# Golden State Transit Corp v. City of Los Angeles/Dissent Kennedy

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Kennedy
Justice KENNEDY, with whom THE CHIEF JUSTICE and Justice O'CONNOR join, dissenting.
The majority concludes that 42 U.S.C. § 1983 (1982 ed.) requires the city of Los Angeles to pay compensatory damages to Golden State Transit Corp. for violating the company's right under the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. (1982 ed. and Supp. V), to employ economic weapons in collective bargaining without state interference. With all respect, I dissent. Although I agree with much of the majority's discussion of both § 1983 and the NLRA, I do not consider these statutes to provide Golden State a remedy.
Our decision in Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986) (Golden State I), held that the city had no power to condition the renewal of Golden State's operating franchise upon the settlement of the company's labor dispute because imposing such a condition would interfere with the NLRA. Although the city's lack of power in a sense immunized Golden State from interference by the city, in my view the NLRA did not secure this immunity within the meaning of § 1983. The District Court, however, had jurisdiction to enjoin the city's pre-empted action under other federal statutes.
* From the earliest cases interpreting our constitutional law to the most recent ones, we have acknowledged that a private party can assert an immunity from state or local regulation on the ground that the Constitution or a federal statute, or both, allocate the power to enact the regulation to the National Government, to the exclusion of the States. A litigant has standing to contend that proper allocation of power requires a particular outcome in a dispute, and this is so whether the dispute is between individual parties, see Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 7 L.Ed. 412 (1829); Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880), or the dispute involves a State or its subdivisions, see Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 13 L.Ed. 996 (1852); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978). The injured party does not need § 1983 to vest in him a right to assert that an attempted exercise of jurisdiction or control violates the proper distribution of powers within the federal system.
I submit that the Court should not interpret § 1983 to give a cause of action for damages when the only wrong committed by the State or its local entities is misapprehending the precise location of the boundaries between state and federal power. The dispute over the taxicab franchise involves no greater transgression than this. The NLRA, through pre-emption, did create a legal interest in Golden State, an interest which the city infringed, but it does not follow that Golden State may obtain relief under § 1983.
The NLRA creates two relations which encompass different legal interests. The statute creates the first relation between Golden State and the striking union. The statute establishes duties that Golden State and the union have to each other and, as correlatives of these duties, rights that they have against each other. Under the NLRA, for example, each has a duty to bargain in good faith and, as correlatives of these duties, each has a right to have the other bargain in good faith. See 29 U.S.C. § 158(d) (1982 ed.). The Court of Appeals was correct to determine that the allegations of injury in this case do not implicate the rights and duties which flow from this first legal relation. See 857 F.2d 631, 635 (CA9 1988).
The NLRA also creates a jural relation between the city and Golden State. Although the NLRA does not provide in any detailed way how a city should act when renewing an operating franchise, the statute does have a pre-emptive effect under the Supremacy Clause. When we analyzed this pre-emption in Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), we ruled that, although the NLRB affords the States the power to regulate activities within its peripheral concern, id., at 137, 96 S.Ct., at 2552, the States have no such power or authority to influence the substantive terms of collective-bargaining agreements, id., at 147-151, 96 S.Ct., at 2556-2558. Applying Machinists in Golden State I, we held that the city has no power to interfere with the NLRA by conditioning Golden State's franchise renewal upon settlement of a labor dispute. See 475 U.S., at 618, 106 S.Ct., at 1400.
The city's lack of power gives rise to a correlative legal interest in Golden State that we did not discuss in Golden State I. The majority has chosen to call the interest a right. See ante, at 112. I would prefer to follow the familiar Hohfeldian terminology and say that Golden State has an immunity from the city's interference with the NLRA. See Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 55-58 (1913) (defining the correlative of no power as an immunity). This terminology best reflects Congress' intent to create the free zone of bargaining we described in Machinists. See 427 U.S., at 153, 96 S.Ct., at 2559.
Section 1983 provides a federal remedy only for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." The case before us today asks how § 1983 applies to claims of pre-emption. We have not answered this question in other decisions, but we have ruled that "an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim 'secured by the Constitution' within the meaning of [28 U.S.C.] § 1343" or, as the majority agrees, within the meaning of § 1983. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 615, 99 S.Ct. 1905, 1914, 60 L.Ed.2d 508 (1979) (discussing 28 U.S.C. § 1343(3) (1976 ed.), the jurisdictional counterpart to § 1983). The pre-emptive federal statute, instead, must secure a right, privilege, or immunity in order for § 1983 to provide a remedy. 441 U.S., at 615, 99 S.Ct., at 1914.
The preceding analysis shows that Golden State has an immunity that arose out of a relation created by the NLRA. Unlike the majority, however, I do not think that the NLRA secures this immunity as contemplated by Chapman. Section 1983 uses the word "secure" to mean "protect" or "make certain," Hague v. Committee for Industrial Organization, 307 U.S. 496, 526-527, 59 S.Ct. 954, 969, 83 L.Ed. 1423 (1939) (opinion of Stone, J.), in the sense of securing to "any person, any individual rights," Carter v. Greenhow, 114 U.S. 317, 322, 5 S.Ct. 928, 930, 29 L.Ed. 202 (1885). The section thus distinguishes secured rights, privileges, and immunities from those interests merely resulting from the allocation of power between the State and Federal Governments. Representative Shellabarger, who sponsored the bill that became § 1983, see Cong. Globe, 42d Cong., 1st Sess., 317 (1871), recognized and explained the distinction as follows:
"Most of the provisions of the Constitution, which restrain and directly relate to the States, such as those in the tenth section of first article, that 'no State shall make a treaty,' 'grant letters of marque,' 'coin money,' 'emit bills of credit,' & c., relate to the divisions of the political powers of the States and General Governments. They do not relate directly to the rights of persons within the States and as between the States and such persons therein. These prohibitions upon the political powers of the States are all of such nature that they can be, and even have been, when the occasion arose, enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States 'enforced' those provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States." Id., at App. 69.
Representative Shellabarger spoke only of interests secured by the Constitution. Our cases in recent years have expanded the scope of § 1983 beyond that contemplated by the sponsor of the statute and have identified interests secured by various statutory provisions as well. See, e.g., Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 431-432, 107 S.Ct. 766, 774-775, 93 L.Ed.2d 781 (1987) (right to particular calculation of rent in public housing secured by the Brooke Amendment to the United States Housing Act of 1937, 42 U.S.C. § 1437a (1982 ed. and Supp. V)); Maine v. Thiboutot, 448 U.S. 1, 2-3, 100 S.Ct. 2502, 2503-2504, 65 L.Ed.2d 555 (1980) (right to benefits secured by the Social Security Act, 42 U.S.C. § 602(a)(7) (1976 ed.)). None of these secured statutory interests, however, has been the sole result of a statute's pre-emptive effect, as has Golden State's immunity from the city's interference.
Pre-emption concerns the federal structure of the Nation rather than the securing of rights, privileges, and immunities to individuals. Although the majority finds the Machinists pre-emption doctrine "akin to a rule that denies either sovereign the authority to abridge a personal liberty," ante, at 112, and describes the interest of being free of governmental regulation as a right specifically conferred by the NLRA on employers and employees, ibid., I cannot agree that federal law secures this legal interest within the meaning of § 1983.
Golden State does not and cannot contend that a federal statute protects it from the city's primary conduct apart from its governmental character. Machinists' pre-emption, as noted above, rests upon the allocation of power rather than upon individual rights, privileges, or immunities. See Machinists, 427 U.S., at 137, 147-151, 96 S.Ct., at 2556-2558. The dispute between Golden State and the city exists because the Federal Government has exercised its power under the Commerce Clause to regulate Golden State's labor relations under the NLRA and thus has deprived the city of the power to effect its own regulations of these relations. Although our recent decisions in Wright and Thiboutot suggest that Congress could secure individual interests in Golden State through a statute, Congress did not secure them in the NLRA.
Golden State's immunity, as defined in Machinists, has nothing to do with the substance of the requirement imposed on its collective bargaining. The immunity, for instance, would not prevent the United States from exercising its power under the Commerce Clause to authorize the actions taken by the city. The immunity, rather, permits the company to object only that the wrong sovereign has attempted to regulate its labor relations. Golden State's immunity does not benefit the company as an individual, but instead results from the Supremacy Clause's separate protection of the federal structure and from the division of power in the constitutional system. Federal law, as such, does not secure this immunity to Golden State within the meaning of § 1983.
The case before us differs from one in which the governmental character of the action itself constitutes only an element in the primary wrong that the injured party seeks to vindicate under the Constitution. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). So too is this case unlike statutory cases such as Maine v. Thiboutot. The plaintiffs in Thiboutot sued state officials under § 1983 for withholding welfare benefits in violation of the Social Security Act, in particular, 42 U.S.C. § 602(a)(7) (1976 ed.). They claimed, in so many words, that the Social Security Act imposed upon the defendants a duty to the plaintiffs to pay the benefits and, as correlative of this duty, gave the plaintiffs a right against the defendants to have benefits paid. 448 U.S., at 2-3, 100 S.Ct., at 2503-2504. The Court's expansive interpretation of § 1983 allowed the plaintiffs to recover damages for the deprivation of this statutory right. Id., at 4, 100 S.Ct., at 2504. The Thiboutot case, however, provides no help to Golden State. The NLRA affords Golden State no counterpart to the plaintiffs' individual interests in the Social Security benefits.
By concluding that Golden State may not obtain relief under § 1983, we would not leave the company without a remedy. Despite what one might think from the increase of litigation under the statute in recent years, § 1983 does not provide the exclusive relief that the federal courts have to offer. When we held in Golden State I that the company could survive summary judgment on a Machinists doctrine pre-emption claim, we did not purport to make a ruling with respect to § 1983 and did not even cite the provision. Our omission of any discussion of § 1983 perhaps stemmed from a recognition that plaintiffs may vindicate Machinists pre-emption claims by seeking declaratory and equitable relief in the federal district courts through their powers under federal jurisdictional statutes. See 28 U.S.C. § 1331 (1982 ed.); 28 U.S.C. § 2201; 28 U.S.C. § 2202 (1982 ed.); New York Telephone Co. v. New York Dept. of Labor, 440 U.S. 519, 525, 99 S.Ct. 1328, 1332, 59 L.Ed.2d 553 (1979) (plaintiff sought declaratory and injunctive relief on a Machinists pre-emption claim). These statutes do not limit jurisdiction to those who can show the deprivation of a right, privilege, or immunity secured by federal law within the meaning of § 1983. Because Golden State asked for such relief in its complaint, see App. 6, 7, 17, the District Court had jurisdiction to enter the injunction on behalf of the company, but not for the reasons that it stated. As it is my view that Golden State does not have a claim under § 1983, I dissent.

## Notes

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