The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
On August 2, 1994 the Union removed the state court action to this court, contending (a) that the suit was brought seeking to protect First Amendment interests of the School and its pupils and thus stated a federal claim cognizable under 28 USC 1331, and (b) that the relief granted by the state court contravened the First Amendment and federal labor law.
On August 5, 1994 a hearing was held and the case remanded to state court effective immediately for lack of federal jurisdiction by decision from the bench. Pursuant to leave granted and 28 USC 1447(c), the School has moved for attorney's fees and costs of $ 9,932.50, contending that it was necessary "to research and prepare a cogent analysis of the issues" in order to contest the removal prior to expiration of the latest state court temporary restraining order against specified picketing by the Union.
The Union contends that the removal was justified and the fees claimed inadequately supported by the School's submissions.
The Union's removal of the School's state suit to this court was improvident and the remand inevitable. No federal claims cognizable under 28 USC 1331c, thus supporting removal under 28 USC 1441, is asserted. No state claim preempted by federal law and thus subject to recharacterization as a federal claim is involved.
There is no indication that relief from any violation of the Union's First Amendment rights could not be achieved by appeals within the state court system, thus justifying removal under 28 USC 1443. Perusal of these statutes would be and was sufficient to lead to remand from the bench without further ado.
In opposing the School's application for attorney's fees, the Union argues that the removal may have been appropriate. A more detailed analysis, while unnecessary, confirms the conclusion dictated by the plain language of the applicable statutes and constitutional provisions.
The School's state law claims based on alleged interference with the functioning of the institution could have been brought even were the First Amendment through the Fourteenth Amendment inapplicable to the states. This is not a case where a state claim is preempted by federal law, as in the case of a suit to enforce a collective bargaining agreement covered by § 301 of the Taft-Hartley Act (29 USC 185). Instead, in this instance state law may - subject to federal constitutional or statutory limitations where applicable as interpreted initially by the state courts - be directly applied without presentation of any federal claim. See Lingle v. Norge, 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988); Ft. Halifax Packing Co. v. Coyne, 482 U.S. 1, 96 L. Ed. 2d 1, 107 S. Ct. 2211 (1987). Indeed, a First Amendment claim by the School against the Union would encounter the difficulty that the First Amendment applied through the Fourteenth is directed to state action,
whereas the Union is a primarily a nongovernmental institution not to date categorized as a state actor, albeit with some public duties based upon its collective bargaining authority. See Steele v. Louisville & Nashville RR, 323 U.S. 192, 89 L. Ed. 173, 65 S. Ct. 226 (1944).
The Union's federal defense under the First Amendment and federal labor law does not support district court jurisdiction under 28 USC 1331 or justify removal under 28 USC 1441. Louisville & Nashville RR v. ...