459 U.S. 1049 (1982)

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U.S. Supreme Court


459 U.S. 1049

No. 82-386

Supreme Court of the United States

November 29, 1982

On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

The petition for writ of certiorari is denied.

Opinion of Justice BLACKMUN respecting the denial of the petition for writ of certiorari.

I realize that it is a tradition here that one seldom writes in support of the Court's decision to deny a petition for a writ of certiorari. See, however, Castorr v. Brundage, ___ U.S. ___, 73 L.Ed.2d ___ (1982) (Stevens, J.); Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950) (Frankfurter, J.).

The reason I write in this case is that I fear that the content of the final paragraphs of the dissent will tend to create confusion in an area of law that seems to me to be fairly clear. It has been well established for many years that federal question jurisdiction is present " only when the plaintiff's statement of his own cause of action shows that it is based upon [federal] laws or [the federal] Constitution." Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 152, 43 (1908). It is insufficient "that the defendant would set up in defense certain laws of the United States." Id., at 153.

The dissent asserts, post, at 1051, that the Second Circuit in North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229 (1978), held that "the lack of reference to federal law in the complaint does not control the determination whether a federal question is presented." It would be more accurate to say that the Second Circuit held that lack of reference to federal law does not control the determination whether a federal claim is presented by the complaint. In the present case, as the dissent explains, post, at 1052, the issue, is whether "a defendant's federal pre-emption claim presents a federal question." In other words, the issue is

Page 459 U.S. 1049 , 1050

whether a federal question is presented by a federal defense to a state law claim. If a federal claim is presented by the complaint, there is federal question jurisdiction even if the complaint is phrased in state law terms; if, however, the complaint presents only a state law claim, a federal defense does not create federal question jurisdiction.

I thus perceive no conflict between the present case and North American Phillips, and no conflict between the present case and other cases cited by petitioner. In each of those cases, the courts followed Mottley and focused on the federal basis for the plaintiff's claim. Here, in contrast, the plaintiff's claim has no federal basis. The plaintiff could not have stated a federal cause of action no matter how it pleaded its case. Because there is no conflict, the Court, it seems to me, is on sound ground in denying the petition for a writ of certiorari.

Justice WHITE, with whom Justice MARSHALL joins, dissenting from the denial of certiorari.

Petitioner Kerr-McGee Chemical Corporation (Kerr-McGee) owns a facility within the city limits of West Chicago, Illinois, that has been used since World War II to produce compounds derived from radioactive natural ores. Since 1956, the facility has been licensed by the Nuclear Regulatory Commission or its predecessor. Although the facility has not been in active operation since 1973, some nuclear materials continue to be stored at the site.

In 1980, respondent State of Illinois filed a complaint against petitioner in an Illinois state court alleging that the operation and maintenance of the facility violates the Illinois Environmental Protection Act, Ill.Rev.Stat. ch. 1111/2, 1001, et seq., and other state statutes pertaining to the disposal of hazardous wastes. Kerr-McGee petitioned to have the State's case removed to federal court, arguing that the state regulations have been preempted by the Atomic Energy Act, 42 U.S.C. [459 U.S. 1049 , 1051]

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