                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 03-4026 & 03-4027
ROY G. NELSON, CLARENCE ALSIP,
CHARLES ANDREWS, et al.,
                                               Plaintiffs-Appellants,
                                                    Cross-Appellees,
                                 v.


JOHN STEWART, DONALD R. SAY, et al.,
                                              Defendants-Appellees,
                                                  Cross-Appellants,
                                and


UNITED STEELWORKERS OF AMERICA,
LOCAL UNION #12213,
                                                Defendant-Appellee.
                          ____________
            Appeals from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
              No. 00 C 1734—Richard L. Young, Judge.
                          ____________
    ARGUED JANUARY 21, 2005—DECIDED AUGUST 29, 2005
                          ____________


 Before RIPPLE, WOOD and SYKES, Circuit Judges.
  RIPPLE, Circuit Judge. Retired bargaining unit workers
(“retirees”) of Indiana Steel and Wire Company (“ISW”)
2                                    Nos. 03-4026 & 03-4027

filed this state common law action in Indiana state court
against the United Steelworkers of America, Local Union
12213 and the United Steelworkers of America, AFL-CIO
(collectively, “Union”), as well as individual union members
(“individual defendants”). The Union removed the case to
the district court. The district court determined that removal
was proper because the claims against the Union presented
a federal question. See 28 U.S.C. § 1441(a). It later granted
summary judgment in favor of the Union on statute of
limitations grounds. The district court then exercised its
discretion to remand to state court the retirees’ claims
against the individual defendants, over which the court
believed it had only supplemental jurisdiction. The parties
have cross-appealed. For the reasons set forth in the follow-
ing opinion, we now affirm in part, and reverse and remand
in part the judgment of the district court.


                              I
                     BACKGROUND
A. Facts
   In March 1998, the Union negotiated a collective bar-
gaining agreement on behalf of the production employees
at ISW’s Muncie, Indiana plant. Three months later, ISW
filed a petition for relief under Chapter 11 of the Bankruptcy
Code. The Union and ISW then entered into negotiations for
the modification of the March 1998 collective bargaining
agreement. The parties sought to achieve sufficient cost
savings to enable ISW to continue operating and to reorga-
nize. Briefly, through the course of the bankruptcy process,
the Union and the individual defendants repeatedly assured
the retirees that their health insurance benefits were not a
topic of negotiation and that the retirees did not need their
Nos. 03-4026 & 03-4027                                     3

own representation in the negotiations with ISW.
  On August 7, 1998, ISW filed a motion, in accordance with
11 U.S.C. §§ 1113 and 1114, in the bankruptcy court seeking
permission to reject the March 1998 collective bargaining
agreement and to modify the contract benefits of the retired
bargaining unit members. On August 24, 1998, Durrell
Corporation (“Durrell”) made an offer to purchase all of
ISW’s assets subject to the approval of the bankruptcy court.
The Union pursued collective bargaining negotiations with
Durrell in the event that Durrell successfully purchased the
assets of ISW. In September, the local union membership
ratified ISW’s final proposal to modify the March 1998
collective bargaining agreement. The new agreement
terminated the health coverage of the retirees and modified
other retiree benefits. At this time, the local union member-
ship also ratified the final purchase offer by Durrell. On
October 12, 1998, the bankruptcy court issued an order
approving ISW’s and the Union’s agreement to reject the
March 1998 collective bargaining agreement and to imple-
ment the modified contract. On October 23, 1998, the
bankruptcy court approved the sale of ISW to Durrell. The
final contract of sale did not provide for retiree medical
coverage.
  After the retirees learned that they had lost their health
care benefits, they filed suit against the Union and the
individual defendants in state court; the suit alleged
negligence, misrepresentation and promissory estoppel.


B. District Court Proceedings
  The Union removed this action to federal court, and the
retirees filed a motion to remand. The district court deter-
mined that the retirees’ state-law claims against the Union
were subject to complete preemption because any purported
4                                     Nos. 03-4026 & 03-4027

duty of the Union to represent the retirees during ISW’s
bankruptcy process was derived from and was dependent
on federal law. Specifically, § 1114 of the Bankruptcy Code
provides:
    A labor organization shall be, for purposes of this
    section, the authorized representative of those per-
    sons receiving any retiree benefits covered by any
    collective bargaining agreement to which that labor
    organization is a signatory, unless (A) such labor
    organization elects not to serve as the authorized
    representative of such persons, or (B) the court, upon a
    motion by any party in interest, after notice and hear-
    ing, determines that different representation of such
    persons is appropriate.
11 U.S.C. § 1114(c)(1). The district court perceived no
real difference between the Union’s role as the retirees’
statutory representative in this case and a union’s duty
of fair representation when it acts as the exclusive represen-
tative of its bargaining unit members in collective bargain-
ing agreements under section 301 of the Labor Management
Relations Act (“LMRA”), 15 U.S.C. § 185. Therefore, the
district court applied cases in which courts have held that
fair duty of representation claims are federal in character,
even if pleaded under state law, because they fall within the
field of law wholly occupied by the national labor laws. See
BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuild-
ing Workers of America, IAMAW, Dist. Lodge 4, 132 F.3d 824
(1st Cir. 1997). The district court accordingly held that it had
original jurisdiction over the retirees’ claims against the
Union and that removal was appropriate.
  The district court then granted summary judgment in
favor of the Union on the ground that the retirees’ claims
were barred by the federal statute of limitations.
Nos. 03-4026 & 03-4027                                        5

   The district court then turned to the claims against the
individual defendants. It determined that it had supplemen-
tal jurisdiction over the claims because they were part of the
same case or controversy as the claims against the Union.
See 28 U.S.C. § 1367. The court initially decided to exercise
its supplemental jurisdiction, and it ordered supplemental
briefs on the issue of the individual defendants’ immunity
from suit. Upon the parties’ briefs, the district court con-
cluded that case law holding that individual union members
are immune from liability for actions taken in relation to a
collective bargaining agreement covered by section 301 of
the LMRA did not extend to actions individual union
members take in relation to negotiations under 11 U.S.C. §
1114. After so ruling the district court decided in the same
order that, because it had dismissed all claims over which it
had original jurisdiction, it would not continue to exercise
jurisdiction over the retirees’ state-law claims against the in-
dividual defendants. Accordingly, the district court re-
manded those claims to the state court.


                              II
                       DISCUSSION
A. Standard of Review
  We review a district court’s grant or denial of summary
judgment de novo. Tutman v. WBBM-TV, Inc./CBS, Inc., 209
F.3d 1044, 1048 (7th Cir. 2000). In doing so, we construe
all facts and reasonable inferences in the light most favor-
able to the nonmoving party. Id. Summary judgment is
proper if “the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the affida-
vits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
6                                           Nos. 03-4026 & 03-4027

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).


B. General Removal and Preemption Standards
  A defendant may remove any civil action filed in state
court over which federal district courts have original
jurisdiction. 28 U.S.C. § 1441;1 Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). Federal district courts, in turn, have
original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Ordinarily, a court must determine the
presence or absence of a federal question by examining only
the plaintiff’s well-pleaded complaint. Caterpillar Inc., 482
U.S. at 392. This rule requires that a federal question appear
on the face of the complaint. Bastien v. AT&T Wireless Servs.,
Inc., 205 F.3d 983, 986 (7th Cir. 2000) (citing Franchise Tax Bd.


1
    Section 1441 states in relevant part:
      Actions removable generally
          (a) Except as otherwise expressly provided by Act of
          Congress, any civil action brought in a State court of
          which the district courts of the United States have
          original jurisdiction, may be removed by the defendant
          or the defendants, to the district court of the United
          States for the district and division embracing the
          place where such action is pending. . . .
          (b) Any civil action of which the district courts have
          original jurisdiction founded on a claim or right aris-
          ing under the Constitution, treaties or laws of the United
          States shall be removable without regard to the citizen-
          ship or residence of the parties. . . .
28 U.S.C. § 1441(a)-(b).
Nos. 03-4026 & 03-4027                                           7

of California v. Constr. Laborers Vacation Trust for S. California,
463 U.S. 1, 10 (1983)). The plaintiff, as the master of his own
complaint, may avoid federal jurisdiction by pleading only
state-law claims. Id. Most often, a defendant raises federal
preemption as a defense to a state-law action. Caterpillar Inc.,
482 U.S. at 392. A case may not be removed, however, based
on a federal defense, “even if the defense is anticipated in
the plaintiff’s complaint, and even if both parties concede
that the federal defense is the only question truly at issue.”
Id.; see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).
  “On occasion, the Court has concluded that the pre-
emptive force of a statute is so ‘extraordinary’ that it
‘converts an ordinary state common-law complaint into one
stating a federal claim for purposes of the well-pleaded
complaint rule.’ ” Caterpillar Inc., 482 U.S. at 393 (quoting
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). This
“independent corollary” to the well-pleaded complaint
rule is known as the “complete preemption” doctrine. Id.
“Once an area of state law has been completely pre-empted,
any claim purportedly based on that pre-empted state law
is considered, from its inception, a federal claim, and
therefore arises under federal law.” Id.; see Beneficial Nat’l
Bank, 539 U.S. at 8 (“When the federal statute completely
pre-empts the state-law cause of action, a claim which
comes within the scope of that cause of action, even if
pleaded in terms of state law, is in reality based on federal
law.”). In such situations, the federal statute “not only pre-
empt[s] state law but also authorize[s] removal of actions
that sought relief only under state law.” Beneficial Nat’l Bank,
539 U.S. at 6-7.


B. Complete Preemption
8                                      Nos. 03-4026 & 03-4027

                               1.
  The Supreme Court has applied the complete preemp-
tion doctrine in cases that raise claims preempted by section
301 of the LMRA. Caterpillar Inc., 482 U.S. at 393. Section 301
provides:
    Suits for violation of contracts between an employer and
    a labor organization representing employees in an
    industry affecting commerce as defined in this chapter,
    or between any such labor organizations, may be
    brought in any district court of the United States having
    jurisdiction of the parties, without respect to the amount
    in controversy or without regard to the citizenship of
    the parties.
29 U.S.C. § 185(a). Section 301 “governs claims founded
directly on rights created by collective-bargaining agree-
ments, and also claims ‘substantially dependent on analysis
of a collective bargaining agreement.’ ” 2 Caterpillar Inc., 482
U.S. at 394 (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859
n.3 (1987), and citing Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 220 (1985)); see also Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 405-06 (1988).
  In Avco v. Aero Lodge No. 735, International Association of
Machinists & Aerospace Workers, 390 U.S. 557 (1968), the
plaintiff filed suit in state court alleging that it had a valid
contract with the union and seeking to enjoin the union



2
  The retirees’ claims did not directly implicate section 301
because they were filed against the Union, not the employer.
See Wegscheid v. Local Union 2911, Int’l Union, United Auto.,
Aerospace & Agric. Implement Workers of America, 117 F.3d 986, 988
(7th Cir. 1997).
Nos. 03-4026 & 03-4027                                      9

from violating the agreement through its participation in,
and sanction of, work stoppages. More recently, the Court
explained its approach in Avco to section 301 preemption:
    The Court of Appeals held . . . and we affirmed . . . that
    the petitioner’s action “arose under” § 301, and thus
    could be removed to federal court, although the peti-
    tioner had undoubtedly pleaded an adequate claim for
    relief under the state law of contracts and had sought a
    remedy only under state law. The necessary ground of
    decision was that the pre-emptive force of § 301 is
    so powerful as to displace entirely any state cause
    of action “for violation of contracts between an em-
    ployer and a labor organization.” Any such suit is
    purely a creature of federal law, notwithstanding the
    fact that state law would provide a cause of action in the
    absence of § 301. Avco stands for the proposition that if
    a federal cause of action completely pre-empts a state
    cause of action any complaint that comes within the
    scope of the federal cause of action necessarily “arises
    under” federal law.
Beneficial Nat’l Bank, 539 U.S. at 7 (quoting Franchise Tax
Bd. of California, 463 U.S. at 23-24). The Court has decided
that section 301 “not only provides federal-court jurisdiction
over controversies involving collective-bargaining agree-
ments, but also ‘authorizes federal courts to fashion a body
of federal law’ for the enforcement of these collective
bargaining agreements.” Lingle, 486 U.S. at 403 (quoting
Textile Workers v. Lincoln Mills of Alabama, 353 U.S. 448
(1957)).
  The Court has discussed the necessity of recognizing
that section 301 effects complete preemption:
    The dimensions of § 301 require the conclusion that
10                                    Nos. 03-4026 & 03-4027

     substantive principles of federal labor law must be
     paramount in the area covered by the statute. Compre-
     hensiveness is inherent in the process by which the
     law is to be formulated under the mandate of Lincoln
     Mills, requiring issues raised in suits of a kind covered
     by § 301 to be decided according to the precepts of
     federal labor policy.
       More important, the subject matter of § 301(a) “is
     peculiarly one that calls for uniform law.” . . . The
     possibility that individual contract terms might
     have different meanings under state and federal
     law would inevitably exert a disruptive influence
     upon both the negotiation and administration of collec-
     tive agreements. Because neither party could be certain
     of the rights which it had obtained or conceded, the
     process of negotiating an agreement would be made
     immeasurably more difficult by the necessity of trying
     to formulate contract provisions in such a way as to
     contain the same meaning under two or more systems
     of law which might someday be invoked in enforcing
     the contract. Once the collective bargain was made, the
     possibility of conflicting substantive interpretation
     under competing legal systems would tend to stimulate
     and prolong disputes as to its interpretation. Indeed, the
     existence of possibly conflicting legal concepts might
     substantially impede the parties’ willingness to agree to
     contract terms providing for final arbitral or judicial
     resolution of disputes.
       The importance of the area which would be af-
     fected by separate systems of substantive law makes the
     need for a single body of federal law particularly
     compelling. The ordering and adjusting of competing
     interests through a process of free and voluntary
Nos. 03-4026 & 03-4027                                            11

     collective bargaining is the keystone of the federal
     scheme to promote industrial peace. State law which
     frustrates the effort of Congress to stimulate the smooth
     functioning of that process thus strikes at the very core
     of federal labor policy. With due regard to the many
     factors which bear upon competing state and federal
     interests in this area, . . . we cannot help but conclude
     that in enacting § 301 Congress intended doctrines of
     federal labor law uniformly to prevail over inconsistent
     local rules.
(Teamsters, Chauffeurs, Warehousemen & Helpers of America
v. Lucas Flour Co., 369 U.S. 95, 103-04 (1962) (quoted in
Lingle, 486 U.S. at 404 n.3 (citations omitted; footnote
omitted))).3
    Closely related to claims implicating section 301, the


3
   The Court also has held that section 502(a) of the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, has
the same preemptive force as section 301 of the LMRA. See
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 7 (2003); see also Rice
v. Panchal, 65 F.3d 637, 643 (7th Cir. 1995). The Court has ex-
plained that the statute’s text contains a specific preemption
provision and that its “jurisdiction subsection, § 502(f), used
language similar to the statutory language construed in Avco
[Corporation v. Aero Lodge No. 735, International Association of
Machinists & Aerospace Workers, 390 U.S. 557, 560 (1968)], thereby
indicating that the two statutes should be construed in the
same way.” Beneficial Nat’l Bank, 539 U.S. at 7-8 (citing Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Furthermore, the
Court has said that the legislative history of ERISA clearly
evinces Congress’ intent to render section 502(a)(1)(B) suits
filed by plan participants into federal questions, “in similar
fashion to those brought under section 301 of the [LMRA].”
Id. at 8.
12                                       Nos. 03-4026 & 03-4027

Court long has implied from a labor union’s status as the
exclusive representative of workers in its bargaining
unit, see 29 U.S.C. § 159(a),4 a concomitant duty of the union
to represent its members fairly. Vaca v. Sipes, 386 U.S. 171,
177 (1967). This duty of fair representation requires the
union “to serve the interests of all members without hostil-
ity or discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid arbi-
trary conduct.” Id.
  In Vaca, the plaintiff, who claimed that he was discharged
from his employment in violation of the collective bargain-
ing agreement, filed suit in state court against the union
alleging that it arbitrarily had refused to take his grievance
with the employer to arbitration. The Court in Vaca deter-
mined that the National Labor Relations Board did not have
exclusive jurisdiction over what essentially was a claim that
the union had breached its duty of fair representation. See
Vaca, 386 U.S. at 177-92. Notably, the Court based this


4
  Section 9(a) of the National Labor Relations Act (“NLRA”)
provides in relevant part:
     Representatives designated or selected for purposes of
     collective bargaining by the majority of employees in a unit
     appropriate for such purposes, shall be the exclusive repre-
     sentatives of all the employees in such unit for the purposes
     of collective bargaining in respect to rates of pay, wages,
     hours of employment, or other conditions of employment.
29 U.S.C. § 159(a). In this case, the Union had no duty under
section 9(a) to represent the retirees in the collective bargaining
with ISW or Durrell because retired workers are not members of
the bargaining unit. See Allied Chem. & Alkali Workers of America,
Local Union No. 1 v. Pittsburg Plate Glass Co., Chem. Div., 404 U.S.
157, 181 n.20 (1971).
Nos. 03-4026 & 03-4027                                             13

conclusion on many considerations, including
    some intensely practical considerations which fore-
    close pre-emption of judicial cognizance of fair repre-
    sentation duty suits, considerations which emerge from
    the intricate relationship between the duty of fair
    representation and the enforcement of collective bar-
    gaining contracts. For the fact is that the question
    of whether a union has breached its duty of fair repre-
    sentation will in many cases be a critical issue in a suit
    under L.M.R.A. § 301 charging an employer with a
    breach of contract.
Id. at 183.
  Some of our sister courts of appeals have concluded
that the statutory duty of fair representation has, in the con-
text of removal, the same preemptive force as does
section 301.5 In Richardson v. United Steelworkers of Amer--
ica, 864 F.2d 1162 (5th Cir. 1989), the Fifth Circuit concluded:
    Avco recognized removal based on section 301’s com-
    plete, displacing preemption of state law because of
    congressional intent that federal (and state) courts create
    and administer a comprehensive body of federal law for


5
  Of course, it also has been recognized that fair representation
cases are grounded in federal law and are within the federal
question jurisdiction of the district court. See, e.g., Neal v. Newspa-
per Holdings, Inc., 349 F.3d 363 (7th Cir. 2003) (review-
ing plaintiffs’ “hybrid” section 301/fair representation action
against employer and union under federal law); Filippo v.
Northern Indiana Pub. Serv. Corp., Inc., 141 F.3d 744 (7th Cir. 1998)
(same); see also 2 The Developing Labor Law: The Board, the
Courts, and the National Labor Relations Act 2263-67 (Patrick
Hardin & John E. Higgins, Jr. eds., 4th ed. 2001 & Supp. 2004).
14                                    Nos. 03-4026 & 03-4027

     the court enforcement of collective bargaining agree-
     ments. Under Vaca, the NLRA duty of fair representa-
     tion, for the enforcement of which a federal (and state)
     court action is authorized, completely preempts state
     law because of the congressional intent that federal law,
     developed to further the goals of the NLRA, entirely
     govern the duties which an NLRA collective bargaining
     representative owes, by virtue of its position as such, to
     the workers it represents in that capacity. We cannot
     conceive that Congress intended complete displacive
     preemption of the Avco variety in the section 301
     context, but not in the context of the duty of fair repre-
     sentation arising from a union’s status as an exclusive
     collective bargaining agent under the NLRA.
Id. at 1169-70; accord BIW Deceived, 132 F.3d at 831. This view
is based on the Supreme Court’s recognition in Vaca of “the
unique role played by the duty of fair representation
doctrine in the scheme of federal labor laws, and its impor-
tant relationship to the judicial enforcement of collective
bargaining agreements.” Vaca, 386 U.S. at 188.


                              2.
  We may assume for purposes of our decision today that
our sister circuits have decided correctly that a union’s
implied duty of fair representation involving a section 301
contract effects complete preemption. Here, the Union seeks
to extend further that preemption. It submits that, like
section 301 and the judicially implied duty of fair represen-
tation, § 1114 necessitates a body of federal law such that
any state-law action that alleges that a union assumed, and
later breached, a duty to represent retired bargaining unit
members in a Chapter 11 case arises only under federal law.
Nos. 03-4026 & 03-4027                                             15

As such, state law provides no independent source of rights
for retired bargaining unit members in situations in which
the union undertakes to represent them in bankruptcy
proceedings.
  We shall begin our inquiry with the text of § 1114. The
statute is designed to protect retired workers—both those
that are part of a collective bargaining unit and those
that are not—by providing them with representation in
Chapter 11 cases in which the debtor seeks to modify or
terminate retiree benefits.6 For retired workers who are
receiving retiree benefits based on a collective bargaining
agreement, the statute designates the labor union that
was the signatory of that contract as the presumptive
representative, unless it elects not to serve, or if the court, on
motion of a party in interest, determines that differ-
ent representation is appropriate. 11 U.S.C. § 1114(c)(1).7


6
    The statute defines the term “retiree benefits” as
      payments to any entity or person for the purpose of provid-
      ing or reimbursing payments for retired employees and their
      spouses and dependents, for medical, surgical, or hospital
      care benefits, or benefits in the event of sickness, accident,
      disability, or death under any plan, fund, or program
      (through the purchase of insurance or otherwise) maintained
      or established in whole or in part by the debtor prior to filing
      a petition commencing a case under this title.
11 U.S.C. § 1114(a).
7
    Section 1114(c) states:
      (c)(1) A labor organization shall be, for purposes of this
      section, the authorized representative of those persons
      receiving any retiree benefits covered by any collective
      bargaining agreement to which that labor organization is
                                                       (continued...)
16                                       Nos. 03-4026 & 03-4027

In cases in which the union elects not to serve as the repre-
sentative, or the court finds the union should not serve, §
1114 provides that the court shall, on motion of a party in
interest, appoint a committee comprised of retired employ-
ees, if the debtor seeks to modify or terminate retiree
benefits or if the court otherwise deems such representation
to be appropriate. Id. The commentary to § 1114 recognizes
that a critical feature of the statute is the ability of retirees to
have representation separate from the labor union in a
Chapter 11 case. This is because an inherent conflict of
interest exists between current workers and retired workers,
even when both are covered by the same collective bargain-
ing agreement. “If resources run short and the collective



(...continued)
     signatory, unless (A) such labor organization elects not
     to serve as the authorized representative of such persons,
     or (B) the court, upon a motion by any party in interest, after
     notice and hearing, determines that different representation
     of such persons is appropriate.
     (2) In cases where the labor organization referred to in
     paragraph (1) elects not to serve as the authorized repres-
     entative of those persons receiving any retiree benefits
     covered by any collective bargaining agreement to which
     that labor organization is signatory, or in cases where the
     court, pursuant to paragraph (1) finds different representa-
     tion of such persons appropriate, the court, upon a motion by
     any party in interest, and after notice and a hearing, shall
     appoint a committee of retired employees if the debtor seeks
     to modify or not pay the retiree benefits or if the court
     otherwise determines that it is appropriate, from among such
     persons, to serve as the authorized representative of such
     persons under this section.
11 U.S.C. § 1114(c).
Nos. 03-4026 & 03-4027                                           17

bargaining agreement needs to be modified, then greater
cuts to retiree benefits will necessarily leave more funds
available for current wages.” Daniel Keating, Bankruptcy
Code § 1114: Congress’ Empty Response to the Retiree Plight, 67
Am. Bankr. L.J. 17, 33 (1993).
   In situations in which no collective bargaining agreement
governs, the court shall, on motion of a party in interest,
appoint a representative committee of retired employees
if the debtor seeks to modify or terminate retiree benefits, or
if the court deems it otherwise appropriate. 11 U.S.C.
§ 1114(d).8
  Section 1114 further protects retirees in Chapter 11 cases
by establishing procedures and standards that must be
satisfied before the debtor may unilaterally modify the
payment of such benefits. The statute provides that the
trustee (which includes a debtor in possession), “shall
timely pay and shall not modify any retiree benefits,”
unless: (1) the court, on motion of the trustee or authorized
representative, and after notice and a hearing, orders
modification of such payments; or (2) the trustee and
the authorized representative agree to modification of




8
    Section 1114(d) reads:
      (d) The court, upon a motion by any party in interest, and
      after notice and a hearing, shall appoint a committee of
      retired employees if the debtor seeks to modify or not pay
      the retiree benefits or if the court otherwise determines that
      it is appropriate, to serve as the authorized representative,
      under this section, of those persons receiving any retiree
      benefits not covered by a collective bargaining agreement.
11 U.S.C. § 1114(d).
18                                       Nos. 03-4026 & 03-4027

such payments. Id. § 1114(e)(1).9 Prior to the filing of an
application seeking to modify retiree benefits, § 1114(f)
requires: (1) that the trustee make a proposal to the re-
tirees’ authorized representative, which provides for the
modifications in the retiree benefits that are necessary
to permit the debtor to reorganize and which assures that all
creditors, the debtors and all affected parties are treated
fairly and equally; (2) that the proposal be based on the
most complete and reliable information available at that
time; (3) that the trustee provide the authorized representa-
tive with the relevant information necessary to evaluate the
proposal; and (4) that, between the time the proposal is
made and the hearing date, the trustee meet with the
authorized representative at reasonable times and confer in
good faith in an attempt to reach a mutually satisfactory



9
    Section 1114(e)(1) reads:
      Notwithstanding any other provision of this title, the debtor
      in possession, or the trustee if one has been appointed under
      the provisions of this chapter (hereinafter in this section
      “trustee” shall include a debtor in possession), shall timely
      pay and shall not modify any retiree benefits, except that—
          (A) the court, on motion of the trustee or authorized
          representative, and after notice and a hearing, may order
          modification of such payments, pursuant to
          the provisions of subsections (g) and (h) of this sec-
          tion, or
          (B) the trustee and the authorized representative of the
          recipients of those benefits may agree to modification of
          such payments,
      after which such benefits as modified shall continue to be
      paid by the trustee.
11 U.S.C. § 1114(e)(1).
Nos. 03-4026 & 03-4027                                            19

modification of the retiree benefits. Id. § 1114(f)(1)-(2).10 A
bankruptcy court can approve the debtor’s motion for
modification of retiree benefits only if it finds: (1) that the
conditions of § 1114(f) are met; (2) that the authorized
representative refused without good cause to accept the
trustee’s proposal for modification; (3) that all affected
parties are treated equally and fairly; and (4) that such
modification is favored by a balancing of the equities. Id. §
1114(g).11


10
     Section 1114(f) reads:
       (1) Subsequent to filing a petition and prior to filing
       an application seeking modification of the retiree bene-
       fits, the trustee shall—
           (A) make a proposal to the authorized representative
           of the retirees, based on the most complete and reli-
           able information available at the time of such pro-
           posal, which provides for those necessary modifica-
           tions in the retiree benefits that are necessary to permit
           the reorganization of the debtor and assures that all
           creditors, the debtor and all of the affected parties are
           treated fairly and equitably; and
           (B) provide, subject to subsection (k)(3), the representa-
           tive of the retirees with such relevant information as
           is necessary to evaluate the proposal.
       (2) During the period beginning on the date of the making of
       a proposal provided for in paragraph (1), and ending on the
       date of the hearing provided for in subsection (k)(1), the
       trustee shall meet, at reasonable times, with the authorized
       representative to confer in good faith in attempting to reach
       mutually satisfactory modifications of such retiree benefits.
11 U.S.C. § (f).
11
     Section 1114(g) states:
                                                      (continued...)
20                                          Nos. 03-4026 & 03-4027

  With this understanding of § 1114 in mind, we turn to
the application of the complete preemption doctrine. Our


11
     (...continued)
        The court shall enter an order providing for mod-
        ification in the payment of retiree benefits if the court finds
        that—
         (1) the trustee has, prior to the hearing, made a pro-
         posal that fulfills the requirements of subsection (f);
         (2) the authorized representative of the retirees has refused
         to accept such proposal without good cause; and
         (3) such modification is necessary to permit the reor-
         ganization of the debtor and assures that all creditors,
         the debtor, and all of the affected parties are treated
         fairly and equitably, and is clearly favored by the balance
         of the equities;
       except that in no case shall the court enter an order provid-
       ing for such modification which provides for a modifica-
       tion to a level lower than that proposed by the trustee in
       the proposal found by the court to have complied with
       the requirements of this subsection and subsection (f):
       Provided, however, That at any time after an order is entered
       providing for modification in the payment of retiree benefits,
       or at any time after an agreement modifying such benefits is
       made between the trustee and the authorized representative
       of the recipients of such benefits, the authorized representa-
       tive may apply to the court for an order increasing those
       benefits which order shall be granted if the increase in retiree
       benefits sought is consistent with the standard set forth in
       paragraph (3): Provided further, That neither the trustee nor
       the authorized representative is precluded from making
       more than one motion for a modification order governed by
       this subsection.
11 U.S.C. § 1114(g).
Nos. 03-4026 & 03-4027                                     21

inquiry must bear in mind that “determinations about
federal jurisdiction require sensitive judgments about
congressional intent, judicial power, and the federal
system.” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804,
810 (1986). After careful scrutiny of § 1114’s statutory
scheme, we are convinced that, for purposes of complete
preemption analysis, the analogy the district court drew
between a union’s role in the § 1114 context and in the
section 301 context falters.
  The legislative history of § 1114, as well as its operation,
reveals that the statute was designed to serve the limited
role of providing retirees with representation in bankruptcy
proceedings. Prior to the enactment of § 1114, retired
workers whose benefits were covered by a union contract
faced the risk that the employer-debtor unilaterally would
reject the collective bargaining agreement and thereby
convert the retired workers’ non-pension benefits into a
general unsecured claim. See Dan Keating, Good Intentions,
Bad Economics: Retiree Insurance Benefits in Bankruptcy, 43
Vand. L. Rev. 161, 171 (1990). Similarly, retired workers
whose benefits were not part of a collective bargaining
agreement had no special priority to a company’s assets in
a Chapter 11 reorganization. See id. at 170. If their benefits
were vested, the retired workers could file a claim in the
bankruptcy proceeding, but that claim was an unsecured
claim based on breach of contract. See id.
  In 1984, Congress enacted § 1113 of the Bankruptcy
Code in order to protect the interests of employees of
Chapter 11 debtors who were covered by collective bargain-
ing agreements. Under § 1113, a debtor in possession or
trustee may not unilaterally reject any provision of a
collective bargaining agreement except in accordance with
the requirements of the statute. 11 U.S.C. § 1113(a). How-
22                                   Nos. 03-4026 & 03-4027

ever, courts had diverging views as to whether § 1113
extended to retired workers. See Alan N. Resnick & Henry
J. Sommer, Collier on Bankruptcy app. E, at 8-10, 8-13
(15th ed. rev. 2004) (“Collier on Bankruptcy”). The inade-
quacy of the representation afforded to retired workers
during the bankruptcy process gained Congress’ attention
in July 1986, when LTV Steel Company filed a Chapter 11
petition and announced that it immediately would stop
paying health benefits to its 78,000 retired employees. Id. at
App. Pt. 8-11.
  In response to public outcry, Congress enacted stopgap
legislation. See Daniel Keating, Bankruptcy Code § 1114:
Congress’ Empty Response to the Retirees Plight, 67 Am. Bankr.
L.J. 17, 47 (1993) (stating that, when Congress enacted § 1114
“it was obvious that the legislation was purely a reaction to
the problems raised in the LTV case” as a “bandaid solution
to the problem of unfunded retiree health benefits”). After
extending the legislation twice, Congress enacted the Retiree
Benefits Bankruptcy Protection Act of 1988, Pub. L. No. 100-
334, 102 Stat. 610.
  Congress’ foremost concern in enacting § 1114 was
providing “additional protections for the insurance
benefits of retirees” when companies file a Chapter 11
bankruptcy. See S. Rep. 100-19 at 683, reprinted in 1988
U.S.S.C.A.N. 683. Numerous statements made by members
of Congress on the floor in enacting the statute support
this conclusion. For instance, Senator Heinz stated:
     The Congress was also concerned over the treatment of
     retirees after a company filed for bankruptcy. Once the
     retirees lost their benefits they were forced by the
     bankruptcy law to go to the end of the line of creditors
     and patiently wait for years to get a small cash settle-
     ment. While chapter 11 reorganization seemed to work
Nos. 03-4026 & 03-4027                                        23

    to protect the interests of the major, and usually se-
    cured, creditors, it left the retirees totally exposed
    to catastrophic medical losses while bankruptcy lawyers
    bickered over the reorganization plan. The retirees had
    no way to make their concerns known to the court
    during bankruptcy.
    ....
       The bill will protect retirees from unilateral termina-
    tion of benefits by a company filing a chapter 11 bank-
    ruptcy petition. Health and life insurance benefits
    would be continued throughout the proceedings unless
    it was necessary to discontinue them to keep the com-
    pany alive. This bill will also finally give re-
    tirees adequate representation in the bankruptcy pro-
    ceedings.
134 Cong. Rec. S6823-27, at 6827 (daily ed. May 26, 1988),
reprinted in Collier on Bankruptcy app. E, at 8-48. Similarly
Representative Edwards stated:
    It is important that we pass this bill in order to give
    retirees peace of mind by removing the possibility of
    any sudden and unilateral termination of retiree
    health benefits. Retired workers are often completely
    dependent on these benefits. If such benefits are cut
    off—as happened when one major corporation filed
    [for] bankruptcy—retirees may not be able to replace
    them because of high cost or lack of insurability. Al-
    though H.R. 2969, as brought up today, is not per-
    fect legislation, it will protect retiree benefits as much as
    possible in a bankruptcy.
134 Cong. Rec. H3486-91, at 3488 (daily ed. May 23, 1988),
reprinted in Collier on Bankruptcy app. E, at 8-34.
24                                    Nos. 03-4026 & 03-4027

   Section 1114’s statutory scheme and Congress’ ex-
pressed intent indicates that the statute was enacted to
achieve the very specific and focused objective of protecting
retiree benefits from unilateral termination. It permits the
bankruptcy court to determine whether retirees ought to be
represented by the union or some other entity when their
retirement benefits are at stake in a Chapter 11 proceeding.
It further sets forth a process which the bankruptcy court
must follow in order to ensure that the interest of retirees in
their benefits are accorded equal and fair treatment in the
shaping of the court’s remedial decree. We do not discern in
this focused statutory provision any congressional intent,
expressed or implied, of a preemptive force so “powerful”
as to preempt entirely every aspect of the relationship
between the retirees and the entity representing them.
Franchise Tax Bd., 463 U.S. at 23-24. Notably, § 1114 does not
purport to provide any federal cause of action for inade-
quate representation. Nor does the legislative history of the
section “unambiguously describe[] an intent to treat such
actions 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.’ ” Beneficial Nat’l
Bank, 539 U.S. at 8 (quoting Metro. Life Ins. Co., 481 U.S. at
65-66). Specifically, we can discern no intent on the part of
Congress in enacting this bankruptcy provision to provide
an exclusive federal remedy governing the relationship of
the retirees and the entity representing them before the
bankruptcy court. See id.
  As we noted earlier, the Supreme Court pointed out
in Lingle, 486 U.S. at 403-05, that, in interpreting section
301 of the LMRA, the Court was able to discern quite clearly
that Congress, in enacting that provision, not only had
created a statutory cause of action for the violation of a labor
agreement, see id. (citing Lincoln Mills, 353 U.S. at 451), but
Nos. 03-4026 & 03-4027                                        25

also had authorized the creation of a substantive common
law of collective bargaining agreements, see id. (citing Lucas
Flour, 369 U.S. at 103-04). Thus, in interpreting and applying
section 301, a court must apply, necessarily, the federal
policy of our national labor laws. See Lincoln Mills, 353 U.S.
at 456-57. Any action arising under that statute is therefore
based on federal law and is removable because it arises
under the laws of the United States. See Avco, 390 U.S. at
570.
   The same policy concerns simply are not at stake in the
situation before us today. In deciding an issue under § 1114,
the bankruptcy court’s focus is not the text of the collective
bargaining agreement from which the retirees’ benefits are
derived, but on ensuring that those rights are treated “fairly
and equitably” in fashioning the final plan of reorganiza-
tion. Although the court has certain responsibilities, out-
lined in the statute, to select an entity that will represent the
interests of the retirees so that the court’s objective can be
achieved, the statute contains no indication that Con-
gress intended that federal law displace state law with
respect to all aspects of that relationship.
  Although we do not believe that § 1114 carries with it
a preemptive force so powerful that it completely pre-
empts the area, we do not rule out the possibility that viable
defenses based on federal law, including § 1114, may well
preempt otherwise valid state-law based causes of action.
This is a matter, however, for the defendants to present to
the state courts as a matter of defense.12



12
  Because we conclude that the district court erred by not
remanding to state court the retirees’ claims against the Union,
we also conclude that the district court properly remanded the
claims against the individual defendants.
26                                   Nos. 03-4026 & 03-4027

                        Conclusion
  For the foregoing reasons, we reverse the district court’s
denial of the retirees’ motion to remand to state court
their claims against the Union. We affirm the district court’s
remand of the retirees’ claims against the individ-
ual defendants. The plaintiffs may recover their costs
in this court.
                                        AFFIRMED in part;
                           REVERSED and REMANDED in part

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-29-05
