Bryan v. BellSouth Communications Inc ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TOMI WHITE BRYAN, individually 
and on behalf of all others similarly
situated,
Plaintiff-Appellee,
v.  No. 03-1316
BELLSOUTH COMMUNICATIONS,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., District Judge.
(CA-02-228-1)
Argued: February 24, 2004
Decided: July 28, 2004
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Gregory joined. Judge Luttig wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Ashley B. Watson, BELLSOUTH CORPORATION,
Atlanta, Georgia, for Appellant. Michael Geoffrey Wimer, WIMER
& JOBE, Arden, North Carolina, for Appellee. ON BRIEF: Richard
2 BRYAN v. BELLSOUTH COMM.
S. Gottlieb, John B. Morris, KILPATRICK STOCKTON, L.L.P.,
Winston-Salem, North Carolina, for Appellant. Amiel J. Rossabi,
FORMAN, ROSSABI, BLACK, P.A., Greensboro, North Carolina,
for Appellee.
OPINION
KING, Circuit Judge:
Defendant BellSouth appeals from the portion of a decision of the
Middle District of North Carolina denying dismissal and remanding
one of plaintiff Tomi Bryan’s three claims to state court. Bryan v.
BellSouth Telecomms., Inc., No. 1:02CV00228, 2003 WL 262333
(M.D.N.C. Feb. 6, 2003). The court concluded that certain of Bryan’s
claims arose under federal law and were subject to dismissal under
the "filed-rate doctrine." It declined to exercise supplemental jurisdic-
tion and remanded to state court a single claim that it determined did
not raise a federal question. BellSouth maintains that the court erred
in failing to conclude that all of Bryan’s claims posed federal ques-
tions and were barred by the filed-rate doctrine. For the reasons
explained below, we vacate and remand.
I.
A.
BellSouth, as a provider of interstate public telecommunications
services, is required by law to contribute a portion of its revenues to
the federal Universal Service Fund ("USF") to ensure affordable tele-
communications services to rural and low-income areas, schools, hos-
pitals, and the like. See 47 U.S.C. § 254; 47 C.F.R. § 54.706(a). The
percentage of its revenues that a carrier must contribute to the USF
is established by the Federal Communications Commission ("FCC")
and is adjusted on a quarterly basis to ensure sufficient funding of the
USF. See 47 C.F.R. § 54.709(a).
The FCC permits telecommunications carriers such as BellSouth to
recover the costs of their contributions to the USF from their custom-
BRYAN v. BELLSOUTH COMM. 3
ers, either through increased rates or through a separate line item on
the customers’ bills. See In the Matter of Federal-State Joint Board on
Universal Service, 17 F.C.C.R. 24952, ¶ 42 (2002). Prior to April 1,
2003, certain carriers who recovered their USF contributions through
line items would charge customers significantly more than the contri-
bution required based on their bills. Id. ¶ 46. These carriers attributed
the need for such "marking up" to "the lag between the reporting and
assessment of revenues, uncollectibles, and administrative costs." Id.
In an effort to "address consumer concerns regarding disparate con-
tributor recovery practices," id. ¶ 40, the FCC forbade marking up the
line-item charge, effective April 1, 2003. Id. ¶ 45.
Billing practices such as recovery of USF contributions are estab-
lished in a carrier’s "Schedule of Charges," see 47 U.S.C. § 203, also
known as its "tariff." A carrier’s tariff must be filed with the FCC and
kept open for public inspection.1 Id. § 203(a). In addition, a carrier
may not charge more or less than the rates set forth in its tariff, and
it may not refund or remit to a customer any of the charges contained
in the tariff. Id. § 203(c).
As reflected in its tariff, BellSouth chooses to recover its USF con-
tribution from its customers through a line item on the customers’
bills, which it denotes as the "Federal Universal Service Charge"
("FUSC"). The applicable tariff establishes the portion of BellSouth’s
USF contribution that will be recovered from customers, and it calcu-
lates, based on the number of telephone lines and the amount sought
to be recovered, that the end user of each line will be charged an
FUSC of $0.53 per month.
B.
On February 22, 2002, Bryan filed suit against BellSouth in the
Superior Court of Guilford County, North Carolina, seeking to repre-
1
The Federal Communications Act provides that each common tele-
communications carrier "shall . . . file with the [FCC] and print and keep
open for public inspection schedules showing all charges for itself and
its connecting carriers for interstate and foreign wire or radio communi-
cation . . . and showing the classifications, practices, and regulations
affecting such charges." 47 U.S.C. § 203(a).
4 BRYAN v. BELLSOUTH COMM.
sent a class of individuals who are BellSouth customers and who paid
the FUSC. Bryan alleged that the FUSC was excessive and that Bell-
South had failed to disclose certain information pertaining to the
FUSC, in violation of North Carolina’s unfair trade practices law.
On March 26, 2002, BellSouth removed the suit to the Middle Dis-
trict of North Carolina, pursuant to 28 U.S.C. §§ 1441 and 1446, on
the basis that Bryan’s claims raised federal questions by challenging
BellSouth’s tariff. On June 4, 2002, Bryan filed her First Amended
Complaint (the "Complaint") in federal court, seeking to sue on
behalf of all North Carolina BellSouth customers who paid the FUSC.
The Complaint alleged that BellSouth imposes an FUSC that exceeds
its required contribution to the USF, that BellSouth does not disclose
how it calculates the FUSC, and that BellSouth’s use of the term
"Federal Universal Service Charge" is misleading.
Based on these allegations, Bryan asserted three separate causes of
action. In Count A, she claimed that BellSouth committed unfair and
deceptive trade practices, in violation of North Carolina General Stat-
ute section 75-1.1, by failing to disclose: (1) how it calculates the
FUSC; (2) that it charges customers an amount well in excess of its
contribution to the USF for North Carolina services; and (3) that the
FUSC includes administrative expenses, costs, and profits.2 Count A
further alleged that BellSouth’s use of the term "Federal Universal
Service Charge" is unfair or deceptive, as is its representation to cus-
tomers that the FUSC is paid to the USF. In Count B, Bryan brought
a claim for unjust enrichment/restitution, contending that BellSouth
unjustly enriched itself by imposing an excessive and unlawful FUSC.
In Count C, Bryan alleged breach of the covenant of good faith and
fair dealing based on BellSouth’s charging an excessive FUSC and
failing to make the disclosures described in Count A. Based on these
claims, the Complaint sought damages in an amount exceeding
$10,000 but less than $74,999 per class member.3
2
North Carolina General Statute section 75-1.1(a) provides that
"[u]nfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are declared unlaw-
ful."
3
Although Bryan seeks, in her Complaint, to represent a class of simi-
larly situated customers, no determination has been made regarding the
class status of this dispute.
BRYAN v. BELLSOUTH COMM. 5
On June 10, 2002, Bryan filed a motion to remand the Complaint
to state court, see 28 U.S.C. § 1447, and, on July 3, 2002, BellSouth
filed a motion, pursuant to Federal Rule of Civil Procedure 12(b)(6),
to dismiss the Complaint for failure to state a claim upon which relief
can be granted. In support of its motion to dismiss and in opposition
to Bryan’s motion to remand, BellSouth maintained that all of
Bryan’s claims were barred by the "filed-rate doctrine" in that they
challenged BellSouth’s filed tariff or, in the alternative, that they
should be heard first by the FCC under the doctrine of primary juris-
diction.
On February 6, 2003, the court issued its Memorandum Opinion
addressing the parties’ contentions. Bryan, 2003 WL 262333 (the
"Opinion"). On that same date, the court entered the Order from
which this appeal is taken (the "Order"). In its Opinion, the court first
concluded that removal was proper because Bryan presented a federal
question by directly challenging the terms of a tariff in her allegations
that BellSouth’s FUSC was excessive. Opinion at 11. The court then
turned to BellSouth’s motion to dismiss, explaining that the filed-rate
doctrine, also known as the "filed-tariff doctrine," prohibits suits that
would have the effect of altering the rates set forth in a carrier’s filed
tariff. Id. at 11-12. Based on this doctrine, the court dismissed those
claims that it concluded arose under federal law by challenging the
tariff. Id. at 13. The court then declined to exercise supplemental
jurisdiction and remanded to state court those "remaining claims" that
did not challenge the tariff and thus did not present federal questions.4
Id. at 13-14. BellSouth appeals from the portion of the court’s Order
denying dismissal of Count A and remanding it to state court, main-
taining that Count A, like Bryan’s other two claims, challenged the
tariff, arose under federal law, and should have been dismissed.
4
The court did not specify which claims it viewed as "remaining state
law claims." On appeal, the parties agreed at oral argument that the
court’s Order had the effect of dismissing Count B, the unjust enrich-
ment/restitution claim, and Count C, the breach of contract claim, and
remanding to state court Count A, the North Carolina unfair trade prac-
tices claim. Bryan has not appealed the dismissal of Counts B and C.
6 BRYAN v. BELLSOUTH COMM.
II.
We turn first to Bryan’s assertion that we lack jurisdiction over this
appeal. Bryan maintains that jurisdiction is lacking because the Order
was "non-final," in that one of her claims was not dismissed. See gen-
erally 28 U.S.C. § 1291 ("The courts of appeals . . . shall have juris-
diction of appeals from all final decisions of the district courts of the
United States . . . ."). For this proposition, Bryan relies on Federal
Rule of Civil Procedure 54(b), which provides that, "[w]hen more
than one claim for relief is presented in an action, . . . the court may
direct the entry of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for the
entry of judgment." Fed. R. Civ. P. 54(b) (emphasis added). Bryan
maintains that, as the court made no such express determination, its
Order was not final and is not appealable.
Bryan’s assertion does not withstand scrutiny. Admittedly, 28
U.S.C. § 1447(d) provides that "[a]n order remanding a case to the
State court from which it was removed is not reviewable on appeal
or otherwise . . . ." However, as the Supreme Court explained in
Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996),
§ 1447(d) refers only to those situations in which a court has directed
a remand for the reasons set forth in § 1447(c); that is, a defect in
removal or lack of subject matter jurisdiction. Quackenbush, 517 U.S.
at 711-12. The Court went on to explain that, where a district court
has remanded a lawsuit to state court based on abstention principles,
the remand is considered a final order appealable under 28 U.S.C.
§ 1291. Id. at 712-13.
In this situation, the district court explicitly based its remand of
Count A on abstention principles, relying on 28 U.S.C. § 1367(c)(3).
Opinion at 14. That section provides, "The district courts may decline
to exercise supplemental jurisdiction over a claim under subsection
(a) [providing for supplemental jurisdiction over all claims forming
the same case or controversy] if — the district court has dismissed all
claims over which it has original jurisdiction . . . ." 28 U.S.C.
§ 1367(c)(3). And we have recognized that a remand order based on
§ 1367(c) is appealable as a final order pursuant to § 1291. See Battle
v. Seibels Bruce Ins. Co., 288 F.3d 596, 606 n.16 (4th Cir. 2002)
BRYAN v. BELLSOUTH COMM. 7
(explaining that, under "well-settled precedent," remands based on
§ 1367(c) are appealable final orders under § 1291); see also Hinson
v. Norwest Fin. S.C., Inc., 239 F.3d 611, 614-15 (4th Cir. 2001).
Because the court remanded Count A pursuant to § 1367(c), its deci-
sion constitutes an appealable final order, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
III.
In this matter, the district court remanded Count A to state court
because it determined that Count A did not give rise to federal ques-
tion jurisdiction, and the court declined to exercise supplemental
jurisdiction. A district court’s determination that it lacks subject mat-
ter jurisdiction is a question of law that we review de novo. Yarnevic
v. Brink’s, Inc., 102 F.3d 753, 754 (4th Cir. 1996).
IV.
Turning to the issues on appeal, our task is twofold. First, we must
determine whether Bryan’s North Carolina unfair trade practices
claim arises under federal law, in which event the court erred in
remanding it. See Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 609
(4th Cir. 2002) (concluding that "the district court erred when it
remanded the Remaining Claims . . . based upon its mistaken belief
that it had otherwise dismissed all claims over which it had ‘original
jurisdiction’"). And if remand was error, we must determine whether
Count A is barred by the filed-rate doctrine.
A.
First, with respect to the existence of federal jurisdiction, we recog-
nize that when, as here, state law creates the plaintiff’s cause of
action, the lower federal courts possess jurisdiction to hear "only
those cases in which a well-pleaded complaint establishes . . . that the
plaintiff’s right to relief necessarily depends on resolution of a sub-
stantial question of federal law." Franchise Tax Bd. v. Constr. Labor-
ers Vacation Trust, 463 U.S. 1, 27-28 (1983); see also Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).5
5
Additionally, federal jurisdiction exists in those rare instances in
which state law claims are completely preempted. See Beneficial Nat’l
8 BRYAN v. BELLSOUTH COMM.
And we are further cognizant that a filed tariff carries the force of fed-
eral law. See MCI Telecomms. Corp. v. Garden State Inv. Corp., 981
F.2d 385, 387 (8th Cir. 1992) (observing that "federal tariffs are the
law, not mere contracts"). As one of our sister circuits has explained,
"[a] tariff filed with a federal agency is the equivalent of a federal reg-
ulation, and so a suit to enforce it, and even more clearly a suit to
invalidate it as unreasonable under federal law . . . arise[s] under fed-
eral law." Cahnmann v. Sprint Corp., 133 F.3d 484, 488 (7th Cir.
1998) (internal citations omitted).6 A claim that seeks to alter the
terms of the relationship between carrier and consumer set forth in a
filed tariff therefore presents a federal question. See Fax Telecom-
municaciones Inc. v. AT&T, 138 F.3d 479, 488 (2d Cir. 1998)
(explaining that a claim "seeking to enforce the filed tariff provides
a basis for federal question jurisdiction").
Additionally, the filed-rate doctrine mandates that "the rate of the
carrier duly filed is the only lawful charge." AT&T v. Cent. Office
Tel., Inc., 524 U.S. 214, 222 (1998) (quoting Louisville & Nashville
R.R. v. Maxwell, 237 U.S. 94, 97 (1915)). The doctrine’s purpose is
twofold: to prevent discrimination among consumers and to preserve
the rate-making authority of federal agencies.7 See Hill v. BellSouth
Bank v. Anderson, 539 U.S. 1, 6-9 (2003) (explaining doctrine of com-
plete preemption). Because we conclude that Bryan’s cause of action
presents a substantial question of federal law, we need not determine
whether the doctrine of complete preemption applies.
6
Although the Cahnmann decision was rendered on the basis of com-
plete preemption, which we need not reach, its statement that suits to
enforce or invalidate tariffs arise under federal law is beyond dispute and
does not depend on any preemption theory, nor do the authorities Cahn-
mann relies upon for this proposition. See, e.g., Thurston Motor Lines,
Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 534-35 (1983) (concluding
that suit to collect charges due under tariff gives rise to federal jurisdic-
tion), Louisville & Nashville R.R. v. Rice, 247 U.S. 201, 203 (1918)
(same).
7
In fact, the Federal Communications Act itself explicitly serves these
purposes, providing that "no carrier shall (1) charge, demand, collect, or
receive a greater or less or different compensation . . . than the charges
specified in the schedule then in effect, or (2) refund or remit by any
means or device any portion of the charges so specified . . . ." 47 U.S.C.
§ 203(c).
BRYAN v. BELLSOUTH COMM. 9
Telecomms., Inc., 364 F.3d 1308, 1316 (11th Cir. 2004); Marcus v.
AT&T Corp., 138 F.3d 46, 58 (2d Cir. 1998). As the Eleventh Circuit
recently observed, the filed-rate doctrine serves the purpose of non-
discrimination by prohibiting a court from entering a judgment that
would serve to alter the rate paid by a plaintiff. Hill, 364 F.3d at 1316.
"Even if such a challenge does not, in theory, attack the filed rate,"
the court explained, "an award of damages to the customer-plaintiff
would, effectively, change the rate paid by the customer to one below
the filed rate paid by other customers." Id. We therefore cannot permit
any claim to go forward that, if successful, would require an award
of damages that would have the effect of imposing different rates
upon different consumers. See Marco Supply Co., Inc. v. AT&T Com-
munications, Inc., 875 F.2d 434, 436 (4th Cir. 1989) ("[A] regulated
carrier must charge the tariff rate established with the appropriate reg-
ulatory agency . . . . To do otherwise would be giving a preference
to and discriminating in favor of the customer in question.") Simi-
larly, authorizing a court to award damages that would effectively
impose a rate different from that dictated by the tariff would usurp the
FCC’s authority to determine what rate is reasonable. See Hill, 364
F.3d at 1317. In sum, we must determine whether Count A of the
Complaint would require the court to determine a reasonable rate for
the FUSC, thereby presenting a substantial question of federal law
and contravening the filed-rate doctrine.8
8
We do not imply, as the dissent suggests, that the filed-rate doctrine
is "coterminous with the scope of federal question jurisdiction." See infra
p. 16. Fax Telecommunicaciones indeed provides an instance in which
a claim did not raise a federal question but was barred by the filed-rate
doctrine. Fax Telecommunicaciones, 138 F.3d at 486-90 (holding that
claim alleging breach of contract in which carrier agreed to charge plain-
tiff different rate than that set forth in tariff did not raise substantial fed-
eral question, but contract could not be enforced due to filed-rate
doctrine). In certain circumstances, however, the inquiries merge. As the
dissent recognizes, "claims requiring the court to second-guess the rea-
sonableness of [the FCC’s rate] determination are properly said to
require the court to resolve a substantial question." Infra p. 17. And
claims requiring a court to make that assessment also run afoul of the
filed-rate doctrine, such that both questions can be resolved by the same
inquiry.
10 BRYAN v. BELLSOUTH COMM.
B.
Against this backdrop, we now assess whether Count A of the
Complaint effectively challenges the reasonableness of BellSouth’s
filed rate, giving rise to federal question jurisdiction and requiring
dismissal pursuant to the filed-rate doctrine. Because only the FCC
may decide what charge is lawful, it is beyond dispute that the court
was correct to exercise jurisdiction and dismiss Bryan’s claims com-
plaining that the FUSC was excessive. The parties disagree, however,
as to whether Count A also presents a forbidden challenge to Bell-
South’s tariff. BellSouth maintains that it does, asserting that, because
Count A seeks damages, the court, were Bryan successful, would be
put in the position of effectively refunding a portion of the FUSC to
Bryan. In the circumstances presented, we are constrained to agree.
In Count A, Bryan alleges that BellSouth’s charging and collecting
of the FUSC and its failure to make certain disclosures in connection
therewith constitute unfair or deceptive acts or practices under North
Carolina General Statute section 75-1.1. In Part V of her Complaint,
titled "DAMAGES," Bryan alleges, "BellSouth’s actions and omis-
sions have been an actual, producing, direct and proximate cause of
damages to Plaintiff and to BellSouth’s other North Carolina custom-
ers in an amount exceeding $10,000." Complaint ¶ 31. Bryan’s prayer
for damages draws no distinction between her separate counts. With
no indication to the contrary, we must view Part V as seeking mone-
tary damages for the acts alleged in Count A.
BellSouth asserts that the monetary remedy Bryan seeks is "a
refund of that portion of the FUSC that she considers she was wrong-
fully induced to pay" and that, in seeking such a remedy, Bryan runs
afoul of the filed-rate doctrine. In actuality, Bryan does not specify
the nature of her damages in Count A. Nonetheless, BellSouth main-
tains that any award of damages flowing from BellSouth to Bryan, no
matter how calculated, would violate the filed-rate doctrine by refund-
ing a portion of the FUSC to some consumers but not to others and
by requiring the court to determine a reasonable rate. Certainly, this
proposition finds support in the decisions of our sister circuits. See,
e.g., Hill, 364 F.3d at 1317 ("Hill’s two remaining claims implicate
the filed rate doctrine because she seeks purely monetary damages as
relief."); Marcus, 138 F.3d at 60-62 (barring claim for compensatory
BRYAN v. BELLSOUTH COMM. 11
damages because plaintiffs would effectively receive discounted rate
and because award would undermine authority of FCC, which had
approved billing practice in question). In the circumstances presented
here, we need not — and do not — decide whether every award of
compensatory damages would serve to challenge a carrier’s tariff.
In our view, the Complaint — read in the light most favorable to
the plaintiff — nowhere purports to seek any form of damages other
than a refund of some portion of the FUSC. And it pleads no facts that
would put BellSouth on notice that Bryan intends to seek damages
resulting from any injury other than paying the FUSC. In the
"FACTS" section of the Complaint, Bryan alleges only that she is a
BellSouth customer who was charged and paid the FUSC, that Bell-
South charged an FUSC that was excessive, that it failed to disclose
how the FUSC was calculated, and that its use of the term "FUSC"
was misleading. Complaint ¶¶ 4-8.9
At argument, Bryan asserted that one could envision an award of
damages that would not challenge the filed tariff. She posited that if
BellSouth had fully disclosed all information pertaining to its FUSC,
she might have chosen a different carrier that would have charged a
lower FUSC, and therefore she would have been damaged in the
amount of the difference between the two carriers’ FUSCs. Such an
award of damages, Bryan maintained, would not require the court to
determine the reasonableness of BellSouth’s FUSC and therefore
would neither present a federal question nor be barred by the filed-
rate doctrine. This example is purely hypothetical, however, and noth-
ing in the Complaint suggests such an injury.10
9
At oral argument, BellSouth placed significant weight on the fact that
Bryan’s class action allegations identify only one issue of law or fact
common to the class: "[w]hether BellSouth charges an excessive Federal
Universal Service Charge to its North Carolina customers." Complaint
¶ 11. The question of whether Bryan has pleaded facts sufficient to sup-
port class certification, however, is distinct from that of whether her
Complaint as a whole seeks an impermissible form of damages.
10
Our dissenting colleague asserts that our analysis disregards the rule
explained in Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816-17 (4th Cir.
2004), that federal jurisdiction is lacking if there exists any legal theory
by which the plaintiff can sustain his claim without raising a substantial
12 BRYAN v. BELLSOUTH COMM.
In sum, we conclude that the only plausible reading of the Com-
plaint is that Count A, like the other counts, seeks a refund of a por-
tion of the FUSC.11 Because the amount of the FUSC is
determinatively set forth in BellSouth’s tariff, which carries the force
of federal law, an action seeking to alter that rate presents a federal
question. The district court therefore erred in remanding Count A to
state court. And because Count A would require the court to deter-
mine a reasonable rate for the FUSC, that claim must be dismissed
pursuant to the filed-rate doctrine.
V.
Pursuant to the foregoing, we vacate the district court’s Order with
respect to Count A and remand for that count to be dismissed.
VACATED AND REMANDED
question of federal law. We recognize this rule, of course, but it has no
application in this situation. In Dixon, as in the decisions on which it
relies, Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988),
and Mulcahey, 29 F.3d 148, the courts found alternative theories of
recovery on the face of the complaint itself. See Dixon, 369 F.3d at 817-
18 (concluding, "[a]fter considering Dixon’s complaint as a whole," that
"Dixon’s complaint could support a finding of liability . . . under any of
the following three theories . . ."); Christianson, 486 U.S. at 810 ("[A]
claim supported by alternative theories in the complaint may not form
the basis for § 1338(a) jurisdiction unless patent law is essential to each
of those theories."); Mulcahey, 29 F.3d at 153 ("Examination of the com-
plaint . . . reveals that the negligence per se claim citing the federal envi-
ronmental statutes was only an alternative theory of liability . . . .").
None of these courts sought to conjure out of whole cloth an alternative
theory of liability without some support in the allegations of the com-
plaint, and we decline to do so here.
11
Because Count A seeks a damage award that presents a challenge to
BellSouth’s tariff, we need not reach BellSouth’s other contentions; i.e.,
that Bryan’s non-disclosure allegations challenge the tariff because
Bryan is presumed to know the contents of the tariff, and that Count A
is barred by the doctrine of primary jurisdiction.
BRYAN v. BELLSOUTH COMM. 13
LUTTIG, Circuit Judge, dissenting:
The majority holds that the plaintiff’s state law cause of action
against BellSouth for violation of the North Carolina Unfair Trade
Practices Act, N.C. Gen. Stat. § 75-1.1, "arises under" federal law
within the meaning of 28 U.S.C. § 1331 because it "effectively chal-
lenges" the rates set in BellSouth’s filed tariff with the FCC. Ante at
10. Because this standard has no basis in the Supreme Court’s prece-
dent for determining whether statutory "arising under" jurisdiction
exists, and because neither the plaintiff’s right to relief nor the remedy
that the plaintiff has requested entails resolution of any question of
federal law, much less "necessarily depend[s] on the resolution of"
such a question, I dissent.
A state law claim "arises under" federal law within the meaning of
28 U.S.C. § 1331 in only two circumstances. Franchise Tax Bd. v.
Constr. Laborers Vac. Trust, 463 U.S. 1, 13, 27-28 (1983). The first
circumstance, commonly referred to as "complete preemption," exists
when "federal law so completely sweeps away state law that any
action brought under state law is transformed into a federal action that
can be brought originally in, or removed to, federal court." King v.
Marriott Int’l Inc., 337 F.3d 421, 425 (4th Cir. 2003) (citing Metro-
politan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)). Our court
has recently explained that in such cases, "in actuality, the plaintiff
simply has brought a mislabeled federal claim, which may be asserted
under some federal statute." King, 337 F.3d at 425; see also Fran-
chise Tax Bd., 463 U.S. at 13 (describing such state law claims as
"‘really’ one[s] of federal law"). The second, and more common, cir-
cumstance under which a state law claim can "arise under" federal
law is "if a well-pleaded complaint establishe[s] . . . that [the plain-
tiff]’s right to relief under state law necessarily depends on resolution
of a substantial question of federal law." Franchise Tax Bd., 463 U.S.
at 27-28; Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.
2004). Cf. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 813
& n.12 (1986) (holding that, even where the plaintiff’s right to relief
required the resolution of a federal question, the district court did not
have statutory federal question jurisdiction where the adjudication of
the federal question "would [not] serve congressional purposes and
the federal system.").
14 BRYAN v. BELLSOUTH COMM.
Because the majority finds jurisdiction under the second of these
circumstances, it does not address the question of whether complete
preemption is present. See ante at 5-6 n.5. There is simply no argu-
ment in this case, however, that federal jurisdiction through complete
preemption exists. As we recently explained, "the ‘touchstone’ of
complete preemption is ‘whether Congress intended the federal cause
of action’ to be ‘the exclusive cause of action’ for the type of claim
brought by a plaintiff." King, 337 F.2d at 425 (quoting Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 9 n.5 (2003)); Marcus v. AT&T,
138 F.3d 46, 54 (2d Cir. 1998) ("[A]fter Metropolitan Life, it is clear
that the complete preemption doctrine applies only where Congress
has clearly manifested an intent to disallow state law claims in a par-
ticular field."). For this reason,
a vital feature of complete preemption is the existence of a
federal cause of action that replaced the preempted state
cause of action. Where no discernable federal cause of
action exists on a plaintiff’s claim, there is no complete pre-
emption, for in such cases there no federal cause of action
that Congress intended to be the exclusive remedy for the
alleged wrong.
King, 337 F.3d at 425 (emphasis added). In light of this direction, the
absence of a federal cause of action analogous to the plaintiff’s state
law NCUTPA claim is fatal to any argument for complete preemp-
tion. As the Second Circuit has concluded, "while the FCA does pro-
vide some causes of action for customers, it provides none for
deceptive advertising and billing." Marcus, at 54; compare, e.g., 47
U.S.C. § 203(c)(1), 207 (authorizing suit in federal district court to
challenge carrier’s collection of tariffs which are "greater or less or
different" than those filed with the FCC).
Furthermore, even if the FCA did provide a cause of action for
deceptive and misleading billing, complete preemption would still be
lacking, because Congress clearly intended for there not to be com-
plete federal preemption of plaintiff’s state law causes of action.
Indeed, the FCA contains a savings clause that provides that "nothing
in the [FCA] shall in any way abridge or alter the remedies now exist-
ing at common law or by statute, but the provisions of this chapter are
in addition to such remedies." 47 U.S.C. § 414. See also Metropolitan
BRYAN v. BELLSOUTH COMM. 15
Life Ins. v. Taylor, 481 U.S. 58, 65 (1987) (stating that "even with"
the existence of a cause of action under § 502(a) of ERISA, the Court
"would be reluctant to find that extraordinary pre-emptive power . . .
that converts an ordinary state common law complaint into one stating
a federal claim," without explicit evidence of congressional intent
from the legislative history); Marcus, 138 F.3d at 54 (finding that
"[t]he FCA not only does not manifest a clear Congressional intent to
preempt state law actions prohibiting deceptive business practices,
false advertisement, or common law fraud, it evidences Congress’s
intent to allow such claims to proceed under state law.").1
Accordingly, if the district court possesses subject matter jurisdic-
tion over the plaintiff’s remaining state law claim, it must be on the
more narrow ground that the plaintiff’s right to relief, as set forth in
her complaint, "necessarily depends on resolution of a substantial
question of federal law." Franchise Tax Bd., 463 U.S. at 13; Interstate
Petroleum Corp. v. Morgan, 249 F.3d 215, 220 (4th Cir. 2001)(en
banc).
The majority refuses even to apply this established standard for
determining federal jurisdiction and adopts instead the different stan-
dard of whether a complaint "effectively challenges" a filed rate, see
ante at 10 (emphasis added) (inquiring "whether Count A of the Com-
plaint effectively challenges the reasonableness of BellSouth’s filed
rate"), a standard derived from cases that considered the applicability
of the filed-rate doctrine as a defense to a particular claim, see, e.g.,
Brown v. MCI Worldcom Network Servs., Inc., 277 F.3d 1166, 1170
(9th Cir. 2002) (noting that "the filed-rate doctrine also bars suits
challenging services, billing, or other practices when such challenges,
if successful, would have the effect of changing the filed tariff"); Fax
Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 489 (2d Cir. 1998)
(noting that "[i]f this court were to enforce the promised rate and
1
For an example of a statement of congressional intent sufficient to
completely preempt a state law claim, see Metropolitan Life, 481 U.S. at
65-66 (quoting a direct statement in the House Conference Report on
ERISA that "all such actions in Federal or State courts are to be regarded
as arising under the laws of the United States in similar fashion to those
brought under section 301 of the Labor-Management Relations Act of
1947").
16 BRYAN v. BELLSOUTH COMM.
award damages on that basis, we would effectively be setting and
applying a rate apart from that judged reasonable by the FCC, in vio-
lation of the nonjusticiability strand of the filed rate doctrine."). The
primary case on which the majority relies for its adoption of this stan-
dard, Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308 (11th Cir.
2004), commits without discussion the same mistake as the majority,
using, for determination of the existence of federal jurisdiction, the
standard developed to evaluate applicability of the filed-rate doctrine
as a defense. Id. at 1315 (focusing its discussion on the applicability
of the filed-rate doctrine, and noting simply that "federal question
jurisdiction should have attached to Hill’s two remaining state-law
causes of action because they implicated the filed rate doctrine.").
This is error plain and simple. Notwithstanding the majority’s obvi-
ous belief (as well as its disclaimer that it so believes), the filed-rate
doctrine is not coterminous with the scope of federal question juris-
diction under section 1331; it is significantly broader. See Fax Tele-
communicaciones, 138 F.3d at 487-90 (holding that the plaintiff’s
breach of contract claim did not "arise under" federal law for the pur-
poses of removal but that it was barred by the filed-rate doctrine). It
is one thing to provide that "arising under" jurisdiction exists in that
narrow class of cases where the plaintiff’s right to relief necessarily
depends on the resolution of a substantial federal question or Con-
gress has preempted state court jurisdiction. It is quite another to pro-
vide that jurisdiction is present so long as the plaintiff’s request for
relief constitutes an "effective challenge" to the rate set by federal
law. Indeed, as this case demonstrates, a claim can easily be charac-
terized as an "effective challenge" to rates set in a tariff filed with a
federal agency, even though the adjudication of the claim itself would
require the court to decide no federal issues whatsoever. Of course,
that a federal court may not have jurisdiction over a claim that would
be barred by the filed-rate doctrine is not problematic in the least; the
filed-rate doctrine may be raised as a federal defense to a state law
claim before a state court just as easily as before a federal court. See
Fax Telecommunicaciones, 138 F.3d at 486; see also Merrell Dow,
478 U.S. at 808 ("A defense that raises a federal question is inade-
quate to confer federal jurisdiction.") (citing Louisville & Nashville
R.R. Co. v. Mottley, 211 U.S. 149 (1908)).
It is clear that the plaintiff’s claim does not meet the standard that
we must apply, and have consistently applied, in such cases: whether
BRYAN v. BELLSOUTH COMM. 17
the plaintiff’s right to relief, as set forth in "a well-pleaded com-
plaint," "necessarily depends on resolution of a substantial question
of federal law." See Franchise Tax Bd., 463 U.S. at 13; Interstate
Petroleum Corp. v. Morgan, 249 F.3d 215, 220 (4th Cir. 2001) (en
banc). To prevail on a claim under the NCUTPA, N.C. Gen. Stat. 75-
1.1, a plaintiff must prove "‘(1) an unfair or deceptive act or practice,
or unfair method of competition, (2) in or affecting commerce, and
(3) which proximately caused actual injury to the plaintiff or his busi-
ness.’" See, e.g., Basnight v. Diamond Developers, Inc., 146 F. Supp.
2d 754, 764 (M.D.N.C. 2001). None of these elements has anything
whatsoever to do with federal law. Moreover, there can be no argu-
ment that the plaintiff’s claim is, in fact, a claim based on the tariff,
which simply has been artfully pled under the NCUTPA; as counsel
for BellSouth conceded at argument, the allegedly unfair and decep-
tive billing and marketing practices at the heart of plaintiff’s
NCUTPA claim are not addressed in the tariff. Compare Marcus, 138
F.3d at 56, with Fax Telecommunicaciones, 138 F.3d at 487.
The majority maintains that the plaintiff’s claim presents a federal
question because "the only plausible reading of the Complaint is that
[the count alleging a violation of the NCUTPA] . . . seeks a refund
of a portion of the FUSC" and such a refund would require the court
to "alter th[e] rate" set forth in the tariff. Ante at 12. This contention
is simply wrong, for two reasons. First, even if the Complaint were
so read, it would not present a federal question. Second, the court is
not necessarily required to impose a different rate or to refund a por-
tion of the rate in order to award damages to the plaintiff, as there are
other viable theories of damages under the plaintiff’s Complaint.
As to the first, the determination of a damage award with reference
to the tariff rate charged by BellSouth does not pose a federal ques-
tion. The tariffs BellSouth has filed with the FCC represent a judg-
ment by the government that the FUSC rates included therein are
reasonable. For that reason, claims requiring the court to second-
guess the reasonableness of this determination are properly said to
require the court to resolve a substantial federal question. However,
the calculation of damages for the injury caused to the plaintiff by
BellSouth’s violation of the NCUTPA does not require the court to
make any determination about the reasonableness of the rate charged
in the tariff. Compare Fax Telecommunicaciones, 138 F.3d at 487
18 BRYAN v. BELLSOUTH COMM.
(finding no federal question jurisdiction over breach of contract claim
where the basis for the claim was "independent of the rate on file with
the FCC"). Rather, it seeks to measure the injury caused by Bell-
South’s omissions and misrepresentation. Put another way, even if the
plaintiff’s damages are characterized as a "refund" of a portion of the
FUSC paid by BellSouth, the amount of the "refund" may only be
permissibly determined by reference to BellSouth’s misconduct and
the plaintiff’s reliance on that misconduct. Even if the consequence
of awarding such damages would be to effectively lower the rates for
some customers and not for others, the determination of damages
would not "necessarily depend" on the court’s determination of the
reasonableness of the rate, but rather on its determination of the extent
to which the billing and marketing practices of BellSouth violated the
NCUTPA.
As to the second reason, even if a claim by the plaintiff that she
was entitled to a "refund of a portion of the FUSC" would require a
federal court to reconsider the reasonableness of a filed rate and thus
would pose a federal question, it is incorrect to say that the plaintiff’s
claim necessarily depends on awarding a "refund of a portion of the
FUSC." See Dixon, 369 F.3d at 816 ("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."). The majority maintains that the Complaint must
be read to request a refund because "the Complaint — read in the
light most favorable to the plaintiff — nowhere purports to seek any
form of damages other than a refund of some form of the FUSC" and
otherwise fails to put BellSouth on notice of the plaintiff’s intent to
do so. Ante at 11. However, the plaintiff’s Complaint cannot plausibly
be read to set forth any theory of damages,2 let alone a single exclu-
sive request for "a refund of some portion of the FUSC." Ante at 11.
2
As it pertains to damages, the plaintiff’s Complaint alleges that "Bell-
South’s actions and omissions have been an actual, producing, direct and
proximate cause of damages to Plaintiff and to BellSouth’s other North
Carolina customers in an amount exceeding $10,000.00," J.A. 22 (Com-
plaint ¶ 31), and provides that the plaintiff is entitled to treble damages
under section 75-16 of the NCUTPA for BellSouth’s unfair and decep-
tive trade practices. Id. (Complaint ¶ 32).
BRYAN v. BELLSOUTH COMM. 19
And, in fact, plaintiff’s counsel at argument proposed an example
of a plausible mechanism for determining damages that does not chal-
lenge the amount of the filed tariff: the difference between the FUSC
charged by BellSouth and the FUSC for the carrier that Plaintiff
might have chosen absent BellSouth’s lack of disclosure. The major-
ity dismisses this method of computing damages as "purely hypotheti-
cal" and asserts that "nothing in the Complaint suggests such an
injury." Ante at 11. But looking solely to the plaintiff’s Complaint, it
is no more "hypothetical" that the plaintiff will seek to prove damages
by demonstrating that "she might have chosen a different carrier that
would have charged a lower FUSC," ante at 11, than it is that she will
seek damages of "a portion of the FUSC" that she has already paid
to BellSouth. Ante at 12.
Thus, because the plaintiff could prove damages under at least one
theory that does not require resort to any concept of federal law, her
claim does not "arise under" federal law within the meaning of section
1331. Dixon, 369 F.3d at 817 ("[I]f the plaintiff can support [her]
claim with even one theory that does not call for an interpretation of
federal law, [her] claim does not ‘arise under’ federal law for pur-
poses of § 1331.").
The majority argues that Dixon is inapposite because in it and the
cases on which it relies, "the courts found alternative theories of
recovery on the face of the complaint itself," rather than "conjur[ing]
out of whole cloth an alternative theory of liability without some sup-
port in the allegations of the complaint." Ante at 11-12 n.10. The the-
ory of liability proposed by plaintiff’s counsel, however, no more
lacks support in the allegations of the complaint than does the majori-
ty’s "refund" theory. Plaintiff’s Complaint, which complains of omis-
sions and misrepresentations, see Complaint ¶¶ 19-24, would clearly
support a theory that those actions led the plaintiff to purchase a ser-
vice she would not have otherwise purchased. If anything, that theory
is more clearly supported in the allegations of the Complaint than the
theory that plaintiff seeks a refund of the portion of the rate that is
unreasonable, a theory that has little if any direct connection to the
allegations in the Complaint.
It is not only the case, then, that pursuing a refund of a portion of
the rate would not necessarily depend on resolution of a federal ques-
20 BRYAN v. BELLSOUTH COMM.
tion, if the claim for a refund did not rest solely on the reasonableness
of the rate. Even if pursuing a refund did depend on resolution of a
federal question, it is implausible to read the Complaint so narrowly
as to define that remedy as the only supportable calculation of dam-
ages.
In sum, the majority’s analysis of the district court’s subject matter
jurisdiction under 28 U.S.C. § 1331 fails to heed even the most basic
tenets of the Supreme Court’s or this court’s direction on the subject,
adopting a standard drawn from a possible federal defense to plain-
tiff’s claim, rather than from whether plaintiff’s right to relief, as set
forth in her Complaint, "necessarily depends on a question of federal
law." Under the correct standards, there is no basis on which it may
be said that the district court possessed "arising under" jurisdiction
over the plaintiff’s state law claim pursuant to 28 U.S.C. § 1331. I
dissent from the majority’s contrary judgment.