*1 аlleged result of the and, constitutional so, violation ror to review his constitutional and not a result of the trial counsel’s fail- on their merits.
ure to procedural meet state guidelines;”
(2) “the petitioner burden is on the to show that he was [actually] prejudiced by the
alleged ..., constitutional error merely (3)
a possibility prejudice;” “in ana- lyzing a petitioner’s preju- contention of
dice, the court should assume that
petitioner has stated a meritorious consti-
Benjamin Craig LONG,
(citations
tutional claim.”
рrejudice, it proceed should to decide the BANDO MANUFACTURING OF merits of his constitutional claims. AMERICA, INC., Defendant-
Appellant. Finally, we petitioner’s note the No. 99-5032.
argument 26(B) that Rule is unconstitu applied tional as in Ohio de United States Court of Appeals, prives indigent, incarcerated, uncounseled Sixth Circuit.
inmates due process equal protection Argued: Oct. of the laws. These claims were not raised Decided and Filed: Jan. court, however. “When a party present fails to an argument to the we have to disсretion resolve
the issue only where the proper resolution beyond doubt, any injustice or where might otherwise result.” See Enertech Elec., Inc. v. Mahoning County Comm’rs, We de
cline, instance, in this to treat these issues
as a matter of initial review.
CONCLUSION We conclude that Ohio criminal defen- dants have a federal constitutional effective assistance of counsel during an application for reopening and that peti- tioner’s counsel this case was constitu- tionally in failing ineffective file such an
application in timely fashion, thus consti- tuting to excuse failure to сom-
ply with procedural requirements con-
tained in Ohio Rule Appellate Procedure 26(B). Accordingly, we remand to the dis-
trict court to consider peti- whether the tioner has established that he was actually
prejudiced by the alleged constitutional er- *2 and Roberts(argued
Nancy Oliver Green, Ap- for briefed), Kentucky, Bowling pellee. (briefed), D. Jr. English, E.
Charles briefed), En- (argued Penn Gaines Bowling Lucas, Owsley, Priest & glish, Green, Kentucky, Appellant. MOORE, WELLFORD, Before: GILMAN, Judges. Circuit of the MOORE, J., opinion delivered GILMAN, J., joined. court, in which 762), WELLFORD, delivered (p. J. opinion. concurring separate OPINION MOORE, Judge. Circuit defendant-appellant, appeal, In this America, Inc. Manufacturing of court’s (“Bando”), challenges original federal did not plaintiff- one of Craig Long’s Benjamin appellee to reverse this court and asks order remanding the case to state inspection Bando facilities Long had originally court. sued Bando in Gates. year that same and the follow- court, raising ing year, both state and federal poor received two perfor- claims, including one mance reviews state-law claim for and several warnings that he would be dischargе in public disciplinary violation of action *3 performance his policy. Long improve, asserted in his culmi- amended nating in his suspension for days three in public policy the that was March of Long finally was by violated his in dis- embodied charged May of 1996 based on a several federal statutes. After Bando re- that he had a production falsified schedule. the moved case to federal district After his discharge, Long attempted to aid district granted summary judg- Gates reopening its motion for sanctions against Lоng ment on one of his federal against ground Bando on the that Bando claims and dismissed the other at Long’s had concealed destroyed and documents The request. district court then remanded relevant to the trade litigation. secrets case, including Long’s wrongful dis- claim, charge to the state court. Bando Long filed suit in Kentucky state court appeals order, now on arguing April alleging that he was wrongful discharge claim in- terminated as a result of his refusal volved a federal acquiesce issue sufficient to invoke the “cover up” of the compa- ny’s original court’s theft of trade secrets. alleged He due process jurisdiction pursuant violations under §§ to 28 U.S. and Ken- Constitutions, tucky 1441. For and “reverse reasons discrimina- discussed be- low, tion” in VII, violation of we AFFIRM Title district court’s dis- deci- charge “in violation of the public policy sion to remand based on its determination retaliatory (Com- discharge.” J.A. at it did not have original federal ques- plaint). case, Bando removed the relying over Long’s wrongful dis- on Long’s рrocess federal due and Title charge claim.-
VII claims as the basis for
tion. Long then amended
complaint,
his
I. BACKGROUND
“[ojther
adding that
public policies of this
Long was employed by Bando from Feb- Commonwealth and of the United States
ruary of 1989 until he was
terminated
which have been
violated
the Defen-
May
of 1996. In
Gates Rubber Com- dant’s wrongful termination of the Plaintiff
(“Gates”),
pany
competitor,
Bando,
sued
include, but are not limited to”
policies
alleging various forms of anticompetitive
embodied in four federal criminal statutes:
activity, including appropriation of Gates’s
(Obstruction
18 U.S.C.
of court or-
trade secrets. Gates also charged that
ders),
18 U.S.C.
2314 (Transportation of
had
concealed
destroyed
or
infor-
(Sale
stolen goods),
or
mation relevant to
competitive
its
strate-
receipt of stolen goods), and 18 U.S.C.
gies and trade
secrets.
the summer of §
(Amended
1621 (Perjury).1 J.A. at 19
year
less than a
before he was termi- Complaint). Long also added claims of
nated but several years after the Gates
defаmation and
breach
contract. Sub-
litigation
ended,
had
Long reported to sequently, Long
filed motion to dismiss
Adams,
Matt
president
Bando,
vice
voluntarily
claim,
his Title VII
which was
that he saw Adams and James Blanken-
granted
on June
1998. Bando filed a
ship,
president Bando,
taking “stuff’ motion for summary judgment,
to the
dumpsters
trash
just before the
thereafter moved to remand the case to
words,
1. In other
Long claimed that he was
discovery
obstruction of the
orders in the
terminated for his
to participate
refusal
in the
litigation,
Gatеs
employees’
and its
perjury
company’s
("stolen
theft of trade secrets
concealing
about
destroying
documents.
goods”
2314, 2315),
§§
under 18 U.S.C.
its
law, the district
of federal
matter
on a
subject
lack of
the state court
it
find that
acknowledged, it could
jurisdiction.
jurisdiction, without
had federal
mo-
Bando’s
granted
The district
remedy”
test.
“implied
applying the
as to
judgment
summary
tion for
Nonetheless,
still found
the district court
The district
process
due
case,
no
that,
of this
there was
the facts
to remand
Long’s motion
denied
court also
substantial,
question of federal
disputed
find-
jurisdiction,
matter
for lack of
claim sufficient
in the
subject matter
ing that
“arising under”
invoke
none
court found
Finally, the district
Bando’s
therefore denied
jurisdiction and
(wrongful dis-
remaining
prior judg-
or amend its
request
to alter
breach
public policy,
charge
*4
to the state
the case
remanding
ment
defamation)
a sub-
contract,
raised
of
ruling
that
timely appealed
court. Bando
therefore, de-
question
federal
stantial
that, although
now hold
to this court. We
juris-
supplemental
its
clining to exercise
a federal
that does not state
complaint
a
the state
diction,
case to
remanded the
cases invoke
may
action
some
cause of
the
particular,
In
district
court.
statutes
jurisdiction,
the
federal
federal
as
federal statutes
naming four
found that
claim
discharge
wrongful
in Long’s
cited
policy
the
public
evidence of
ques-
federal
provide
were insufficient
wrongful dis-
Long’s state
convert
did not
jurisdiction.
tion
Relying
a federal claim.
claim into
chargе
in Merrell
opinion
Supreme Court’s
on the
ANALYSIS
II.
Pharmaceuticals,
Thompson,
Inc. v.
Doio
the district
to invoke
order
3229,
804,
L.Ed.2d
a defendant
jurisdiction,
removal
court’s
analyzed
district
the
origi
has
the district
must show that
Long implied
cited
statutes
the
whether
See 28
the
jurisdiction over
action.
nal
and,
their
remedy for
private
a
1441(a).
showing
of
The burden
§
U.S.C.
not,
that
did
they
concluded
jurisdic
original
court has
pres-
claim not
discharge
did
wrongful
the
seeking removal. See
party
on the
tion is
district
invoking the
question
ent a federal
Queen
thе
Right
Majesty
Her
of
jurisdiction.
under”
“arising
court’s
Detroit, 874
City
Province Ontario
of
or amend
to alter
filed a motion
(6th
Further
332, 339
alleging
judgment,
district
federalism
more,
implicate
they
concluding
erred
the district court
nar
to be
concerns,
statutes are
removal
not
discharge
wrongful
claim
&Oil
Shamrock
rowly construed. See
giving
question
federal
a substantial
raise
Sheets, 313
Corp. v.
Gas
question
federal
original
rise to
(1941).
L.Ed.
In its December
court.
in the district
tion
ease,
parties do
In this
order,
acknowl-
the district court
Removal
citizenship.
diversity of
analysis
allege
that it had erred
its
edged
U.S.C.
thus based
jurisdiction was
claim
Long’s wrongful
whether
“of
1441(b),
of actions
allowing removal
§
ques-
federal
original
for
provided
basis
jur
original
courts have
which
recognized
The court
aris
on a claim
founded
determined, first,
isdiction
that there
that,
if it
even
Constitution,
or laws
treaties
ing
under
of action
implied private cause
was no
States,”
regard
without
of the United
listed
statutes
the violation of
Because
parties.
consider,
citizenship
it must still
in Long’s complaint,
only where
possible
is
jurisdiction
removal
second,
the state
“whether
court would
federal district
‘necessarily
upon
turned’
discharge [claim]
case, and be
over the
jurisdiction
original
at 32
J.A.
law.”
language
under”
necessarily turned
the claim
(D.Ct.Op.). If
1441(b)
§
is almost identical to
345^46,
the lan
diction.2 See id. at
This
clearly
open
possibility
left
regarding
court’s decision
trict
an ex
even
the absence
Hilliard v. Unit
See
matter
action,
cause of
Serv.,
implied
press
Postal
ed States
great
fed
a substantial federal
is raised
eral
interest
argu
into
delving
Bando’s
Before
law,
if resolu
in terms of
framed
had federal
ment
necessary to
is
tion of
wrongful
See,
the resolution
claim,
to under
helpful
it is
termination
nn. 11-
n.
813-14 &
at 808-10 &
e.g., id.
not arguing.
Bando is
what
stand
3229;
City
see
Chica
also
arguing
obviously not
is
Surgeons,
College
go
International
a federal
claim is
wrongful
discharge is
claim;
it is clear
(1997)
(reaffirming that
case
action. Nor
a state-law cause
*6
laws
the United
may “arise under”
attempts to
Long’s
that
arguing
a sub
resolution of
requires
if it
States
under the
of action
private right
a
imply
law, even if
of federal
question
stantial
statutes,
thereby
criminal
federal
listed
plaintiffs
creates the
state law
Finаlly,
action.
cause of
stating a federal
action);
Detroit
Thornton v. Southwest
state-law
Long’s
that
not arguing
is
Cir.1990)
(6th
1131, 1133
Hosp., 895 F.2d
by federal
preempted
completely
claim is
jurisdic
(noting that federal
Long
mean that
law, which would
a well-
in which
“only
those cases
tion
he intended
a federal claim whether
stated
either
[cjomplaint establishes
pleaded
See,
Corp. v. Aero
e.g., Avco
not.
to or
or
of action
the cause
law creates
federal
Machinists,
735, Int’l Ass’n
Lodge No.
neces
to relief
рlaintiff[’s]
that the
1235,
126
557,
20 L.Ed.2d
of a substan
resolution
on
sarily depends
(1968). Rather,
arguing
Bando is
add
(emphasis
law”
federal
question
tial
claim, without
wrongful termination
Board,
ed)
463
Franchise Tax
(quoting
claim,
federal
implied
raising an express
2841) (internal
27-28, 103
at
S.Ct.
U.S.
ques
disputed
involves
substantial
omitted)).
marks
quotation
suffi
law and is therefore
tion of federal
the district court’s
cient to invoke
Oper-
v.
Industries
Colt
In Christianson
under”
Corp., 486
ating
Supreme
courts’
of the federal
The exact contours
circum-
elaborated
§ 1331 are Court
further
jurisdiction under
сlaim
which a state-law
stances under
important
The most
imprecise.
somewhat
a “substantial
upon
“necessarily depends”
this issue
to deal
case
with
Supreme Court
case, the
In that
law.”
of federal
In Merrell
years is Merrell Dow.
in recent
“arise
not
a claim does
held that
Court
drug
manu-
Dow,
had sued
if the com-
claim,
patent laws
federal
negligence
state-law
facturer on'a
plaint states alternate theories for that Long’s amended complaint, which intro-
claim, only
of which requires
one
resolu-
duced the federal
statutes at issue here
patent-law
tion of a
question. See id. at
saying,
public
“Other
policies
this Com-
Thus,
the
supplemental
has exercised
not invoke
action, Long’s complaint
It thus
its dismissal.
days
until 30
after
“arising under”
courts’
the federal
in Car
expressed
one concern
alternate state
reduces
forth
tion,
put
would lose
negie-Mellon
his state-
support
to
policies
—'that
case were dismissed
claims
their
their
concerns
Other
than remanded.
rather
however,
to
remain,
convenience
such as
Propriety
Remand
C.
a faster resolution
parties and
the
the district
note that
alsoWe
legis
indication
find no
casе. We
than
rather
authority to remand
Improve
history of the Judicial
lative
claims under
state-law
dismiss
to
Congress
intended
Act
ments
1867(c).
Carnegie-Mellon
U.S.C.
to
court’s discretion
limit the district
Cohill,
v.
Univ.
state
case removed from
remand
Supreme
L.Ed.2d
court.
has
discre
that a district
held
Court
omitted).
(citation
Further
at 1267
Id.
pendent
to remand
one,
circuits, including
them,
this
more,
if the values
most
dismissing
rather than
fairness,
discretionary power
convenience,
and have assumed
economy,
§of 1367.
adoption
to
survives
remand
dictatе.
comity so
Theatrical, Inc. Feder
See,
e.g., Musson
before 28
decided
was
Carnegie-Mellon
1244, 1254-55
89 F.3d
Express Corp.,
al
however, and
adopted,
1367 was
(6th Cir.1996);
Hosp. v.
Decatur Mem’l
not explicitly
§ 1367 does
the language
Co., 990 F.2d
Ins.
Gen.
Connecticut
Life
authority to re
courts
grant district
(7th Cir.1993);
Executive
927-28
Soft
than
rather
mand cases
Dist.
Am.,
States
Inc. v. United
N.
ware
None
prejudice.7
without
them
dismiss
(9th Cir.1994);
Ct,
1551-53
the discretion
theless,
we believe
Practice Com
28 U.S.C.A.
see also
into that statute.
incorporated
A.
(1993); 14C ChaRles
mentary 835
D.C.
Appeals for thе
The
Court
H.
Arthur R.
WRIght,
Edward
Miller &
Gallagher
&
held Edmondson
Circuit so
Cooper,
Prooedure:
Federal
Practice
&
Ass’n,
Tenants
Towers
v. Alban
at 498-501
3d
Jurisdiction
(D.C.Cir.1995).
that court ex
As
D.C.
analysis
with
agree
We
plained:
and hold that
Circuit
is a mat
or dismiss
to remand
Whether
than
remanding
rather
properly
acted
discretion of
left to the
normally
ter
case.8
dismissing Long’s
Carnegie-Mellon, 484
see
We
at 622-23.
*8
III. CONCLUSION
by
unaffected
discretion
find this
reasons, we AFFIRM
foregoing
For
28 U.S.C.
enactment
subsequent
order.
court’s remand
the district
1367(d),
Improvements
in the Judicial
claims
only supplemental
court has
1367(c)
pertinent
provides, in
U.S. at
Camegie-Mellon, 484
exer-
may decline to
it. See
before
part, "The district
("The
if
us is
question
before
claim”
supplemental
cise
added).
(emphasis
is met
any
four criteria
court has discretion
a federal district
whether
jurisdiction to
pendent
the doctrine
under
Camegie-Mellon and
that both
8. We observe
to state
case
properly removed
remand
only
whether
deal
with
this case
the ac-
claims in
when all federal-law
a narrow set
pеrmits
pendent
have been eliminated
all
in which
namely,
cases
removed
cases—
federal
remain.”).
claims
been dismissed and
WELLFORD,
Judge,
Circuit
of action.” 478
at
remand was within the sound discretion of was no substantial question of federal law the district court once lack of a federal presented. None of the federal statutes question was determined. (and court) cited by discussed
The substance of
created
claims against
his
private
former
employer
Congress
clearly
provided
private
no
fed-
wrongful discharge essentially by a
eral remedy
plaintiff
with respect
action since no federal employment dis-
'any of these statutes. There was
im-
no
crimination law action is asserted. Nor
plied federal cause of action
by
created
does defendant Bando claim
pre-
necessarily springing from any federal
emption under the circumstances of this
statute cited.
short,
The district
case.
prudence
exercised
and restraint
in deny-
ing
I am
persuad-
There are several
why
reasons
I believe
by
ed
attempts
Bando’s
distinguish
this case is essentially
by
controlled Mer
Dow,
Merrell
and I find no basis under the
Pharmaceuticals,
rell Dow
Inc. v. Thomp
principles
several
expressed
son,
approved
in that case to overturn
the district court’s
That case affirmed
decision. See Miller v.
Ry.
&
this
W.
court’s decision at
opinion in American Well Works Co. v.
Layne
Co.,
& Bowler
*9
arises under the law that creates the cause
I see no conflict with the
Graham,
decision in this
Corp.
Telecommunications
Express
case with Milan
Surety
Co. v. Western
(6th Cir.1993).
Co.,
(6th Cir.1989),
