Matthew DIXON, Plaintiff-Appellant, v. COBURG DAIRY, INCORPORATED, Defendant-Appellee.
No. 02-1266
United States Court of Appeals, Fourth Circuit
Decided May 25, 2004
369 F.3d 811
Equal Employment Advisory Council, Amicus Curiae. Argued Dec. 2, 2003. Vacating opinion at 330 F.3d 250.
Appellant stresses, however, that the bankruptcy court and U.S. Airways’ creditors required only some resolution of the pension funding issue, and they did not require specifically that the pension plan be terminated. Thus, appellant argues, termination of the pension plan was not absolutely necessary to formulating a workable reorganization plan. And if the bankruptcy court can now formulate a workable reorganization plan in which the pension plan is reinstated, then, appellant contends, such relief would not harm the reorganization plan or third parties relying upon it.
This argument misses the mark. First, we note that U.S. Airways explored a variety of solutions to the pension funding issue, but ultimately it concluded (and the bankruptcy court agreed) that a distress termination was the only viable option. But even assuming that appellant is correct and that an alternative solution could be devised, such an alteration at this stage would still affect the current structure of the reorganization plan. By reversing the termination order, we would essentially “unsatisfy” a necessary condition to U.S. Airways’ confirmation order and its entitlement to $1.24 billion in equity investment and exit loans. To resolve the problems this would create, other parts of the plan would have to be reconfigured: approval by U.S. Airways’ lenders and the bankruptcy court would have to be obtained, distributions under the plan would have to be reworked, and a variety of completed transactions and banking arrangements would have to be undone. As the district court observed, revisiting the issue at this point would be wholly impractical.
III.
We therefore conclude that appellants’ challenge to the bankruptcy court‘s distress termination order is equitably moot. We are not indifferent to the fact that any alteration in pension payments and obligations is not a matter to be taken lightly in the bankruptcy process. While Congress has provided under
AFFIRMED.
Reversed and remanded with instructions by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge WILKINS and Judges WIDENER, WILKINSON, NIEMEYER, LUTTIG, TRAXLER, SHEDD, and DUNCAN concur. Judge MICHAEL wrote a separate opinion concurring in the judgment. Judge MOTZ concurred in the judgment. Judge KING wrote a separate concurring opinion in which Judge MOTZ joined. Judge GREGORY wrote a separate opinion concurring in the judgment.
WILLIAMS, Circuit Judge:
Matthew Dixon initiated this action in South Carolina state court, alleging that Coburg Dairy, Inc. unlawfully terminated his employment in violation of South Carolina law. Coburg removed the case to the United States District Court for the District of South Carolina, asserting that the court had subject matter jurisdiction over the case because it involved a substantial question of federal law. The district court denied Dixon‘s motion to remand the case to state court and granted summary judgment to Coburg on all of Dixon‘s claims. Sitting en banc, we hold that the district court lacked subject matter jurisdiction to hear this case. Accordingly, we reverse and remand with instructions that the case be remanded to the South Carolina Court of Common Pleas.
I.
Dixon began working for Coburg in 1997 as a mechanic. Dixon is a member of the Sons of Confederate Veterans, a Tennessee non-profit corporation, “who[se members] can prove genealogically that one of their ancestors served honorably in the armed forces of the Confederate States of America.” See Sons of Confederate Veterans, Inc. v. Comm‘n of Va. Dep‘t of Motor Vehicles, 288 F.3d 610, 613 n. 1 (4th Cir. 2002). Dixon brought with him to work a personal tool box, to which he had affixed two decals depicting the Confederate battle flag. The decals offended one of Dixon‘s coworkers, who complained to Coburg management, citing the company‘s antiharassment policy.1 Coburg asked Dixon to remove the decals from his toolbox and, when he refused, offered to buy him a new, unadorned toolbox. Dixon declined, explaining that “his heritage was ‘not for sale,‘” and asserting that he had a First Amendment right to display the Confederate battle flag.2 (J.A. at 10-11.) Unable to reach a compromise, Coburg terminated Dixon on September 5, 2000.
Dixon then filed suit in the South Carolina Court of Common Pleas. The complaint included nine causes of action. Critical to this appeal are the first, third and fourth causes of action, which allege that Dixon was terminated in violation of
II.
We review questions of subject matter jurisdiction de novo, “including
III.
The vast majority of lawsuits “arise under the law that creates the cause of action.” Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (Holmes, J.); Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808 (1986). Thus, we must “first discern whether federal or state law creates the cause of action.... In cases where federal law creates the cause of action, the courts of the United States unquestionably have federal subject matter jurisdiction.” Mulcahey, 29 F.3d at 151. In this case, Dixon‘s cause of action was created by South Carolina law not federal law, but our inquiry does not end there. Instead, we must determine whether this case is within the “small class of cases where, even though the cause of action is not created by federal law, the case‘s resolution depends on resolution of a federal question sufficiently substantial to arise under federal law within the meaning of
A.
A plaintiff‘s right to relief for a given claim necessarily depends on a question of federal law only when every legal theory supporting the claim requires the resolution of a federal issue. Mulcahey,
Our opinion in Mulcahey nicely illustrates the foregoing rule. In Mulcahey, the plaintiffs alleged that the Columbia Organic Chemicals Company had negligently released hazardous substances into the soil. Mulcahey, 29 F.3d at 149. The plaintiffs relied on at least the following two alternative theories of liability to establish their negligence claim: (1) Columbia Organic was negligent per se because it had violated several federal environmental statutes; and (2) Columbia Organic was negligent per se because it had violated various state and local environmental laws. Id. at 153-54. The plaintiffs’ negligence claim thus relied on multiple theories of liability, only one of which required the resolution of a federal issue. Id. at 153. In other words, “[e]ven if Columbia Organic was found not to have violated any federal statute, the Plaintiffs might still [have] be[en] entitled to recover under an alternative theory of negligence.” Id. We held that in light of Christianson, “because the Plaintiffs’ alternative theory of negligence per se [under the federal environmental statutes] [was] not ‘essential’ to their negligence [claim], no federal subject matter jurisdiction exist[ed].” Id. at 154.
Coburg asserts that Dixon‘s complaint necessarily depends on the resolution of a question of federal law, because, according to Coburg, Dixon must prove that Coburg violated his First Amendment rights to free speech for Coburg to be liable under
Dixon alleges, in his third cause of action, that ”
Therefore, although Dixon‘s complaint does reference the First Amendment, none of its causes of action rely exclusively on a First Amendment violation to establish Coburg‘s liability under
Of the three alternative theories, only the second even arguably involves the resolution of a substantial question of federal law. Because Dixon could prove that Coburg terminated him in violation of
B.
Even if Dixon‘s claim had relied exclusively on the First Amendment to establish a violation of
Moreover, even when Congress does create a private cause of action for the violation of a federal law, federal question jurisdiction may be lacking over a state law claim predicated on a violation of that law. Mulcahey, 29 F.3d at 152-53. If a particular plaintiff is barred from bringing the private, federal cause of action, either substantively or procedurally, no federal subject matter jurisdiction exists over that plaintiff‘s state cause of action predicated on a violation of the same federal law. Id. at 152-53. In Mulcahey, we “conclude[d] that the Plaintiffs’ inability to proceed under [a federal] statute[] constitute[d] a ‘congressional conclusion that the presence of a claimed violation of the statute[] as an element of a state cause of action [wa]s insufficiently “substantial” to confer federal question jurisdiction.‘” Id. at 153 (quoting Merrell Dow, 478 U.S. at 814).
Here, Congress has created a private cause of action to remedy violations of the rights secured by the United States Constitution, see
Accordingly, even if we construed Dixon‘s complaint in such a way that it necessarily depended on federal law, we would conclude that the question of federal law that it raises is not substantial. Thus, the district court did not have original jurisdiction to hear this case and removal was improper.
IV.
For the foregoing reasons, we reverse the judgment of the district court and remand with instructions that the case be remanded to the South Carolina Court of Common Pleas.
REVERSED AND REMANDED WITH INSTRUCTIONS
Because Matthew Dixon‘s complaint asserts only state law claims against his former employer, Coburg Dairy, Inc., I concur in the judgment to remand his case to South Carolina state court. Although some of Dixon‘s state law claims refer to the First Amendment, these claims do not “turn[] on [a] construction of federal law.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). That is because the First Amendment, as a matter of federal law, does not regulate the conduct of a private employer. See, e.g., Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 420 (7th Cir.1988).
KING, Circuit Judge, concurring:
I concur in the view of my able colleague Judge Williams that the district court lacked subject matter jurisdiction to address this dispute, and I agree with her conclusion that its removal to federal court was improper. I write separately to highlight and adopt the reasoning of my friend Judge Goodwin of West Virginia, who served our Court on the panel that initially considered this jurisdictional issue. As he correctly recognized, the resolution of the Dixon complaint does not depend on any question of federal law. See Dixon v. Coburg Dairy, Inc., 330 F.3d 250, 266 (4th Cir.2003) (Goodwin, District Judge, sitting by designation, concurring in part and dissenting in part) (observing that question of whether Dixon was “exercising his First Amendment rights” cannot be answered under federal law), vacated & reh‘g en banc granted, (4th Cir. Sept. 16, 2003). Although Judge Williams‘s analysis adheres to circuit precedent and achieves the proper result, Dixon‘s complaint does not even arguably give rise to federal jurisdiction. As I see it,
A right secured by the First Amendment is never exercised in the abstract; rather, it may be infringed only when a state actor has sought or seeks to suppress protected expression. See, e.g., CBS, Inc. v. Democratic Nat‘l Comm., 412 U.S. 94, 114 (1973) (holding that First Amendment restrains “government action, not that of private persons“). In this situation, no state actor was involved in Dixon‘s discharge, and thus his First Amendment rights could not have been contravened. Given these circumstances, Dixon‘s complaint cannot be read to establish federal question jurisdiction. And as Judge Goodwin explained, “one cannot determine whether a specific expressive activity is an ‘exercise of First Amendment rights’ without reference to a state actor who is trying to suppress that expressive activity.” Dixon, 330 F.3d at 266. This is therefore a state law dispute only, with no federal jurisprudential counterpart.
Pursuant to the foregoing, I am pleased to concur.
GREGORY, Circuit Judge, concurring in the judgment:
I agree with the majority‘s application of Merrell Dow and Christianson in Part III-A of its opinion, therefore I concur in the judgment. I write separately, however, to briefly address an important issue raised by Appellee Coburg Dairy and Amicus Curiae Equal Employment Advisory Council, namely the potential clash between an employer‘s duties and liabilities under
I.
A.
Before the district court, see Def.‘s Mem. Supp. Mot. Summ. J. at 3-12, and to a lesser extent on appeal, see Br. of Appellee at 17-19, Coburg attempted to ground its “arising under” arguments in a federal interest stemming from Title VII.
Coburg states that to prevent harassment in the workplace and to avoid charges of a hostile work environment, it has implemented an anti-harassment policy through which it investigates and responds to employee complaints. In this case, one of Dixon‘s Black co-workers was offended by Dixon‘s Confederate battle flag stickers and asked Dixon to remove them. When Dixon refused, the Black coworker informed Coburg that he found the Confederate battle flags Dixon displayed to be racially offensive and in violation of the company‘s anti-harassment policy. As a result, Coburg investigated the complaint and “t[ook] prompt and adequate action to stop” the offensive conduct after being placed on notice. Mikels v. City of Durham, 183 F.3d 323, 332 (4th Cir.1999). Coburg and Amicus Curiae Equal Employment Advisory Council assert that the South Carolina Code places a burdensome competing duty on employers. On the one hand, under Title VII, an employer must provide a harassment-free workplace. On the other, if Mr. Dixon‘s interpretation of
B.
If indeed South Carolina has carved out this safe haven for the Confederate flag, such action threatens to undermine the federal protections that individuals possess to be free of discrimination in the workplace. See Br. of Appellee at 18 (stating that employers will have to “pick their poison. They can choose to provide a harassment-free workplace by barring expressions of allegedly constitutionally protected but arguably harassing opinions and material ... and get sued by that employee for violating
To understand why such an environment, or even a workplace with a less prevalence of the symbol, might be offensive or even hostile to some, I believe it is necessary to revisit the nature of the symbol. We have previously recognized the representations inherent in displaying the Confederate flag, stating:
It is the sincerely held view of many Americans, of all races, that the confederate flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as it is to admit, there are still those today who affirm allegiance to the confederate flag precisely because, for them, that flag is identified with racial separation. Because there are citizens who not only continue to hold separatist views, but who revere the confederate flag precisely for its symbolism of those views, it is not an irrational inference that one who displays the confederate flag may harbor racial bias against African-Americans.
United States v. Blanding, 250 F.3d 858, 861 (4th Cir.2001); see also Sons of Confederate Veterans, Inc. v. Comm‘r of Va. Dep‘t of Motor Vehicles, 305 F.3d 241, 242 (4th Cir.2002) (Wilkinson, C.J.) (concurring in the denial of rehearing en banc) (“The vast majority of Virginians understand that one[‘s] proclamation of heritage is another‘s reminder of the unspeakable cruelties of human bondage. The vast majority of Virginians recognize the sad paradox of Confederate history—namely that individual southerners, so many good and decent in themselves, swore allegiance to a cause that thankfully was lost, and to practices that no society should have sought to defend.“) (hereinafter SCV). While those comments are eloquent and directly on point, I find the Confederate battle flag needs further contextualization within the greater narrative of the Civil War, the Confederacy and the flag‘s revival as a symbol of racial polarization during the middle of the last century to illustrate why many viewers find it offensive.
During the Civil War, those fighting under the flag of the United States—the same flag our men and women have fought under since the Continental Congress adopted it on June 14, 1777—suffered nearly 650,000 casualties while combating Southern forces fighting under the Confederate battle flag. See United States Department of Defense, Principal Wars in which the United States Participated:
Some attempts to disgorge the Confederate flag of its negative content associated with the bleak realities of the Civil War and Jim Crow can be explained by the romanticism of what has been termed “Lost Cause” ideology.6 Since the war‘s
Indeed, many offended by the Confederate flag find more current connections to oppression as the flag became an unfortunate symbol of the South‘s resistance to integration and equality from the late 1940s through the 1960s. For example, Georgia incorporated the Confederate battle flag into its state flag in 1956 “during a regrettable period in Georgia‘s history when its public leaders were implementing a campaign of massive resistance to the Supreme Court‘s school desegregation rulings.” Coleman v. Miller, 117 F.3d 527, 528 (11th Cir.1997) (per curiam) (discussing the history of the Georgia flag and stating the Georgia legislature “chose as an official state symbol an emblem that historically had been associated with white supremacy and resistance to federal authority” (emphasis added)). South Carolina began flying the Confederate flag above the State Capitol in 1962. See Sue Anne Pressley, Flag War Isn‘t Over at Carolina Statehouse, Wash. Post, Jan. 16, 2001, at A3 (“When the flag went up, supporters said its purpose was to celebrate the Civil War centennial, but critics said its presence had more to do with opposition to the integration of schools then underway throughout the South.“). Furthermore, much more recently the flag has continued to be associated with racial intolerance.7
Notes
FOR A FIRST CAUSE OF ACTION
(Violation of Constitutional Rights)
All of the pleadings previously alleged are hereby realleged and repeated and made a part of the pleadings contained herein.
11.
12. Plaintiff‘s termination arose from the exercise of his right of free speech to display the Confederate flag. Coburg violated the constitutional rights of its employee by its termination of Plaintiff.
13. Coburg‘s termination of Plaintiff for display of the flag constitutes a violation of his constitutional rights entitling Plaintiff to an award for damages.
...
FOR A THIRD CAUSE OF ACTION
(Violation of Public Policy)
All of the pleadings previously alleged are hereby realleged and repeated and made a part of the pleadings contained herein.
16.
17. The Defendant‘s termination of the Plaintiff for display of the Confederate flag. Defendant‘s actions constitute a violation of South Carolina criminal law and therefore a violation of the public policy of this State.
18. Coburg‘s termination of Plaintiff for display of the flag constitutes a violation of this statute entitling Plaintiff to an award for damages.
FOR A FOURTH CAUSE OF ACTION
(Retaliatory Discharge)
All of the pleadings previously alleged are hereby realleged and repeated and made a part of the pleadings contained herein.
19. Coburg‘s actions, through its agents attempts to control the content of Plaintiff‘s right of free speech through constant and repeated efforts to get him to abandon his constitutionally protected rights of free speech by demanding that he remove the flag from his tool box and then, ultimately, terminating him for exercise of that same right, constitute retaliatory discharge of Plaintiff.
20. Coburg‘s termination of Plaintiff for retaliatory discharge entitles Plaintiff to an award for actual and punitive damages in an amount to be determined by the trier of fact.
[T]he new [Confederate] Constitution has put at rest forever all the agitating questions relating to our peculiar institutions—African slavery as it exists among us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution.... Those ideas [of the United States Constitution], however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the idea of a Government built upon it—when the “storm came and the wind blew, it fell.” Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition. [Applause.] This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.
Alexander H. Stephens, Cornerstone Address, March 21, 1861, in 1 The Rebellion Record: A Diary of American Events with Documents Narratives, Illustrative Incidents, Poetry, etc. 44-46 (Frank Moore ed., 1862), reprinted in Paul Halsall, Internet Modern History Sourcebook, available at http://www.fordham.edu/halsall/mod/1861stephens.html. While in provisions such as the three-fifths clause the United States Constitution is undeniably problematic in its inability to confront the problems of race, the Confederate Constitution was overtly racist. For example, it prohibited the enactment of any law “denying or impairing the right of property in Negro slaves,” Confederate Const. art. I, § 9, cl. 4, and required that escaped slaves be surrendered to their owners upon request, id. art. IV, § 2, cl. 3. See generally Paul Finkelman, Affirmative Action for the Master Class: The Creation of the Proslavery Constitution, 32 Akron L.Rev. 423 (1999).