State of Oklahoma Ex Rel. Oklahoma Tax Commission v. Jan Graham and Chickasaw Nation, by and Through Overton James, Governor of the Chickasaw Nation ( 1988 )

TACHA, Circuit Judge,

dissenting.

Again I must respectfully dissent. The decision of the Supreme Court in Caterpillar Inc. v. Williams, — U.S.-, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), reinforces the view expressed in my previous dissent, 822 F.2d 951, 957-60 (1987).

In Caterpillar, the Supreme Court makes clear that complete preemption does not provide a basis for removal from state to federal court unless the plaintiff’s claims fall within the scope of the preempted field. In Caterpillar, the preemption question involved § 301 of the Labor Management Relations Act. It is well established that § 301 completely preempts the field of private rights arising out of collective bargaining agreements, so as to provide a basis for removal of cases purportedly relying on state law but in fact stating claims under collective bargaining agreements. Caterpillar, 107 S.Ct. at 2430; Avco Corp. v. Aero Lodge No. 735, Int’l Assn, of Machinists, 390 U.S. 557, 559-60, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968); see also Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 23-24, 103 S.Ct. 2841, 2853-54, 77 L.Ed.2d 420 (1983). In Caterpillar, the Court decided that plaintiffs’ claims for breach of individual employment contracts were not within the scope of the field preempted by § 301 and therefore the defendants could not remove the action to federal court.

In particular, the final argument raised by the defendants in Caterpillar to justify removal is precisely analogous to the argument for removal in the present case. This argument was rejected by the Supreme Court, and it should be rejected here also. In Caterpillar, the defendant argued that § 301 preempts a state claim even when the defendant raises only a defense based on a collective bargaining agreement. The defendant reasoned that, because interpretation of the agreement involves an area of federal law which preempts state law, if the defendant’s interpretation is valid, the state claims do not survive and removal is appropriate. That is exactly the situation presented to this court. The defendant has asserted the defense of sovereign immunity. It is undisputed that federal law completely preempts this field. Thus, to apply this defense, a court must necessarily look to federal law. However, the interjection of such a defense does not provide a basis for removal jurisdiction. As the Supreme Court stated in Caterpillar:

It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement [sovereign immunity in the present case], the state court will have to interpret that agreement [federal law regarding sovereign immunity] to decide whether the state claim survives. But the presence of a federal question, even a § 301 question [question of sovereign immunity], in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule — that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint....

107 S.Ct. at 2433.

The majority opinion does not persuade me that sovereign immunity operates other than as a defense. The majority relies on Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), and, in its previous opinion, relied on Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315 (10th Cir.1982), for the proposition that a plaintiff must affirmatively plead either consent or waiver of sovereign immunity to state a cause of action against an Indian tribe. The majority seems to be confusing a requirement for prevailing on the merits with a requirement for stating a cause of action. While the cases the majority relies on make clear that the plaintiff has the burden of demonstrating consent or waiver when the defense of sovereign immunity is raised, they contain no suggestion that allegations regarding consent or waiver constitute part of the cause of action and must appear in the plaintiff’s complaint.

Furthermore, in analogous situations where the defendant claims immunity and the complaint does not present a federal question, it is a federal statute that provides authority for the federal courts to take jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 493 n. 20,103 S.Ct. 1962,1971 n. 20, 76 L.Ed.2d 81 (1983) (28 U.S.C. § 1330 makes an exception to sovereign immunity part of the plaintiff’s cause of action against a foreign sovereign); Willingham v. Morgan, 395 U.S. 402, 406-07, 89 S.Ct. 1813, 1815-16, 23 L.Ed.2d 396 (1969) (28 U.S.C. § 1442 allows removal of actions brought in state court against federal officials acting in their official capacity). No such statute covers the present situation.

The majority notes that “the Chickasaw nation is subject to suit only under conditions prescribed by Congress,” and suggests that this necessary reliance on federal authority allows removal to federal court. Majority opinion at 1260. The Supreme Court addressed and rejected precisely this argument in Gully v. First Nat’l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). In Gully, the state of Mississippi filed suit in state court to collect state taxes from a national bank. The district court allowed removal because the state must rely on a federal statute for the power to tax a national bank. In its opinion, the Supreme Court stated:

Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit. The tax here in controversy if valid as a tax at all, was imposed under the authority of a statute of Mississippi. The federal law did not attempt to impose it or to confer upon the tax collector authority to sue for it. True, the tax, though assessed through the action of the state, must be consistent with the federal statute consenting, subject to restrictions, that such assessments may be made. It must also be consistent with the Constitution of the United States. If there were no federal law permitting the taxation of shares in national banks, a suit to recover such a tax would not be one arising under the Constitution of the United States, though the bank would have the aid of the Constitution when it came to its defense. That there is a federal law permitting such taxation does not change the basis of the suit, which is still the statute of the state, though the federal law is evidence to prove the statute valid.

Id. at 115, 57 S.Ct. at 99 (emphasis original) (citations omitted).

After reconsidering the present case in light of the Supreme Court’s decision in Caterpillar, I am firmly convinced that this action was improperly removed to federal court. I would remand the case to state court. Because I would remand the case, I express no opinion on the applicability of Department of Revenue of Iowa v. Investment Finance Management Co., 831 F.2d 790 (8th Cir.1987), cert. denied, - U.S.-, 108 S.Ct. 1575, 99 L.Ed.2d 890 (1988).