       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 CRAIG LONG,
                                   
          Plaintiff-Appellee,
                                   
                                   
                                       No. 99-5032
            v.
                                   
                                    >
 BANDO MANUFACTURING OF            
                                   
          Defendant-Appellant. 
 AMERICA, INC.,

                                   
                                 1
        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,


                            1
2    Long v. Bando Manufacturing                 No. 99-5032      No. 99-5032                  Long v. Bando Manufacturing              15
     of America, Inc.                                                                                       of America, Inc.

Kentucky, for Appellant. Nancy Oliver Roberts, Bowling            Tax Board v. Construction Laborers Vacation Trust, 463 U.S.
Green, Kentucky, for Appellee.                                    1, 9 (1983), that “a case may arise under federal law ‘where
                                                                  the vindication of a right under state law necessarily turned on
   MOORE, J., delivered the opinion of the court, in which        some construction of federal law.’” Id. Finally, Merrell Dow
GILMAN, J., joined. WELLFORD, J. (pp. 14-15), delivered           emphasized “prudence and restraint in the jurisdictional
a separate concurring opinion.                                    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.
                        OPINION
                    _________________                                Plaintiff’s right to relief did not necessarily depend on any
                                                                  of the federal statutes relied upon in the complaint. There
   KAREN NELSON MOORE, Circuit Judge. In this appeal,             was no substantial question of federal law presented. None of
the defendant-appellant, Bando Manufacturing of America,          the federal statutes cited (and discussed by the district court)
Inc. (“Bando”), challenges the district court’s finding that it   created plaintiff’s wrongful discharge claim. Congress
did not have original federal question jurisdiction over one of   provided no private federal remedy for plaintiff with respect
plaintiff-appellee Benjamin Craig Long’s claims and asks this     to any of these statutes. There was no implied federal cause
court to reverse the district court’s order remanding the case    of action created by or necessarily springing from any federal
to state court. Long had originally sued Bando in state court,    statute cited. The district court, in short, exercised prudence
raising both state and federal claims, including one state-law    and restraint in denying federal jurisdiction. I am not
claim for wrongful discharge in violation of public policy.       persuaded by Bando’s attempts to distinguish Merrell Dow,
Long asserted in his amended complaint that the public policy     and I find no basis under the several principles expressed and
that was violated by his discharge was embodied in several        approved in that case to overturn the district court’s decision.
federal statutes. After Bando removed the case to federal         See Miller v. Norfolk & W. Ry. Co., 834 F.2d 556 (6th Cir.
district court, the district court granted summary judgment       1987).1
against Long on one of his federal claims and dismissed the
other at Long’s request. The district court then remanded the       I see no need to pursue any state law rationale asserted by
case, including Long’s wrongful discharge claim, to the state     Bando to create jurisdiction in this case. I would,
court. Bando now appeals that remand order, arguing that          accordingly, AFFIRM the district court.
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.
                                                                   1
                                                                     I 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).
14    Long v. Bando Manufacturing                  No. 99-5032      No. 99-5032               Long v. Bando Manufacturing          3
      of America, Inc.                                                                                     of America, Inc.

                    _________________                                                    I. BACKGROUND
                     CONCURRENCE                                       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
   HARRY W. WELLFORD, Circuit Judge, concurring. I                  various forms of anticompetitive activity, including
concur in the result reached in this case, but would base this      appropriation of Gates’s trade secrets. Gates also charged that
decision on a more straightforward rationale. My conclusion         Bando had concealed or destroyed information relevant to its
is that plaintiff Long’s claims of wrongful discharge simply        competitive strategies and trade secrets. In the summer of
did not sufficiently raise a federal question in order to provide   1995, less than a year before he was terminated but several
jurisdiction in the district court. I agree with my colleague,      years after the Gates litigation had ended, Long reported to
Judge Moore, at the outset that the burden in this case is upon     Matt Adams, the vice president of Bando, that he saw Adams
plaintiff and that removal statutes are strictly construed.         and James Blankenship, the president of Bando, taking “stuff”
Plaintiff must show that he is relying on a claim “arising          to the trash dumpsters just before the 1992 inspection of the
under the Constitution . . . or laws of the United States.” 28      Bando facilities by Gates. In that same year and the following
U.S.C. § 1441(b).                                                   year, Long received two poor performance reviews and
                                                                    several warnings that he would be subject to disciplinary
  I also agree with Judge Moore’s analysis that we have             action if his performance did not improve, culminating in his
jurisdiction to review the action taken by the district court,      suspension for three days in March of 1996. Long was finally
and that remand was within the sound discretion of the district     discharged in May of 1996 based on a finding that he had
court once lack of a federal question was determined.               falsified a production schedule. After his discharge, Long
                                                                    attempted to aid Gates in reopening its motion for sanctions
  The substance of Long’s claims against his former private         against Bando on the ground that Bando had concealed and
employer is clearly wrongful discharge essentially by a state       destroyed documents relevant to the trade secrets litigation.
action since no federal employment discrimination law action
is asserted. Nor does defendant Bando claim federal                    Long filed suit in Kentucky state court on April 30, 1997,
preemption under the circumstances of this case.                    alleging that he was terminated as a result of his refusal to
                                                                    acquiesce in the “cover up” of the company’s theft of trade
   There are several reasons why I believe this case is             secrets. He alleged due process violations under the U.S. and
essentially controlled by Merrell Dow Pharmaceuticals, Inc.         Kentucky Constitutions, “reverse discrimination” in violation
v. Thompson, 478 U.S. 804 (1986). That case affirmed this           of Title VII, and discharge “in violation of the public policy
court’s decision at 766 F.2d 1005 (6th Cir. 1985). Merrell          of retaliatory discharge.” J.A. at 16 (Complaint). Bando
Dow, I believe, despite some ambiguous language, affirmed           removed the case, relying on Long’s federal due process and
our holding that “[f]ederal question jurisdiction would, thus,      Title VII claims as the basis for federal jurisdiction. Long
exist only if plaintiffs’ right to relief depended necessarily on   then amended his complaint, adding that “[o]ther public
a substantial question of federal law.” 766 F.2d at 1006.           policies of this Commonwealth and of the United States
Merrell Dow cites Justice Holmes’ opinion in American Well          which have been violated by the Defendant’s wrongful
Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916),          termination of the Plaintiff include, but are not limited to” the
that a “suit arises under the law that creates the cause of         policies embodied in four federal criminal statutes: 18 U.S.C.
action.” 478 U.S. at 808. It cites with approval Franchise
4       Long v. Bando Manufacturing                        No. 99-5032        No. 99-5032                 Long v. Bando Manufacturing             13
        of America, Inc.                                                                                               of America, Inc.

§ 1509 (Obstruction of court orders), 18 U.S.C. § 2314                          district court’s discretion to remand in a case removed
(Transportation of stolen goods), 18 U.S.C. § 2315 (Sale or                     from state court.
receipt of stolen goods), and 18 U.S.C. § 1621 (Perjury).1
J.A. at 19 (Amended Complaint). Long also added claims of                     Id. at 1267 (citation omitted). Furthermore, most circuits,
defamation and breach of contract. Subsequently, Long filed                   including this one, have assumed that the discretionary power
a motion to dismiss voluntarily his Title VII claim, which was                to remand survives the adoption of § 1367. See, e.g., Musson
granted on June 17, 1998. Bando filed a motion for summary                    Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244,
judgment, and Long thereafter moved to remand the case to                     1254-55 (6th Cir. 1996); Decatur Mem’l Hosp. v. Connecticut
the state court for lack of subject matter jurisdiction.                      Gen. Life Ins. Co., 990 F.2d 925, 927-28 (7th Cir. 1993);
                                                                              Executive Software N. Am., Inc. v. United States Dist. Ct., 24
   The district court granted Bando’s motion for summary                      F.3d 1545, 1551-53 (9th Cir. 1994); see also 28 U.S.C.A.
judgment as to Long’s federal due process claim. The district                 § 1367 Practice Commentary 835 (1993); 14C CHARLES
court also denied Long’s motion to remand for lack of subject                 ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
matter jurisdiction, finding that it had subject matter                       FEDERAL PRACTICE & PROCEDURE: JURISDICTION 3D § 3739,
jurisdiction. Finally, the district court found that none of the              at 498-501 (1998). We agree with the analysis of the D.C.
remaining claims (wrongful discharge in violation of public                   Circuit and hold that the district court acted properly in
policy, breach of contract, and defamation) raised a                          remanding rather than dismissing Long’s case.8
substantial federal question and therefore, declining to
exercise its supplemental jurisdiction, remanded the case to                                        III. CONCLUSION
the state court. In particular, the district court found that
naming four federal statutes as evidence of public policy in                    For the foregoing reasons, we AFFIRM the district court’s
the complaint did not convert Long’s state wrongful discharge                 remand order.
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
                                                                               8
that Long’s wrongful discharge claim did not raise a                             We 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
    1
                                                                              and the district court has only supplemental claims before it. See
   In other words, Long claimed that he was terminated for his refusal to     Carnegie-Mellon, 484 U.S. at 345 (“The question before us is whether a
participate in the company’s theft of trade secrets (“stolen goods” under     federal district court has discretion under the doctrine of pendent
18 U.S.C. §§ 2314, 2315), its obstruction of the discovery orders in the      jurisdiction to remand a properly removed case to state court when all
Gates litigation, and its employees’ perjury about concealing or destroying   federal-law claims in the action have been eliminated and only pendent
documents.                                                                    state-law claims remain.”).
12    Long v. Bando Manufacturing                        No. 99-5032        No. 99-5032               Long v. Bando Manufacturing          5
      of America, Inc.                                                                                             of America, Inc.

C. Propriety of Remand                                                      substantial federal question giving rise to original federal
                                                                            question jurisdiction in the district court. In its December 8,
  We also note that the district court had the authority to                 1998 order, the district court acknowledged that it had erred
remand rather than dismiss Long’s state-law claims under 28                 in its analysis of whether Long’s wrongful discharge claim
U.S.C. § 1367(c). In Carnegie-Mellon Univ. v. Cohill, 484                   provided a basis for original federal question jurisdiction.
U.S. 343 (1988), the Supreme Court held that a district court               The court recognized that, even if it determined, first, that
has discretion to remand pendent state-law claims rather than               there was no implied private cause of action for the violation
dismissing them, if the values of economy, convenience,                     of the federal statutes listed in Long’s complaint, it must still
fairness, and comity so dictate.                                            consider, second, “whether the state law wrongful discharge
                                                                            [claim] ‘necessarily turned’ upon a question of federal law.”
  Carnegie-Mellon was decided before 28 U.S.C. § 1367 was                   J.A. at 32 (D. Ct. Op.). If the claim necessarily turned on a
adopted, however, and the language of § 1367 does not                       question of federal law, the district court acknowledged, it
explicitly grant district courts the authority to remand cases to           could find that it had federal question jurisdiction, without
the state courts rather than dismiss them without prejudice.7               applying the “implied remedy” test. Nonetheless, the district
Nonetheless, we believe that the discretion to remand was                   court still found that, on the facts of this case, there was no
incorporated into that statute. The U.S. Court of Appeals for               substantial, disputed question of federal law in the plaintiff’s
the D.C. Circuit so held in Edmondson & Gallagher v. Alban                  claim sufficient to invoke the district court’s “arising under”
Towers Tenants Ass’n, 48 F.3d 1260 (D.C. Cir. 1995). As                     jurisdiction and therefore denied Bando’s request to alter or
that court explained:                                                       amend its prior judgment remanding the case to the state
                                                                            court. Bando timely appealed that ruling to this court. We
  Whether to remand or dismiss is a matter normally left to                 now hold that, although a complaint that does not state a
  the discretion of the district court, see Carnegie-Mellon,                federal cause of action may in some cases invoke federal
  484 U.S. at 357, 108 S. Ct. at 622-23. We find this                       jurisdiction, the federal statutes cited in Long’s wrongful
  discretion unaffected by the subsequent enactment of 28                   discharge claim were insufficient to provide federal question
  U.S.C. § 1367(d), in the Judicial Improvements Act of                     jurisdiction.
  1990 . . . . Section 1367(d) tolls the state statute of
  limitations on any state claim over which a federal court                                        II. ANALYSIS
  has exercised supplemental jurisdiction until 30 days
  after its dismissal. It thus reduces one concern expressed                   In order to invoke the district court’s removal jurisdiction,
  in Carnegie-Mellon — that plaintiffs would lose their                     a defendant must show that the district court has original
  claims if their case were dismissed rather than remanded.                 jurisdiction over the action. See 28 U.S.C. § 1441(a). The
  Other concerns remain, however, such as convenience to                    burden of showing that the district court has original
  the parties and a faster resolution of the case. We find no               jurisdiction is on the party seeking removal. See Her Majesty
  indication in the legislative history of the Judicial                     the Queen in Right of the Province of Ontario v. City of
  Improvements Act that Congress intended to limit the                      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.
 7
   28 U.S.C. § 1367(c) provides, in pertinent part, “The district courts    v. Sheets, 313 U.S. 100, 108-09 (1941).
may decline to exercise supplemental jurisdiction over a claim” if any of
four criteria is met (emphasis added).
6     Long v. Bando Manufacturing                  No. 99-5032      No. 99-5032                   Long v. Bando Manufacturing               11
      of America, Inc.                                                                                         of America, Inc.

   In this case, the parties do not allege diversity of             at 19 (emphasis added). Since Long’s complaint offered state
citizenship. Removal jurisdiction was thus based on 28              as well as federal policies as evidence of his wrongful
U.S.C. § 1441(b), allowing removal of actions “of which the         discharge, this case appears to fall squarely within the
district courts have original jurisdiction founded on a claim or    Supreme Court’s holding in Christianson.
right arising under the Constitution, treaties or laws of the
United States,” without regard to the citizenship of the              Furthermore, although the question whether a wrongful
parties. Because removal jurisdiction is possible only where        discharge claim based on federal public policies invokes
the federal district court would have had original jurisdiction     federal jurisdiction appears to be one of first impression in
over the case, and because the “arising under” language of          this circuit, other circuits have held that such claims do not
§ 1441(b) is almost identical to the language of 28 U.S.C.          belong in federal court. See Campbell v. Aerospace Corp.,
§ 1331, the scope of removal jurisdiction based on the              123 F.3d 1308, 1315 (9th Cir. 1997) (finding the federal
existence of a federal question under § 1441(b) is considered       interest to be insufficient, and noting that state law mirrors the
to be identical to the scope of federal question jurisdiction       federal policy at issue), cert. denied, -- U.S. --, 118 S. Ct.
under § 1331. See, e.g., Caterpillar Inc. v. Williams, 482 U.S.     1794 (1998); Willy v. Coastal Corp., 855 F.2d 1160, 1167-72
386, 391-92 (1987). In determining removal jurisdiction             (5th Cir. 1988) (finding the federal element in such a claim to
under § 1441, as in determining original “arising under”            be insufficiently substantial and also noting that the plaintiff
jurisdiction, federal courts apply the “well-pleaded                supported his claim with state as well as federal theories); see
complaint” rule, pursuant to which “federal jurisdiction exists     also Drake v. Cheyenne Newspapers, Inc., 842 F. Supp. 1403
only when a federal question is presented on the face of the        (D. Wyo. 1994). These precedents suggest that the federal
plaintiff’s properly pleaded complaint.” Id. at 392.                question in Long’s complaint is insufficiently substantial and
                                                                    disputed to invoke federal jurisdiction.6
A. Reviewability of the Remand Order
                                                                       We therefore hold that, although federal question
  This court has jurisdiction to review the district court’s        jurisdiction may exist even where the plaintiff has not stated
decision to remand Long’s state law claims. The parties did         a federal cause of action, Long’s complaint did not invoke the
not raise this issue, but, because it is a jurisdictional matter,   federal courts’ “arising under” jurisdiction, because it put
we consider it sua sponte. See, e.g., In re General Motors          forth alternate state and federal policies to support his state-
Corp., 3 F.3d 980, 982 (6th Cir. 1993).                             law wrongful discharge claim.
  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.                    6
                                                                       Bando also argues that the standard for finding a “substantial” federal
Hermansdorfer, 423 U.S. 336 (1976), that §§ 1447(c) and (d)         question is extremely low; however, the cases that it cites for this
must be read together, and therefore that § 1447(d) prohibits       proposition dealt with the standard for finding federal jurisdiction based
review only of remand orders issued pursuant to a finding,          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
under § 1447(c), that the district court lacked subject matter      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).
10    Long v. Bando Manufacturing                         No. 99-5032        No. 99-5032                  Long v. Bando Manufacturing                7
      of America, Inc.                                                                                                 of America, Inc.

state-law claim, at least one of which does not involve a                    jurisdiction.2 See id. at 345-46.3 Here, the district court did
federal question.4                                                           not remand because it lacked subject matter jurisdiction; on
                                                                             the contrary, the district court explicitly stated that it had
   In light of Christianson, it is clear that the resolution of a            subject matter jurisdiction when the case was removed and
federal question is not necessary or essential to the resolution             noted that it had not been divested of that jurisdiction by the
of Long’s wrongful discharge claim. Bando argues that under                  dismissal of the plaintiff’s federal claims. Accord In re
Kentucky law, a plaintiff must demonstrate that the public                   Carter, 618 F.2d 1093, 1101 (5th Cir. 1980) (“It is a
policy making his discharge unlawful is embodied in federal                  fundamental principle of law that whether subject matter
or state legislative enactments. See, e.g., Grzyb v. Evans, 700              jurisdiction exists is a question answered by looking to the
S.W.2d 399, 401 (Ky. 1985). Bando contends that Long                         complaint as it existed at the time the petition for removal
relied solely on federal statutes as evincing that public policy,            was filed. . . . When a subsequent narrowing of the issues
and therefore that the court’s construction of those federal                 excludes all federal claims, whether a pendant [sic] state
statutes is essential to a determination of Long’s claim. This               claim should be remanded to state court is a question of
argument is unpersuasive. Long’s complaint put forth                         judicial discretion, not of subject matter jurisdiction.”
alternate bases in state and federal law for the public policy in            (citations omitted)), cert. denied, 450 U.S. 949 (1981).
contravention of which he was discharged. Long’s initial                     Furthermore, this court has repeatedly held remand orders to
complaint stated that his “discharge was in violation of the                 be reviewable in cases similar to this one. See, e.g., General
public policy of retaliatory discharge.”             J.A. at 16              Motors, 3 F.3d at 983; Van Meter v. State Farm Fire & Cas.
(Complaint). This statement could be read to refer to                        Co., 1 F.3d 445, 449-50 (6th Cir. 1993) (holding that the
Kentucky Revised Statutes 61.102, Kentucky’s                                 reviewability of a remand order depends on whether the
“whistleblower statute,” forbidding the retaliatory termination              district court had subject matter jurisdiction when the case
of an employee who interferes with a company’s unlawful                      was removed, and explaining that if the district court initially
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                          2
Commonwealth and of the United States which have been                           28 U.S.C. § 1447(c) provides, in pertinent part, “If at any time before
violated by the Defendant’s wrongful termination of the                      final judgment it appears that the district court lacks subject matter
                                                                             jurisdiction, the case shall be remanded.”
Plaintiff include, but are not limited to, the following.” J.A.                 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
 4
                                                                             which it was removed pursuant to section 1443 of this title shall be
   Christianson dealt with the scope of the Federal Circuit’s patent-law     reviewable by appeal or otherwise.”
jurisdiction under 28 U.S.C. §§ 1295(a) and 1338(a), not the federal
courts’ general federal question jurisdiction under § 1331. The Court         3
                                                                                The holding of Thermtron, limiting the prohibition on review of
noted in Christianson, however, that it applies the same test to determine   remand orders to those remands that are based on a lack of subject matter
“arising under” jurisdiction under both §§ 1331 and 1338(a). See             jurisdiction, was recently reaffirmed in Quackenbush v. Allstate Ins. Co.,
Christianson, 486 U.S. at 807-09.                                            517 U.S. 706 (1996). In Quackenbush, the Supreme Court also held that
 5
                                                                             remand orders not falling within the scope of § 1447(c) could be reviewed
   Long himself has not mentioned K.R.S. 61.102; in his brief, he            on direct appeal, thereby abrogating Thermtron’s suggestion that remand
mentioned the Kentucky Trade Secrets Act, K.R.S. 365.880 to 365.990          orders were not final orders and therefore could be reviewed only by
(1990), as the original basis for his wrongful discharge claim.              means of a writ of mandamus. See id. at 712-15.
8    Long v. Bando Manufacturing                 No. 99-5032      No. 99-5032               Long v. Bando Manufacturing          9
     of America, Inc.                                                                                    of America, Inc.

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