Long v. Bando Mfg of Amer ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0018P (6th Cir.)
File Name: 00a0018p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

BENJAMIN CRAIG LONG,

Plaintiff-Appellee,


No. 99-5032
v.

>
BANDO MANUFACTURING OF 

Defendant-Appellant. 
AMERICA, INC.,

1
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 97-00114—Joseph H. McKinley, Jr., District Judge.
Argued: October 28, 1999
Decided and Filed: January 13, 2000
Before: WELLFORD, MOORE, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: D. Gaines Penn, ENGLISH, LUCAS, PRIEST &
OWSLEY, Bowling Green, Kentucky, for Appellant. Nancy
Oliver Roberts, Bowling Green, Kentucky, for Appellee.
ON BRIEF: Charles E. English, Jr., D. Gaines Penn,
ENGLISH, LUCAS, PRIEST & OWSLEY, Bowling Green,
1
2 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 15
of America, Inc. of America, Inc.
Kentucky, for Appellant. Nancy Oliver Roberts, Bowling Tax Board v. Construction Laborers Vacation Trust, 463 U.S.
Green, Kentucky, for Appellee. 1, 9 (1983), that “a case may arise under federal law ‘where
the vindication of a right under state law necessarily turned on
MOORE, J., delivered the opinion of the court, in which some construction of federal law.’” Id. Finally, Merrell Dow
GILMAN, J., joined. WELLFORD, J. (pp. 14-15), delivered emphasized “prudence and restraint in the jurisdictional
a separate concurring opinion. inquiry,” and that where Congress provided no “private,
federal cause of action for the violation [of the federal
_________________ statute]” relied upon in the complaint, jurisdiction fails, and
a federal question is not raised. Id. at 810, 817.
OPINION
_________________ Plaintiff’s right to relief did not necessarily depend on any
of the federal statutes relied upon in the complaint. There
KAREN NELSON MOORE, Circuit Judge. In this appeal, was no substantial question of federal law presented. None of
the defendant-appellant, Bando Manufacturing of America, the federal statutes cited (and discussed by the district court)
Inc. (“Bando”), challenges the district court’s finding that it created plaintiff’s wrongful discharge claim. Congress
did not have original federal question jurisdiction over one of provided no private federal remedy for plaintiff with respect
plaintiff-appellee Benjamin Craig Long’s claims and asks this to any of these statutes. There was no implied federal cause
court to reverse the district court’s order remanding the case of action created by or necessarily springing from any federal
to state court. Long had originally sued Bando in state court, statute cited. The district court, in short, exercised prudence
raising both state and federal claims, including one state-law and restraint in denying federal jurisdiction. I am not
claim for wrongful discharge in violation of public policy. persuaded by Bando’s attempts to distinguish Merrell Dow,
Long asserted in his amended complaint that the public policy and I find no basis under the several principles expressed and
that was violated by his discharge was embodied in several approved in that case to overturn the district court’s decision.
federal statutes. After Bando removed the case to federal See Miller v. Norfolk & W. Ry. Co., 834 F.2d 556 (6th Cir.
district court, the district court granted summary judgment 1987).1
against Long on one of his federal claims and dismissed the
other at Long’s request. The district court then remanded the I see no need to pursue any state law rationale asserted by
case, including Long’s wrongful discharge claim, to the state Bando to create jurisdiction in this case. I would,
court. Bando now appeals that remand order, arguing that accordingly, AFFIRM the district court.
Long’s wrongful discharge claim involved a federal issue
sufficient to invoke the federal court’s original “arising
under” jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441.
For the reasons discussed below, we AFFIRM the district
court’s decision to remand based on its determination that it
did not have original federal question jurisdiction over Long’s
wrongful discharge claim.
1
I see no conflict with the decision in this case with Milan Express Co.
v. Western Surety Co., 886 F.2d 783 (6th Cir. 1989), or MCI
Telecommunications Corp. v. Graham, 7 F.3d 477 (6th Cir. 1993).
14 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 3
of America, Inc. of America, Inc.
_________________ I. BACKGROUND
CONCURRENCE Long was employed by Bando from February of 1989 until
_________________ he was terminated in May of 1996. In 1992, Gates Rubber
Company (“Gates”), a competitor, sued Bando, alleging
HARRY W. WELLFORD, Circuit Judge, concurring. I various forms of anticompetitive activity, including
concur in the result reached in this case, but would base this appropriation of Gates’s trade secrets. Gates also charged that
decision on a more straightforward rationale. My conclusion Bando had concealed or destroyed information relevant to its
is that plaintiff Long’s claims of wrongful discharge simply competitive strategies and trade secrets. In the summer of
did not sufficiently raise a federal question in order to provide 1995, less than a year before he was terminated but several
jurisdiction in the district court. I agree with my colleague, years after the Gates litigation had ended, Long reported to
Judge Moore, at the outset that the burden in this case is upon Matt Adams, the vice president of Bando, that he saw Adams
plaintiff and that removal statutes are strictly construed. and James Blankenship, the president of Bando, taking “stuff”
Plaintiff must show that he is relying on a claim “arising to the trash dumpsters just before the 1992 inspection of the
under the Constitution . . . or laws of the United States.” 28 Bando facilities by Gates. In that same year and the following
U.S.C. § 1441(b). year, Long received two poor performance reviews and
several warnings that he would be subject to disciplinary
I also agree with Judge Moore’s analysis that we have action if his performance did not improve, culminating in his
jurisdiction to review the action taken by the district court, suspension for three days in March of 1996. Long was finally
and that remand was within the sound discretion of the district discharged in May of 1996 based on a finding that he had
court once lack of a federal question was determined. falsified a production schedule. After his discharge, Long
attempted to aid Gates in reopening its motion for sanctions
The substance of Long’s claims against his former private against Bando on the ground that Bando had concealed and
employer is clearly wrongful discharge essentially by a state destroyed documents relevant to the trade secrets litigation.
action since no federal employment discrimination law action
is asserted. Nor does defendant Bando claim federal Long filed suit in Kentucky state court on April 30, 1997,
preemption under the circumstances of this case. alleging that he was terminated as a result of his refusal to
acquiesce in the “cover up” of the company’s theft of trade
There are several reasons why I believe this case is secrets. He alleged due process violations under the U.S. and
essentially controlled by Merrell Dow Pharmaceuticals, Inc. Kentucky Constitutions, “reverse discrimination” in violation
v. Thompson, 478 U.S. 804 (1986). That case affirmed this of Title VII, and discharge “in violation of the public policy
court’s decision at 766 F.2d 1005 (6th Cir. 1985). Merrell of retaliatory discharge.” J.A. at 16 (Complaint). Bando
Dow, I believe, despite some ambiguous language, affirmed removed the case, relying on Long’s federal due process and
our holding that “[f]ederal question jurisdiction would, thus, Title VII claims as the basis for federal jurisdiction. Long
exist only if plaintiffs’ right to relief depended necessarily on then amended his complaint, adding that “[o]ther public
a substantial question of federal law.” 766 F.2d at 1006. policies of this Commonwealth and of the United States
Merrell Dow cites Justice Holmes’ opinion in American Well which have been violated by the Defendant’s wrongful
Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916), termination of the Plaintiff include, but are not limited to” the
that a “suit arises under the law that creates the cause of policies embodied in four federal criminal statutes: 18 U.S.C.
action.” 478 U.S. at 808. It cites with approval Franchise
4 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 13
of America, Inc. of America, Inc.
§ 1509 (Obstruction of court orders), 18 U.S.C. § 2314 district court’s discretion to remand in a case removed
(Transportation of stolen goods), 18 U.S.C. § 2315 (Sale or from state court.
receipt of stolen goods), and 18 U.S.C. § 1621 (Perjury).1
J.A. at 19 (Amended Complaint). Long also added claims of Id. at 1267 (citation omitted). Furthermore, most circuits,
defamation and breach of contract. Subsequently, Long filed including this one, have assumed that the discretionary power
a motion to dismiss voluntarily his Title VII claim, which was to remand survives the adoption of § 1367. See, e.g., Musson
granted on June 17, 1998. Bando filed a motion for summary Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244,
judgment, and Long thereafter moved to remand the case to 1254-55 (6th Cir. 1996); Decatur Mem’l Hosp. v. Connecticut
the state court for lack of subject matter jurisdiction. Gen. Life Ins. Co., 990 F.2d 925, 927-28 (7th Cir. 1993);
Executive Software N. Am., Inc. v. United States Dist. Ct., 24
The district court granted Bando’s motion for summary F.3d 1545, 1551-53 (9th Cir. 1994); see also 28 U.S.C.A.
judgment as to Long’s federal due process claim. The district § 1367 Practice Commentary 835 (1993); 14C CHARLES
court also denied Long’s motion to remand for lack of subject ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
matter jurisdiction, finding that it had subject matter FEDERAL PRACTICE & PROCEDURE: JURISDICTION 3D § 3739,
jurisdiction. Finally, the district court found that none of the at 498-501 (1998). We agree with the analysis of the D.C.
remaining claims (wrongful discharge in violation of public Circuit and hold that the district court acted properly in
policy, breach of contract, and defamation) raised a remanding rather than dismissing Long’s case.8
substantial federal question and therefore, declining to
exercise its supplemental jurisdiction, remanded the case to III. CONCLUSION
the state court. In particular, the district court found that
naming four federal statutes as evidence of public policy in For the foregoing reasons, we AFFIRM the district court’s
the complaint did not convert Long’s state wrongful discharge remand order.
claim into a federal claim. Relying on the Supreme Court’s
opinion in Merrell Dow Pharmaceuticals, Inc. v. Thompson,
478 U.S. 804 (1986), the district court analyzed whether the
statutes cited by Long implied a private remedy for their
violation and, finding that they did not, concluded that the
wrongful discharge claim did not present a federal question
invoking the district court’s “arising under” jurisdiction.
Bando filed a motion to alter or amend the district court’s
judgment, alleging that the district court erred in concluding
8
that Long’s wrongful discharge claim did not raise a We observe that both Carnegie-Mellon and this case deal only with the
question whether § 1367 permits remand in a narrow set of cases —
namely, removed cases in which all federal claims have been dismissed
1
and the district court has only supplemental claims before it. See
In other words, Long claimed that he was terminated for his refusal to Carnegie-Mellon, 484 U.S. at 345 (“The question before us is whether a
participate in the company’s theft of trade secrets (“stolen goods” under federal district court has discretion under the doctrine of pendent
18 U.S.C. §§ 2314, 2315), its obstruction of the discovery orders in the jurisdiction to remand a properly removed case to state court when all
Gates litigation, and its employees’ perjury about concealing or destroying federal-law claims in the action have been eliminated and only pendent
documents. state-law claims remain.”).
12 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 5
of America, Inc. of America, Inc.
C. Propriety of Remand substantial federal question giving rise to original federal
question jurisdiction in the district court. In its December 8,
We also note that the district court had the authority to 1998 order, the district court acknowledged that it had erred
remand rather than dismiss Long’s state-law claims under 28 in its analysis of whether Long’s wrongful discharge claim
U.S.C. § 1367(c). In Carnegie-Mellon Univ. v. Cohill, 484 provided a basis for original federal question jurisdiction.
U.S. 343 (1988), the Supreme Court held that a district court The court recognized that, even if it determined, first, that
has discretion to remand pendent state-law claims rather than there was no implied private cause of action for the violation
dismissing them, if the values of economy, convenience, of the federal statutes listed in Long’s complaint, it must still
fairness, and comity so dictate. consider, second, “whether the state law wrongful discharge
[claim] ‘necessarily turned’ upon a question of federal law.”
Carnegie-Mellon was decided before 28 U.S.C. § 1367 was J.A. at 32 (D. Ct. Op.). If the claim necessarily turned on a
adopted, however, and the language of § 1367 does not question of federal law, the district court acknowledged, it
explicitly grant district courts the authority to remand cases to could find that it had federal question jurisdiction, without
the state courts rather than dismiss them without prejudice.7 applying the “implied remedy” test. Nonetheless, the district
Nonetheless, we believe that the discretion to remand was court still found that, on the facts of this case, there was no
incorporated into that statute. The U.S. Court of Appeals for substantial, disputed question of federal law in the plaintiff’s
the D.C. Circuit so held in Edmondson & Gallagher v. Alban claim sufficient to invoke the district court’s “arising under”
Towers Tenants Ass’n, 48 F.3d 1260 (D.C. Cir. 1995). As jurisdiction and therefore denied Bando’s request to alter or
that court explained: amend its prior judgment remanding the case to the state
court. Bando timely appealed that ruling to this court. We
Whether to remand or dismiss is a matter normally left to now hold that, although a complaint that does not state a
the discretion of the district court, see Carnegie-Mellon, federal cause of action may in some cases invoke federal
484 U.S. at 357, 108 S. Ct. at 622-23. We find this jurisdiction, the federal statutes cited in Long’s wrongful
discretion unaffected by the subsequent enactment of 28 discharge claim were insufficient to provide federal question
U.S.C. § 1367(d), in the Judicial Improvements Act of jurisdiction.
1990 . . . . Section 1367(d) tolls the state statute of
limitations on any state claim over which a federal court II. ANALYSIS
has exercised supplemental jurisdiction until 30 days
after its dismissal. It thus reduces one concern expressed In order to invoke the district court’s removal jurisdiction,
in Carnegie-Mellon — that plaintiffs would lose their a defendant must show that the district court has original
claims if their case were dismissed rather than remanded. jurisdiction over the action. See 28 U.S.C. § 1441(a). The
Other concerns remain, however, such as convenience to burden of showing that the district court has original
the parties and a faster resolution of the case. We find no jurisdiction is on the party seeking removal. See Her Majesty
indication in the legislative history of the Judicial the Queen in Right of the Province of Ontario v. City of
Improvements Act that Congress intended to limit the Detroit, 874 F.2d 332, 339 (6th Cir. 1989). Furthermore,
because they implicate federalism concerns, removal statutes
are to be narrowly construed. See Shamrock Oil & Gas Corp.
7
28 U.S.C. § 1367(c) provides, in pertinent part, “The district courts v. Sheets, 313 U.S. 100, 108-09 (1941).
may decline to exercise supplemental jurisdiction over a claim” if any of
four criteria is met (emphasis added).
6 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 11
of America, Inc. of America, Inc.
In this case, the parties do not allege diversity of at 19 (emphasis added). Since Long’s complaint offered state
citizenship. Removal jurisdiction was thus based on 28 as well as federal policies as evidence of his wrongful
U.S.C. § 1441(b), allowing removal of actions “of which the discharge, this case appears to fall squarely within the
district courts have original jurisdiction founded on a claim or Supreme Court’s holding in Christianson.
right arising under the Constitution, treaties or laws of the
United States,” without regard to the citizenship of the Furthermore, although the question whether a wrongful
parties. Because removal jurisdiction is possible only where discharge claim based on federal public policies invokes
the federal district court would have had original jurisdiction federal jurisdiction appears to be one of first impression in
over the case, and because the “arising under” language of this circuit, other circuits have held that such claims do not
§ 1441(b) is almost identical to the language of 28 U.S.C. belong in federal court. See Campbell v. Aerospace Corp.,
§ 1331, the scope of removal jurisdiction based on the 123 F.3d 1308, 1315 (9th Cir. 1997) (finding the federal
existence of a federal question under § 1441(b) is considered interest to be insufficient, and noting that state law mirrors the
to be identical to the scope of federal question jurisdiction federal policy at issue), cert. denied, -- U.S. --, 118 S. Ct.
under § 1331. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 1794 (1998); Willy v. Coastal Corp., 855 F.2d 1160, 1167-72
386, 391-92 (1987). In determining removal jurisdiction (5th Cir. 1988) (finding the federal element in such a claim to
under § 1441, as in determining original “arising under” be insufficiently substantial and also noting that the plaintiff
jurisdiction, federal courts apply the “well-pleaded supported his claim with state as well as federal theories); see
complaint” rule, pursuant to which “federal jurisdiction exists also Drake v. Cheyenne Newspapers, Inc., 842 F. Supp. 1403
only when a federal question is presented on the face of the (D. Wyo. 1994). These precedents suggest that the federal
plaintiff’s properly pleaded complaint.” Id. at 392. question in Long’s complaint is insufficiently substantial and
disputed to invoke federal jurisdiction.6
A. Reviewability of the Remand Order
We therefore hold that, although federal question
This court has jurisdiction to review the district court’s jurisdiction may exist even where the plaintiff has not stated
decision to remand Long’s state law claims. The parties did a federal cause of action, Long’s complaint did not invoke the
not raise this issue, but, because it is a jurisdictional matter, federal courts’ “arising under” jurisdiction, because it put
we consider it sua sponte. See, e.g., In re General Motors forth alternate state and federal policies to support his state-
Corp., 3 F.3d 980, 982 (6th Cir. 1993). law wrongful discharge claim.
Although the plain language of 28 U.S.C. § 1447(d)
suggests that remand orders concerning cases removed
pursuant to 28 U.S.C. § 1441 are never reviewable, the
Supreme Court held in Thermtron Products, Inc. v. 6
Bando also argues that the standard for finding a “substantial” federal
Hermansdorfer, 423 U.S. 336 (1976), that §§ 1447(c) and (d) question is extremely low; however, the cases that it cites for this
must be read together, and therefore that § 1447(d) prohibits proposition dealt with the standard for finding federal jurisdiction based
review only of remand orders issued pursuant to a finding, on an express or implied private federal cause of action. Those cases
simply state that when a plaintiff attempts to bring a claim under a federal
under § 1447(c), that the district court lacked subject matter statute, that claim need only be non-frivolous in order to invoke federal
jurisdiction: it need not, in other words, even be sufficient to avoid
dismissal under Federal Rule of Civil Procedure 12(b)(6). See, e.g.,
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974).
10 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 7
of America, Inc. of America, Inc.
state-law claim, at least one of which does not involve a jurisdiction.2 See id. at 345-46.3 Here, the district court did
federal question.4 not remand because it lacked subject matter jurisdiction; on
the contrary, the district court explicitly stated that it had
In light of Christianson, it is clear that the resolution of a subject matter jurisdiction when the case was removed and
federal question is not necessary or essential to the resolution noted that it had not been divested of that jurisdiction by the
of Long’s wrongful discharge claim. Bando argues that under dismissal of the plaintiff’s federal claims. Accord In re
Kentucky law, a plaintiff must demonstrate that the public Carter, 618 F.2d 1093, 1101 (5th Cir. 1980) (“It is a
policy making his discharge unlawful is embodied in federal fundamental principle of law that whether subject matter
or state legislative enactments. See, e.g., Grzyb v. Evans, 700 jurisdiction exists is a question answered by looking to the
S.W.2d 399, 401 (Ky. 1985). Bando contends that Long complaint as it existed at the time the petition for removal
relied solely on federal statutes as evincing that public policy, was filed. . . . When a subsequent narrowing of the issues
and therefore that the court’s construction of those federal excludes all federal claims, whether a pendant [sic] state
statutes is essential to a determination of Long’s claim. This claim should be remanded to state court is a question of
argument is unpersuasive. Long’s complaint put forth judicial discretion, not of subject matter jurisdiction.”
alternate bases in state and federal law for the public policy in (citations omitted)), cert. denied, 450 U.S. 949 (1981).
contravention of which he was discharged. Long’s initial Furthermore, this court has repeatedly held remand orders to
complaint stated that his “discharge was in violation of the be reviewable in cases similar to this one. See, e.g., General
public policy of retaliatory discharge.” J.A. at 16 Motors, 3 F.3d at 983; Van Meter v. State Farm Fire & Cas.
(Complaint). This statement could be read to refer to Co., 1 F.3d 445, 449-50 (6th Cir. 1993) (holding that the
Kentucky Revised Statutes 61.102, Kentucky’s reviewability of a remand order depends on whether the
“whistleblower statute,” forbidding the retaliatory termination district court had subject matter jurisdiction when the case
of an employee who interferes with a company’s unlawful was removed, and explaining that if the district court initially
activities.5 This reading is further bolstered by Long’s
amended complaint, which introduced the federal statutes at
issue here by saying, “Other public policies of this 2
Commonwealth and of the United States which have been 28 U.S.C. § 1447(c) provides, in pertinent part, “If at any time before
violated by the Defendant’s wrongful termination of the final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”
Plaintiff include, but are not limited to, the following.” J.A. 28 U.S.C. § 1447(d) provides, “An order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to the State court from
4
which it was removed pursuant to section 1443 of this title shall be
Christianson dealt with the scope of the Federal Circuit’s patent-law reviewable by appeal or otherwise.”
jurisdiction under 28 U.S.C. §§ 1295(a) and 1338(a), not the federal
courts’ general federal question jurisdiction under § 1331. The Court 3
The holding of Thermtron, limiting the prohibition on review of
noted in Christianson, however, that it applies the same test to determine remand orders to those remands that are based on a lack of subject matter
“arising under” jurisdiction under both §§ 1331 and 1338(a). See jurisdiction, was recently reaffirmed in Quackenbush v. Allstate Ins. Co.,
Christianson, 486 U.S. at 807-09. 517 U.S. 706 (1996). In Quackenbush, the Supreme Court also held that
5
remand orders not falling within the scope of § 1447(c) could be reviewed
Long himself has not mentioned K.R.S. 61.102; in his brief, he on direct appeal, thereby abrogating Thermtron’s suggestion that remand
mentioned the Kentucky Trade Secrets Act, K.R.S. 365.880 to 365.990 orders were not final orders and therefore could be reviewed only by
(1990), as the original basis for his wrongful discharge claim. means of a writ of mandamus. See id. at 712-15.
8 Long v. Bando Manufacturing No. 99-5032 No. 99-5032 Long v. Bando Manufacturing 9
of America, Inc. of America, Inc.
had jurisdiction, which was destroyed by later events, the a drug manufacturer on a state-law negligence claim, alleging
remand order would be reviewable); In re Glass, Molders, that its drug Bendectin was misbranded in violation of the
Pottery, Plastics & Allied Workers Int’l Union, Local No. Federal Food, Drug, and Cosmetic Act (FDCA). See Merrell
173, 983 F.2d 725, 727 (6th Cir. 1993) (holding that the Dow, 478 U.S. at 805-06. The Supreme Court held that the
district court’s remand of pendent state law claims, after plaintiffs had not invoked the federal courts’ “arising under”
dismissal of federal claims as time-barred, was discretionary, jurisdiction by raising state-law claims for negligence that
not based on a lack of subject matter jurisdiction, and incorporated federal drug labeling standards. See id. at 817.
therefore reviewable). Therefore, this court clearly has Although the scope of the Court’s holding in Merrell Dow is
jurisdiction to review the remand order at issue in this case. somewhat unclear, it clearly left open the possibility of
federal jurisdiction even in the absence of an express or
B. The Existence of Federal Question Jurisdiction implied federal cause of action, if a substantial federal
question of great federal interest is raised by a complaint
This court reviews de novo a district court’s decision framed in terms of state law, and if resolution of that federal
regarding subject matter jurisdiction. See Hilliard v. United question is necessary to the resolution of the state-law claim.
States Postal Serv., 814 F.2d 325, 326 (6th Cir. 1987). See, e.g., id. at 808-10 & n.5, 813-14 & nn.11-12; see also
City of Chicago v. International College of Surgeons, 522
Before delving into Bando’s argument that the district court U.S. 156, 164 (1997) (reaffirming that a case may “arise
had federal question jurisdiction over Long’s wrongful under” the laws of the United States if it requires resolution
termination claim, it is helpful to understand what Bando is of a substantial question of federal law, even if state law
not arguing. Bando is obviously not arguing that Long’s creates the plaintiff’s cause of action); Thornton v. Southwest
wrongful discharge claim is a federal claim; it is clear that Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990) (noting
wrongful discharge is a state-law cause of action. Nor is it that federal courts have jurisdiction in “only those cases in
arguing that Long’s complaint attempts to imply a private which a well-pleaded [c]omplaint establishes either that
right of action under the listed federal criminal statutes, federal law creates the cause of action or that the plaintiff[’s]
thereby stating a federal cause of action. Finally, it is not right to relief necessarily depends on resolution of a
arguing that Long’s state-law claim is completely preempted substantial question of federal law” (emphasis added)
by federal law, which would mean that Long had stated a (quoting Franchise Tax Board, 463 U.S. at 27-28) (internal
federal claim whether he intended to or not. See, e.g., Avco quotation marks omitted)).
Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390
U.S. 557 (1968). Rather, Bando is arguing that Long’s In Christianson v. Colt Industries Operating Corp., 486
wrongful termination claim, without raising an express or U.S. 800 (1988), the Supreme Court further elaborated the
implied federal claim, involves a substantial and disputed circumstances under which a state-law claim “necessarily
question of federal law and is therefore sufficient to invoke depends” upon a “substantial question of federal law.” In that
the district court’s “arising under” jurisdiction. case, the Court held that a claim does not “arise under” the
federal patent laws if the complaint states alternate theories
The exact contours of the federal courts’ jurisdiction under for that claim, only one of which requires resolution of a
28 U.S.C. § 1331 are somewhat imprecise. The most patent-law question. See id. at 809-10. Thus, Christianson
important Supreme Court case to deal with this issue in recent suggests that there is no federal question jurisdiction when the
years is Merrell Dow. In Merrell Dow, the plaintiffs had sued complaint on its face states alternate theories supporting a