

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 96-2311

                      BIW DECEIVED, ET AL.,

                     Plaintiffs, Appellants,

                                v.

               LOCAL S6, INDUSTRIAL UNION OF MARINE
               AND SHIPBUILDING WORKERS OF AMERICA,
                     IAMAW DISTRICT LODGE 4,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]                                                             

                                             

                              Before

                      Selya, Circuit Judge,                                                    

                  Aldrich, Senior Circuit Judge,                                                         

                    and Lynch, Circuit Judge.                                                      

                                             

     Jed  Davis, with  whom Linda  Christ,  Jim Mitchell  and Jed                                                                           
Davis, P.A. were on brief, for appellants.                     
     Ralph  L. Tucker,  with  whom James  W.  Case and  McTeague,                                                                           
Higbee,  McAdam,  Case,  Watson  and  Cohen  were on  brief,  for                                                     
appellee.

                                             

                        December 30, 1997
                                             

          SELYA, Circuit  Judge.   In this  procedural motley,  a                    SELYA, Circuit  Judge.                                         

band of  plaintiffs    the eponymous BIW  Deceived    locks horns

with Local S6 of the  Industrial Union of Marine and Shipbuilding

Workers (the Union) over issues pertaining to removal and remand.

The peculiarities  of this engagement  impel us to  adumbrate our

necessarily circuitous  decisional path.   After delineating  the

relevant facts  and procedural  history, we  address whether  the

plaintiffs have waived  their right to appeal  either by inviting

the judgment or by failing to seek our intervention at an earlier

date.   Finding no default, we proceed to  the merits   a journey

that requires  us to touch  upon doctrinal aspects  of preemption

under  federal labor  law  and  to explore  a  question of  first

impression   concerning   the   exercise  of   federal   question

jurisdiction in the context of  the artful pleading doctrine.  At

journey's  end,   we  conclude  that  the  plaintiffs'  complaint

presents  a colorable federal  question and that,  therefore, the

district court did  not err when it refused to return the case to

a state venue.

I.  BACKGROUND          I.  BACKGROUND

          Because this  action stumbled near  the starting  gate,

the record is  stunted and the  facts before us  are sparse.   We

present them as best they present themselves.

          In  the fall  of 1995,  Bath Iron  Works (Bath  or BIW)

hired  a  number  of electricians  and  pipefitters.   The  Union

participated in  the job interviews  pursuant to the terms  of an

existing   collective  bargaining  agreement   (the  CBA).    The

                                2

plaintiffs allege  that during  these interviews  the Union  told

them that they  would "be employed at least  until the expiration

of the current  Union contract [August 1997]" and "probably until

the  end  of   the  decade;"    that  Bath  "had  more  work  for

electricians and pipefitters than it could handle;" and that Bath

"was hiring fewer electricians and pipefitters than it needed, so

that  the employees would  be assured of  continuing employment."

The  plaintiffs  further   allege  that  they  relied   on  these

blandishments, accepted offers of employment, and left other jobs

to move to Maine and work for Bath.  But, the plaintiffs say, the

Union had led them down a primrose path; they were laid off early

in 1996.

II.  PROCEDURAL HISTORY          II.  PROCEDURAL HISTORY

          Angered by  this  fecklessness,  the  former  employees

joined together  to form  "BIW Deceived" and  sue the Union  in a

Maine  state   court.1    Their  complaint   alleged  negligence,

fraudulent misrepresentation, fraud in the inducement, infliction

of   emotional   distress,   loss   of  consortium,   intentional

nondisclosure, and unjust enrichment.  The Union promptly removed

the action  to the federal  district court.  When  the plaintiffs

sought remand on the ground  that their suit involved only state-

law  claims,  the  Union  responded  by  asserting that  all  the

plaintiffs'  claims were subject to preemption under the National

                                                  

     1Two of the plaintiffs are former employees' spouses.  Since
their claims for  loss of consortium are derivative,  we refer to
the informal plaintiff class as if it were composed solely of ex-
employees.

                                3

Labor Relations Act (NLRA), 29  U.S.C.   151 et seq.,  and/or the                                                              

Labor Management Relations Act (LMRA), 29 U.S.C.   185 et seq.                                                                        

          Judge Carter resolved the removal/remand dispute in the

Union's favor.  He denied  the plaintiffs' motion, asserting in a

two-page  order that  "the claims  for  relief set  forth in  the

Complaint  are  all  derivative  from  and  dependent  for  their

resolution  upon duties defined and imposed by federal law, which

law occupies  the field and,  by mandate of Congress,  closes the

field to state regulation."

          That order produced a strange reaction:  the plaintiffs

moved for entry of final judgment in the defendant's favor.  They

reasoned  that, in  refusing to  remand, the  district  court had

"conclu[ded] that  federal law  preempts all  state claims,"  and

that  this conclusion  "le[ft] nothing  more to be  litigated" in

that court.  Judge Carter denied this motion without elaboration.

          Shortly  thereafter,  Magistrate Judge  Cohen  presided

over  a status conference during which the plaintiffs represented

that they had "no interest in [pressing] any federal-law  claims"

and  that they desired  the entry of  final judgment  in order to

"appeal the  [district court's]  preemption ruling."   The  Union

agreed not to  oppose the entry  of judgment in  its favor.   The

next day, the plaintiffs moved for reconsideration  and for entry

of final judgment, specifically "abandon[ing] any and all federal

claims."  This time Judge Carter granted their motion and entered

final judgment,  without prejudice  to the  plaintiffs' right  to

seek review.  This appeal followed.

                                4

III.  APPELLATE JURISDICTION          III.  APPELLATE JURISDICTION

          It is a federal court's obligation to assure  itself of

the existence  of subject  matter jurisdiction  even if no  party

presses  the question.   See American  Policyholders Ins.  Co. v.                                                                        

Nyacol  Prods., Inc.,  989  F.2d  1256,  1258  (1st  Cir.  1993).                              

Consequently, we consider  whether the odd procedural  posture of

this case undermines our appellate jurisdiction.

          In several circuits  a party who consents  to the entry

of judgment  forfeits any  right  to appeal  from that  judgment.

See, e.g., Tel-Phonic  Servs., Inc. v. TBS Int'l,  Inc., 975 F.2d                                                                 

1134, 1137 (5th Cir. 1992); Clapp v. Commissioner, 875 F.2d 1396,                                                           

1398  (9th   Cir.  1989).     We  have  taken  a   slightly  more

latitudinarian  approach:   while  acknowledging that,  with  few

exceptions, "a party  to a consent judgment is  thereby deemed to

waive any objections  it has to matters  within the scope  of the

judgment,"  Coughlin v.  Regan, 768  F.2d  468, 469-70  (1st Cir.                                        

1985),2 we nevertheless have suggested that "it is possible for a

party to consent to  a judgment and still preserve [its] right to

appeal" a previous ruling on  a contested matter in the case,  as

long as  it "reserve[s] that  right unequivocally."  Id.  at 470.                                                                  

Such a reservation occurred here.  The record makes manifest that

the plaintiffs  sought  the entry  of  final judgment  solely  to

facilitate an  appeal of the  district court's refusal  to remand

                                                  

     2The  specific  exceptions mentioned  by the  Coughlin court                                                                     
involve "a  showing of  either lack of  actual consent,  fraud in
obtaining consent,  lack  of federal  jurisdiction, or  mistake."
768 F.2d at 470.

                                5

the suit.  Their initial motion for entry of final judgment asked

the  court  to  enter  a  "final  and  appealable judgment;"  the

magistrate's report  of the  status conference  related that  the

plaintiffs "simply seek the entry  of final judgment so that they

may appeal the court's preemption ruling;" and the renewed motion

for  entry of  final judgment  solicited  the entry  of a  "final

judgment,  without prejudice  to the  plaintiffs'  right to  seek

appeal."

          This evidence clearly shows the plaintiffs' unequivocal

intention.   Under Coughlin, then,  we have discretion  to accept                                     

the appeal  insofar as  it relates to  a prior  (contested) order

notwithstanding the plaintiffs' later consent to the entry of the

final judgment  itself.  See Coughlin, 768 F.2d  at 470.  In this                                               

instance, we  are inclined  to exercise  that  discretion in  the

plaintiffs' favor.

          Even  so, our appellate  jurisdiction is not  free from

doubt.    The  parties  treat  this appeal  as  if  Judge  Carter

dismissed the  suit because  the  various causes  of action  were

preempted, but  this is  an inaccurate  characterization of  what

actually transpired.  There was no dismissal:  while Judge Carter

expressed  his belief that the plaintiffs' claims were preempted,

the  only ruling that he made  on a contested matter consisted of

denying the  plaintiffs' motion to  remand.  This ruling  did not

require a finding of preemption;  it only required a finding that

the Union had  made a colorable showing of  federal jurisdiction.

See infra Part  V.  That the  judge's remarks swept  more broadly                   

                                6

does  not alter  the reality  of events.    It is  settled beyond

peradventure that a  party can appeal only from  an adverse order

or judgment, not from a judge's ruminations.  See Logue  v. Dore,                                                                          

103 F.3d 1040,  1047 (1st Cir. 1997);  In re Admin.  Warrant, 585                                                                      

F.2d  1152, 1153  (1st Cir.  1978).   The  plaintiffs could  have

waited until the Union filed  a dispositive motion (say, a motion

to dismiss or for summary judgment), but they chose not to do so.

Thus, the district  court's order denying the  plaintiffs' motion

to remand is  the only order that is  even potentially reviewable

in this proceeding.

          The district court entered that order on July  3, 1996,

and  the plaintiffs  did not  file their  notice of  appeal until

October 25, 1996.   In some circuits, a  disappointed suitor must

appeal  the denial  of a  motion  to remand  within the  standard

appeal period (here,  thirty days, see Fed. R.  App. P. 4(a)(1)),                                                

or else forever hold  his peace.  See Marshall v.  Manville Sales                                                                           

Corp., 6 F.3d 229,  231 (4th Cir.  1993) (noting that the  Fourth               

Circuit will not  "disturb a district  court's final judgment  on

the basis of a defective  removal when the plaintiff ha[s] failed

to seek  an interlocutory appeal  of the order  denying remand");

Nishimoto v. Federman-Bachrach  &amp; Assocs., 903 F.2d 709, 713 (9th                                                   

Cir.  1990)  (holding  that  an  objection  to  removal  "is  not

preserved unless an interlocutory appeal is filed challenging the

district  court's order  denying  remand").    Other  circuits   

including this one   generally consider orders refusing remand to

be  interlocutory orders,  and  thus  a  plaintiff  whose  remand

                                7

request has been rebuffed possesses no immediate right of appeal,

but retains the right to press his point by taking an end-of-case

appeal after the entry of final judgment.  See Neal v. Brown, 980                                                                      

F.2d 747, 747 (D.C. Cir. 1992); Carriere v. Sears, Roebuck &amp; Co.,                                                                          

893  F.2d  98,  100  n.2   (5th  Cir.  1990);  Brough  v.  United                                                                           

Steelworkers, 437 F.2d  748, 749 (1st  Cir. 1971).   Accordingly,                      

the  entry  of final  judgment in  this  case paved  the  way for

appellate consideration of the order denying the motion to remand

and BIW Deceived's timely appeal is properly before us.

IV.  THE LEGAL FRAMEWORK          IV.  THE LEGAL FRAMEWORK

          There are three  interlocking pieces to the  applicable

legal framework.  We trace their contours.

                         A.  Preemption.                                   A.  Preemption.                                                 

          In the labor-law  arena, preemption    the displacement

of  state  law  by the  force  of  federal law     is  a familiar

phenomenon.   Several different strains of preemption flourish in

this field,  each possessing  somewhat different  roots and  each

casting a uniquely  configured shadow.   Two of these  preemption

theories bear upon the instant case.

                                1.                                          1.                                            

          Section  301  of the  LMRA,  29 U.S.C.     185, confers

federal  jurisdiction over  "[s]uits for  violation  of contracts

between  an  employer  and   a  labor  organization  representing

employees in an industry affecting commerce."   From this austere

beginning, the Supreme Court determined that it had the authority

to craft  a federal  common law that  would effect  section 301's

                                8

objectives.  See Textile Workers Union v. Lincoln Mills, 353 U.S.                                                                 

448, 451  (1957).  The  Court subsequently declared  that section

301 preempts a state-law claim "if the resolution of [that] claim

depends upon the  meaning of a collective-bargaining  agreement."

Lingle v. Norge  Div. of Magic Chef,  Inc., 486 U.S. 399,  405-06                                                    

(1988).

          We  recently visited this corner of the law in Flibotte                                                                           

v. Pennsylvania  Truck Lines,      F.3d     (1st Cir.  1997) [No.                                      

97-1197].  Citing  United Steelworkers v.  Rawson, 495 U.S.  362,                                                           

369 (1990), and Allis-Chalmers Corp.  v. Lueck, 471 U.S. 202, 220                                                        

(1985), respectively,  we explained  that a  state-law claim  can

depend  upon the meaning of  a collective bargaining agreement in

either of two distinct ways:  on the one hand, a claim can allege

the violation of a duty that  arises from the CBA itself, or,  on

the  other hand,  a claim  can  require a  court  to interpret  a

specific provision of  the CBA.   See Flibotte,      F.3d at                                                             

[slip op. at  9].  "If a state-law claim depends upon the meaning

of the collective bargaining agreement  in either of these ways  

that is, under  Rawson's `duty' rubric or  under Allis-Chalmers's                                                                         

`interpretation' rubric   it is preempted."  Id.                                                          

          Though  section 301 is omnipotent within its sphere, it

is not endlessly expansive.  The Court has warned that it "cannot

be read  broadly to  pre-empt nonnegotiable  rights conferred  on

individual  employees  as  a matter  of  state  law," Livadas  v.                                                                       

Bradshaw,  512 U.S.  107, 123  (1994),  and that  "purely factual                  

questions  about an employee's  conduct or an  employer's conduct

                                9

and  motives do not  require a court  to interpret any  term of a

collective-bargaining  agreement,"  Hawaiian  Airlines,  Inc.  v.                                                                       

Norris, 512 U.S. 246, 261 (1994) (citation and internal quotation                

marks  omitted).   These  cautions  do not  shrink  the scope  of

section 301 preemption, but simply emphasize that, for a claim to

arise under federal  law, it must depend upon  the meaning of the

collective bargaining agreement.

                                2.                                          2.                                            

          Preemption also can occur by operation of the so-called

duty  of  fair representation  (DFR).    A  union acting  in  its

representative  capacity owes this duty to  those on whose behalf

it  acts.   See  Ford Motor  Co.  v. Huffman,  345 U.S.  330, 337                                                      

(1953).  The  duty derives from the union's  status qua exclusive                                                                 

bargaining agent.   It implicates section 9(a) of  the NLRA,3 and

"includes a statutory  obligation to serve  the interests of  all

members  without  hostility  or  discrimination  toward  any,  to

exercise its discretion with complete good faith and honesty, and

to avoid arbitrary conduct."   Vaca v. Sipes,  386 U.S. 171,  177                                                      

(1967).

                                                  

     3Section 9(a) provides in pertinent part:

          Representatives  designated  or  selected for
          the purposes of collective  bargaining by the
          majority of  the employees . . . shall be the
          exclusive   representatives   of    all   the
          employees  .   .  .   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).

                                10

          A complaint that states a DFR claim "allege[s] a breach

by the Union  of a duty  grounded in federal  statutes and .  . .

federal law  therefore  governs  [the] cause  of  action."    Id.                                                                           

Consequently, state law is preempted whenever a plaintiff's claim

invokes   rights  derived   from   a   union's   duty   of   fair

representation.  See  Condon v. Local 2944, 683  F.2d 590, 594-95                                                    

(1st Cir. 1982)  (stating that "[a] union's rights  and duties as

the   exclusive    bargaining   agent   in   carrying   out   its

representational  functions"  collectively  comprise  a field  in

which "the  policy of  the law is  so dominated  by the  sweep of

federal statutes  that legal  relations which  [those rights  and

duties] affect must be deemed  governed by federal law having its

source  in those statutes,  rather than by  local law") (citation

and internal quotation marks omitted).

                     B.  Standard of Review.                               B.  Standard of Review.                                                     

          Although the parties gloss over the point, we emphasize

that the  only appealable order  that the district  court entered

during  the short  life of  this case  is the  order  denying the

plaintiffs' motion to remand.  The denial of a motion to remand a

removed case  to the state  court involves a question  of federal

subject  matter jurisdiction and  thus engenders de  novo review.

See Rivet  v. Regions Bank,  108 F.3d 576, 582  (5th Cir.), cert.                                                                           

granted  on other  grounds, 118 S.  Ct. 31 (1997);  County of St.                                                                           

Charles v. Missouri Family Health Council, 107 F.3d 682, 684 (8th                                                   

Cir.), cert. denied, 118 S. Ct. 160 (1997).                             

          In this instance,  the Union effected removal  under 28

                                11

U.S.C.    1441(b) (permitting the  removal of civil  actions over

which  United  States  District   Courts  have  original  federal

question jurisdiction).  Hence, our review must focus on "whether

the federal district  court would have had  original jurisdiction

of the case had it  been filed in that court."  Grubbs v. General                                                                           

Elec. Credit Corp.,  405 U.S. 699, 702 (1972);  accord Chicago v.                                                                        

International College of  Surgeons, 66 U.S.L.W. 4041,  4043 (U.S.                                            

Dec.  15, 1997).   In the  course of  this inquiry,  the removing

party bears  the burden of persuasion vis- -vis  the existence of

federal jurisdiction.   See  Dukes v.  U.S. Healthcare,  Inc., 57                                                                       

F.3d 350, 359 (3d Cir. 1995).

                C.  Federal Question Jurisdiction.                          C.  Federal Question Jurisdiction.                                                           

          Federal district courts have original jurisdiction over

"federal question"  cases    that is,  cases  "arising under  the

Constitution, laws, or treaties of the United States."  28 U.S.C.

    1331.    The  gates  of  federal  question  jurisdiction  are

customarily patrolled by a steely-eyed sentry   the "well-pleaded

complaint rule"    which, in general,  prohibits the exercise  of

federal  question jurisdiction if no federal claim appears within

the four corners of the  complaint.  See International College of                                                                           

Surgeons, 66  U.S.L.W. at  4043; Gully v.  First Nat'l  Bank, 299                                                                      

U.S. 109, 113 (1936).  At first blush, this rule appears to augur

well  for the  plaintiffs,  who  maintain  that  their  complaint

alleges only state-law  claims.  Appearances, however,  often are

deceiving.

          Whereas preemption  by federal  law is  a defense  that

                                12

ordinarily does not  give rise to federal  question jurisdiction,

see  Caterpillar, Inc.  v.  Williams, 482  U.S. 386,  392 (1987),                                              

"Congress  may so completely pre-empt  a particular area that any

civil   complaint  raising  this   select  group  of   claims  is

necessarily  federal in character," Metropolitan Life Ins. Co. v.                                                                        

Taylor,  481  U.S.  58, 63-64  (1987).    Section 301  preemption                

operates in  this way.   No  less an  authority than the  Supreme

Court  has declared 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  employer  and   a  labor

organization."    Franchise Tax  Board  v.  Construction Laborers                                                                           

Vacation  Trust, 463  U.S. 1,  23 (1983)  (citation  and internal                         

quotation marks omitted).  The upshot  is that any such suit must

be regarded as "purely a creature of federal law, notwithstanding

the fact that  state law would provide  a cause of action  in the

absence of   301."  Id.                                 

          This   powerful   preemption    principle   propels   a

significant  exception to the  well-pleaded complaint rule    the

artful pleading doctrine.   The doctrine empowers  courts to look

beneath the face of the complaint to divine the underlying nature

of  a claim,  to determine  whether the  plaintiff has  sought to

defeat  removal  by  asserting a  federal  claim  under state-law

colors, and to act accordingly.  See Federated Dep't Stores, Inc.                                                                           

v. Moitie,  452 U.S. 394, 397  n.2 (1981) (explaining that  in an                   

appropriate  case "the  removal  court  will  seek  to  determine

whether the  real nature of  the claim is federal,  regardless of

                                13

plaintiff's  characterization")  (quoting  14 Wright,  Miller,  &amp;

Cooper, Federal Practice and Procedure   3722 at  564-66 (1976)).                                                

In other  words, a plaintiff may not,  by the expedient of artful

pleading,  defeat a  defendant's legitimate  right  to a  federal

forum.  See Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d                                                                 

1401,  1406 (9th  Cir.  1992)  (discussing  the  artful  pleading

doctrine in the context of section 301 preemption).  If the claim

appears to  be  federal in  nature    that is,  if  it meets  the

applicable  test for one that arises under federal law   then the

federal court must  recharacterize the complaint to  reflect that

reality  and affirm the removal despite the plaintiff's professed

intent  to pursue only state-law  claims.  See Metropolitan Life,                                                                          

481 U.S. at 64.

          In   this  respect,  we  believe  that  DFR  preemption

operates  in  much the  same fashion  as section  301 preemption.

While we  have not  heretofore inquired  whether DFR  preemption,

like  section 301  preemption, works  an exception  to the  well-

pleaded  complaint rule,  the  answer  seems  obvious.    Because

federal law  completely governs the  duties owed by  an exclusive

collective  bargaining   representative  to   those  within   the

bargaining  unit, see  Vaca, 386  U.S. at  183, and  because this                                     

manifestation   of  congressional   will  so   closely  parallels

Congress's intentions  with regard to section 301, see Avco Corp.                                                                           

v.  Aero Lodge  No.  735,  390 U.S.  557,  561-62 (1968)  (citing                                  

Lincoln Mills, 353  U.S. at 457),  we hold that a  district court                       

possesses federal question jurisdiction when a  complaint, though

                                14

garbed  in   state-law  raiment,  sufficiently  asserts  a  claim

implicating the duty of fair representation.   We also hold, as a

logical corollary,  that DFR  preemption warrants  resort to  the

artful   pleading   doctrine.     Accord  Richardson   v.  United                                                                           

Steelworkers, 864 F.2d 1162, 1169  (5th Cir. 1989) ("We hold that                      

where  the  NLRA   federal  law  duty  of   fair  representation,

actionable in federal court, preempts a state-law claim, the suit

asserting such a claim . . . may be removed to federal court just

as the suit asserting state law claims preempted by section 301 .

. . may be removed under Avco and its progeny.").                                       

V.  THE LITMUS TEST           V.  THE LITMUS TEST

          The foregoing articulations of complete preemption, the

standard of review, and the artful pleading doctrine are helpful,

but they  do not  tell us  how certain a  court must  be that  an

artfully  pleaded complaint  contains a  federal question  before

denying  a motion  to  remand.   Although  our  research has  not

revealed any  ready-made solution  to this  dilemma, we  conclude

that the  artful pleading  doctrine permits  a district  court to

recharacterize a putative state-law claim as a federal claim when

a review of the complaint,  taken in context, reveals a colorable

federal question within a field  in which state law is completely

preempted.    We  summarize the  reasoning  that  undergirds this

conclusion.

          As  a matter  of  common  practice,  a  district  court

confronted with a question of subject matter jurisdiction reviews

                                15

a plaintiff's complaint not to judge the merits, but to determine

whether the court has the  authority to proceed.  When conducting

this inquiry, the  court only asks whether the  complaint, on its

face, asserts a colorable federal claim.  See Aldinger v. Howard,                                                                          

427 U.S. 1, 7  (1976) ("[W]here federal jurisdiction is  properly

based on a colorable  federal claim, the  court has the right  to

decide all  the questions  in the case  . .  . .")  (citation and

internal quotation marks omitted);  Northeast Erectors Assoc.  v.                                                                       

Secretary of Labor, 62 F.3d 37, 39 n.1 (1st Cir. 1995) (observing                            

that "federal question jurisdiction exists once the plaintiff has

alleged even a colorable federal claim").  As colorability is the

litmus  test  for the  existence  vel  non  of  federal  question                                                    

jurisdiction,  we see  no reason  why  a court  should not  apply

precisely the same standard when called upon to determine whether

a complaint  demands recharacterization under the artful pleading

doctrine.   Indeed, because  the critical inquiry  when reviewing

the denial of a motion to remand is "whether the federal district

court would  have had  original jurisdiction of  the case  had it

been filed in  that court," Grubbs, 405  U.S. at 702, the  use of                                            

any other standard would be incongruous.4
                                                  

     4Siler  v. Louisville  &amp; Nashville  R.R. Co.,  213 U.S.  175                                                           
(1909), is not to the contrary.  Though the Siler Court stated in                                                           
dictum that "the Federal question must not be merely colorable or
fraudulently set up  for the mere purpose of  endeavoring to give
the court jurisdiction,"  id. at 191-92, the Court  used the word                                       
"colorable" in a  different sense than we do  today.  "Colorable"
has two definitions:   it may mean "seemingly  valid or genuine,"
or it may  mean "intended to deceive."   Webster's New Collegiate                                                                           
Dictionary  220 (1981).  The  Siler Court unquestionably used the                                             
word in the latter sense,  in a discussion about spurious claims.
See Siler, 213 U.S. at 191-92; compare Penn Mut. Life Ins. Co. v.                                                                        

                                16

          This  formulation  is   reinforced  by  the  principles

articulated in Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804                                                             

(1986).  There,  the Supreme Court stressed  that "determinations

about  federal  jurisdiction  require sensitive  judgments  about

congressional  intent, judicial power,  and the  federal system."

Id. at 810.   Employing  the colorability  standard soothes  such             

sensitivities,  for  where there  is  complete preemption,  there

necessarily has  been a triad  of judicial determinations:   that

Congress intended federal law to occupy the whole of a regulatory

field;  that federal judicial  power properly extends  to actions

originally filed  in state courts  to the extent that  they touch

upon that field; and that the exercise of such federal power does

not  offend principles of  federalism.  See  Franchise Tax Board,                                                                          

463 U.S. at 23.

VI.  THE MERITS          VI.  THE MERITS

          Having  fashioned the standard  by which we  must gauge

the propriety of removal and  remand, we conclude without serious

question  that the instant complaint reveals a colorable question

of federal  law and that,  therefore, the district court  did not

err when it denied the motion to remand.

          We  start with the plaintiffs' negligence claim and its

relationship to section 301 of the LMRA.  This  claim can survive

Rawson-based preemption under section 301 only if the Union acted                
                                                  

Austin, 168 U.S.  685, 695 (1898) (noting  appellate jurisdiction                
wherever  there is  a  claim  that a  state  law contravenes  the
Constitution, as  long as the  claim is "real and  colorable, not
fictitious and fraudulent").   We use the word  in the "seemingly
valid or genuine" sense.

                                17

"in a way that might violate the duty of reasonable care  owed to

every person in  society."  Rawson, 495  U.S. at 371.   The claim                                            

asserts  that,  during  the  recruitment  interviews,  the  Union

breached its duty of care to the interviewees.  At oral argument,

counsel for  BIW Deceived gave  this a gloss,  acknowledging that

the Union participated in  the interview process pursuant  to the

CBA.  This being  so, it is plausible  (indeed, likely) that  the

CBA details the nature and limits of the Union's participation in

the interview  process and that the Union,  therefore, would have

had a duty of care separate from any duty owed by  third parties.

So  viewed, the Union stands accused  of violating a duty of care

that flowed to it pursuant to the CBA, and the plaintiffs' state-

law   negligence   claim,   when  recharacterized,   passes   the

colorability test.   It is thus arguably preempted.   See Rawson,                                                                          

495 U.S. 371-72 ("Pre-emption by federal law cannot be avoided by

characterizing  the Union's negligent performance of what it does

on behalf of  the members of the bargaining  unit pursuant to the

terms  of  the  collective-bargaining  contract  as  a  state-law

tort.").

          Even were  we to assume  for argument's  sake that  the

plaintiffs'  negligence  claim, so  recharacterized  in light  of

section 301, does  not raise a colorable federal  claim, we still

would be bound to affirm the district court's denial of remand on

the ground that the claim also is arguably preempted via the duty

of fair  representation.  The  fact that the plaintiffs  were not

members of the  Union at the time  the statements were  made does

                                18

not command a contrary conclusion for a union owes a duty of fair

representation   to    nonmembers   whom   it    has   undertaken

constructively  to represent.  See,  e.g., Steele v. Louisville &amp;                                                                           

Nashville R.R. Co., 323 U.S. 192, 204 (1944); Nedd v. United Mine                                                                           

Workers, 556  F.2d 190, 200  (3d Cir. 1977);  Amalgamated Transit                                                                           

Union Div.  822, 305 N.L.R.B.  946, 949-50 (1991).   Here, taking                         

the facts as limned by the plaintiffs, the Union plainly acted in

a  representational  capacity  during  the  recruitment  process.

Indeed, the plaintiffs, in their complaint, speak of the "special

relationship" that existed between them  and the Union, and their

theory of the case seemingly hinges on their ability to establish

a  symbiotic relationship of advocacy  and dependence at the time

of the  interviews.   Under these  circumstances, the  negligence

claim, when recharacterized,  sufficiently resembles a  DFR claim

to pass  the colorability test  and thus support the  exercise of

federal question jurisdiction.

          Let us be perfectly clear.  Because of the nearly empty

record,  we cannot  say  with  certitude  whether we  would  find

ultimately that federal  preemption applies in the  instant case.

At  this stage of the  proceedings, however, we  need not go that

far; to uphold  the district court's exercise of federal question

jurisdiction, we need only conclude that, despite the plaintiffs'

state-law  stylings,  the  complaint  articulates  at  least  one

colorable   federal   claim.     Properly   recharacterized,  the

plaintiffs' complaint falls into this category.

          To  this  point, we  have  trained  our sights  on  the

                                19

negligence claim.   While we believe that, for the most part, the

other  claims contained  in the  plaintiffs' complaint  similarly

state claims that, when recharacterized, are colorably federal in

nature, we need not probe the point too deeply.  A  federal court

that  exercises federal question jurisdiction over a single claim

may  also assert  supplemental  jurisdiction over  all  state-law

claims that arise from  the same nucleus of operative facts.  See                                                                           

28 U.S.C.   1367(a); see  also International College of Surgeons,                                                                          

66 U.S.L.W. at 4043-44; Roche v. John Hancock Mut. Life Ins. Co.,                                                                          

81  F.3d  249, 256  (1st  Cir.  1996).   Therefore,  removal  was

appropriate.

VII.  CONCLUSION          VII.  CONCLUSION

          We need go no further.   For the reasons stated herein,

we conclude in  the course of  de novo review  that the  district

court correctly exercised federal  question jurisdiction when  it

denied  the  plaintiffs'  motion to  remand.    Consequently, the

judgment to which the plaintiffs consented must stand.

Affirmed.          Affirmed.                  

                                20
