                                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                                        Pursuant to Sixth Circuit Rule 206
                                                File Name: 05a0025p.06

                           UNITED STATES COURT OF APPEALS
                                            FOR THE SIXTH CIRCUIT
                                              _________________


                                                         X
                                  Plaintiff-Appellant, -
 JAMES T. RODDY,
                                                          -
                                                          -
                                                          -
                                                              No. 02-2499
          v.
                                                          ,
                                                           >
 GRAND TRUNK WESTERN RAILROAD INCORPORATED;               -
                                                          -
                                                          -
 TRACY MILLER; LAWRENCE T. WIZAUER; DAVID

                                                          -
 CROMIE; PETER BRANDON; THOMAS WILLETT;

                                Defendants-Appellees. -
 LAWRENCE R. MARTENIS,
                                                          -
                                                         N
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                     No. 02-72976—Nancy G. Edmunds, District Judge.
                                              Argued: April 28, 2004
                                      Decided and Filed: January 14, 2005
              Before: MARTIN and ROGERS, Circuit Judges; BELL, Chief District Judge.*
                                                _________________
                                                     COUNSEL
ARGUED: Douglas A. McKinney, Auburn Hills, Michigan, for Appellant. Gregory A. Clifton, DURKIN,
McDONNELL, CLIFTON, DAVIS & O’DONNELL, Detroit, Michigan, for Appellees. ON BRIEF:
Douglas A. McKinney, Auburn Hills, Michigan, for Appellant. Gregory A. Clifton, DURKIN,
McDONNELL, CLIFTON, DAVIS & O’DONNELL, Detroit, Michigan, for Appellees.
                                                _________________
                                                    OPINION
                                                _________________
        BELL, Chief District Judge. Plaintiff-Appellant James T. Roddy ("Roddy") appeals the district
court's denial of his motion to remand and the district court's subsequent grant of summary judgment in
favor of the Defendants-Appellees, Grand Trunk Western Railroad, Inc., Tracy Miller, Lawrence T.
Wizauer, David Cromie, Peter Brandon, Thomas Willett and Lawrence Martenis (collectively referred to
as "Grand Trunk"). For the reasons that follow we reverse the denial of the motion to remand, vacate the

    *
     The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan, sitting by
designation.



                                                            1
No. 02-2499                    Roddy v. Grand Trunk Western RR., et al.                                                Page 2


entry of summary judgment, and remand to the district court with instructions to enter an order remanding
the entire case to state court.
                                                              I.
       Roddy alleged in his complaint that he began his employment for Grand Trunk in 1965 as a
brakeman. In 2000 Roddy was employed by Grand Trunk as a conductor. On July 11, 2000, while driving
a motor vehicle on personal business, Roddy was subjected to a routine traffic stop by the City of Durand,
Michigan, Police Department. He was arrested and jailed on misdemeanor charges including possession
of marijuana. Roddy's wife notified Grand Trunk that Roddy was unavailable for work on the night of
July 11, 2000.
        Roddy alleged in his complaint that the individual defendants, who are employees and/or agents of
Grand Trunk, requested, made or maintained a record of information regarding Roddy's misdemeanor arrest
or detention. Based upon those records Grand Trunk conducted a formal company investigation on a charge
of possession of marijuana and ultimately terminated Roddy's employment. The misdemeanor charges that
had been filed against Roddy on July 11, 2000, were eventually dismissed and no conviction resulted.
        Roddy commenced this action in the Circuit Court for the County of Shiawassee, State of Michigan,
alleging that Grand Trunk's conduct in requesting, making or maintaining a record of the misdemeanor
arrest where a conviction did not result, and their conduct in threatening, coercing, and/or ordering Roddy
to release information regarding the misdemeanor arrest or face further disciplinary action violated Roddy's
rights under the Michigan Elliott Larsen Civil Rights Act, M.C.L. § 37.2205a.1 The relief Roddy requested
included compensatory damages, exemplary damages, attorney fees and injunctive relief. Defendants
removed the action to federal court on the basis of federal question jurisdiction. The district court denied
Roddy's motion for remand and granted Defendants< motion for summary judgment. Roddy appealed both
of these rulings.
                                                             II.
         The district court denied Roddy's motion to remand based upon its determination that Roddy's claim
under the Michigan Elliott Larsen Civil Rights Act was completely preempted by the Railway Labor Act,
45 U.S.C. §§ 151-163, 181-188. We review the denial of a motion to remand de novo. Ahearn v. Charter
Twp. of Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996). In conducting this review we look to the complaint
at the time of removal and determine whether the action was properly removed in the first place. Id.
        "Only state-court actions that originally could have been filed in federal court may be removed to
federal court by the defendant." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C.
§ 1441(a)). "As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint
does not affirmatively allege a federal claim." Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003).
        Federal district courts have original jurisdiction over "all civil actions arising under the Constitution,
laws, or treaties of the United States." 28 U.S.C. § 1331. In determining whether a complaint arises under
federal law we apply the "well-pleaded complaint" rule. Loftis v. United Parcel Serv., Inc., 342 F.3d 509,
514 (6th Cir. 2003). Under this rule "we examine the 'well pleaded' allegations of the complaint and ignore

    1
        This statute provides in pertinent part:
    An employer, employment agency, or labor organization, other than a law enforcement agency of this state or a political
    subdivision of this state, shall not in connection with an application for employment or membership, or in connection
    with the terms, conditions, or privileges of employment or membership request, make, or maintain a record of
    information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result.
M.C.L. § 37.2205a.
No. 02-2499                 Roddy v. Grand Trunk Western RR., et al.                                                     Page 3


potential defenses." Beneficial Nat. Bank, 539 U.S. at 6. "[F]ederal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392.
The well-pleaded complaint rule recognizes that the plaintiff is the master of his complaint. Loftis, 342 F.3d
at 515. Accordingly, if the plaintiff chooses to bring a state law claim, that claim cannot generally be
"recharacterized" as a federal claim for the purpose of removal. Id. (citing Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63 (1987)). It is settled law that "a case may not be removed to federal court on the basis of
a federal defense, including the defense of pre-emption, 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."
Caterpillar, 482 U.S. at 393 (emphasis in original). See also Beneficial Nat. Bank, 539 U.S. at 6 ("[A]
defense that relies on . . . the pre-emptive effect of a federal statute will not provide a basis for removal.");
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987) ("Federal pre-emption is ordinarily a federal
defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and,
therefore, does not authorize removal to federal court.").
        A state claim may be removed to federal court in only two circumstances – when Congress expressly
so provides,2 or "when a federal statute wholly displaces the state-law cause of action through complete
pre-emption." Beneficial Nat. Bank, 539 U.S. at 8. The "complete preemption" doctrine, developed in the
case law, recognizes that "Congress may so completely pre-empt a particular area that any civil complaint
raising this select group of claims is necessarily federal in character." Metro. Life, 481 U.S. at 63-64.
Complete preemption applies where "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, 482 U.S. at 393 (quoting Metro. Life, 481 U.S. at 65). "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." Caterpillar, 482
U.S. at 393.
        To date the Supreme Court has recognized complete preemption under only three statutes: § 301
of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. § 185, § 502(a) of the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., and § 30 of the National Bank
Act, 12 U.S.C. §§ 85 & 86. Beneficial Nat. Bank, 539 U.S. at 6-7, 11. As we noted in Alongi v. Ford Motor
Co., 386 F.3d 716 (6th Cir. 2004), it is the "unusually powerful pre-emptive force of § 301" that places it
in the small category of statutes that not only preempt state law but also authorize removal of actions that
sought relief only under state law. Id. at 723-24, (quoting Beneficial Nat. Bank, 539 U.S. at 7). In those
cases where the Supreme Court has found complete preemption, "the federal statutes at issue provided the
exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that
cause of action." Beneficial Nat. Bank, 539 U.S. at 8.
        Complete preemption that supports removal and ordinary preemption are two distinct concepts.
Warner v. Ford Motor Co. 46 F.3d 531, 535 (6th Cir. 1995) (en banc). "The fact that a defendant might
ultimately prove that a plaintiff's claims are pre-empted under [a federal statute] does not establish that they
are removable to federal court." Caterpillar, 482 U.S. at 398. Complete preemption that permits removal
is reserved for statutes "designed to occupy the regulatory field with respect to a particular subject and to
create a superseding cause of action" while ordinary preemption applies to statutory sections that arguably
supersede conflicting state laws without creating the right of removal. 46 F.3d at 535. "[T]he congressional
intent necessary to confer removal jurisdiction upon the federal district courts through complete preemption
is expressed through the creation of a parallel federal cause of action that would <convert< a state cause of
action into the federal action for purposes of the well-pleaded complaint rule." Strong v. Telectronics
Pacing Sys., Inc., 78 F.3d 256, 260 (6th Cir. 1996) (citing Warner, 46 F.3d at 534-35).

    2
      As an example, the Supreme Court noted that the Price-Anderson Act contains an unusual preemption provision, 42 U.S.C.
§ 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly
provides for removal of such actions brought in state court even when they assert only state-law claims. Beneficial Nat. Bank, 539
U.S. at 6 (citing El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484-85 (1999)).
No. 02-2499                  Roddy v. Grand Trunk Western RR., et al.                                                      Page 4


        In the absence of explicit direction from Congress, the Supreme Court has stated that it would be
reluctant to find the extraordinary preemptive power that converts an ordinary state common law complaint
into one stating a federal claim for purposes of the well-pleaded complaint rule. Metro. Life, 481 U.S. at
64-65.3 As we recently noted:
           Complete preemption is a narrow exception to the well-pleaded complaint rule, whereby
           plaintiff is master of his complaint and can choose to assert only state law claims, in
           situations where Congress has indicated an intent to occupy the field so completely that any
           ostensibly state law claim is in fact a federal claim for purposes of arising-under jurisdiction.
AmSouth Bank v. Dale, 386 F.3d 763, 776 (6th Cir. 2004). See also Peters v. Lincoln Elec. Co., 285 F.3d
456, 468 n. 11 (6th Cir. 2002) ("Without evidence of Congress's intent to transfer jurisdiction to federal
courts, there is no basis for invoking federal judicial power.").
           It is true that the doctrine of complete preemption goes beyond the usual contours of the
           well-pleaded complaint rule, in that it requires courts to attend to the underlying substance
           of a plaintiff's cause of action, and not merely whether it is denominated as arising from state
           or federal law. But, as the Supreme Court has instructed us, the complete preemption
           doctrine does not abrogate the federal courts' traditional focus on the complaint, in deciding
           questions of removal jurisdiction.
Alongi, 386 F.3d at 727.
       The Supreme Court discussed the circumstances under which the RLA will preempt state law claims
in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260-64 (1994). This discussion, however, only involved
concepts of ordinary preemption and did not address the issue of complete preemption.
        Grand Trunk has cited two Sixth Circuit cases in support of its contention that the RLA completely
preempts Roddy's state law civil rights claim. In McCall v. Chesapeake & Ohio R.R., 844 F.2d 294 (6th
Cir. 1988), we held that the plaintiff's state law Handicappers Civil Rights Act claim was preempted by the
RLA. Id. at 303. McCall does not impact our present discussion. The plaintiff's claim in McCall was
removed to federal court on diversity grounds and our preemption analysis involved ordinary preemption
rather than complete preemption.
        Grand Trunk has also cited Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir. 1989). In Beard we
noted in passing that the plaintiff's state law claims had not been removed "improvidently and without
jurisdiction" to federal court. Id. at 121. Although this finding suggests that the RLA completely preempted
plaintiff's state law claims, we did not engage in any discussion of the distinction between complete
preemption and ordinary preemption and we did not analyze the RLA for Congressional intent. Most of our
opinion in Beard was dedicated to the issue of ordinary preemption rather than complete preemption. It
appears to this Court that to the extent we found complete preemption in Beard, that holding has been
undermined by subsequent cases addressed above that have discussed the prerequisites for a finding of



    3
        This reluctance was emphasized by Justice Brennan in his concurring opinion:
    While I join the Court's opinion, I note that our decision should not be interpreted as adopting a broad rule that any
    defense premised on congressional intent to pre-empt state law is sufficient to establish removal jurisdiction. The Court
    holds only that removal jurisdiction exists when, as here, "Congress has clearly manifested an intent to make causes of
    action . . . removable to federal court." Ibid. (emphasis added). In future cases involving other statutes, the prudent
    course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand
    the case to state court.
Metro. Life, 481 U.S. at 67-68 (Brennan, J., concurring).
No. 02-2499                 Roddy v. Grand Trunk Western RR., et al.                                                      Page 5


complete preemption. Accord, Tyree v. Burlington Northern and Santa Fe Ry. Co., 973 F. Supp. 786, 791
(W.D. Tenn. 1997) (concluding that Beard is no longer good law).
       In determining whether the RLA completely preempts Roddy's state civil rights claim we must begin
by looking at the RLA itself. Congress passed the RLA "to promote stability in labor-management relations
by providing a comprehensive framework for resolving labor disputes." Hawaiian Airlines, 512 U.S. at 252.
The framework provided by the RLA is a mandatory arbitral mechanism for "the prompt and orderly
settlement of all disputes growing out of grievances or out of the interpretation or application of agreements
covering rates of pay, rules, or working conditions." 45 U.S.C. § 151a. The RLA gives the National
Railroad Adjustment Board exclusive jurisdiction over disputes that arise out of collective bargaining
agreements. Beard, 893 F.2d at 121-22. The existence of a mandatory arbitration provision, however, does
not answer the question of whether Congress intended the RLA to occupy the field so completely that any
"ostensibly state law claim" touching on railroad employment "is in fact a federal claim" for purposes of
removal jurisdiction. See AmSouth Bank, 386 F.3d at 776.
        The Eleventh Circuit examined the RLA in Geddes v. Am. Airlines, Inc., 321 F.3d 1349 (11th Cir.
2003). Based upon the language and substance of the RLA and its legislative history, the Eleventh Circuit
concluded that the RLA did not have the extraordinary preemptive force necessary to create federal removal
jurisdiction. Id. at 1357. The court noted that in contrast to the LMRA and ERISA, the RLA does not create
a federal cause of action for the resolution of disputes. Id. at 1354. Accordingly, federal courts are not in
a position to fashion a cohesive body of federal law for enforcement of collective bargaining agreements
under the RLA. Id. Moreover, there is no indication that Congress intended for federal courts to acquire
jurisdiction solely to ensure that minor disputes are redirected from the courts to the boards of adjustment.
Id.
         The Third Circuit similarly found "no evidence in the RLA or its legislative history of a
Congressional intent to permit recharacterization and removal of what purports to be a state claim." Ry.
Labor Execs. Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 942 (3d Cir. 1988). The Ninth Circuit
has also rejected a finding that a plaintiff's state law claims were completely preempted by the RLA. Price
v. PSA Inc., 829 F.2d 871, 876 (9th Cir. 1987). "Congress has not indicated, as it did with LMRA § 301 and
ERISA, that the RLA4 is 'so powerful as to displace entirely any state cause of action.'" Id. (quoting Metro.
Life, 481 U.S. at 64). See also Tyree, 973 F. Supp. at 792 (holding that removal was improper because "it
is clear that the RLA does not satisfy the complete preemption doctrine because it does not create a parallel
federal cause of action.").
        Not all of the circuits are in agreement. The Eighth Circuit has held that "the RLA's preemptive
force is so extraordinary that it takes over the whole field of railroad labor disputes arising from collective
bargaining agreements." Deford v. Soo Line R.R. Co., 867 F.2d 1080, 1085 (8th Cir. 1989). More recently
the Eighth Circuit held in Gore v. Trans World Airlines, 210 F.3d 944, 949 (8th Cir. 2000), that the
plaintiff's state law claims of false arrest, negligence, libel and slander, and invasion of privacy were
completely preempted by the RLA and were removable to federal court because they were inextricably
intertwined with the provisions of the labor contract. Id. at 950. See also Anderson v. American Airlines,
Inc., 2 F.3d 590 (5th Cir. 1993) (holding that employee's workers compensation retaliation claim was not
completely preempted by RLA because claim did not require interpretation of the CBA).
       On review we conclude that the Eleventh Circuit's analysis of the RLA in Geddes, 321 F.3d at 1353-
57, is most consonant with the Supreme Court's instructions on how to approach issues of complete
preemption. Complete preemption represents a substantial departure from the firmly established well-

    4
      The Ninth Circuit has identified an apparent conflict within the circuit as to whether or not the RLA has complete preemptive
power. See Holman v. Laulo-Rowe Agency, 994 F.2d 666, 669 n.4 (9th Cir. 1993) (comparing Price v. PSA Inc., 829 F.2d 871
(9th Cir. 1987) with Grote v. Trans World Airlines, Inc., 905 F.2d 1307 (9th Cir. 1990) (citing Price with approval on a related
issue, but then holding, without discussion, that the RLA does have complete preemptive power)).
No. 02-2499            Roddy v. Grand Trunk Western RR., et al.                                      Page 6


pleaded complaint rule. This Court is hesitant to find such a departure absent clear Congressional intent
to that effect. We agree with the Eleventh Circuit that Congress has not clearly manifested an intent to make
all causes of action that touch on railroad employment removable to federal court.
        Indeed, it would be difficult to find such extraordinary preemptive force when the Supreme Court
has specifically rejected the contention that the RLA broadly preempts state-law claims based on discharge
or discipline:
       In Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S. Ct. 1562, 32 L.Ed.2d 95
       (1972), the Court held that a state-law claim of wrongful termination was pre-empted, not
       because the RLA broadly pre-empts state-law claims based on discharge or discipline, but
       because the employee's claim was firmly rooted in a breach of the CBA itself.
Hawaiian Airlines, 512 U.S. at 257 (emphasis in original). We conclude that the RLA does not have the
extraordinary preemptive force necessary to create federal removal jurisdiction.
        Grand Trunk has suggested in the alternative that the district court's finding of complete preemption
finds support in the Railroad Administration Regulations at 49 C.F.R. § 219.1 et seq. In AmSouth we
rejected the contention that a federal regulation could completely preempt state law claims. We noted that
although an agency has the ability to promulgate regulations with the force of federal law and therefore has
the ability to preempt state causes of action through ordinary preemption, it does not have the ability to
create a right of action where Congress has not intended it do so. 386 F.3d at 776-77. "While the agency
can create federal law, it cannot expand federal jurisdiction." Id. at 777.
         We conclude that there was no removal jurisdiction in this case and that the case should be remanded
to state court. Because there is no removal jurisdiction, we do not have jurisdiction to reach the question
of whether Roddy's state claim is in fact preempted by federal law. We agree with the Third and Eleventh
Circuits that "[s]tate courts are competent to determine whether state law has been preempted by federal law
and they must be permitted to perform that function in cases brought before them, absent a Congressional
intent to the contrary." Geddes, 321 F.3d at 1357 (quoting Ry. Labor Execs. Ass<n, 858 F.2d at 942). See
also Price, 829 F.2d at 876 ("We express no opinion on the merits of PSA's federal preemption defense. We
have confidence in the ability and willingness of state courts to enforce federal defenses.").
                                                    III.
        For the foregoing reasons, the denial of plaintiff’s motion to remand is REVERSED, the entry of
summary judgment is VACATED, and the case is REMANDED with instructions to REMAND the entire
action to the Shiawassee County Circuit Court for the State of Michigan for further proceedings.
