted jurisdiction over the unions in Interlake, at the time the state court case was pending, is not an indication of the standard of "arguably," because that evidence "was more than sufficient to create an arguable case" (emphasis supplied), 370 U.S. at 182, n. 16, even though the unions had consistently advanced the position before the Board that they were not organizations within the meaning of the Act.

3. To be sure, the Garmon universe is not without imperfection. JUSTICE WHITE has long sought to eliminate the "arguably protected" coverage of Garmon preemption. See, e.g., Lockridge, 403 U.S. at 325-332 (WHITE, J., dissenting); Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 201 (1970) (WHITE, J., concurring). In Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978), the Court addressed what I believe was at the heart of JUSTICE WHITE’s opposition to "arguably protected." There the Court acknowledged an exception to Garmon preemption for conduct that is arguably protected where the injured party has no means of bringing the dispute before the Board. The opinion today speaks of a broader opposition to "arguably protected," as its effect in this case is to expand the Sears exception to encompass a case where the injured party, here Davis, does have the means of bringing the dispute before the Board. Apparently seeking to eliminate "arguably protected," but unable to do so directly, JUSTICE WHITE establishes a standard that is nearly as effective. Justice Harlan, speaking for the Court in Lockridge and responding to those who sought to weaken Garmon, provides the answer to JUSTICE WHITE today:

[A]lthough largely of judicial making, the labor relations preemption doctrine finds its basic justification in the presumed intent of Congress. While we do not assert that the Garmon doctrine is without imperfection, we do think that it is founded on reasoned principle and that, until it is altered by congressional action or by judicial insights that are born of further experience with it, a heavy burden rests upon those who would, at this late date, ask this Court to abandon Garmon and set out again in quest of a system more nearly perfect.

403 U.S. at 302.

4. In the ordinary case, since a determination of preemption poses a jurisdictional bar to a court’s adjudication of the merits of a suit, a defendant claiming preemption will do so at the threshold, usually in a motion to dismiss. Thus, courts will be called upon to determine preemption before facts have been developed or discovery has occurred. This poses a difficult burden for a defendant required, under today’s decision, to present a factual showing. If a fair reading of the complaint leads to a possibility that the activity complained of may be protected or prohibited, then the case falls squarely within the reach of "arguably protected," and the state court lacks jurisdiction over the dispute. See Construction Laborers v. Curry, 371 U.S. 542, 546 (1963).

5. There is indeed a cloud over Davis’ status. As a "ship superintendent," Davis performs the same functions as workers called "walking foremen" in Houston, Tex. We are advised that the Houston walking foremen formed a union, and are covered by a collective bargaining agreement. See Juris. Statement 4, n. 3.

6. In establishing the new standard, JUSTICE WHITE is joined by the four Justices who dissent from the Court’s holding that preemption goes to subject matter jurisdiction. These four would hold that preemption is merely a defense. Because, under Alabama law, a defense that is not raised during trial is deemed waived, see ante at 386, n. 7, the view of these four Justices means that the decision of the Alabama Supreme Court rested on an independent and adequate state ground, see ante at 388-389, ineluctably leading to the conclusion that this Court is without jurisdiction over this case. Rather than stating that they would dismiss for want of jurisdiction, however, those Members of the Court reach out to join Part III of JUSTICE WHITE’s opinion.