Matthew Dixon v. Coburg Dairy, Incorporated

they nuisance, illegal, per public made are se is a I only banned and fence not would Plymouth Se contraband. See One uphold the constitutionality §of 14^-306.1 699, 693, Pennsylvania, 380 dan v. uphold also the constitutionality but of (1965) (defining 14 L.Ed.2d S.Ct. 14-298, § which authorizes the destruction “objects per posses se as the contraband of banned machines hearing. without a which, more, sion of without a constitutes Accordingly, I entirely would reverse the crime”).1 Because North Carolina has judgment the district court. use, use, possession made the warehousing prohibited gam video ing illegal subject machines and therefore contraband, with agree destruction majority’s observation that in cir such

cumstances will not a “courts entertain contesting

claim the confiscation of contra se one per

band because cannot have a right in property subject that which is not DIXON, Plaintiff-Appellant, Matthew to legal possession.” Ante at (quota omitted). tion marks and citation Contra enjoy protections

band DAIRY, does INCORPORATED, COBURG Id.; due process clause. see also Bennis Defendant-Appellee. 442, 447,

v. Michigan, 516 U.S. No. 02-1266. 994, 134 (upholding L.Ed.2d 68 State’s forfeiture of innocent owner’s auto United States Court of Appeals, mobile person illegally used third Fourth Circuit. theory “thing here primarily Argued: Dec. 2002. as the considered offender rather the primarily offence is attached thing” May Decided: 2003. (quotation omitted)); marks citation (Thomas, J., id. at 116 S.Ct. 994 con (“[Ujnder

curring) statutory a different re

gime, might State have authorized the of the car

destruction instead forfei [of its sale]”).2

ture and possession

Because use and illegal

banned machines are and their exis- majority, appearing §§ protections overlook 14- property afforded one’s interest 14-309, "[ujnder 308 and states North in a lawful Should a machine. law enforce- gaming Carolina video machines are not property ment officer lawful mistake for con- inherently illegal [and][p]ossession of a video 14-298, destroy § traband and it under gaming machine alone does not constitute aggrieved property may pursue appro- owner crime.'' Ante at 248. priate remedies for State’s mistaken or un- taking property. lawful and destruction of sure, 2. To be the owner of a video lawful hypothetical But concern for the owner of gaming property machine has a interest property subjected lawful who to mistak- which attach the usual stat- constitutional and application § en 14-298, 14-298 is basis not a utory protections. Section which au- casting destroy aside the only State's choice to thorizes the destruction of contraband cognizable property observing procedures which one can assert no contraband without af- interest, nothing legal does cognizable property. to diminish the forded to Howell, IV, Wilson

ARGUED: Samuel LINKOUS, L.L.C., Charles- & HOWELL Carolina, ton, below, for we Appellant. part J. affirm in South reverse BIRD, ALSTON Kilpatrick, part. Thomas &

L.L.P., Atlanta, Appellee. Georgia, for Linkous, ON BRIEF: B. Alan HOWELL I. L.L.C., Charleston, LINKOUS, & South 1997, Charleston, April South Car- Carolina; R. Scarborough, Mikell Charles- olina, Dixon, began Matthew his employ- Carolina, ton, Appellant. Chris- ment as mechanic Coburg Dairy, with Enloe, BIRD, topher S. ALSTON & Inc., (“Coburg”). In April Dixon was L.L.P., Atlanta, Georgia, for Appellee. given copy policy of Coburg’s prohibiting GREGORY, Before Circuit Judge, explained harassment. The policy GOODWIN, States Judge United District “[hjarassment may many forms, take in- Virginia, for the District of Southern West [vjisual ... such cluding derog- conduct MICHAEL, sitting by designation, cartoons, atory posters, drawings, ges- JR., Judge States Senior United District policy tures.” The employees also warned District of Virginia, sitting the Western anyone “who in a behaves manner by designation. inconsistent this policy with will be subject to discipline to and up including part Affirmed in and part reversed in termination.” published opinion. Judge GREGORY is an Dixon active member of the Sons in opinion, Judge wrote the which Senior (“SCV”), of Confederate an Veterans all- joined. Judge MICHAEL GOODWIN organization male members whose “can opinion concurring part wrote an in and prove genealogically that one of their an- in dissenting part. honorably

cestors served in the armed OPINION forces of States Confederate of Amer- ica.” Sons Veterans v. GREGORY, Judge: Circuit of Confederate Vehicles, Dep’t Comm’r the Va. Motor of of Dixon, Matthew an employee Coburg 610, (4th Cir.2002). 1 F.3d 613 n. Be- Inc., Dairy, asked by his employer to 2000, in ginning January a conflict devel- remove two flag Confederate stickers from oped among South Carolinians over wheth- an his tool box after African-American co- er to remove the flag Confederate battle worker complained. Dixon to refused re- atop capítol from their state dome. As stickers, and Coburg, move the on relying notes, Dixon this conflict became “a burn- the company’s policy, anti-harassment ing Carolina,” issue the State of South Dixon then fired Dixon. filed suit in South a “period marking of intense national scru- court, aheging Carolina state wrongful dis- (Br. tiny public and debate.” for Appel- charge and a “Violation Constitutional 4.) lant at Rights.” Coburg removed the to fed- case ground eral court on the com- Dixon’s It was this context that Dixon placed plaint depended necessarily on the resolu- two Confederate battle stickers on his tion of a personal substantial tool box. One was visible on the remand, law. Dixon filed motion box; to outside other was inside box, which court the district denied. The dis- but visible when box was trict granted court then motion Coburg’s open. Dixon used the tool box and dis- for summary judgment and played dismissed the both flag stickers while at work appeals case. Dixon both of Coburg the district inside the Dairy garage. An Afri- rulings. co-worker, Garner, court’s For the Leroy reasons discussed can-American II. him that and informed Dixon confronted and racially offensive found stickers he subject jurisdic Whether federal matter policy. harassment Coburg’s violation exists is a of law that this tion dis- maintaining that his disagreed, Dixon Mulcahey de novo. v. Co Court reviews did not violate Co- the stickers play of Co., Inc., Organic lumbia Chemicals and, any notwithstanding policies burg’s Cir.1994). (4th grant F.3d his contrary, it was to the policy is also summary judgment a motion flag. display constitutional de novo. Hooven-Lewis v. Cald reviewed Thereafter, Garner, Dixon, Coburg at- (4th Cir.2001). era, 249 F.3d compromise. Co- tempted mediate new, una- buy Dixon a

burg offered to III. box, allowing keep him tool dorned A. use. box for home previously decorated Coburg’s removal district court was heritage was responded that his Dixon (2001), § 1331 giving based on 28 U.S.C. end, insisted Coburg for sale.” In the “not original over “all federal courts removed, that the stickers be Constitution, arising actions under civil Co- Having impasse, reached refused. laws, or treaties of United States.” September fired Dixon on burg titled, I of “Vio- complaint Count compa- had violated the ground he as- Rights,” lation of Constitutional policy. ny’s anti-harassment upon a claim based First “[t]he serts complaint nine-count Dixon filed a the U.S. Constitution.” I, titled court. Count South Carolina state “Coburg Dixon in this count that maintains al- Rights,” of a “Violation Constitutional its em- rights of violated constitutional violated constitu- “Coburg leged Plaintiff,” by its termination of and ployee termi- rights employee by of its its tional concludes, of “Coburg’s termination he III, In Dixon of Count nation Plaintiff.” for of the flag Plaintiff constitutes display Public Poli- a claim for “Violation of stated enti- rights violation of his constitutional §Ann. 16-17-560 cy” based on S.C.Code damages.” Plaintiff an award for tling (2002). for He that he was fired alleged core, appears require At its Count flag, and displaying Confederate ac- Coburg’s as to whether determination of “constitute^] this action violation Dixon’s free amount to a violation of tions law therefore criminal and South Carolina Con- right under the United States speech policy of public a violation however, il- appearance, stitution. This facts, these Premised on same State.” concedes that the First lusory, as Dixon IV for articulated a claim Count Dixon from only protects citizens retaliatory discharge. with or State interference government Rendell- speech, their to free see I, III, and IV Insisting that Counts 837,102 Kohn, 830, S.Ct. Baker v. 457 U.S. questions raised substantial 2764, (1982), further 73 418 and L.Ed.2d court. Coburg the case removed Coburg Dairy is not state concedes remand, filed a which motion actor. court then parties district denied. without summary judgment. cross-motions for courts are filed “[F]ederal within motion claims otherwise granted Coburg’s power The district court entertain they if attenuated summary jurisdiction their are ‘so judgment dismissed for absolutely to be de- appeal and insubstantial as This followed. case. 256 ” Hagans Lavine,

void of merit’.... v. purpose of having adjudi- state-law claim 537, 528, 1372, 415 94 S.Ct. 39 system; cated in the federal III Article (internal L.Ed.2d 577 citations omit- the Constitution practice.” forbids this “ ted). time, however, At the same ‘Juris- The Bell Court has further commented diction ... is not defeated ... that the insubstantiality doctrine is a disfa possibility’ that the might averments fail to rule, vored accuracy calling “[t]he state a cause of action on plain- which [a jurisdictional these dismissals has been actually tiff] could recover. For it is well questioned.” 683, 327 U.S. at 773 S.Ct. settled that the failure to a proper (citing ruling Justice Holmes’ in The Fair cause of action calls a judgment Co., v. Kohler Die and Specialty 228 U.S. merits and not for a dismissal for want of 22, (1913)). 57 L.Ed. 716 jurisdiction.” Id. at 94 S.Ct. 1372 past, we have invoked the insubstan- Hood, 678, 682, (quoting Bell v. 327 U.S. 66 tiality sparingly, doctrine see Eastern (1946)). Thus, S.Ct. 90 L.Ed. 939 Band Larch, Cherokee Indians v. assuming jurisdiction before over Dixon’s (4th Cir.1989) F.2d (noting that case on a supposed based federal cause of “[t]he Tribe’s complaint satisfie[d] th[e] I, action in Count we must determine if the relatively jurisdictional low threshold im insubstantiahty deprives doctrine jur- us of posed doctrine”), by the only in cases isdiction to even consider this claim. plaintiff where a has drafted a frivolous count solely for the purpose of filing a Hood, In Bell v. the Supreme claim in Davis, federal court. See Court explained: 648; Lovern, 648; F.2d 190 F.3d Gold previously exceptions carved out Baltimore, (4th smith v. 845 F.2d 61 Cir. are that a suit may sometimes be dis- 1988); Holloway Schweiker, 724 F.2d missed for want of where (4th Cir.1984). the alleged claim under the Constitution or federal clearly appears states to be Still, the insubstantiahty doctrine solely immaterial and made pur- seeks to do more than prevent plaintiffs pose obtaining jurisdiction or where from engaging forum shopping. More wholly such a claim is insubstantial and fundamentally, the rule ensures that feder frivolous. al jurisdiction courts assert solely over live Const, 682-83, Id. at 66 (emphasis S.Ct. 773 add cases and controversies. See U.S. ed). quotation As this suggests, Ill, § the in- art. 2. Where a claim is “so attenu substantiality doctrine is best (though not insubstantial, ated and frivolous, obviously exclusively) applied in cases where plainly insubstantial, the or no longer open to plaintiff attempted discussion,” has to abuse Rule 8’s there is controversy no for a liberal pleading requirements by drafting adjudicate. Davis, federal court 856 a complaint appears surface, that F.2d at (quoting Hagans, 650-51 415 U.S. substance, though not to rely upon 536-37, 1372). at 94 S.Ct. To point, question of federal law. reading “[Tjhere This Appellant argues, are no fed supported by is rule this Circuit’s deci eral causes of action available to Dixon Edwards, 648, sion in Lovern v. 190 F.3d under case,” the facts of this an observa (4th Cir.1999), observed, 655 where we tion which is undoubtedly true. As stated Pak, “As we warned in above, Davis [v. 856 F.2d Count I cognizable is not under 42 (4th 648, Cir.1988) ], 651 § courts U.S.C. 1983 Coburg because is not a guard must against litigant who state actor. Additionally, Dixon has no frames a pretextual issue solely for the claim § under 42 U.S.C. 1981 because

257 containing treated the claim the federal issue must that he was suggestion no there is of his or fall on the resolution of that federal Coburg account rise differently by on merely If federal forms conceding points, these issue. law an each of By race. action, cause of element of state cause of allege any failed to Dixon has may give claim be insufficient to rise to federal Accordingly, I. in Count action controversy jurisdiction if the case actually us with a present does not other, purely state-law even to resolve. turns elements might attempt that we of the claim. See Clark v. Velsicol Chemi any federal Despite the lack of (4th Cir.1991) Corp., cal 944 F.2d 198 I, still may claim in Count this Court federal stat (“Application particular over remainder of retain an ute this case would remain but ele al of action if the state causes the case plaintiffs negligence ment in state action “ ‘necessarily III leged in and Counts IV give and cannot rise to federal of a substantial depend[ on resolution ] jurisdiction.”). ” Mulcahey v. question of federal law.’ Co., Inc., III, prevail To on Count Organic Chem. Columbia (1) (4th Cir.1994) 148, 151 required Fran would be to show that: he (quoting F.3d political right privilege or Bd. v. Constr. Laborers Vaca exercised chise Tax Trust, 1, 28, “guaranteed every citizen the Con 463 U.S. 103 S.Ct. tion (1983)). Tax and laws of the States or In Franchise stitution United 77 L.Ed.2d State”; Board, “un and laws of this Supreme held that Constitution Court substantial, discharged dis he was later for exer that some appears less it right privilege. S.C.Code cising of federal law is a neces puted question parties stipulated § well-pleaded one of Ann. 16-17-560.1 element of sary claims,” filing the material facts before question jurisdiction to all of respective summary their motions does not exist. Coburg concedes it explained, judgment, 2841. The Fourth Circuit solely he refused to may be fired Dixon because right up by party set [a] ‘the “[I]f stickers from consti the Confederate by one construction of the remove defeated Thus, States, causation is not an his tool box. or law of United tution construction,’ only question whether the opposite by the issue. sustained protects jurisdiction can be in the federal First had Co., flag as he chose to Corp. display Power the Confederate v. Ohio courts.” Ormet Cir.1996). (4th is, the claim neces- display Accordingly, That it.2 F.3d mandate employer charge can violation of clear [a] Carolina 1. Under South at least public policy of State extends discharge in- this usually employee an "without reason, reason, Against legislatively defined 'Crimes Public good curring liability for no " Culler, Policy.' at 92-93. 422 S.E.2d Ridge Elec. or bad reason.” Culler v. Blue 91, Inc., 243, 92 Coop., 309 S.C. 422 S.E.2d However, (1992). Speech the First Amend discharge of an Free Clause of where the 2. The 1, 2 of the public mirrored in article section employee "a of ment is violates clear mandate Constitution, and the lan wrongful Carolina policy, cause of for action tort federal, state guage of the clause tracks discharge arises.” v. This Minute Ludwick of such, 213, Inc., Carolina, 219, language verbatim. As constitutional 287 S.C. 337 S.E.2d court, (1985). Supreme Carolina Court held supreme in Cul- the South 216 ler, "affords the same public applies that its state constitution policy that this rule held constitution.” protections § as does the Federal employer 16- violates S.C.Code when McPherson, reasoned, "We believe Charleston Joint Venture The court 17-560. 145, 544, (S.C.1992). 548 n. 7 prohibition retaliatory dis- S.C. 417 S.E.2d of that Ludwick’s upon the sarily depends resolution of a the United ...” States. Ann. S.C.Code added). § law. question of federal 16-17-560 (emphasis Federal merely law has not been referenced dissent, conceding “prin- while analogy; it has been wholly incorporated ciples of federal First Amendment law still statute, into the and made a critical ele- case,” control the outcome of the would ment of a of action. For cause Dixon to find that we lack based on a prevail, prove he must that he has exer- distinction the incorporation “between of a a political right protected “by cised into a state statute and Constitution and laws of the United principles, by the mere use of federal law States.” way analogy, to resolve an otherwise purely question.” state-law Post at 270. Reviewing the relevant South Carolina legislature merely Had the South Carolina case we find additional support for by way analogy, referenced federal law reading In the statute. Culler v. as other states have done in the Ridge Inc., context of Blue Electric Cooperative, laws, (1992), state anti-discrimination see post at S.C. S.E.2d 91 the Su- laws, see, e.g., or state antitrust preme Natu- Court of South Carolina first recog- Co., Design, ral Inc. v. Rouse 302 Md. discharged nized that a employee may sue (1984) 485 A.2d (holding that “de- employer § for violation of 16-17-560. cisions of the federal interpreting courts public policy Based exception to the § 1 guide” of the Sherman Act the Mary- employment doctrine, at-will the South understanding land courts’ Mary- Carolina court held that “if Culler was Act), land Antitrust we agree discharged would with because he refused to contrib- that no the dissent federal issue fund, would be ute to a political action he would present. have a cause of action wrongful dis- ” charge .... Id. at 93. The Culler court’s However, we do not read the South Car- straightforward analysis is illustrative of to support distinction, olina statute such a its understanding that actions based on fact, Dixon concedes that “[flederal § require 16-17-560 a plaintiff simply to law is an element” of his cause of action (1) prove two elements: whether the em- (Br. § under S.C.Code Ann. 16-17-560. ployee has articulated a political opinion or 11.) Appellant, Although it may be exercised a right; and whether difficult to define the exercise of a First employee discharged aas result.3 abstract, in the there Culler, the court recognized that refus- can be no doubt that precisely this is ing to contribute to the satisfy PAC would analysis type of that the South Carolina element, the first but because Culler was legislature has intended courts to under- refusal, not terminated for his his claim take. The statute it makes unlawful “for a failed at the step. second Id. at 93. person to ... discharge a citizen from employment or occupation ... Citadel, because of Similarly, Moshtaghi v. The political opinions or the politi- exercise Appeals Court of of South Carolina cal and privileges guaranteed to considered claim adjunct of an profes- every citizen the Constitution and laws sor who insisted that military college 3. The Culler, dissent clarify, misunderstands our citation to To we develop cite not to our Culler, erroneously believing equate understanding that we of First Amendment but rather, Culler's opinion support articulation of a reading to our that the South alleged with federally Dixon’s requires exercise of a plaintiff Carolina statute to meet protected right. two-step constitutional Post at 268. the test outlined above.

259 16-17-560, § under Ann. the ‘reprisal for policy through S.C.Code public “violated ruled, is correct that [Moshtaghi] court “While Williams rights pro- of of exercise Lud- may she maintain action under of of State by the Constitution tected ” premised provision wick of Section Carolina,’ his “consti- specifically, 16-17-560, ... her claim must neverthe- rights” un- speech free tutionally protected fail of less as a matter law because 443 S.E.2d 915 constitution. der the state Court’s conclusion that she previous (1994) (alterations As original). in Cul- sup- failed to present sufficient evidence ler, Moshtaghi that the court assumed discharged her that she for port claim is satisfy prong “[i]t the first because could *7, Id. political reasons.” at 337 SiE.2d Carolina Con- undisputed [that] the South 91). Culler, 213 422 at (citing S.E.2d speech, of of provides for freedom stitution petition assembly, right and the Culler, sum, Moshtaghi, In like grievances.” for redress of government courts, that the South Williams we believe However, the court dismissed Moshta- Id. exactly means what it Carolina statute analy- its stage at the ghi’s claim second § 16- says. support his claim under To had found that sis because trial court 17-560, that he Dixon must first show because of “Moshtaghi was not terminated right constitutional to free exercised his with the Board of Visitors his involvement speech, secondly, prove he must 323-24, 422 Id. at controversy.” election ex- discharged he was as a result. As S.E.2d above, plained causation not an issue Thus, solely on dispute. this case turns Additionally, persuasive finds this Court allegation repre- Dixon’s that his actions reasoning colleague, Judge our of his First Amendment sented an exercise Strickland, Shedd, in v. 1993WL Williams expression. free 1993) (D.S.C. Mar.12, (unpub- lished). Williams, court In the district its Franchise Tax Board and Following superficially complex ten- whether considered must next determine progeny, we complaint, alleging violations of both count this See substantial. However, Bd., federal law. like the state and Tax Franchise Court, currently jur- this Williams (noting “arising case before under” S.Ct. 2841 to a claim of essentially only boiled down if law claim isdiction exists the state discharge. Notwithstanding wrongful ques- of a “requires resolution substantial claims, law”) added); presence of several state-law (emphasis tion of federal Fran- (quoting district court exercised at 151 Mulcahey, 29 F.3d case, Bd., granted the entire the de- over chise 463 U.S. at S.Ct. Tax 2841). summary judgment motion question presented fendant’s find the We all counts. complaint Dixon’s be substantial three reasons. complaint, of her Williams Count speech obviously, First Most free of her Amend- asserted violation issues and free claim raises First Amendment speech ment free associ- Recently, ation, importance. she are of “contend[ing] that was dis- monumental Supreme re Court charged because Democrat.” United States [was] she Virginia’s Supreme *l-*2. found that viewed the Court Judge Id. at Shedd cross law prohibiting had failed to offer affirmance of a state “completely Williams First Amend support burning vital any competent evidence because Virginia at stake. Turning Id. at to Williams’ ment concerns See claim.” *2. —Black, U.S. -, cause of contention she had a action (2003). Similarly, presents Dixon’s case environment that actionably is otherwise abusive”). with a difficult this Court as to Coburg claims that its actions limit of where the outer an individual’s premised were on its poli- anti-harassment right political expression might cy, lie. and that it following fired Dixon racial harassment allegation initiated Additionally, there “is an impor one of Dixon’s argues co-workers. Dixon uniformity tant in need for federal law” despite concerns, these Title VII supports exercising juris this Court law Carolina should afford him far- diction over a state-law claim that neces reaching speech protection. free sarily upon interpretation turns suggested application of South Carolina Bill Rights. Michigan Long, law, course, would put state and federal 1032, 1040, 103 S.Ct. law directly in conflict with each other. (1983)4 is, L.Ed.2d 1201 That where a For employer, this conflict would mean statute, applied, as would rest exclu firing either facing Dixon and a wrongful sively law, on federal constitutional unifor claim, discharge or ignoring the harass- mity concerns must be taken into account. ment complaint facing Title VII liabili- Lessee, (1 See Martin v. Hunter’s 14 U.S. ty. Plainly, our in resolving interest Wheat.) 304, 347-48, (1816) 4 L.Ed. 97 issue paramount importance is of and fur- (recognizing importance, “the and even justifies ther jurisdiction our exercise of necessity uniformity of decisions based on Count III. States, throughout the whole upon United all subjects within purview of the con Similarly, Count IV states a claim for stitution”) (emphasis original). See also “Retaliatory Discharge” based on Coburg’s Merrell Dow Pharmaceuticals v. Thomp alleged attempt “to control the content of son, 804, 826, 478 U.S. 106 S.Ct. Plaintiffs speech free through con- (1986) (Brennan, J., L.Ed.2d 650 dissent repeated stant and get efforts to him to ing) Lessee, (quoting Martin v. Hunter’s abandon his constitutionally protected (1 347-48). Wheat.), 14 U.S. at rights of speech by free demanding that he

Lastly, the substantiality of these fac- remove the flag from [Confederate] importance then, tors takes on additional be- tool box and ultimately, terminating cause possible of a conflict with our Title him for exercise of that right....” same VII, jurisprudence. VII Pursuant to Title Essentially, rephrases Count IV Coburg obligation charge maintains an to furnish above, Count III. explained As See, a harassment-free workplace. e.g., Coburg concedes that it pressured Dixon Faragher Raton, 775, 788, v. Boca 524 U.S. to remove the Confederate stickers 118 S.Ct. 141 L.Ed.2d 662 from his tool Coburg box. further admits (discussing the circumstances which “an that it fired Dixon solely because he re- employer will be discriminatory liable for a fused to request. adhere to this All that ruled, Long, Supreme Court in anoth- sufficiently ent case is support substantial to context, er that it finding had question jurisdiction. consider challenge is, defendant's jurisdictional of his state-court inquiry con- that we undertake grounds viction on Fourth explains, when the dissent jurisdic- unrelated the "state fairly appear[ed] court decision tional Supreme faced Court in primarily However, rest Long. on federal or to post be inter- See Long's 261 n.5. woven with the federal law." 463 U.S. at statement that important there “is an need for 1040-41, law," uniformity 3469. The dissent mistak- in federal is relevant to both enly suggests Long analyses. that we cite to buttress our Long simply Our citation to pres- conclusion that the federal purpose issue in the acknowledging this fact. therefore, on claim that he disputed, discharged is whether was because of remains Furthermore, “political opinions.” his display Dixon’s decision to Confederate asserts, was, appears omission to have been Dixon an exercise of intentional. flag as co-worker, Dixon notes that another constitutionally protected rights of Wil- “his ” Reid, liam “worked in garage and also speech.... free had a flag Confederate on his toolbox.” sum, III In removal of Counts and IV (Br. 5.) Dixon, Appellant Unlike pursuant to 28 U.S.C. proper was agreed Reid to remove and his decal con- 1441(a) (2001), sup- § and removal of the working tinue at Coburg. Both Dixon and proper pur- claims was plemental state-law Reid were display flag motivated to 1441(c) (2001). § suant to 28 U.S.C. “political opinions.” because their shared Neither, however, were fired because of B. their opinions flag about the issue. Rath- removal was Having determined er, Dixon discharged was because of his permissible, this Court now considers alleged exercise of his First Amendment whether the district court erred dismiss- right display flag. explained As summary III and IV at the ing Counts facts, joint stipulation Coburg first judgment stage.5 asked Dixon to remove Confederate flag from his tool box. When Dixon resist- III, alleges Count ed, him Coburg purchase offered to a new 16-17-560, § Ann. violation of S.C.Code garage, suggesting tool box of a claim for provides which basis keep flag-adorned Dixon could his tool box if an ter wrongful discharge employee is Therefore, for home use. Dixon could (1) minated for one of three reasons: an kept job, by changing have his his un “political rights” protected exercise of opinions, by altering but how he chose (2) law; “politi der federal exercise of express them. law; rights” protected cal under state (3) “political because of an individual’s The crux of the claim is whether Dixon’s allege a viola opinions.”6 display Dixon does not decision the Confederate Rather, rights” language entire protected “political tion of the statute. he § Ann. A discharged display plain claims that he was “for of S.C.Code 16-17-560. § flag,” reading of the text of 16-17-560 makes of the Confederate and he maintains that a to determine wheth- employment was terminated be it clear court is engaged cause of his exercise of his constitutional er Dixon: the “exercise right speech.7 political rights privileges guaran- to free Nowhere does Dix- of I, above, explained rights privileges guaranteed so frivolous under the Count it (Empha- and insubstantial that fails to raise a federal United States.” Constitution of the Accordingly, question. that claim must be added.) sis The statute does not embrace prejudice. without dismissed every right, only but those that constitutional rights privi- "political” can be labeled above, explained 6. As violation of this statute leges. Supreme of South Carolina Court support wrong- will a civil cause of action for assumed, deciding, without that the exer- discharge public policy excep- ful under the speech, cise of the to "freedom of employment tion to the at-will doctrine. See assembly, petition govern- and the Ridge Co-op., Cutter v. Blue 243, Elec. 309 S.C. grievances” would be ment for redress of (1992). 422 S.E.2d 91 Moshtaghi § protected under 16-17-560. § Citadel, 7. S.C.Code Ann. 16-17-560 that it is states 314 S.C. 443 S.E.2d discharge employ- "unlawful to citizen from (1994). ment because of the exercise of he grounds capítol, on the of the state by citizen the Constitution every to teed clearly or would have satisfied the first ele- United States and laws of the State”; § and a claim 16-17-560. As- laws of this ment of under Constitution and (2) a result. Because have discharged suming that state authorities would forward, as to the reasons be- dispute permitted rally go is no to Dixon’s there discharge, the case turns on at such an event would be an hind Dixon’s attendance any pro- there is of whether under the Free exercise of his Dix- Speech Free Clause for tection in the of the First Amendment. Speech Clause on’s actions. precisely conduct would be the kind This legisla- that the South Carolina speech displaying The act of Confed protect. to Under Car- ture wished purview flag plainly within erate law, this olina an individual who attended “Flags, especially the First Amendment. rally Sunday on could not be fired type of sort, enjoy an honored flags political of a private employer following his Mon- in the First Amendment hierar position objected day solely employer because his Legion City Post 7 v. chy.” American rally. at the presence to the individual’s (4th Cir.2001). Durham, 601, 239 F.3d more, display the Dixon, however, Dixon chose to Even display chose to flag at a time when Confederate battle tool he flag Confederate box used vigorously were debat South Carolinians Dixon workplace. prevail, his For to this flag fly atop should their ing whether that would to find that the required Court be capítol. Supreme As the Court re right him the to gives First Amendment affirmed, pro “The hallmark of the cently flag rally capítol move the from the to the is to allow ‘free trade speech tection of free Coburg Dairy garage. finding Such a ” ideas,’ extends “to protection making would lead to the result of absurd conduct as well as symbolic expressive every private workplace constitutionally —Black, Virginia actual v. speech.” to protected forum for discourse. As -, 1536, 1547, 123 S.Ct. U.S. observed, Supreme Court has this ar- (2003). actions, L.Ed.2d 535 tak- major gument “has as its unarticulated charged political atmo- ing place amidst premise assumption who people speech the kind of sphere, exemplify propagandize protests want to or views pro- the First Amendment was drafted to right a constitutional have do so when- tect. they ever and however and wherever Florida, 39, Adderley v. please.” 385 U.S. may have a constitu While (1967). 47-48, 87 S.Ct. 17 L.Ed.2d 149 fly the right flag, tional Confederate “vigorously forthrightly Court however, An right is not unlimited. rejected” concept Amend- First may general rights individual not “exercise ment. Id. at 87 S.Ct. 242. speech property privately of free on owned private constitutionally protected and used for Dixon has a nondiscriminatorily Tanner, only.” Lloyd Corp. right fly flag v. the Confederate battle purposes 551, 567, home, car, 92 S.Ct. 33 from his or truck. He has a public property, (holding right L.Ed.2d 131 that the First attend rallies protect organized by does not the actions of to march in events Amendment under he protester handing out anti-war handbills SCV. And South Carolina shopping discharged exercising at a owned mall when could not be his privately right at these events. policy against that mall has a all handbill First case, however, Dix- rally In the context of this ing). pro-flag Had Dixon attended expression.” Myers, right does not ex- Connick 461 U.S. First Amendment on’s 138, 142, in- 75 L.Ed.2d bringing the Confederate tend to (1983). Thus, employee owned when an employer’s privately dis side his charged ostensibly for exercising Dixon has failed establish workplace. to free speech, especially speech element of a cause of action when that an essential concern, touches on a discharge public under S.C.Code matter of wrongful public employer justi § that he exercised one bears the burden of Ann. 16-17-560: fying and its “political rights privileges personnel the action based on its in the every to citizen the Con- “interest effective and efficient ful guaranteed responsibilities” laws of the United States fillment of its as an em stitution and 150, 103 ployer. of this Id. at 1684. the Constitution and laws- S.Ct. Thus, motion for Coburg’s sum- State.” alleges discharged that he was III judgment as to Count mary refusing to remove two Confederate flag properly granted. concedes, stickers from He his tool box. takes issue with our under- however, The dissent Coburg bought that would have statute, the and standing of South Carolina him a new tool him permitted box to law should be suggests instead the box, the keep flags long on his old tool so to interpreted require to court answer using as Dixon refrained from the old tool hypothetical question pri- the of whether in Coburg Dairy garage. box the When would employer’s vate actions have violat- accept Dixon refused to this offer of com- if employer the First Amendment ed he promise, was fired. actor. This view of the South

were state Coburg justifies discharge its decision to not Car- Carolina law is based South preserving Dixon based on its interest in nothing statutory olina or common friendly and efficient work environment. jurisprudence in Carolina’s directs above, explained As whether to remove the what would have happened court to ask flag atop capi- Confederate from the state government employee. had Dixon been a extremely tol dome was an sensitive and inter- Regardless, even were the dissent’s in the divisive issue South Carolina correct, § pretation of 16-17-560 a federal flag raised over the time. The was first would still control—whether the issue 1962, just years in a few capítol before of a protects right First Amendment the Act Congress passed Rights the Civil employee display to the Confederate Rights Act of Voting 1964 and the 1965. in flag in the manner and circumstances context, In the decision to its historical displayed flag. which Dixon the For the fly flag first over the South Carolina below, we find that reasons stated reasonably can be seen as a defiant capítol protections of the First Amendment do by a to legislature act determined resist far. reach so desegregate. national to Al- pressure eventu- though

It is well-settled “that a state the State of South Carolina fight against civil public employment ally capitulated cannot on a its condition rights, flag continued to infringes employee’s basis that consti Confederate fly light In of these tutionally protected July interest in freedom of until 2000.8 fact, grounds. Recognizing flag capítol the new In still flies in South Carolina objectiona- today. compromise flag position ways part As of a between was in some more ble, flag supporters opponents flag supporters, legis- some chanted "Off the the state agreed flag your face” as advocates lature to remove from the dome and in NAACP capítol and Sons of Confederate Veterans witnessed dome and raise it elsewhere is, enjoy public employee That should facts, to how Dixon’s decision easy it see protection on his tool the same level of constitutional flag Confederate display to employee. as a controversial and A state private as does the box would be viewed fact, pri- Dixon’s African- than a go act. need not farther provocative employer Garner, co-worker, Leroy however, provide its employer, American vate display to Dixon’s decision viewed employees with an unrestrained forum a form of racial garage as inside the political discourse the work environ- surprisingly, Coburg Not harassment. Coburg great ment. Because went part re any failure on its feared right speak lengths protect Dixon’s might concerns ex to Garner’s sponding freely workplace, outside liability. to Title company VII pose speech First Amendment to free Thus, among keep in an conflict effort discharge infringed by not been based minimum, in at a order employees its Coburg the garage. on his actions inside and efficient work a harmonious preserve summary judgment is therefore entitled to environment, any in avoid and order to III. on Count liability under federal anti-dis potential laws, Coburg asked that Dixon crimination Dix complaint, In IV of his Count for after statements save his retaliatory of action for alleges on a cause Coburg suggest that work. Never did Dixon, discharge. According “Coburg’s speak not out about his views Dixon could actions, through agentsf] attempts its Instead, flag. Dixon’s on the Confederate right control the content of Plaintiffs that he merely insisted voice employer then, ultimately speech free ... and termi that in a manner would viewpoints those exercising him nating right, for that same one co-workers likely goad of his be less retaliatory discharge constitute of Plain confrontation. This is into an emotional above, tiff.” on the As discussed based legitimate and interest surely a substantial case, placement facts of this Dixon’s of the supports Coburg’s that actions. See not a Confederate on tool box was — at -, Black, at constitutionally protected exercise of free by the (noting, protections “The afforded Therefore, prop court speech. district absolute, ... are not First erly summary claim on dismissed this recognized long gov we that the have judgment as well. categories certain may regulate ernment with the expression consistent Constitu tion.”). C. ques now to the Court turns public employee

When Coburg tion of whether entitled to allegedly exercising for discharged been summary judgment pendent on six Dixon’s speech, to free his First Amendment Specifically, state-law claims. this Court is to ensure that responsibility [the “Our Coburg must determine whether is enti of fundamental deprived employee is] govern summary judgment tled to as to Counts rights by working virtue of for the VI, VII, complaint.9 IX ment....” Id. at 103 S.Ct. 1684. VIII and of Dixon’s flag being granted summary moved to its new site in front of 9. The district court also capítol prominent at a intersection in judgment on Counts II and V of Dixon's com- Flag See downtown Columbia. "Confederate however, Dixon, appealed plaint. has not Statehouse,” Angeles S.C. Removed from Los ruling on these counts. district court's Times, 2, 2000, July at A18. GOODWIN, remaining Judge, these District argument concurring on Dixon’s claims, dissenting in entirety, part part: as follows: its majority that the District Court failed to ad- concludes Counts III

Finally, plaintiffs complaint that his causes IV neces- argument dress Dixon’s sarily depend on the resolution of a aspects on other sub- of action based law, law, question stantial and thus including breach of South Carolina contract, defamation, question jurisdiction intentional inflic- exists respectfully over those counts. I disagree. and conspiracy tion of emotional distress First, I wrongful conclude fact theories should not are driven which discharge and retaliatory discharge claims summary be determined motion depend any do not on the resolution of genuine judgment. submits Second, question of federal law. even if I regard of fact exist with to these issues were to conclude that action, those claims do de- only which should be causes of pend resolution of a the trial level. determined at is not a substan- 29.) (Br. fact, Appellant point tial one. For both of these independently however, Dixon never does submit what reasons, sufficient I would hold that might of material fact genuine these issues district court lacked over facts, allege any failed to be. He has III majori- Counts and IV. concur either before this Court the district ty’s opinion insofar as it holds that Count I court, support allegations to of breach complaint raises an insubstantial defamation, contract, conspiracy, civil or question of federal law. Because none of intentional infliction of emotional distress. give question the counts rise to federal is so because Dixon’s case is not This jurisdiction, any the district court lacked really any about of these state-law claims. jurisdic- for exercising supplemental basis Rather, or allegations Dixon’s rise fall According- tion over the state-law counts. solely speech allegations, on his free dis- ly, complaint the entire should be dis- such, the court cussed above. As district jurisdiction. for lack of I missed Because for rightly granted Coburg’s motion sum- jurisdiction, we lack I do not reach believe mary judgment pendent state-law of Dixon’s claims. merits causes of action. I. IV. that the district majority concludes reasons, foregoing For the the district in question jurisdiction court had federal in ruling part court’s is affirmed and re- case, holding that Count III “neces this above, in part. explained

versed As Co- sarily depends upon the resolution of a burg summary judgment is to on entitled question of federal law.” Ante at 257-58. through complaint. II IX of Dixon’s Counts conclusion, reaching majority this I, on violation of premised Count a consti- in Dixon prevail notes that order to must rights, wholly tutional is so insubstantial that he “exercised a establish any and frivolous as to fail to raise federal right privilege ‘guaranteed to Accordingly, purportedly question. every by the Constitution and laws citizen preju- federal count is dismissed without of the United States Ante at 257. I dice. majority’s I agree. agree also with the PART, AFFIRMED IN in REVERSED observation that causation is not dis IN PART only pute, question and that “[t]he protects analogy, to determine when an individual First Amendment whether was, exercising in display speaking, the Confederate a manner of right private his First Amendment display it.” Ante at chose flag as he context. But there is a criti- this, employment majority concludes From incorporating cal difference between the resolution of depends on Dixon’s claim question of federal law into state statute law. question using federal law as a reference or blush, appears this conclusion At first analogy purely for state law interpreting If, case, agree is the correct. be Here, action.2 cause of South Carolina has is whether Dixon question real here only latter, no feder- done the and thus there is First Amendment exercising his question al under this statute. displayed he rights when did, might he then it seem manner that A. that the outcome of this case de- obvious question Colloquially, speak of a we often of exercis- on the resolution pends However, ing rights, in the circum- our federal constitutional law.1 case, example, exercising of “Was our to free stances of abstract, speech. though, In the it is im- exercising his First Amendment possible say particular that can be an- whether a form rights?” is not expression, displaying law. This is be- of like the Confed- swered under cause, flag, one cannot deter- erate is or is not an exercise of First under federal specific expressive activity rights. and nature scope mine whether a rights” rights depends of First Amendment of First Amendment is an “exercise expression to a state actor who is the circumstances of the without reference trying suppress expressive activity. question critically present and —most course, Here, in- purposes no state actor was nature of the state’s at- —the Accordingly, tempt it. discharge. volved in Dixon’s restrict See Cornelius v. Fund, Inc., body Legal of federal law that ad- NAACP & Educ. there is no Def. 788, 799-800, 3439, of whether 473 question dresses the Dixon was 105 S.Ct. 87 (1985) rights. (explaining his First Amendment L.Ed.2d 567 exercising Rather, concept types may place of the “exercise of of restrictions the state rights” speech depend in the context of on speaker First Amendment on whether the forum, solely concept speak action is a that has wishes to in a a limit- private public forum, legisla- purpose public been the South Carolina ed or a nonpublic created forum). concept ture. It a law that does The Amendment not is First does Undoubtedly, provide generalized not exist under federal law. individuals with a legislature express the South Carolina intended themselves without inter- interpreting only places federal law the First ference from others —it certain used, by way attempts by Amendment would be on the state to limits interfere Indeed, out, course, majority points 2. as the ante at Of even in cases where the state 258, incorporate question statute does a Dixon believes that the First Amendment question jurisdiction often not is issues in this case of his state form an element present. See Merrell Dow Pharmaceuticals course, party’s cause of action. Of a conces- 804, 809, Thompson, 478 U.S. Inc. 106 question jurisdic- sion provide cannot 3229, (1986); L.Ed.2d S.Ct. 92 650 Part infra lacking. tion where it would otherwise be See point II. The here is that federal Mexico, Apache v. New Mescalero Tribe present is never when federal law (10th Cir.1997). F.3d merely by analogy. is used CBS, government Inc. v. could even fire an activity. employee See expressive with Comm., 412 U.S. in participating Nat’l an constitu- Democratic otherwise (1973) 36 L.Ed.2d tionally-protected pro-flag rally on the (“That law ... ‘Congress shall make no capítol grounds. Imagine pro-flag that a speech, freedom of or of the abridging the group brought citizen had a chal- lawsuit action, government is a restraint on press’ lenging process by which the South Moreover, persons.”). private not that of legislature Carolina decided to remove only prohibits the the First Amendment statehouse, atop Confederate from speech in interfering with cer- state from planned rally to publicize the case and in certain contexts. Unless ways, tain and their cause. A clerk judge law to the attempting we know how the state assigned pro- the case wishes to attend the activity, it expressive impos- restrict flag rally, strongly supports flying as he the individual en- say whether sible capítol. the flag atop Surely judge expressive activity in that is “exer- gaged could, consistent with the First Amend- rights.” Amendment cising his First ment, prohibit attending the clerk from by way example. illustrate in pro-flag rally prevent any will order to claims that if Dixon were to dis- majority appearance judicial impropriety, bias or flag during pro-flag play the Confederate and in fact could fire the clerk if he dis- rally grounds capítol, on the of the state obeyed rally anyway. and attended the clearly would constitute an ex- that action See Judicial Conference the United rights. of his First Amendment ercise States, Em- Code Conduct Judicial disagree flag-waving at 262. I at a Ante ployees, Canon available at — rally capítol grounds on state does pro-flag <http://www.uscourts.gov/guide/vol2/ always an exercise of First not constitute (“A judicial employee ch2a.html> should majority’s exam- rights. any in that would engage put activities doubt chosen because it ple activity—no propriety judicial into paradigmatic example of exercis- seems out the employee’s carrying conduct ing one’s First Amendment (“[A] —could office.”); duties of the id. Canon 5.B prohibited by the state some circum- be may judicial employee! engage nonpar- ] example, pro- For the state could stances. activity only activity if tisan such rally pursuant at 2 a.m. pro-flag hibit adversely does not tend to reflect uniformly-applied policy against assem- dignity of the court or of- impartiality bly capítol grounds midnight between proper with the fice and does not interfere Dist., Park and 6 a.m. See Thomas v. Chi. duties.”). A com- performance of official 316, 322, 534 U.S. S.Ct. discharge plaint from the clerk that his (2001) (state may impose L.Ed.2d 783 Amendment, the because he violated First time, place, “content-neutral and manner First Amendment exercising was his forum”). public of of a regulation the use assuredly almost fall on deaf rights, would Similarly, prohibit pro- the state could a ears. flag rally capítol grounds planned clear, make examples hopefully As these given day light for a of a credible bomb free- typify even for conduct seems to rally. threat associated with See whether Collins, 516, 532, expression, question dom of the of Thomas v. 323 U.S. (1945) (state of that conduct constitutes the exercise may S.Ct. 89 L.Ed. 430 be rights Amendment cannot prior speech a restraint on “if one’s First impose knowing answered without the manner grave impending public danger re- this”). circumstances, on that justification the for state restrictions quires some If how the political expression. this is concedes that it is majority The speech. abstract, determine, interpret courts the stat- in the South Carolina “difficult” to exercising ute, his First indeed —much is then its reach is broad individual when an Here, I pub- at protection Ante 258. than the afforded rights. broader Amendment disagreement. think, by heart of our the First Amendment. employees lies the lic difficult; hand, I merely it find this task to the case at is Applying I do not this test least under federal majority concludes impossible why find it hard to see the —at a First exercising law. that Dixon was not all, display After his of right. Amendment “there can be states that majority him, flag was intended the Confederate the of defining exercise no doubt” others, articula- as the and understood in the “is rights abstract Amendment First opinion. employer a His political tion of analysis that the type of precisely advocacy of his that he limit his asked has intended legislature South Carolina political opinion about Confederate But Ante to undertake.” courts refused, workplace. He to outside that the South Car- one concludes whether fired.3 he was to deter- intended courts legislature olina First Amendment exercise of mine the actor was involved Because no state rights those in the ab- by defining rights body there no of fed- discharge, asserts, stract, byor treat- majority as question eral law answers if a employer as it were ing private exercising Dixon was his First whether asserted, actor, in neither as I have rights ques- in this case. The Amendment determining case is the court in the South Carolina stat- tion embedded body there is no Just as federal law. exercising his ute—when is an individual the exercise of law that defines Amendment rights against as First pri- against as First Amendment employer simply not a private —is body no of federal there is employer, vate of federal law. Because Dixon’s claims do in the defining it abstract. law “question depend on the resolution of interpretation of the majority’s If the law,” give claims do not these is, correct —that statute is South Carolina jurisdiction. rise to federal courts to determine the if asks the statute rights in the First Amendment exercise B. abstract, by treating pri- than rather far, argued concept that the actor—then the Thus have as a state employer vate of First Amendment federal law than of the “exercise less to do with statute has action, of state is a majority rights,” the absence my interpretation. under Culler, no content under federal analysis concept that has argues that under might part It to follow that this exercising law. seem plaintiff whether statute, regu- of the South Carolina which simply “whether First against action the exercise private lates has articulated employee simply a rights, Amendment is political right.” a of First opinion or exercised all, thing, if there is no such approach, nullity. the After Under this Ante at 258. law, federal as the exercise of First of First Amendment under phrase “exercise action, rights absent state a shorthand reference Amendment treated as rights” is Amendment, concept that I have political the First “exercised a 3. As to whether Dixon is, argued phrase might already in the absence of state this right,” am not sure what I action, law. rights without content under except of his under mean the exercise of the tion has no content under it argue part could this is then one meaning, at as an entirely can have no least different whether it statute to actors. This was the applied private might have some content under state law. granted It court’s conclusion. district Undoubtedly, the Carolina legisla- Coburg, explaining to summary judgment part ture intended that this of the statute constitution, the federal “for that under meaning. would have some I can conceive speech, to be a violation of free there there way interpret of one to the statute that [Tjhere action.... was no must be state give meaning. does it To determine being in this case. That the state action private whether the South Carolina em- case, ... the defendant had an absolute ployer employ- has acted “because of [an I discharge plaintiff.” agree to the ... exercise of’ his First ee’s] Amendment interpretation the district court’s is speech rights, free a court should ask statute, plausible one construction private whether the employer’s actions nullity the albeit one that renders statute would have violated the First Amendment However, actors. there against private as so, if it were a If state actor. then one can way interpret to the statute that is another say, in a speaking, manner of the give meaning. does it private discharged employee actor has the concept employee’s the of the “exercise of because of the exercise of his While rights” rights.4 Critically, First Amendment absent state ac- First Amendment this majority skeptical approach private workplace. by making is of this to And refer- statute, contending political rights protected that it has no basis in ence to under the simply United States than South Carolina common law. Constitution rather the statute or using phrase "expressing like be- interpretation is While I concede that liefs,” statute, legislature clearly the South Carolina compelled the text of the I submit body had in mind the of federal caselaw that interpretation it that it is the best because is developed (1) related to First Amendment the text consistent with of the statute tell, argued I (2) restrictions on state action. have give only way, as I far as can to impossible say above that it is to whether a any By making it a the statute force. crime given expression act of is an exercise of First discharge private employer an em- for rights knowing without the con- ployee of his First Amend- exercise speech text of the manner of the rights (among things), ment other the South government's attempt to restrict it. Accord- intended, believe, legislature to af- Carolina ingly, only way that I can conceive to protection private employees ford the same actors, apply, body private against private employers as is en- their governing protec- caselaw First Amendment joyed by public employees against the state. action, against pri- to treat the tions (There doing are reasons to doubt whether so vate actor as if it were state actor. even, circumstances, in some con- is wise stitutional, Moreover, approach but are not while this is not laid those issues before the explicitly Car- N. & D. out in the statute or in South court. See Julian Eule Jonathan Varat, (which relatively Transporting First Amendment Norms olina caselaw undevel- time), Every approach oped Sector: With Wish There in this area at this Private Curse, support Pennsylva- Comes a 45 U.C.L.A. L.Rev. does find in caselaw from analogous (suggesting applying interpreting 1605-32 nia and Connecticut pri- Amendment-type private determine whether a First restrictions to state statutes. To circumstances, private may, employee discharged by a actors in certain violate vate “exercising employer a First Amendment those actors’ First Amendment freedom of rights).) using right,” expression By courts have relied on federal caselaw and association employee’s discharge public employees. phrase "exercise of First related to the [the Co., rights,” it Novosel v. Nationwide Ins. 721 F.2d seems that the South See Amendment] Cir.1983) (3d (interpreting legislature protect pri- 898-901 Carolina intended to law); Pennsylvania Winik-Nystrup v. employees’ express vate themselves Mfrs. Co., (D.Conn. important F.Supp.2d 160 and other in Ins. 8 on matters Life interpret purely state courts state- employee can be where private a concept—that in stat rights” light law of similar federal Amendment statutes “exercising First some courts example, a state utes. For state employer against private —is interpreted have state anti-discrimination that the South Carolina concept, one law created, principles in accordance with the of incorporated not laws has legislature See, e.g., anti-discrimination law. It could not have incor- federal law. from federal Home, law, concept Nursing from federal be- v. Sundale this porated Barefoot (“We 152, 159 does not exist under S.E.2d concept W.Va. cause the is a new creation of the consistently brought It have held that cases federal law. legislature purely and is a Virginia Rights Human South Carolina under West W.Va.Code, Act, 5-11-1, law. gov of state et are seq., creature analytical the same framework erned if argues that even it were majority VII, under Title developed and structures statute, “a approach adopt language where our does least statute’s still control—whether federal issue would (citations omitted)). not direct otherwise.” protects the First are involving While cases these state laws the Confeder- employee display a state by considering resolved and an sometimes in manner and circumstances ate alyzing analogous federal such flag.” Ante displayed in which depend not of a cases do resolution that, majority with the agree at 259. I question incorpo of federal law statute, my approach to the even under rated into the statute. As one district law of federal First Amendment principles in explained, court this circuit has “[t]he of the case. This control the outcome still plaintiff situation ... where a asserts a mean, however, that the statute does not recovery claim for under a state statute a incorporated federal law. is modeled federal should law[ ] after difference, submit, between in distinguished be from the situation of a federal into incorporation plaintiff which a asserts a claim that incor the mere statute and use federal state porates federal statute standard as an by way analogy, to re- principles, law recovery element of under state law.” purely ques- state-law solve otherwise Honda-Volvo, Pendergraph v. Crown Here, Carolina tion. statute (M.D.N.C. LLC, F.Supp.2d incorporate question, does a federal not 1999). case, The former where the court the exercise of First Amendment because simply looks to federal law for a frame rights concept action is alien absent state work to a state law does question, decide Instead, law. the South Car- federal question jurisdic rise to give olina statute has created new state-law (“[T]he tion. See id. mere fact that a exercise of First Amendment concept—the local ordinance is construed accordance of state the context action-— outside give with federal statute does not rise to by looking content to feder- given which is question jurisdiction.... Clearly, law, in the context of al First Amendment government’s the state or local decision to action, way analogy. guidance look to federal law for inter preting federal law in this case is state law does not federalize the The role of action.”); v. M.K-Fergu- similar the use of federal law cases cause of Mixer 1998) law). (interpreting discharge would have the First Connecticut In es- ee’s violated sence, whether, private these courts ask if the Amendment. See id. actor, employer employ- had been a state

271 (S.D.W.Va. Co., 569, juris- clusion that the district court F.Supp.2d 17 572 lacked son 1998) diction in this case. (holding that claim under Vir West present a Rights Human Act did not ginia majority The first that decides case, the fact question). federal “necessarily claim depends upon the reso analysis claim of requires that a state law lution a of question federal law.” Ante depends resolving law and on federal at Assuming that these a claims raise of federal law does not mean that the issue question, agree I with majority incorporated question state claim necessarily Dixon’s claims here de simply law provides federal law. Federal pend question. on the resolution of that deciding analytical framework clear, Supreme Court has made how purely question. state law ever, question jurisdiction that federal is always present not in involving cases rely Accordingly, Dixon’s claims state law that incorporates ques a federal (in Carolina statute combination claim, tion as an element of the state even at- policy exception with the to the public when resolution of that federal question is doctrine) “depend[] do not on the will the central issue the case. In Merrell question of a ... of federal resolution Thompson, Dow Pharmaceuticals Inc. v. Organic v. Mulcahey law.” Columbia 804, 3229, 478 U.S. 106 92 S.Ct. L.Ed.2d (4th Co., 148, F.3d Cir. Chems. 151 (1986), Supreme Court noted 1994). Dixon was question of whether presented “the central issue in [Franchise exercising his First Amendment Tax Board the State of California by this case cannot be answered Construction Laborers Vacation Trust for against law because there is no state action California, 463 Southern U.S. pro measure First Amendment which to 2841, 77 L.Ed.2d 420 turned on ] However, the can be question tections. meaning Employee Retirement In specifically, answered under state law— Security come Act of 29 U.S.C. law created concept under the state (1982 Ill), § seq. Supp. 1001 et ed. and but legislature private that a South Carolina jur we nevertheless concluded that federal employee exercising can be said to be his Dow, lacking.” isdiction was Merrell rights, purposes First Amendment Noting, S.Ct. 3229. statute, this state when he is fired under among things, free-standing that no other which, if private employ circumstances federal cause of action was available to the actor, er were a state would violate the that “the plaintiff, the Court concluded First Amendment. Because Dixon’s presence of a claimed violation of the stat III depend claims Counts and IV do not ute as an element of the state cause of question on the resolution of a of federal insufficiently action ‘substantial’ to con law, do give those claims rise to federal jurisdiction.” Id. at federal-question fer question jurisdiction. 814, 106 S.Ct. 3229. The determination of whether the feder II. question al in this case is “substantial” judg assuming argument Even for the “should be informed a sensitive sake III ment of feder depend that Counts and IV do about whether existence judicial power appropriate al is both resolution of pragmatic.” Corp. Ormet v. Ohio Power nonetheless believe such (4th Cir.1996). Co., another, “At in- 98 F.3d provides not substantial. This bottom, my con- must determine whether the dependently sufficient reason for we 272 rights only implications has Congress intended fed- Amendment that is one

dispute resolve, brought other under this South taking into account for cases eral courts to (or analogous establishing fed- Carolina statute for the historical reasons Dow, statute), not for First Amendment cases (citing Merrell 478 courts.” Id. eral (Brennan, 826-27, generally. expertise As for the relative 106 3229 at S.Ct. courts, the First Amend- for estab- federal and state J., Those reasons dissenting)). an area of federal law in which include interests ment is courts lishing the federal courts, interpretation of the state courts are well versed. State national in uniform 826, Dow, jurisdiction, must rou- general at 106 as courts of law, 478 U.S. Merrell (Brennan, that dissenting), tinely implicate decide issues J. 3229 S.Ct. Amendment, when the example of fed- First greater expertise possibility law, is asserted as a defense of federal id. First Amendment questions courts in eral See, addition, e.g., state claim. v. 826-27, 3229. In a Goodwin 106 S.Ct. 30, 319, 552 324- Kennedy, considered 347 S.C. S.E.2d majority in Merrell Dow (2001) First Amendment free-standing (discussing had a 25 plaintiff whether actions); limit state principles the federal law libel of action under cause Co., 813-14, Evening Post Pub. 106 S.Ct. 3229.5 Parker v. S.C. question. Id. at (1994) (same). 640, 236, 452 S.E.2d pragmatic principles Applying these addition, majority Merrell Dow implicated in arguably question the federal fact that no placed great emphasis on the case, they point all I conclude free-standing cause of action federal if question, finding toward the federal for the plaintiff available to the federal As for national any, is not substantial. incorporated that had been into the statute ques- law uniformity, particular federal of action at issue. The court state cause private is a tion raised in this case— when that: explained Amendment employee exercising his First necessary as- employer significance against private —is private is no federal type sumption context of this there specific limited to the thus cannot be over- Because the First cause of action of state statute. For the ultimate apply private import em- stated. such Amendment does conclusion, repeatedly a as we have em- ployers, determining private when a em- employ- phasized, congres- fired an is that it would flout ployer can be said to have a provide private of his First sional intent to federal ee because of his exercise district courts. two con- majority, discussion of whether diction in the 5. The in its '‘substantial,” quotes different, question this federal cepts quite Long's are state- Long, Michigan v. 463 U.S. statement from ment about the former does not assist in 1040-41, 77 L.Ed.2d 103 S.Ct. determining Supreme the latter. The Court (1983), Supreme to the effect that routinely reviews state court decisions con- Court a "state court review give taining that do not rise to federal issues fairly appears primarily decision to rest [that] question jurisdiction federal in the district law, on federal with the or to be interwoven example, courts. For the existence of a feder- federal law.” Ante at 260 n. 4. This standard al a state cause of action does not defense in Supreme scope relates to Court’s original jurisdiction give in the district rise to powers judgments, spe- to review state court courts, Supreme provide but does basis cifically regarding de- whether the state court See, judgment. court Court review of a state independent adequate cision rests on an Sullivan, e.g., 376 U.S. New York Times Co. submit, not, ground. state law It does have 11 L.Ed.2d any bearing on whether (reviewing First Amendment defense to state law of action is embedded in state cause action). give original juris- as to rise to libel substantial so Moreover, assuming violation of the federal even that the statute remedy for the similarly incorporate think it would does statute. We undermine, First flout, congres- at least the South Carolina apply to conclude that the statute asks the court to those First sional intent exercise fed- might principles entirely courts nevertheless Amendment in an novel provide eral-question against private employer. context —as violations of that federal majority remedies for The to makes reference “First solely because the violation statute Amendment ... of monumental im- issues to a “rebut- federal statute is said be portance” Ante at this case. 260. On “proximate or a presumption” table I contrary, argue would that there are law, state rather than a cause” under stake, no First Amendment concerns at federal action under federal law. for the First has nothing Amendment say about private employers. the acts of Dow, 478 U.S. at Merrell Rather, the concern at stake here is free (footnote omitted). case, In this speech private employees course, has no federal cause of ac- against private employers, their a concern the First against Coburg tion under by legislature created the South Carolina § Coburg because is Amendment present but not in the United States Con- Thus, presented not a state actor. we are unique stitution. Given this creation of free-standing with a case where no federal law, South Carolina there is no need for right of action exists for the federal cause area, uniformity national in this and South (if all), here it is a federal at asserted equipped Carolina state courts are better significance “cannot be a factor whose interpret this statute. apply Id.6 overstated.” sum, I if the would hold that even First all of the factors in this Considering principles implicated by case, that falls I cannot conclude this case pres- South Carolina statute can be said to where, that “small class of cases within law,” “question ques- ent a that not though even the cause of action is “sufficiently tion is not substantial arise law, the ease’s resolu- created federal meaning within of 28 under federal law resolution of a federal depends tion Ormet, § 98 F.3d at 806. U.S.C. 1331.” question sufficiently substantial to arise that the federal issue meaning majority federal law within the of 28 The holds under Ormet, § only 98 F.3d at 806. here is substantial not because U.S.C. 1331.” courts, implicated, all but Carolina like First Amendment issues courts, conflict experience interpreting possible much also “because of a with have Ante at 261. applying jurisprudence.” the First Amendment. our Title VII Indeed, given language private, of action for the 6. the tone of the federal cause viola- tion, Dow, arising a claim under the Merrell one could be excused for con- does not state Constitution, laws, cluding the United Dow had established a or treaties of Merrell Dow, categorical States.” 478 U.S. at rule that when there is no free- Merrell action, omitted). standing ques- (quotations federal cause of federal S.Ct. 3229 and citation Nonetheless, jurisdiction never exists over a state this court in Ormet concluded tion where, incorporates a small class of cases "[t]here cause of action that federal is Supreme though action is not created standard. The Court’s conclusion even the cause of depends federal the case’s resolution in Merrell Dow makes this factor sound dis- question sufficiently positive: complaint a federal “We conclude that a al- on resolution of leging to arise under federal law within a violation of a federal statute as an substantial Ormet, action, meaning § when of 28 U.S.C. 1331.” element of a state cause Con- gress has that there should be no F.3d at determined VII, however, give rise to fed- sufficiently would substantial Title with Any conflict I plaintiffs jurisdiction. Finally, to the conclude that federal defense eral arise as a to confer claims, such is insufficient a federal defense to these and as the existence of Merrell jurisdiction. See question bearing any no on whether claims has (“A Dow, 106 S.Ct. 3229 478 U.S. presented of federal law is sub- a federal that raises defense agree majority with the stantial. jurisdiction.” confer federal inadequate to in Count I question presented the federal omitted)). (citation majority does insubstantial, judg- and concur conflict with Title VII possible claim that I for ment insofar as it dismisses Count ques- provide is itself sufficient jurisdiction. remaining lack of As to the rather asserts that jurisdiction, but tion counts, I would reverse the district court’s federal de- significant the existence of a and remand for dismissal for judgment the federal to whether fense is relevant jurisdiction. federal lack of in the state statute is question embedded However, substantiality

substantial. law question

vel of a of federal embed- non cause of action is not affect-

ded a state factors, a possible such as by

ed other defense, unrelated to the

federal that are Certainly the

federal itself. question Dow, repeated which

Court Merrell that federal de- principle

well-established BOLICK; Heatwole; Robin B. Clint federal inadequate fenses are to confer Dry Vineyards, a Comal Creek Texas id., jurisdiction, suggestion that made no Vineyards, Corporation; River Hood be rel- might federal defenses nonetheless Oregon Proprietorship; Mi Sole substantiality question evant to the Vineyards, a Limited ura California in the state cause presented of federal law Liability Company, Plaintiffs-Appel any of action. Nor can I find decision lees, which the existence of a a court considered determining when

possible federal defense substantiality question of a Here, to deter- simply law. we are asked DANIELSON, Chairman, M. Vernon mine the First Amendment issues whether Virginia Department of Alcoholic implicated the South Carolina statute Beverage Control; Barry, Warren give rise to sufficiently are substantial Commissioner, Virginia Department jurisdiction. The exis- question Beverage Control; of Alcoholic Esth tence of a Title VII defense is irrelevant Vassar, Commissioner, Virginia er M. that determination. Department Beverage of Alcoholic Control, Defendants-Appellants, III. sum, conclude the First principles implicated Association, Virginia Wine Wholesalers complaint Counts III and IV of Dixon’s do Incorporated, Intervenor/Defendant, constitute a of federal law. alternative, In the even if Counts III and Brissette, Martha Blevins depend ques-

IV do on the resolution of a Curiae, tion of is not Amicus

Case Details

Case Name: Matthew Dixon v. Coburg Dairy, Incorporated

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 30, 2003

Citation: 330 F.3d 250

Docket Number: 02-1266

Court Abbreviation: 4th Cir.