In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1129

CONSTANCE HUGHES,

Plaintiff-Appellant,

v.

UNITED AIR LINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 C 6558—Elaine E. Bucklo, Judge.

ARGUED JANUARY 11, 2011—DECIDED FEBRUARY 8, 2011

Before EASTERBROOK, Chief Judge, and CUDAHY and

POSNER, Circuit Judges.

EASTERBROOK, Chief Judge. United Air Lines recalled

flight attendant Constance Hughes from furlough in

October 2004. Physically unable to work, she commenced a medical leave. The collective bargaining agreement between United and the flight attendants’ union

permits workers to retain seniority for three years of
2 No. 10-1129

injury or illness. When that time was almost up, United

told Hughes that she must report to duty. The airline’s

physician cleared her for work. She completed requalification training. But, according to Hughes, less than a

week before her first flight assignment, she slipped and

fell at United’s training facility, suffering a new injury

so severe that she could not fly. United then ended

her employment. Hughes says that this constituted retaliation for the workers’ compensation claim she made

on account of the new injury; for its part, however,

United characterizes the termination as a routine application of the collective bargaining agreement’s limit

on how long an inactive employee can retain seniority.

Hughes sued in a state court of Illinois, which treats as

tortious any materially adverse response to a workers’

compensation claim. See 820 ILCS 305/4(h); Kelsay v.

Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978); Clemons

v. Mechanical Devices Co., 184 Ill. 2d 328, 704 N.E.2d 403

(1998). United removed the proceeding to federal court

under the federal-question jurisdiction. See 28 U.S.C.

§§ 1331, 1441(b). Hughes’s complaint rests entirely on

state statutes and decisions; it does not mention federal

law. United contended, however, that framing a claim

under state law is impossible—that the Railway Labor

Act, which despite its name also applies to labor relations of airlines, so occupies the field that state law is

“completely preempted” and that any claim must rest

on federal law.

“Complete preemption” is a misleadingly named doctrine that applies to subjects over which federal law is
No. 10-1129 3

so pervasive that it is impossible to make out a statelaw claim, no matter how careful the pleading. Several

branches of labor-relations law come within this description. See, e.g., Avco Corp. v. Machinists Union, 390 U.S.

557 (1968). Preemption normally is a defense, which

must be pleaded and established in the court where

the litigation began. But “complete preemption” is not

a defense. It means that the claim itself arises under

federal law. See Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1 (1983); Lehmann v.

Brown, 230 F.3d 916 (7th Cir. 2000). If “complete preemption” applies to Hughes’s retaliatory-discharge suit,

then United was entitled to remove it; but if United’s

argument is a species of ordinary preemption, then all

it has is a defense that must be asserted in state court,

unless the diversity jurisdiction supports removal.

Graf v. Elgin, Joliet & Eastern Ry., 790 F.2d 1341 (7th Cir.

1986), holds that a retaliatory-discharge suit against an

employer governed by the Railway Labor Act is completely preempted, allowing removal. We gave two

principal reasons. First, the RLA establishes its own

method of adjudication for claims that concern application of a collective bargaining agreement. 45 U.S.C. §§ 151a,

184. This method, which requires disputes about the

meaning or application of a labor agreement to be submitted to a systems board of adjustment, is incompatible,

we thought, with state-court litigation whose disposition could well depend on the meaning of a collective

bargaining agreement. 790 F.2d at 1344–45. Second,

we noted that appellate authority strongly favored a

complete-preemption approach. Although we conceded
4 No. 10-1129

that the first reason on its own was inconclusive, we

thought it inappropriate to create a conflict. Id. at 1346.

The district court concluded that Graf controls and

denied Hughes’s motion to remand. 675 F. Supp. 2d 907

(N.D. Ill. 2009). The court then dismissed the suit,

ruling that only an adjustment board can provide

Hughes with a remedy.

Hughes asks us to overrule Graf, and we conclude that

this is the appropriate course. Explaining why requires

a brief turn from the Railway Labor Act to other parts

of labor law.

Not long after Graf, we extended its holding throughout labor-relations law, concluding in Lingle v. Norge

Division of Magic Chef, Inc., 823 F.2d 1031 (7th Cir. 1987)

(en banc), that the Labor-Management Relations Act

completely preempts retaliatory-discharge claims nominally based on state law. As with Graf and Hughes’s

claim, the state law in question was the rule in Illinois

that prohibits retaliation against workers who exercise

their legal remedies against employers. Our decision

had a short life, however. The Supreme Court reversed,

486 U.S. 399 (1988), holding that a retaliatory-discharge

suit resting on state law is a real state-law claim, not a

federal claim in disguise. The Justices concluded that a

retaliatory-discharge claim is preempted if it cannot

be resolved without construing a collective bargaining

agreement, but this is normal preemption—that is, a

defense to be asserted in the original forum rather than

a rule that the claim itself must rest on federal law. It is

easy to see how a retaliatory-discharge claim could be
No. 10-1129 5

resolved without reference to a labor agreement. Suppose a flight attendant asserted that the reason she was

sacked was a workers’ compensation claim, while the

employer asserted that the reason was the flight attendant’s failure to give passengers the required safety

briefing. The question for decision would be who was

telling the truth, not what a collective bargaining agreement provided.

The Supreme Court’s decision in Lingle pulls the rug

out from under Graf, unless some material difference

between the Railway Labor Act and the Labor-Management Relations Act makes Lingle’s approach inapplicable

to the RLA. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

(1994), considered that possibility. Norris, a mechanic

discharged after he had refused to sign an aircraft’s

maintenance record, sued under state law, contending

that the real reason for the discharge was his insistence

that the air carrier use proper maintenance procedures.

The Court first held that a claim resting entirely on

state law need not be resolved by an adjustment board

under the RLA; instead, the opinion states, “the category

of minor disputes contemplated by [45 U.S.C.] §151a

are those that are grounded in” a collective bargaining

agreement, 512 U.S. at 256, and that the RLA’s procedures do “not pre-empt causes of action to enforce

rights that are independent of the CBA.” Ibid. Hawaiian

Airlines went on to apply Lingle to the RLA, stating, id. at

260, that “[t]he pre-emption standard . . . —that a statelaw cause of action is not pre-empted by the RLA if it

involves rights and obligations that exist independent of

the CBA—is virtually identical to the pre-emption
6 No. 10-1129

standard the Court employs in cases involving §301 of

the Labor-Management Relations Act”, 29 U.S.C. §185.

Lingle held that a retaliatory-discharge claim under

Illinois law “involves rights and obligations that exist

independent of the CBA”. 512 U.S. at 260. Putting Lingle

together with Hawaiian Airlines means that the RLA

does not completely preempt retaliatory-discharge

suits. This leaves Graf without support.

Since Hawaiian Airlines, we have decided two retaliatorydischarge suits against employers covered by the Railway

Labor Act. The first of these, Westbrook v. Sky Chefs, Inc.,

35 F.3d 316 (7th Cir. 1994), concluded that the state-law

claim was independent of the CBA and not preempted,

completely or otherwise. The second, Monroe v. Missouri

Pacific R.R., 115 F.3d 514 (7th Cir. 1997), held that the statelaw claim could not be resolved without construing

the CBA and thus was preempted. Neither decision

mentioned Graf; likely the litigants and judges all

assumed that Graf did not survive Hawaiian Airlines.

Westbrook was removed under the diversity jurisdiction,

so the choice between normal and complete preemption did not matter. The panel in Monroe did not say

whether the suit had been removed under the diversity

jurisdiction or the federal-question jurisdiction; perhaps

the parties did not make anything of that difference.

This leads United to contend that Monroe must be understood as a complete-preemption case and that Graf therefore retains vitality. Yet the absence of a discussion is

just silence. Even when the issue concerns subjectmatter jurisdiction, a topic passed over without discussion has not been resolved. Steel Co. v. Citizens for a
No. 10-1129 7

Better Environment, 523 U.S. 83, 91 (1998); United States

v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37–38 (1952).

Monroe did not hold that the RLA completely preempts

any category of state-law claims; it held only that a particular claim was preempted under the approach of

Lingle and Hawaiian Airlines.

The three other circuits that have considered this

subject since Hawaiian Airlines have concluded that the

RLA does not completely preempt retaliatory-discharge

claims under state law. Moore-Thomas v. Alaska Airlines,

Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); Sullivan v. American

Airlines, Inc., 424 F.3d 267, 277 (2d Cir. 2005); Geddes v.

American Airlines, Inc., 321 F.3d 1349 (11th Cir. 2003). To

the extent these decisions rest on a belief that complete

preemption is possible only when federal courts supply

a remedy, we are skeptical. Much conduct that is

arguably forbidden as an unfair labor practice by the

National Labor Relations Act, or arguably protected by

that statute, is covered by the complete-preemption

doctrine. See generally Sears, Roebuck & Co. v. San Diego

Council of Carpenters, 436 U.S. 180 (1978). Yet federal

courts do not entertain suits about unfair labor practices; only the National Labor Relations Board can adjudicate disputes under sections 7 or 8 of the NLRA. A

suit alleging an unfair labor practice filed in state court,

and removed to federal court, will be dismissed rather

than resolved on the merits. This establishes that complete preemption does not depend on the ability of the

federal courts to supply a remedy. But it is unnecessary to agree or disagree with all of the reasons

given in Geddes, Sullivan, and Moore-Thomas; Lingle and
8 No. 10-1129

Hawaiian Airlines show that the results of those decisions are correct.

Graf’s holding that the RLA completely preempts

retaliatory-discharge suits under state law is overruled.

(Other parts of Graf are unaffected by this conclusion.)

Because this conclusion is compelled by decisions of

the Supreme Court after Graf, circulation under Circuit

Rule 40(e) is unnecessary. This suit must be remanded

to state court, because both Hughes and United are

citizens of Illinois. United submits that Hughes cannot

prevail unless the court considers, and rejects, its contention that the collective bargaining agreement

required her discharge after three years on medical

leave. If “the state-law claim is dependent on the interpretation of a CBA", Hawaiian Airlines, 512 U.S. at 262,

then her claim is preempted. But the state judiciary

(subject to review by the Supreme Court of the United

States) is the right forum for United’s argument on that

subject; it would be inappropriate for us to discuss it.

The judgment is vacated, and the case is remanded to

the district court with instructions to remand the litigation to state court.

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