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August 10, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Chicago Teachers Union, Local 1 AFT/AFL-CIO ("CTU") and several of its officers sue the Board of Education of the City of Chicago ("Board") and Chicago Superintendent of Schools Ruth Love ("Love"), alleging Board repudiated its collective bargaining agreement with CTU (the "Agreement") by adopting certain provisions of the desegregation plan (the "Plan") approved by this Court in United States v. Board of Education of the City of Chicago, 554 F. Supp. 912 (N.D.Ill. 1983).*fn1 This Court sua sponte dismisses CTU's Complaint under Fed.R.Civ.P. ("Rule") 12(h)(3) for lack of subject matter jurisdiction.

Complaint ¶ 9 focuses on the Plan provision establishing "Effective Schools Programs" at several schools. In part such programs call for the selection of teachers who would be exempt from seniority-based job displacement*fn2 (Plan at 285). CTU alleges (Complaint ¶¶ 8, 10-11) (1) exemption of such teachers from reassignment on the basis of seniority is a repudiation of Agreement Art. 42-3 and (2) Board acted without prior notice to CTU, as required by several Agreement provisions. CTU also alleges (Complaint ¶¶ 12-13) Board's acts (1) "constitute a taking of property without just compensation and due process of law" and (2) violate "the public policy of the United States."

In real world terms CTU sues for breach of an employer-labor organization contract, the kind of action this Court usually sees brought under Labor-Management Relations Act ("LMRA") § 301, 29 U.S.C. § 185 ("Section 301"). Indeed the Supreme Court just recently decided a similar Section 301 action, W.R. Grace and Co. v. Local Union 759, ___ U.S. ___, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983). There an employer sued a union under Section 301 to overturn an arbitrator's award in favor of employees who had been laid off (1) in violation of seniority provisions but (2) as part of the employer's effort to abide by the terms of a conciliation agreement reached with the Equal Employment Opportunity Commission in a sex-discrimination proceeding. Id. at 2180-82.*fn3

But Section 301's right-of-action and jurisdictional route is not available to CTU here. LMRA §§ 501(3) and 101(2), 29 U.S.C. § 142(3) and 152(2), define "employer" to exclude "any State or political subdivision thereof." Board is the creature of state statute, Ill.Rev.Stat. ch. 122, §§ 34-1 et seq., and an agency of the State of Illinois. City of Chicago v. Board of Education of City of Chicago, 246 Ill. App. 405, 408 (1st Dist. 1927). See also Board of Education of School District No. 150 v. City of Peoria, 76 Ill.2d 469, 475-76, 31 Ill.Dec. 197, 200, 394 N.E.2d 399, 402 (1979); Board of Education of the City of Chicago v. Chicago Teachers Union, Local 1, American Federation of Teachers, 26 Ill. App.3d 806, 810, 326 N.E.2d 158, 161 (1st Dist. 1975). Thus the Agreement is not one "between an employer and a labor organization" within the meaning of LMRA.*fn4

So CTU has tried to cast its jurisdictional net widely (Complaint ¶ 1). It has come up with some strange fish.

Obviously the Declaratory Judgment Act, 28 U.S.C. § 2201-02, does not grant this Court jurisdiction over CTU's action: That Act by its very terms creates only additional remedies in cases already "within [a federal court's] jurisdiction." See 10A Wright, Miller and Kane, Federal Practice and Procedure § 2766, at 731-32 (1983) and cases cited. And although Complaint ¶ 1 also "invoke[s]" this Court's jurisdiction "under the Fifth and Fourteenth Amendments . . . and Title 42, United States Code, Secs. 1981, 1983 and 1988,"*fn5 CTU's factual allegations must support that invocation by showing federal question or civil rights claims that would fit under the appropriate jurisdictional statutes, 28 U.S.C. § 1331 ("Section 1331") and 1343 ("Section 1343").

As to Section 1331's general federal question jurisdiction, CTU's action will not fit for one simple and one more complex reason:

    1. In simple terms, the Complaint assails Board
  for a contract breach that raises no federal
  question at all. CTU cannot escape that fact by
  arguing it expects Board to raise a "federal
  defense" based on its obligations under the Plan:
  Under the long-established "well-pleaded
  complaint" rule, a "plaintiff's statement of his
  own cause of action"

  must be based on federal law, without reference
  to anticipated federal defenses. Louisville &
  Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152,
  29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).
    2. Even were Mottley and its many progeny to be
  (impermissibly) ignored, at a minimum there is a
  serious question whether CTU could show a federal
  question: There is likely no "federal defense" here
  at all. Although the Plan was developed under a
  Consent Decree (the "Decree") entered and approved
  in a federal action, 554 F. Supp. at 913 n. 1, the
  Decree itself is really a settlement agreement and
  therefore a state-law contract. See the discussion
  in Strama v. Peterson, 96 F.R.D. 198, 199-201
  (N.D.Ill. 1982) and cases cited there. Although
  this Court has jurisdiction to enforce the Decree
  (either because it was incorporated within an
  operative Order of this Court or because the United
  States would be a party to any enforcement action,
  see 28 U.S.C. § 1345-46), the Decree as such is
  still a contract under state not federal law, and
  it thus creates no federal substantive rights. It
  is not at all clear how Board's possible defense to
  CTU's claim, if based on the Decree, would amount
  to its "enforcement" and thus come within this
  Court's independent federal jurisdiction.

Consequently no general federal question jurisdiction exists here, whether this Court focuses on CTU's Complaint or on Board's putative "defense."

So CTU's last possible refuge is Section 1343, "invoked" for alleged violations of the Fourteenth Amendment and 42 U.S.C. § 1981 and 1983 ("Sections 1981 and 1983"). Section 1981 is plainly of no use to CTU, because that section guarantees certain rights equal to those "enjoyed by white citizens," and CTU and its officers do not allege any racial motivation in Board's actions as to the Agreement.*fn6 And the Fourteenth Amendment gives CTU no more comfort, for no Bivens -like right of action may be implied directly under that Amendment. Cf. Bush v. Lucas, ___ U.S. ___, 103 S.Ct. 2404, 2416-17, 76 L.Ed.2d 648 (Stevens, J., for the Court) and 2417-18 (Marshall and Blackmun, JJ., concurring) (1983) (declining to imply right of action under the Constitution where Congress has legislated remedial statutes). CTU is thus left with Section 1983 or nothing.*fn7

That final hope implicates the recent decision of our Court of Appeals in Vail v. Board of Education of Paris Union School District No. 95, 706 F.2d 1435 (7th Cir. 1983). Vail was a Section 1983 action by a football coach against a local school board that (without a hearing) terminated the coach's employment contract after one year, despite the board's original assurance the contract would be extended a second year. Id. at 1436. Under those circumstances the Court held (id. at 1438):

  [T]he Board deprived Vail of his legitimate
  expectation of continued employment in
  terminating him without cause before the
  expiration of his employment period, and . . .
  such deprivation is a violation of ...

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