good morning just i see a lot of people over at one table and just so you know you have each side has twenty minutes and that twenty minutes is for all of you so if you decided to just divide it one thing that i find is sometimes the first person at hearts more than their time and the other people are sitting there so if you tell me if you want to if you want to share your time if you let me know how then all let you know when that that time is out with ok and then i'll tell you i'll pull you off the hook so that you don't use your other councils time thank you actually we will be dividing our argument and we'd like to reserve four minutes for rebuttal so defendant may not remove a state like you used to federal court merely by raising a defense based on a collective bargaining agreement eric then he can well explain that even if we move all could be based on a defense there is no federal question in this case this is not a federal case just as coco filed a state law claim in state court but remove it was allowed based on the possibility that the defense might raise a federal issue removal of this case violated the well established rule there is federal jurisdiction when a plaintive alleges breach of a collective bargaining agreement or when resolution of the plaintiff's claim requires the interpretation of the c b i but the district court held that there is federal jurisdiction quote when the interpretation of the u p a is made necessary by an employer defense now in reaching that conclusion the district court relied on and quoted this court's original opinion in three defamation claim is independent of the collective bargaining agreement you're under his claim is independent because defamation is a right that arises under state common law not under a collective bargaining agreement and under oregon's law there is just two elements to a defamation claim the first is that the defendant made a defamatory statement about the plaintiff and the second is that the statement was published well fact it also cast you can't be privileged well actually that's only an affirmative defense under oregon law absence of privilege is not an element of the plaintiff's claim under oregon law qualified privilege as an affirmative defense and as this court stated in its ongoing decision in kramer a defense based on the terms of the c v a just not trigger section three zero one preemption and in court of the twentieth century fox this court clarified that the complete preemption doctrine does not abrogate the standard rule that a defense of preemption to be false and privilege and so if it's not false and unprivileged you you know that you don't you know you're not in court actually you know i'm the only way you can determine whether it's i'm privileged or on the qualified privileges that you have to go back at the collective bargaining agreement well two things your honor first as my co counsel explained qualified privilege is actually not a question of contract interpretation so even if absence of privilege were an element of the claim this case would not be preempted but second under oregon law qualified privilege is a defense it is not an element of the claim it's not like washington state for example where absence of privilege is an element of the claim and false that is an element of the claim there are just the two elements that i mentioned which i'll mention again that the defendant made a defamatory statement about the plaintiff that's the first one and the second is that the statement was published and that's it those are the only two elements of the pla and in order to evaluate my defense a court would have to interpret the steve yeah and therefore there is federal jurisdiction and the district court agreed but only because the district court was following an opinion that is no longer the l good morning your honor some may please the court my name is eric van hagen as miss oversight noted i will be discussing the reasons why the facts of this particular case preclude federal jurisdiction first even if this court finds that a defense can be the basis for preemption just not apply here because there is no need to interpret the collective bargaining agreement to resolve this dispute oregon law grants mr copas the right to be free of death and defamation independent of any collective bargaining agreement does that mean that you can see that he had a qualified privilege absolutely not your honor or how can we know that he did or didn't have qualified privilege without consultation left a mark in u there are two reasons first because not only does it does the collective bargaining argue does organ law provide mr copas the right to be free of defamation depend on the collective bargaining agreement it also permits mr chirac to assert that defense independent of the collective bargaining agreement the test in this court is whether the claim is substantially dependent on the interpretation of the collective bargaining agreement and that and this court has been clear that interpret means something more then consider refer to or apply and this insufficient to trigger a preemption the there was no just bute no terms of the contract were in dispute to trigger preemption the district court and mr shipwrecks like four different provisions of the collective bargaining agreement that again say could be relevant and they are the basic principle section which is in the program except the record of fourteen which is mere preparatory language that introduces the agreement the employer responsibility section problem exits of record at eighteen which outlines the responsibilities for the employer in the collective bargaining agreement in this case siemens is not a party to this last in the referral procedure provolone excerpts of record thirty four simply establishes a referral procedure but it says nothing about making any recommendations about or personal commentary regarding an employee and finally is in fact the problem says nothing and so the collective bargaining agreement may have to be interpreted a collective bargaining agreement isn't adequate and it's our position that the fact that that claim is an adequate reading implied terms into a collective bargain agreement based on an affirmative defense is not sufficient to trigger preemption nor is it sufficient to create the terms in the contract that are in dispute but the second problem is that and this is why it's not surprising that they are unable to identify a specific term of the collective bargaining agreement that requires interpretation is because the the privilege exists independent if that if the collective bargaining agreement had expired or didn't exist and this was just a referral procedure this claim would proceed in the exact same way because that let me ask you this you know because i'm kind of focus now article five here that if a union representative wanted to alert a hiring agent to the fact that some employee is test pick fights and is is not a harmonious person in the workplace would the union representatives have the implicit authority to do so and because the union is the stolen explosive source of referrals and the union has also agreed with with the employer to maintain an efficient system of production it seems to me how do you get around that going interpret in a collective bargaining union saying does you know whether the collective bargaining unit contains the implicit authority to question is central to assessing shipwrecks privilege to communicate with siemens on the topic of interest here which is or the mutual interest of state and local forty eight so for but the second problem is how that relates with his claim and the problem is that he can make the claim that he has that privilege under oregon law and he doesn't need the collective bargaining conditional privilege defense without ever turning to the terms of the collective bargaining agreement because that because that right to assert the conditional privilege exists independent of the collective bargaining agreement and very similar to what we're asking for the court remanded that decision  because there was evidence of malice in the record an abuse of that conditional privilege so organ ports are more than competent to analyze the merits of a conditional privilege without ever turning to the terms of the collective bargaining agreement in story reserving time for someone else or now i'm it did it would be irrelevant because there is no need to it to assess the collective bargaining agreement to determine the merits of the of the affirmative defense in fact agreement says the opposite simply provides for a first in first out hiring policy because neither the district had he had a lawyer when he filed the complaint and i'm not exactly sure when he said he was no longer represented by counsel but i do know that he made his petition to this court  he have a lawyer argued before the district court i believe so yes and they did and they made the argument that this that he was maliciously defamed and that malice acts to forfeit the conditional privilege which is  again because that conditional privilege was forfeited or there's a genuine issue of material fact as to whether it was forfeited and there was no basis to grant mr shipwrecks motion for summary judgment there are multiple statements in the record that demonstrate set out in the record show that there are fact issues regarding malice that would defeat the content the defendant's alleged conditional privilege as noted in our opening brief an evidentiary hearing should be held to evaluate whether the privilege was in fact forfeited and if so there no conditional privilege and no federal jurisdiction if inclusion your honour's the district court summary judgment ruling should be reversed because the defense cannot serve as a basis for federal preemption b the court would not need to interpret any specific provision of the collective bargaining agreement to resolve this claim but even if the court disagrees with both of those arguments there remain genuine issues of material fact that preclude summary judgment thank you think it's nice to have almost six minutes for  whether the employee has the ability to bend six inch rigid time to it because when you're working on a dam that's one of the things they do in dance and that requires a special skill and if you look at the referral procedure you'll see a paragraph that preempted manage your veins send out a letter to mr teller saying you're suspended i believe you're using cocaine and the manager didn't just do that but seven to eleven other people in the company and holding that you didn't the court did not have to interrupt the collective bargaining agreement you said that this took place outside of the grievance procedure in my brief i said that oregon why isn't an element of cribbing slander establishing that the oral ireland was not family when what is your response to their argument that it's just a defense and therefore you can't it's not a problem for them the z response is that you were correct the longer response wasn't really what i want to hear sound sorry i don't mean the lip but the long response is that  they they rely on cramer and cramer is an important case but if you read cramer what you'll see cramer does when they say we are revising our method of analyzing preemption cases the cases that they talked about were cases where if there if the subject matter if it could have been the subject matter of negotiations in a collective bargaining agreement then it would be preempted and yes the court did really define its way of looking at those cases the bottom line is if in resolution a state court claim you have to  court you have to look at the collective bargaining agreement to see whether he has the privilege because it privilege only arises out of the collective bargaining agreement out of the referral procedure and i would disagree that the the basic principles of the collective bargaining agreement are meaningless puffery i forget the term do you not agree that under oregon law privilege is an affirmative defense as opposed to lack of privilege being an element of defamat i'm sorry and i am not sure what i do know is regardless of the answer that question the fact that it was raised the court has to consider whether the terms of the collective bargaining agreement have to be relied upon to determine whether mr shipwreck had the conditional privilege to make these statements that is what i do know so i cannot be more  provision and in article two that talks about employer having no restriction that the referral procedure provides no guidelines and therefore does not have to be interpreted simply lies the nature of labor relations we do not disagree on any of the basic principles we do not disagree on the well pleaded complaint rule we do not disagree on the general rule that no preemption will be based on the thousands raised by the defendant and she could pursue that the court did not need to look at that the fans of boeing to resolve her claim and i think what i what i ended up doing and i wish i had done  decided on that basis because caramel of i was working as a grossly clerk was fired and she wanted to be paid her wages immediately and the commissioner has a rule that says this penalty wage does not apply the workers who are subject to a collective bargaining agreement grievance procedure and she says that question thank you for your argument well i would like to start by explaining our second point a little bit further which is that even if absence of privilege were an element of the claim this case would not be preempted and that's because it just doesn't matter what the  a could say you must give personal recommendations when you refer applicants for the c b i could say you may not get personal recommendations or there could be you know it all the way that state courts handle qualified privilege questions by saying ok what was said who said it and who heard it and then they apply state common law to determine whether there is qualified privilege but the bigger threshold issue in this case which is dispositive is that a defense cannot t this court followed in kramer a case may not be removed federal court on the basis of a federal defense including the defense of preemption even if the defense is anticipated in the plane just complaint and even if both parties can see that the federal defense  only question truly at issue this court also refuted that closure and belcourt of the twentieth century fox now to get back to your question judge callahan about whether privilege is an affirmative defense or an element of the claim under of proof on this issue so the only way that there might possibly be jurisdiction federal jurisdiction over this case i guess the restatement of words which i think bergen relies on at le elements of the cause of action for defamation including the publication be i'm privileged that is the restatement and as i stated washington follows the restatement of that regard and several states do but oregon does not but again it's  clear or at the oregon supreme court has stated privilege is a matter of just that and the defendant has the burden of proof on this issue that's the longer you enterprises and there are other states in which privilege is an affirmative d defendant made a defamatory statement and that the statement was published and those are both factual determinations that can of course be made outside of the c v a again qualified privilege is not a question of contract interpretation so even if this case that  risen in washington state there would be no preemption but it is clear that because this case arose in oregon where qualified privilege is only an affirmative defense the only way there could possibly be federal jurisdiction is if this court over kramer and even that wouldn't be enough because the u s supreme court would have to overrule carpenter and even that wouldn't be enough because removalist statutory so congress would have to amend section fourteen forty one under section thirteen thirty one or the elem are and and even that wouldn't be enough because the a moment would have to be retroactive so there's a whole host of outrageous hypotheticals that would have to occur for there to be federal jurisdiction in this case none of them has occurred removal of this case was based only on an outdated opinion of this like to additionally say that the court you know we very much appreciate the pro bono work that individuals do because as you're aware that sometimes when issues are difficult for the court it's difficult for pro se litigants if they're not able to adequately presented to the court and both sides to an excellent job here and we we would like to compliment both of you and thank the school for