Board of Chosen Freeholders of the County of Burlington, a body of politic v. ROBERT BRADLEY TOMBS On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-3804
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BOARD OF CHOSEN FREEHOLDERS OF THE
COUNTY OF BURLINGTON, a body of politic
and corporate of the State of New Jersey,
Appellant
v.
ROBERT BRADLEY TOMBS
___________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 04-cv-00755)
District Judge: The Honorable Stanley R. Chesler
___________
Submitted Under Third Circuit LAR 34.1(a)
November 7, 2006
Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges.
(Filed: December 18, 2006 )

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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
I.
The Burlington County Board of Chosen Freeholders (the Board) commissioned
the creation of sophisticated topographical maps of land and improvements within the
county. The Board provides free copies of the maps to government agencies and sells
copies to non-government entities for a fee calculated according to the requested maps’
coverage.
Robert Tombs requested copies of certain maps at the cost of reproduction on a
computer diskette, pursuant to New Jersey’s Open Public Records Act (OPRA), N.J.
STAT. ANN. § 47: 1A-1 (West 2003). The Board explained it would provide Tombs with
the copies according to its ordinary fee schedule. Tombs then threatened to seek relief
from the Superior Court of New Jersey or the Government Records Council, the agency
responsible for adjudicating OPRA appeals.
In response, the Board filed a complaint asking the District Court to declare that
federal copyright law preempts Tombs’ OPRA request, and applied for a temporary
restraining order against Tombs. The District Court, sua sponte, dismissed the Board’s

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action for lack of subject matter jurisdiction under both 28 U.S.C. §1331 and §1338. The
Board timely appealed. We will affirm.
II.
A.
District courts must look to the plaintiff’s well-pleaded complaint to determine
whether a case arises under federal law. U.S. Express Lines Ltd. v. Higgins, 281 F.3d
383, 389 (3d Cir. 2002). A case arises under federal law for purposes of §1331 or
§1338(a) if a right or immunity created by the Constitution or laws of the United States is
an essential element of the plaintiff’s cause of action. Christianson v. Colt Ind. Operating
Corp., 486 U.S. 800, 809 (1988); Franchise Tax Board v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 10-11 (1983). The well-pleaded complaint rule is fully applicable to
complaints seeking only declaratory relief. Franchise Tax Board, 463 U.S. at 15-16. A
case does not arise under federal law simply because it is brought pursuant to the
Declaratory Judgment Act. A district court lacks jurisdiction where, but for the
availability of the declaratory judgment procedure, the federal claim would arise only as
a defense to a state-created action. Franchise Tax Board, 463 U.S. at 16 (1983) (citing
Skelly Oil Co. v. Phillips Petrol. Co., 339 U.S. 667, 672 (1950)).
Where, as here, the complaint for declaratory judgment essentially asserts a
defense to a threatened state court action, it is the character of the threatened state court

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action that determines whether there is federal-question jurisdiction in the district court.
Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 248 (1952); Thiokol Chem. Corp. v.
Burlington Ind., Inc., 448 F.2d 1328, 1330 (3d Cir. 1971), cert. denied, Burlington Ind.,
Inc. v. Thiokol Chem. Corp., 404 U.S. 1019 (1972).
Tombs’ threatened action arises under OPRA, which provides, in relevant part:
all government records shall be subject to
public access unless exempt from such access
by [OPRA] as amended and supplemented...[or]
any federal law, federal regulation, or federal
order...
N.J. STAT. ANN. § 47: 1A-1 (West 2003).
OPRA gives a citizen, without showing a personal or particular interest, an
unqualified right to inspect public documents if they are, in fact, documents required by
law to be made, maintained, or kept on file, unless they are otherwise exempted. Asbury
Park Press v. Lakewood Tp. Police Dep’t, 804 A.2d 1178, 1183 (N.J. Super. Ct. 2002).
Federal copyright law is not an essential element of Tombs’ OPRA claim. The Board’s
exclusive rights under copyright law arise only as a defense to Tombs’ claim.
In Thiokol Chemical, we held that a plaintiff patent licensee could not invoke
federal jurisdiction pursuant to §1338 by bringing a declaratory judgment action in which
he asserted patent rights where the validity of his patent arose only as a defense against a
threatened breach of contract action. Thiokol Chem. Corp., 448 F.2d at 1330-31; see also
Christianson v. Colt Ind. Operating Corp., 486 U.S. 800, 809 (1988). Similarly, the

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Board cannot invoke federal jurisdiction by asserting its federal copyright as a defense
against Mr. Tombs’ OPRA claim.
B.
Next, the Board argues federal copyright law completely preempts Tombs’
threatened OPRA action. The United States Supreme Court has recognized a limited
exception to the well-pleaded complaint rule where a federal statute wholly displaces a
state cause of action through complete preemption. Beneficial Nat. Bank v. Anderson,
539 U.S. 6, 8 (2003); In re Cmty. Bank of N. Va., 418 F.3d 277, 294 (3d Cir. 2005); In re
U.S. Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999), cert. denied, U.S. Healthcare,
Inc. v. Bauman, 530 U.S. 1242 (2000). Complete preemption doctrine applies where the
federal statute at issue provides the exclusive cause of action for the claim asserted and
also sets forth procedures and remedies governing that cause of action. Anderson, 539
U.S. at 8.
The complete preemption doctrine does not apply to Tombs’ threatened OPRA
claim. Federal copyright law does not create an exclusive cause of action for access to
public records and does not set forth procedures and remedies governing such actions.
Simply stated, federal copyright law does not wholly displace state statutory or common
law rights to public records, and therefore cannot be said to completely preempt Tombs’
threatened claim.

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III.
The District Court properly dismissed the Board’s action for lack of subject matter
jurisdiction. We will affirm the District Court’s order.
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