Friday, February 09, 2007

Well-Pleaded Complaint Rule and Complete Preemption

A recent Third Circuit opinion, Board of Chosen Freeholders of the County of Burlington v. Tombs, 2006 WL 3713109 (3d Cir. Dec. 18, 2006), presents some important jurisdictional issues. Plaintiff municipal agency commissioned the creation of land maps for areas within the county. There is no reference to whether the county asserted copyright in the maps. The Board provided free copies of the maps to government agencies; for non-governmental requests, copies were provided at a fee calculated by the maps' coverage; presumably this meant the bigger the map the larger the fee.

Defendant, an individual, requested copies, but insisted they be provided at the cost of reproduction, pursuant allegedly to New Jersey's Open Records Act. (It is not clear to me that defendant was correct even on the merits of the state law). The Board refused; Tombs threatened to seek relief from the state. Then some brilliant lawyer for the county decided to bring a declaratory judgment action in federal court seeking a declaration that the Copyright Act preempted Tombs' Open Records request. The district court wisely dismissed the action sua sponte for lack of subject matter jurisdiction, and the court of appeals affirmed.

As the court of appeals pointed out, the Declaratory Judgment Act is not an independent basis for jurisdiction, which must, therefore be separately established. One cannot establish federal jurisdiction based on a defense, and that's what the Board's preemption argument was. Nor did the Board's complete preemption argument succeed. As the court of appeals pointed out, the Copyright Act "does not create an exclusive cause of action for access to public records ... ."

The well-pleaded complaint rule acts as a check on the potential scope of potential federal judicial power. Established by the Supreme Court in Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908), arising under jurisdiction (a prerequisite to jurisdiction under the Copyright Act) is said to exist only when the federal claim may be identified "unaided by anything alleged or in anticipation or avoidance of defenses which it is thought the defendant may interpose." Taylor v. Anderson, 234 U.S. 74, 75-76 (1914).

Complete preemption, which, due to its name, might be thought to be related to the preemption found in 17 USC 301, is not. Judge Wilkinson has nicely explained the differences in Lontz v. Tharp, 413 F.3d 435, 440-441 (4th Cir. 2005):

In assessing whether defendants have carried their burden, we may not conflate "complete preemption" with "conflict" or "ordinary" preemption. While these two concepts are linguistically related, they are not as close kin jurisprudentially as their names suggest. Complete preemption is a "jurisdictional doctrine," while ordinary preemption simply declares the primacy of federal law, regardless of the forum or the claim. ... Ordinary preemption has been categorized as a federal "defense to the allegations." ... And as a mere defense, the "preemptive effect of a federal statute ··· will not provide a basis for removal." ... Even if preemption forms the very core of the litigation, it is insufficient for removal. ... By contrast, when complete preemption exists, there is "no such thing" as the state action ... since the federal claim is treated as if it appears on the face of the complaint because it effectively displaces the state cause of action. Complete preemption thus "transform[s] the plaintiff’s state-law claims into federal claims."

The Board's action failed on both grounds.

1 comment:

Ray Dowd said...

This decision is labeled "not precedential". I know that the rules have changed in terms of citing unpublished decisions, but how are practitioners supposed to cite or use decisions with this label? It is very frustrating to find a good case with a label like this. Even worse when a case like Bush v. Gore tells you in the body of the text that the decision is useless outside the facts presented.