
USCA1 Opinion

	




                            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  & 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 & 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,  &          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  & 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 &                                         ___   ____  ______    ____________          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
