Benjamin Craig Long v. Bando Manufacturing of America , Inc.

1
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 C RAIG LONG ,
Plaintiff-Appellee,
v.
BANDO M ANUFACTURING OF
AMERICA , INC.,
Defendant-Appellant.
;>

1
No. 99-5032
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,

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2 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
Kentucky, for Appellant. Nancy Oliver Roberts, Bowling
Green, Kentucky, for Appellee.
MOORE, J., delivered the opinion of the court, in which
GILMAN, J., joined. WELLFORD, J. (pp. 14-15), delivered
a separate concurring opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In this appeal,
the defendant-appellant, Bando Manufacturing of America,
Inc. (“Bando”), challenges the district court’s finding that it
did not have original federal question jurisdiction over one of
plaintiff-appellee Benjamin Craig Long’s claims and asks this
court to reverse the district court’s order remanding the case
to state court. Long had originally sued Bando in state court,
raising both state and federal claims, including one state-law
claim for wrongful discharge in violation of public policy.
Long asserted in his amended complaint that the public policy
that was violated by his discharge was embodied in several
federal statutes. After Bando removed the case to federal
district court, the district court granted summary judgment
against Long on one of his federal claims and dismissed the
other at Long’s request. The district court then remanded the
case, including Long’s wrongful discharge claim, to the state
court. Bando now appeals that remand order, arguing that
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.
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
15
1I 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).
Tax Board v. Construction Laborers Vacation Trust, 463 U.S.
1, 9 (1983), that “a case may arise under federal law ‘where
the vindication of a right under state law necessarily turned on
some construction of federal law.’” Id. Finally, Merrell Dow
emphasized “prudence and restraint in the jurisdictional
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.
Plaintiff’s right to relief did not necessarily depend on any
of the federal statutes relied upon in the complaint. There
was no substantial question of federal law presented. None of
the federal statutes cited (and discussed by the district court)
created plaintiff’s wrongful discharge claim. Congress
provided no private federal remedy for plaintiff with respect
to any of these statutes. There was no implied federal cause
of action created by or necessarily springing from any federal
statute cited. The district court, in short, exercised prudence
and restraint in denying federal jurisdiction. I am not
persuaded by Bando’s attempts to distinguish Merrell Dow,
and I find no basis under the several principles expressed and
approved in that case to overturn the district court’s decision.
See Miller v. Norfolk & W. Ry. Co., 834 F.2d 556 (6th Cir.
1987).1
I see no need to pursue any state law rationale asserted by
Bando to create jurisdiction in this case. I would,
accordingly, AFFIRM the district court.

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14 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
_________________
CONCURRENCE
_________________
HARRY W. WELLFORD, Circuit Judge, concurring. I
concur in the result reached in this case, but would base this
decision on a more straightforward rationale. My conclusion
is that plaintiff Long’s claims of wrongful discharge simply
did not sufficiently raise a federal question in order to provide
jurisdiction in the district court. I agree with my colleague,
Judge Moore, at the outset that the burden in this case is upon
plaintiff and that removal statutes are strictly construed.
Plaintiff must show that he is relying on a claim “arising
under the Constitution . . . or laws of the United States.” 28
U.S.C. § 1441(b).
I also agree with Judge Moore’s analysis that we have
jurisdiction to review the action taken by the district court,
and that remand was within the sound discretion of the district
court once lack of a federal question was determined.
The substance of Long’s claims against his former private
employer is clearly wrongful discharge essentially by a state
action since no federal employment discrimination law action
is asserted. Nor does defendant Bando claim federal
preemption under the circumstances of this case.
There are several reasons why I believe this case is
essentially controlled by Merrell Dow Pharmaceuticals, Inc.
v. Thompson, 478 U.S. 804 (1986). That case affirmed this
court’s decision at 766 F.2d 1005 (6th Cir. 1985). Merrell
Dow, I believe, despite some ambiguous language, affirmed
our holding that “[f]ederal question jurisdiction would, thus,
exist only if plaintiffs’ right to relief depended necessarily on
a substantial question of federal law.” 766 F.2d at 1006.
Merrell Dow cites Justice Holmes’ opinion in American Well
Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916),
that a “suit arises under the law that creates the cause of
action.” 478 U.S. at 808. It cites with approval Franchise
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
3
I. BACKGROUND
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
various forms of anticompetitive activity, including
appropriation of Gates’s trade secrets. Gates also charged that
Bando had concealed or destroyed information relevant to its
competitive strategies and trade secrets. In the summer of
1995, less than a year before he was terminated but several
years after the Gates litigation had ended, Long reported to
Matt Adams, the vice president of Bando, that he saw Adams
and James Blankenship, the president of Bando, taking “stuff”
to the trash dumpsters just before the 1992 inspection of the
Bando facilities by Gates. In that same year and the following
year, Long received two poor performance reviews and
several warnings that he would be subject to disciplinary
action if his performance did not improve, culminating in his
suspension for three days in March of 1996. Long was finally
discharged in May of 1996 based on a finding that he had
falsified a production schedule. After his discharge, Long
attempted to aid Gates in reopening its motion for sanctions
against Bando on the ground that Bando had concealed and
destroyed documents relevant to the trade secrets litigation.
Long filed suit in Kentucky state court on April 30, 1997,
alleging that he was terminated as a result of his refusal to
acquiesce in the “cover up” of the company’s theft of trade
secrets. He alleged due process violations under the U.S. and
Kentucky Constitutions, “reverse discrimination” in violation
of Title VII, and discharge “in violation of the public policy
of retaliatory discharge.” J.A. at 16 (Complaint). Bando
removed the case, relying on Long’s federal due process and
Title VII claims as the basis for federal jurisdiction. Long
then amended his complaint, adding that “[o]ther public
policies of this Commonwealth and of the United States
which have been violated by the Defendant’s wrongful
termination of the Plaintiff include, but are not limited to” the
policies embodied in four federal criminal statutes: 18 U.S.C.

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4 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
1In other words, Long claimed that he was terminated for his refusal to
participate in the company’s theft of trade secrets (“stolen goods” under
18 U.S.C. §§ 2314, 2315), its obstruction of the discovery orders in the
Gates litigation, and its employees’ perjury about concealing or destroying
documents.
§ 1509 (Obstruction of court orders), 18 U.S.C. § 2314
(Transportation of stolen goods), 18 U.S.C. § 2315 (Sale or
receipt of stolen goods), and 18 U.S.C. § 1621 (Perjury).1
J.A. at 19 (Amended Complaint). Long also added claims of
defamation and breach of contract. Subsequently, Long filed
a motion to dismiss voluntarily his Title VII claim, which was
granted on June 17, 1998. Bando filed a motion for summary
judgment, and Long thereafter moved to remand the case to
the state court for lack of subject matter jurisdiction.
The district court granted Bando’s motion for summary
judgment as to Long’s federal due process claim. The district
court also denied Long’s motion to remand for lack of subject
matter jurisdiction, finding that it had subject matter
jurisdiction. Finally, the district court found that none of the
remaining claims (wrongful discharge in violation of public
policy, breach of contract, and defamation) raised a
substantial federal question and therefore, declining to
exercise its supplemental jurisdiction, remanded the case to
the state court. In particular, the district court found that
naming four federal statutes as evidence of public policy in
the complaint did not convert Long’s state wrongful discharge
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
that Long’s wrongful discharge claim did not raise a
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
13
8We 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
and the district court has only supplemental claims before it. See
Carnegie-Mellon, 484 U.S. at 345 (“The question before us is whether a
federal district court has discretion under the doctrine of pendent
jurisdiction to remand a properly removed case to state court when all
federal-law claims in the action have been eliminated and only pendent
state-law claims remain.”).
district court’s discretion to remand in a case removed
from state court.
Id. at 1267 (citation omitted). Furthermore, most circuits,
including this one, have assumed that the discretionary power
to remand survives the adoption of § 1367. See, e.g., Musson
Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244,
1254-55 (6th Cir. 1996); Decatur Mem’l Hosp. v. Connecticut
Gen. Life Ins. Co., 990 F.2d 925, 927-28 (7th Cir. 1993);
Executive Software N. Am., Inc. v. United States Dist. Ct., 24
F.3d 1545, 1551-53 (9th Cir. 1994); see also 28 U.S.C.A.
§ 1367 Practice Commentary 835 (1993); 14C CHARLES
ALAN W RIGHT , ARTHUR R. M ILLER & EDWARD H. C OOPER,
FEDERAL P RACTICE & P ROCEDURE : J URISDICTION 3D § 3739,
at 498-501 (1998). We agree with the analysis of the D.C.
Circuit and hold that the district court acted properly in
remanding rather than dismissing Long’s case.8
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
remand order.

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12 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
728 U.S.C. § 1367(c) provides, in pertinent part, “The district courts
may decline to exercise supplemental jurisdiction over a claim” if any of
four criteria is met (emphasis added).
C. Propriety of Remand
We also note that the district court had the authority to
remand rather than dismiss Long’s state-law claims under 28
U.S.C. § 1367(c). In Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343 (1988), the Supreme Court held that a district court
has discretion to remand pendent state-law claims rather than
dismissing them, if the values of economy, convenience,
fairness, and comity so dictate.
Carnegie-Mellon was decided before 28 U.S.C. § 1367 was
adopted, however, and the language of § 1367 does not
explicitly grant district courts the authority to remand cases to
the state courts rather than dismiss them without prejudice.7
Nonetheless, we believe that the discretion to remand was
incorporated into that statute. The U.S. Court of Appeals for
the D.C. Circuit so held in Edmondson & Gallagher v. Alban
Towers Tenants Ass’n, 48 F.3d 1260 (D.C. Cir. 1995). As
that court explained:
Whether to remand or dismiss is a matter normally left to
the discretion of the district court, see Carnegie-Mellon,
484 U.S. at 357, 108 S. Ct. at 622-23. We find this
discretion unaffected by the subsequent enactment of 28
U.S.C. § 1367(d), in the Judicial Improvements Act of
1990 . . . . Section 1367(d) tolls the state statute of
limitations on any state claim over which a federal court
has exercised supplemental jurisdiction until 30 days
after its dismissal. It thus reduces one concern expressed
in Carnegie-Mellon — that plaintiffs would lose their
claims if their case were dismissed rather than remanded.
Other concerns remain, however, such as convenience to
the parties and a faster resolution of the case. We find no
indication in the legislative history of the Judicial
Improvements Act that Congress intended to limit the
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
5
substantial federal question giving rise to original federal
question jurisdiction in the district court. In its December 8,
1998 order, the district court acknowledged that it had erred
in its analysis of whether Long’s wrongful discharge claim
provided a basis for original federal question jurisdiction.
The court recognized that, even if it determined, first, that
there was no implied private cause of action for the violation
of the federal statutes listed in Long’s complaint, it must still
consider, second, “whether the state law wrongful discharge
[claim] ‘necessarily turned’ upon a question of federal law.”
J.A. at 32 (D. Ct. Op.). If the claim necessarily turned on a
question of federal law, the district court acknowledged, it
could find that it had federal question jurisdiction, without
applying the “implied remedy” test. Nonetheless, the district
court still found that, on the facts of this case, there was no
substantial, disputed question of federal law in the plaintiff’s
claim sufficient to invoke the district court’s “arising under”
jurisdiction and therefore denied Bando’s request to alter or
amend its prior judgment remanding the case to the state
court. Bando timely appealed that ruling to this court. We
now hold that, although a complaint that does not state a
federal cause of action may in some cases invoke federal
jurisdiction, the federal statutes cited in Long’s wrongful
discharge claim were insufficient to provide federal question
jurisdiction.
II. ANALYSIS
In order to invoke the district court’s removal jurisdiction,
a defendant must show that the district court has original
jurisdiction over the action. See 28 U.S.C. § 1441(a). The
burden of showing that the district court has original
jurisdiction is on the party seeking removal. See Her Majesty
the Queen in Right of the Province of Ontario v. City of
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.
v. Sheets, 313 U.S. 100, 108-09 (1941).

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6 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
In this case, the parties do not allege diversity of
citizenship. Removal jurisdiction was thus based on 28
U.S.C. § 1441(b), allowing removal of actions “of which the
district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties or laws of the
United States,” without regard to the citizenship of the
parties. Because removal jurisdiction is possible only where
the federal district court would have had original jurisdiction
over the case, and because the “arising under” language of
§ 1441(b) is almost identical to the language of 28 U.S.C.
§ 1331, the scope of removal jurisdiction based on the
existence of a federal question under § 1441(b) is considered
to be identical to the scope of federal question jurisdiction
under § 1331. See, e.g., Caterpillar Inc. v. Williams, 482 U.S.
386, 391-92 (1987). In determining removal jurisdiction
under § 1441, as in determining original “arising under”
jurisdiction, federal courts apply the “well-pleaded
complaint” rule, pursuant to which “federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Id. at 392.
A. Reviewability of the Remand Order
This court has jurisdiction to review the district court’s
decision to remand Long’s state law claims. The parties did
not raise this issue, but, because it is a jurisdictional matter,
we consider it sua sponte. See, e.g., In re General Motors
Corp., 3 F.3d 980, 982 (6th Cir. 1993).
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.
Hermansdorfer, 423 U.S. 336 (1976), that §§ 1447(c) and (d)
must be read together, and therefore that § 1447(d) prohibits
review only of remand orders issued pursuant to a finding,
under § 1447(c), that the district court lacked subject matter
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
11
6Bando also argues that the standard for finding a “substantial” federal
question is extremely low; however, the cases that it cites for this
proposition dealt with the standard for finding federal jurisdiction based
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
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).
at 19 (emphasis added). Since Long’s complaint offered state
as well as federal policies as evidence of his wrongful
discharge, this case appears to fall squarely within the
Supreme Court’s holding in Christianson.
Furthermore, although the question whether a wrongful
discharge claim based on federal public policies invokes
federal jurisdiction appears to be one of first impression in
this circuit, other circuits have held that such claims do not
belong in federal court. See Campbell v. Aerospace Corp.,
123 F.3d 1308, 1315 (9th Cir. 1997) (finding the federal
interest to be insufficient, and noting that state law mirrors the
federal policy at issue), cert. denied, -- U.S. --, 118 S. Ct.
1794 (1998); Willy v. Coastal Corp., 855 F.2d 1160, 1167-72
(5th Cir. 1988) (finding the federal element in such a claim to
be insufficiently substantial and also noting that the plaintiff
supported his claim with state as well as federal theories); see
also Drake v. Cheyenne Newspapers, Inc., 842 F. Supp. 1403
(D. Wyo. 1994). These precedents suggest that the federal
question in Long’s complaint is insufficiently substantial and
disputed to invoke federal jurisdiction.6
We therefore hold that, although federal question
jurisdiction may exist even where the plaintiff has not stated
a federal cause of action, Long’s complaint did not invoke the
federal courts’ “arising under” jurisdiction, because it put
forth alternate state and federal policies to support his state-
law wrongful discharge claim.

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10 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
4Christianson dealt with the scope of the Federal Circuit’s patent-law
jurisdiction under 28 U.S.C. §§ 1295(a) and 1338(a), not the federal
courts’ general federal question jurisdiction under § 1331. The Court
noted in Christianson, however, that it applies the same test to determine
“arising under” jurisdiction under both §§ 1331 and 1338(a). See
Christianson, 486 U.S. at 807-09.
5Long himself has not mentioned K.R.S. 61.102; in his brief, he
mentioned the Kentucky Trade Secrets Act, K.R.S. 365.880 to 365.990
(1990), as the original basis for his wrongful discharge claim.
state-law claim, at least one of which does not involve a
federal question.4
In light of Christianson, it is clear that the resolution of a
federal question is not necessary or essential to the resolution
of Long’s wrongful discharge claim. Bando argues that under
Kentucky law, a plaintiff must demonstrate that the public
policy making his discharge unlawful is embodied in federal
or state legislative enactments. See, e.g., Grzyb v. Evans, 700
S.W.2d 399, 401 (Ky. 1985). Bando contends that Long
relied solely on federal statutes as evincing that public policy,
and therefore that the court’s construction of those federal
statutes is essential to a determination of Long’s claim. This
argument is unpersuasive. Long’s complaint put forth
alternate bases in state and federal law for the public policy in
contravention of which he was discharged. Long’s initial
complaint stated that his “discharge was in violation of the
public policy of retaliatory discharge.” J.A. at 16
(Complaint). This statement could be read to refer to
Kentucky Revised Statutes 61.102, Kentucky’s
“whistleblower statute,” forbidding the retaliatory termination
of an employee who interferes with a company’s unlawful
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
Commonwealth and of the United States which have been
violated by the Defendant’s wrongful termination of the
Plaintiff include, but are not limited to, the following.” J.A.
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
7
228 U.S.C. § 1447(c) provides, in pertinent part, “If at any time before
final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”
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
which it was removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.”
3The holding of Thermtron, limiting the prohibition on review of
remand orders to those remands that are based on a lack of subject matter
jurisdiction, was recently reaffirmed in Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996). In Quackenbush, the Supreme Court also held that
remand orders not falling within the scope of § 1447(c) could be reviewed
on direct appeal, thereby abrogating Thermtron’s suggestion that remand
orders were not final orders and therefore could be reviewed only by
means of a writ of mandamus. See id. at 712-15.
jurisdiction.2 See id. at 345-46.3 Here, the district court did
not remand because it lacked subject matter jurisdiction; on
the contrary, the district court explicitly stated that it had
subject matter jurisdiction when the case was removed and
noted that it had not been divested of that jurisdiction by the
dismissal of the plaintiff’s federal claims. Accord In re
Carter, 618 F.2d 1093, 1101 (5th Cir. 1980) (“It is a
fundamental principle of law that whether subject matter
jurisdiction exists is a question answered by looking to the
complaint as it existed at the time the petition for removal
was filed. . . . When a subsequent narrowing of the issues
excludes all federal claims, whether a pendant [sic] state
claim should be remanded to state court is a question of
judicial discretion, not of subject matter jurisdiction.”
(citations omitted)), cert. denied, 450 U.S. 949 (1981).
Furthermore, this court has repeatedly held remand orders to
be reviewable in cases similar to this one. See, e.g., General
Motors, 3 F.3d at 983; Van Meter v. State Farm Fire & Cas.
Co., 1 F.3d 445, 449-50 (6th Cir. 1993) (holding that the
reviewability of a remand order depends on whether the
district court had subject matter jurisdiction when the case
was removed, and explaining that if the district court initially

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8 Long v. Bando Manufacturing
of America, Inc.
No. 99-5032
had jurisdiction, which was destroyed by later events, the
remand order would be reviewable); In re Glass, Molders,
Pottery, Plastics & Allied Workers Int’l Union, Local No.
173, 983 F.2d 725, 727 (6th Cir. 1993) (holding that the
district court’s remand of pendent state law claims, after
dismissal of federal claims as time-barred, was discretionary,
not based on a lack of subject matter jurisdiction, and
therefore reviewable). Therefore, this court clearly has
jurisdiction to review the remand order at issue in this case.
B. The Existence of Federal Question Jurisdiction
This court reviews de novo a district court’s decision
regarding subject matter jurisdiction. See Hilliard v. United
States Postal Serv., 814 F.2d 325, 326 (6th Cir. 1987).
Before delving into Bando’s argument that the district court
had federal question jurisdiction over Long’s wrongful
termination claim, it is helpful to understand what Bando is
not arguing. Bando is obviously not arguing that Long’s
wrongful discharge claim is a federal claim; it is clear that
wrongful discharge is a state-law cause of action. Nor is it
arguing that Long’s complaint attempts to imply a private
right of action under the listed federal criminal statutes,
thereby stating a federal cause of action. Finally, it is not
arguing that Long’s state-law claim is completely preempted
by federal law, which would mean that Long had stated a
federal claim whether he intended to or not. See, e.g., Avco
Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390
U.S. 557 (1968). Rather, Bando is arguing that Long’s
wrongful termination claim, without raising an express or
implied federal claim, involves a substantial and disputed
question of federal law and is therefore sufficient to invoke
the district court’s “arising under” jurisdiction.
The exact contours of the federal courts’ jurisdiction under
28 U.S.C. § 1331 are somewhat imprecise. The most
important Supreme Court case to deal with this issue in recent
years is Merrell Dow. In Merrell Dow, the plaintiffs had sued
No. 99-5032 Long v. Bando Manufacturing
of America, Inc.
9
a drug manufacturer on a state-law negligence claim, alleging
that its drug Bendectin was misbranded in violation of the
Federal Food, Drug, and Cosmetic Act (FDCA). See Merrell
Dow, 478 U.S. at 805-06. The Supreme Court held that the
plaintiffs had not invoked the federal courts’ “arising under”
jurisdiction by raising state-law claims for negligence that
incorporated federal drug labeling standards. See id. at 817.
Although the scope of the Court’s holding in Merrell Dow is
somewhat unclear, it clearly left open the possibility of
federal jurisdiction even in the absence of an express or
implied federal cause of action, if a substantial federal
question of great federal interest is raised by a complaint
framed in terms of state law, and if resolution of that federal
question is necessary to the resolution of the state-law claim.
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
U.S. 156, 164 (1997) (reaffirming that a case may “arise
under” the laws of the United States if it requires resolution
of a substantial question of federal law, even if state law
creates the plaintiff’s cause of action); Thornton v. Southwest
Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990) (noting
that federal courts have jurisdiction in “only those cases in
which a well-pleaded [c]omplaint establishes either that
federal law creates the cause of action or that the plaintiff[’s]
right to relief necessarily depends on resolution of a
substantial question of federal law” (emphasis added)
(quoting Franchise Tax Board, 463 U.S. at 27-28) (internal
quotation marks omitted)).
In Christianson v. Colt Industries Operating Corp., 486
U.S. 800 (1988), the Supreme Court further elaborated the
circumstances under which a state-law claim “necessarily
depends” upon a “substantial question of federal law.” In that
case, the Court held that a claim does not “arise under” the
federal patent laws if the complaint states alternate theories
for that claim, only one of which requires resolution of a
patent-law question. See id. at 809-10. Thus, Christianson
suggests that there is no federal question jurisdiction when the
complaint on its face states alternate theories supporting a

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