Filed: July 2, 2004
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`No. 02-1266
`(CA-01-53-2-12)
`
`MATTHEW DIXON,
`
`versus
`
`COBURG DAIRY, INCORPORATED,
`
`-------------------------
`
`EQUAL EMPLOYMENT ADVISORY COUNCIL,
`
`
` Plaintiff - Appellant,
`
`Defendant - Appellee.
`
` Amicus Curiae.
`
`O R D E R
`
`The court amends its opinion on rehearing en banc, filed May
`25, 2004, as follows:
`On page 14, final line of text -- the word “employees” is
`corrected to read “employers.”
`On page 15, second paragraph, line 20 -- the cross-reference
`“supra note 8” is corrected to read “supra note 2.”
`
`For the Court - By Direction
`
`/s/ Patricia S. Connor
` Clerk
`
`

`
`ON REHEARING EN BANC
`
`PUBLISHED
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`MATTHEW DIXON,
`
`Plaintiff-Appellant,
`v.
`COBURG DAIRY, INCORPORATED,
`Defendant-Appellee.
`
`EQUAL EMPLOYMENT ADVISORY
`COUNCIL,
`
`Amicus Curiae.
`
`No. 02-1266
`
`Appeal from the United States District Court
`for the District of South Carolina, at Charleston.
`C. Weston Houck, District Judge.
`(CA-01-53-2-12)
`
`Argued: December 2, 2003
`
`Decided: May 25, 2004
`
`Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
`NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
`TRAXLER, KING, GREGORY, SHEDD, and DUNCAN,
`Circuit Judges.
`
`Reversed and remanded with instructions by published opinion. Judge
`Williams wrote the opinion, in which Chief Judge Wilkins and Judges
`Widener, Wilkinson, Niemeyer, Luttig, Traxler, Shedd, and Duncan
`concur. Judge Michael wrote a separate opinion concurring in the
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`DIXON v. COBURG DAIRY, INC.
`
`judgment. Judge Motz concurred in the judgment. Judge King wrote
`a separate concurring opinion in which Judge Motz joined. Judge
`Gregory wrote a separate opinion concurring in the judgment.
`
`COUNSEL
`
`ARGUED: Samuel Wilson Howell, IV, HOWELL & LINKOUS,
`L.L.C., Charleston, South Carolina, for Appellant. J. Thomas Kil-
`patrick, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for Appellee.
`ON BRIEF: Alan B. Linkous, HOWELL & LINKOUS, L.L.C.,
`Charleston, South Carolina; Mikell R. Scarborough, Charleston,
`South Carolina, for Appellant. Christopher S. Enloe, ALSTON &
`BIRD, L.L.P., Atlanta, Georgia, for Appellee. Ann Elizabeth Rees-
`man, Rae T. Vann, MCGUINESS, NORRIS & WILLIAMS, L.L.P.,
`Washington, D.C., for Amicus Curiae.
`
`OPINION
`
`WILLIAMS, Circuit Judge:
`
`Matthew Dixon initiated this action in South Carolina state court,
`alleging that Coburg Dairy, Inc. unlawfully terminated his employ-
`ment in violation of South Carolina law. Coburg removed the case to
`the United States District Court for the District of South Carolina,
`asserting that the court had subject matter jurisdiction over the case
`because it involved a substantial question of federal law. The district
`court denied Dixon’s motion to remand the case to state court and
`granted summary judgment to Coburg on all of Dixon’s claims. Sit-
`ting en banc, we hold that the district court lacked subject matter
`jurisdiction to hear this case. Accordingly, we reverse and remand
`with instructions that the case be remanded to the South Carolina
`Court of Common Pleas.
`
`I.
`
`Dixon began working for Coburg in 1997 as a mechanic. Dixon is
`a member of the Sons of Confederate Veterans, a Tennessee non-
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`3
`
`profit corporation, "who[se members] can prove genealogically that
`one of their ancestors served honorably in the armed forces of the
`Confederate States of America." See Sons of Confederate Veterans,
`Inc. v. Comm’n of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 613 n.1
`(4th Cir. 2002). Dixon brought with him to work a personal tool box,
`to which he had affixed two decals depicting the Confederate battle
`flag. The decals offended one of Dixon’s coworkers, who complained
`to Coburg management, citing the company’s anti-harassment policy.1
`Coburg asked Dixon to remove the decals from his toolbox and, when
`he refused, offered to buy him a new, unadorned toolbox. Dixon
`declined, explaining that "his heritage was ‘not for sale,’" and assert-
`ing that he had a First Amendment right to display the Confederate
`battle flag.2 (J.A. at 10-11.) Unable to reach a compromise, Coburg
`terminated Dixon on September 5, 2000.
`
`Dixon then filed suit in the South Carolina Court of Common
`Pleas. The complaint included nine causes of action. Critical to this
`appeal are the first, third and fourth causes of action, which allege that
`Dixon was terminated in violation of Section 16-17-560 of the South
`Carolina Code and that the discharge was in retaliation for his exer-
`cise of constitutional rights.3 Section 16-17-560 makes it "unlawful
`(Text continued on page 5)
`
`1The policy prohibits "any form of . . . harassment because of race,
`color, religion, sex, age, disability, national origin, or status as a Vietnam
`era or disabled veteran." (J.A. at 42.) It specifies that harassment may
`take the form of "visual conduct such as derogatory posters, cartoons,
`drawings or gestures." (J.A. at 42.)
`2In early 2000, South Carolinians were involved in a heated debate
`about whether to remove the Confederate battle flag from atop their state
`capitol building. Dixon points out that this was "a burning issue in the
`State of South Carolina," during a "period of intense national scrutiny
`and public debate." (Appellant’s Br. at 4.)
`3The relevant portions of the complaint read as follows:
`FOR A FIRST CAUSE OF ACTION
`(Violation of Constitutional Rights)
` All of the pleadings previously alleged are hereby realleged
`and repeated and made a part of the pleadings contained herein.
`11. SC Code § 16-17-560 states it is unlawful to discharge a
`citizen from employment because of the exercise of political
`
`

`
`4
`
`DIXON v. COBURG DAIRY, INC.
`
`rights and privileges guaranteed under the Constitution of the
`United States and this state. The First Amendment to the U.S.
`Constitution and S.C. Constitution Article I, Section 2, provide
`for freedom of speech, assembly and the right to redress of griev-
`ances.
`
`12. Plaintiff’s termination arose from the exercise of his right
`of free speech to display the Confederate flag. Coburg violated
`the constitutional rights of its employee by its termination of
`Plaintiff.
`
`13. Coburg’s termination of Plaintiff for display of the flag
`constitutes a violation of his constitutional rights entitling Plain-
`tiff to an award for damages.
`
`. . .
`
`FOR A THIRD CAUSE OF ACTION
`
`(Violation of Public Policy)
`
` All of the pleadings previously alleged are hereby realleged
`and repeated and made a part of the pleadings contained herein.
`
`16. SC Code § 16-17-560 provides for a private civil cause of
`action where the wrongful discharge is a "crime against public
`policy."
`
`17. The Defendant’s termination of the Plaintiff for display of
`the Confederate flag. Defendant’s actions constitute a violation
`of South Carolina criminal law and therefore a violation of the
`public policy of this State.
`
`18. Coburg’s termination of Plaintiff for display of the flag
`constitutes a violation of this statute entitling Plaintiff to an
`award for damages.
`
`FOR A FOURTH CAUSE OF ACTION
`
`(Retaliatory Discharge)
`
` All of the pleadings previously alleged are hereby realleged
`and repeated and made a part of the pleadings contained herein.
`
`19. Coburg’s actions, through its agents attempts to control the
`content of Plaintiff’s right of free speech through constant and
`repeated efforts to get him to abandon his constitutionally pro-
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`5
`
`for a person to . . . discharge a citizen from employment or occupation
`. . . because of political opinions or the exercise of political rights and
`privileges guaranteed . . . by the Constitution and laws of the United
`States or by the Constitution and laws of [South Carolina]." S.C.
`Code Ann. § 16-17-560.
`
`Coburg then removed the case to federal court, asserting that the
`district court had original jurisdiction pursuant to 28 U.S.C.A. § 1331
`(West 1993), because the case involved a substantial question of fed-
`eral law. Dixon moved for the district court to remand the case to
`state court, and the district court denied the motion. The parties then
`filed cross-motions for summary judgment, and the district court
`granted summary judgment in favor of Coburg on all claims and dis-
`missed the case. Dixon appealed, and a divided panel of this court
`affirmed the district court’s judgment in part and reversed in part.4
`Dixon v. Coburg Dairy, Inc., 330 F.3d 250 (4th Cir.) vacated & reh’g
`en banc granted, (4th Cir. Sept. 16, 2003). A majority of full-time,
`active circuit judges voted to rehear the case en banc.
`
`tected rights of free speech by demanding that he remove the
`flag from his tool box and then, ultimately, terminating him for
`exercise of that same right, constitute retaliatory discharge of
`Plaintiff.
`
`20. Coburg’s termination of Plaintiff for retaliatory discharge
`entitles Plaintiff to an award for actual and punitive damages in
`an amount to be determined by the trier of fact.
`
`(J.A. at 12-14.)
`4The panel majority opinion reversed the grant of summary judgment
`on the first cause of action under the insubstantiality doctrine, holding
`that the district court lacked jurisdiction over the claim. Dixon v. Coburg
`Dairy, Inc., 330 F.3d 250, 255 (4th Cir.) (citing Hagans v. Lavine, 415
`U.S. 528, 536-37 (1974)), vacated & reh’g en banc granted, (4th Cir.
`Sept. 16, 2003). The panel majority affirmed the district court’s grant of
`summary judgment on the remaining causes of action. Id.
`
`

`
`6
`
`DIXON v. COBURG DAIRY, INC.
`
`II.
`
`We review questions of subject matter jurisdiction de novo, "in-
`cluding those relating to the propriety of removal." Mayes v. Rapo-
`port, 198 F.3d 457, 460 (4th Cir. 1999). The burden of demonstrating
`jurisdiction resides with "the party seeking removal." Mulcahey v.
`Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). We
`are obliged to construe removal jurisdiction strictly because of the
`"significant federalism concerns" implicated. Id. Therefore, "[i]f fed-
`eral jurisdiction is doubtful, a remand [to state court] is necessary."
`Id.
`
`III.
`
`Section 1441 of Title 28 provides that "any civil action brought in
`a State court of which the district courts of the United States have
`original jurisdiction, may be removed by the defendant or the defen-
`dants, to the district court of the United States for the district and divi-
`sion embracing the place where such action is pending." 28 U.S.C.A.
`§ 1441(a) (West 1994). In this case, Coburg alleges that removal was
`proper because the district court had original jurisdiction to hear
`Dixon’s case under 28 U.S.C.A. § 1331. Section 1331 grants district
`courts "original jurisdiction of all civil actions arising under the Con-
`stitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331.
`Thus, we must decide whether Dixon’s claim "aris[es] under the Con-
`stitution, laws, or treaties of the United States." Id.
`
`The vast majority of lawsuits "arise under the law that creates the
`cause of action." Am. Well Works Co. v. Layne & Bowler Co., 241
`U.S. 257, 260 (1916) (Holmes, J.); Merrell Dow Pharm., Inc. v.
`Thompson, 478 U.S. 804, 808 (1986). Thus, we must "first discern
`whether federal or state law creates the cause of action. . . . In cases
`where federal law creates the cause of action, the courts of the United
`States unquestionably have federal subject matter jurisdiction." Mul-
`cahey, 29 F.3d at 151. In this case, Dixon’s cause of action was cre-
`ated by South Carolina law not federal law, but our inquiry does not
`end there. Instead, we must determine whether this case is within the
`"small class of cases where, even though the cause of action is not
`created by federal law, the case’s resolution depends on resolution of
`a federal question sufficiently substantial to arise under federal law
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`7
`
`within the meaning of 28 U.S.C. § 1331." Ormet Corp. v. Ohio Power
`Co., 98 F.3d 799, 806 (4th Cir. 1996). Thus, "a case may arise under
`federal law ‘where the vindication of a right under state law necessar-
`ily turn[s] on some construction of federal law,’" Merrell Dow, 478
`U.S. at 808 (quoting Franchise Tax Bd. v. Const. Laborers Vac. Trust,
`463 U.S. 1, 9 (1983)), but "only [if] . . . the plaintiff’s right to relief
`necessarily depends on a substantial question of federal law," Fran-
`chise Tax Bd., 463 U.S. at 28 (emphases added). Thus, in the absence
`of another jurisdictional ground, a defendant seeking to remove a case
`in which state law creates the plaintiff’s cause of action must establish
`two things: (1) that the plaintiff’s right to relief necessarily depends
`on a question of federal law, and (2) that the question of federal law
`is substantial. If either of these two elements is lacking, removal is
`improper and the case should be remanded to state court. As dis-
`cussed below, we conclude that Dixon’s complaint satisfies neither of
`these requirements.
`
`A.
`
`A plaintiff’s right to relief for a given claim necessarily depends on
`a question of federal law only when every legal theory supporting the
`claim requires the resolution of a federal issue. Mulcahey, 29 F.3d at
`153 ("[I]f a claim is supported not only by a theory establishing fed-
`eral subject matter jurisdiction but also by an alternative theory which
`would not establish such jurisdiction, then federal subject matter juris-
`diction does not exist."); see Christianson v. Colt Indus. Operating
`Corp., 486 U.S. 800, 810 (1988)(holding that "a claim supported by
`alternative theories in the complaint may not form the basis for
`[patent] jurisdiction unless patent law is essential to each of those the-
`ories" and noting the similarities between the patent and federal ques-
`tion jurisdictional statutes). In other words, if the plaintiff can support
`his claim with even one theory that does not call for an interpretation
`of federal law, his claim does not "arise under" federal law for pur-
`poses of § 1331.
`
`Our opinion in Mulcahey nicely illustrates the foregoing rule. In
`Mulcahey, the plaintiffs alleged that the Columbia Organic Chemicals
`Company had negligently released hazardous substances into the soil.
`Mulcahey, 29 F.3d at 149. The plaintiffs relied on at least the follow-
`ing two alternative theories of liability to establish their negligence
`
`

`
`8
`
`DIXON v. COBURG DAIRY, INC.
`
`claim: (1) Columbia Organic was negligent per se because it had vio-
`lated several federal environmental statutes; and (2) Columbia
`Organic was negligent per se because it had violated various state and
`local environmental laws. Id. at 153-54. The plaintiffs’ negligence
`claim thus relied on multiple theories of liability, only one of which
`required the resolution of a federal issue. Id. at 153. In other words,
`"[e]ven if Columbia Organic was found not to have violated any fed-
`eral statute, the Plaintiffs might still [have] be[en] entitled to recover
`under an alternative theory of negligence." Id. We held that in light
`of Christianson, "because the Plaintiffs’ alternative theory of negli-
`gence per se [under the federal environmental statutes] [was] not
`‘essential’ to their negligence [claim], no federal subject matter juris-
`diction exist[ed]." Id. at 154.
`
`Coburg asserts that Dixon’s complaint necessarily depends on the
`resolution of a question of federal law, because, according to Coburg,
`Dixon must prove that Coburg violated his First Amendment rights
`to free speech for Coburg to be liable under Section 16-17-560 of the
`South Carolina Code. Specifically, Coburg asserts that "Dixon pled
`one violation of constitutional rights claim under Section 16-17-560,
`with one theory — namely, that Coburg violated his constitutional
`rights through his discharge." (Appellee’s Br. at 12-13.) Coburg
`points to Paragraph 13 of the complaint’s first cause of action to sup-
`port its narrow reading of Dixon’s complaint. Paragraph 13 reads,
`"Coburg’s termination of Plaintiff for display of the flag constitutes
`a violation of his constitutional rights entitling Plaintiff to an award
`for damages."5 (J.A. at 12.) After considering Dixon’s complaint as
`a whole, we reject Coburg’s restrictive reading.
`
`5To the extent that Dixon’s complaint can be interpreted as stating a
`cause of action based directly on the First Amendment, such a claim
`would be too insubstantial to invoke federal question jurisdiction because
`the First Amendment does not apply to private employers. Hagans v.
`Lavine, 415 U.S. 528, 536-37 (1974) ("[F]ederal courts are without
`power to entertain claims otherwise within their jurisdiction if they are
`so attenuated and unsubstantial as to be absolutely devoid of merit,
`wholly insubstantial, obviously frivolous, plainly unsubstantial, or no
`longer open to discussion.") (internal quotation marks and citations omit-
`ted); see also Davis v. Pak, 856 F.2d 648, 651 (4th Cir. 1988)(same).
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`9
`
`Dixon alleges, in his third cause of action, that "Section 16-17-560
`provides for a private civil cause of action where the wrongful dis-
`charge is a ‘crime against public policy.’" (J.A. at 13.) According to
`Dixon, "Coburg’s termination of Plaintiff for display of the flag con-
`stitutes a violation of this statute entitling Plaintiff to an award for
`damages." (J.A. at 13.) Moreover, Paragraph 11 of the complaint,
`which is part of the same cause of action as the passage that Coburg
`relies upon for its narrow reading of the complaint, refers specifically
`to Article I, Section 2 of the South Carolina Constitution, which pro-
`vides that "[t]he General Assembly shall make no law . . . abridging
`the freedom of speech." S.C. Const. art. I, § 2 (1977). Similarly, in
`alleging that he was terminated for exercising "constitutionally pro-
`tected rights of free speech" in his fourth cause of action, Dixon "real-
`lege[s] and repeat[s]" the pleadings previously alleged, thus including
`the reference in the first cause of action to Article I, Section 2 of the
`South Carolina Constitution. (J.A. at 13.)
`
`Therefore, although Dixon’s complaint does reference the First
`Amendment, none of its causes of action rely exclusively on a First
`Amendment violation
`to establish Coburg’s
`liability under
`Section 16-17-560. Properly read, Dixon’s complaint alleges a viola-
`tion of Section 16-17-560 in its entirety. Accordingly, Dixon’s com-
`plaint could support a finding of liability for violating Section 16-17-
`560 under any of the following three theories — (1) Dixon was fired
`because of his political opinions; (2) Dixon was fired for exercising
`political rights guaranteed by the United States Constitution; and (3)
`Dixon was fired for exercising political rights guaranteed by the
`South Carolina Constitution. See Conley v. Gibson, 355 U.S. 41, 47
`(1957) (holding that a complaint is sufficient if it gives "fair notice
`of what the plaintiff’s claim is and the grounds upon which it rests").
`
`Of the three alternative theories, only the second even arguably
`involves the resolution of a substantial question of federal law.
`Because Dixon could prove that Coburg terminated him in violation
`of Section 16-17-560 under the first and third theories without prov-
`ing the second theory, Dixon’s claim that Coburg violated Section 16-
`17-560 does not necessarily depend on a question of federal law. Mul-
`
`

`
`10
`
`DIXON v. COBURG DAIRY, INC.
`
`cahey, 29 F.3d at 154. Accordingly, the district court did not have
`original jurisdiction to hear this case and removal was improper.6
`
`B.
`
`Even if Dixon’s claim had relied exclusively on the First Amend-
`ment to establish a violation of Section 16-17-560 and thus necessar-
`ily depended on a question of federal law, the question of federal law
`raised by his complaint is not substantial. See Merrell Dow Pharm.,
`Inc. v. Thompson, 478 U.S. 804, 814, 817 (1986) (holding that "a
`complaint alleging a violation of a federal statute as an element of a
`state cause of action, when Congress has determined that there should
`be no private, federal cause of action for the violation" does not raise
`a substantial question of federal law). In Merrell Dow, the Court rea-
`soned that to ignore Congress’ decision not to create a private federal
`remedy during the § 1331 jurisdictional inquiry would "flout, or at
`least undermine, congressional intent." Id. at 812; see also id. at 811
`(noting that congressional silence is an important indication of con-
`gressional intent when determining if there is a private federal rem-
`edy); Cort v. Ash, 422 U.S. 35, 82-84 (1975). Congress has extended
`numerous constitutionally inspired protections to members of the pri-
`vate workplace, see, e.g., 42 U.S.C.A. § 2000e-2 (West 2003) (mak-
`ing it an illegal employment practice to "discriminate against any
`individual . . . because of such individual’s race, color, religion, sex,
`or national origin."), but notably has refrained from extending free
`speech rights to the private work force. We believe that Congress’
`decision not to create a federal remedy for members of the private
`workforce whose employers restrict their freedom of speech is "tanta-
`mount to a congressional conclusion that the presence of a claimed
`
`6Coburg also relies on "another underlying federal issue in this case —
`the scope and uniformity of Title VII of the Civil Rights Act." (Appel-
`lee’s Br. at 17.) In essence, Coburg argues that Title VII, 42 U.S.C.A.
`§ 2000e-2(a) (West ), preempts Section 16-17-560, at least as Dixon
`interprets it to apply in this case. At most, Coburg has alleged conflict
`preemption. Because conflict preemption is a defense to a cause of
`action, the well-pleaded complaint rule bars its use as a foundation for
`federal question jurisdiction. Sonoco Products Co. v. Physicians Health
`Plan, Inc., 338 F.3d 366, 371 (4th Cir. 2003) (citing Metro. Life Ins. Co.
`v. Taylor, 481 U.S. 58, 63 (1987)).
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`11
`
`violation of the [First Amendment] as an element of a state cause of
`action is insufficiently ‘substantial’ to confer federal-question juris-
`diction." Merrell Dow, 478 U.S. at 814.
`
`Moreover, even when Congress does create a private cause of
`action for the violation of a federal law, federal question jurisdiction
`may be lacking over a state law claim predicated on a violation of that
`law. Mulcahey, 29 F.3d at 152-53. If a particular plaintiff is barred
`from bringing the private, federal cause of action, either substantively
`or procedurally, no federal subject matter jurisdiction exists over that
`plaintiff’s state cause of action predicated on a violation of the same
`federal law. Mulcahey, 29 F.3d at 152-53. In Mulcahey, we "con-
`clude[d] that the Plaintiffs’ inability to proceed under [a federal] stat-
`ute[ ] constitute[d] a ‘congressional conclusion that the presence of a
`claimed violation of the statute[ ] as an element of a state cause of
`action [wa]s insufficiently ‘substantial’ to confer federal question
`jurisdiction.’" Id. at 153 (quoting Merrell Dow, 478 U.S. at 814).
`
`Here, Congress has created a private cause of action to remedy vio-
`lations of the rights secured by the United States Constitution, see 42
`U.S.C.A. § 1983 (West 2003) ("Every person who, under color of any
`statute, ordinance, regulation, custom, or usage, of any State . . . sub-
`jects . . . any . . . person . . . to the deprivation of any rights, privi-
`leges, or immunities secured by the Constitution . . . shall be liable
`to the party injured in an action at law. . . ."), but that remedy is
`unavailable to Dixon, because Coburg did not terminate Dixon under
`color of state law. We believe "that [Dixon’s] inability to proceed
`under [§ 1983] constitutes a ‘congressional conclusion that the pres-
`ence of a claimed violation of the [First Amendment] as an element
`of a state cause of action is insufficiently ‘substantial’ to confer fed-
`eral question jurisdiction.’" Mulcahey, 29 F.3d at 153 (quoting Mer-
`rell Dow, 478 U.S. at 814).
`
`Accordingly, even if we construed Dixon’s complaint in such a
`way that it necessarily depended on federal law, we would conclude
`that the question of federal law that it raises is not substantial. Thus,
`the district court did not have original jurisdiction to hear this case
`and removal was improper.
`
`

`
`12
`
`DIXON v. COBURG DAIRY, INC.
`
`IV.
`
`For the foregoing reasons, we reverse the judgment of the district
`court and remand with instructions that the case be remanded to the
`South Carolina Court of Common Pleas.
`
`REVERSED AND REMANDED WITH INSTRUCTIONS
`
`MICHAEL, Circuit Judge, concurring in the judgment:
`
`Because Matthew Dixon’s complaint asserts only state law claims
`against his former employer, Coburg Dairy, Inc., I concur in the judg-
`ment to remand his case to South Carolina state court. Although some
`of Dixon’s state law claims refer to the First Amendment, these
`claims do not "turn[ ] on [a] construction of federal law." Merrell
`Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). That is
`because the First Amendment, as a matter of federal law, does not
`regulate the conduct of a private employer. See, e.g., Yatvin v. Madi-
`son Metro. School Dist., 840 F.2d 412, 420 (7th Cir. 1988).
`
`KING, Circuit Judge, concurring:
`
`I concur in the view of my able colleague Judge Williams that the
`district court lacked subject matter jurisdiction to address this dispute,
`and I agree with her conclusion that its removal to federal court was
`improper. I write separately to highlight and adopt the reasoning of
`my friend Judge Goodwin of West Virginia, who served our Court on
`the panel that initially considered this jurisdictional issue. As he cor-
`rectly recognized, the resolution of the Dixon complaint does not
`depend on any question of federal law. See Dixon v. Coburg Dairy,
`Inc., 330 F.3d 250, 266 (4th Cir. 2003) (Goodwin, District Judge, sit-
`ting by designation, concurring in part and dissenting in part) (observ-
`ing that question of whether Dixon was "exercising his First
`Amendment rights" cannot be answered under federal law), vacated
`& reh’g en banc granted, (4th Cir. Sept. 16, 2003). Although Judge
`Williams’s analysis adheres to circuit precedent and achieves the
`proper result, Dixon’s complaint does not even arguably give rise to
`federal jurisdiction. As I see it, section 16-17-560 of the South Caro-
`lina Code seeks to create a state law claim implicating the Constitu-
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`13
`
`tion of the United States; South Carolina, however, is powerless to
`mandate the application of First Amendment jurisprudence in a fed-
`eral proceeding where the alleged constitutional deprivation stems
`solely from private action.
`
`A right secured by the First Amendment is never exercised in the
`abstract; rather, it may be infringed only when a state actor has sought
`or seeks to suppress protected expression. See, e.g., CBS, Inc. v. Dem-
`ocratic Nat’l Comm., 412 U.S. 94, 114 (1973) (holding that First
`Amendment restrains "government action, not that of private per-
`sons"). In this situation, no state actor was involved in Dixon’s dis-
`charge, and thus his First Amendment rights could not have been
`contravened. Given these circumstances, Dixon’s complaint cannot be
`read to establish federal question jurisdiction. And as Judge Goodwin
`explained, "one cannot determine whether a specific expressive activ-
`ity is an ‘exercise of First Amendment rights’ without reference to a
`state actor who is trying to suppress that expressive activity." Dixon,
`330 F.3d at 266. This is therefore a state law dispute only, with no
`federal jurisprudential counterpart.
`
`Pursuant to the foregoing, I am pleased to concur.
`
`GREGORY, Circuit Judge, concurring in the judgment:
`
`I agree with the majority’s application of Merrell Dow and Chris-
`tianson in Part III-A of its opinion, therefore I concur in the judgment.
`I write separately, however, to briefly address an important issue
`raised by Appellee Coburg Dairy and Amicus Curiae Equal Employ-
`ment Advisory Council, namely the potential clash between an
`employer’s duties and liabilities under Title VII, 42 U.S.C. § 2000e
`et seq., and those which purportedly flow from S.C. Code Ann. § 16-
`17-560 if the statute applies in the manner that Mr. Dixon advocates.
`
`I.
`
`A.
`
`Before the district court, see Def.’s Mem. Supp. Mot. Summ. J. at
`3-12, and to a lesser extent on appeal, see Br. of Appellee at 17-19,
`
`

`
`14
`
`DIXON v. COBURG DAIRY, INC.
`
`Coburg attempted to ground its "arising under" arguments in a federal
`interest stemming from Title VII. Title VII of the Civil Rights Act of
`1964 prohibits discrimination by an employer against a covered indi-
`vidual "with respect to his compensation, terms, conditions, or privi-
`leges of employment, because of such individual’s race, color,
`religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). At
`the district court, Coburg Dairy presented a lengthy discussion of the
`conflict it perceives between its affirmative duties under Title VII to
`provide a workplace free of discrimination and the opposite results
`that might flow from Mr. Dixon’s favored interpretation1 of the South
`Carolina Code. See Def.’s Mem. Supp. Mot. Summ. J. at 6-7 (arguing
`Dixon’s "daily display of the flags plainly could have triggered Title
`VII liability" thus Coburg had a duty to remedy such potential work-
`place harassment, therefore it "end[ed] the alleged harassment" and
`took the opportunity "to limit or eliminate any potential liability for
`it"); id. at 8 ("Coburg, motivated by its duty under Title VII, opted to
`end Plaintiff’s employment."). Moreover, Coburg argued that S.C.
`Code Ann. § 16-17-560 is preempted by Title VII. Id. at 8.2 Likewise,
`on appeal, Coburg argues that "Dixon’s violation of constitutional
`rights claim is preempted by Title VII because it aims to curtail the
`protections afforded by that statute and the cases interpreting it. . . .
`[P]ermitting his claim to proceed in state court poses a real risk to
`uniform enforcement of Title VII." Br. of Appellee at 17. In short,
`Coburg argues that S.C. Code Ann. § 16-17-560, which under
`Dixon’s interpretation requires employers to carve out a safe space
`
`1Dixon argues that his display of the flag in the workplace is "pro-
`tected symbolic speech that is ‘guaranteed to every citizen by the Consti-
`tution and laws of [South Carolina].’" Br. of Appellant at 28 (quoting
`S.C. Code Ann. § 16-17-560).
`2Coburg presented these arguments through a federal preemption
`defense, however, rather than a declaratory judgment action, and such a
`defense is insufficient to obtain federal jurisdiction. See Caterpillar Inc.
`v. Williams, 482 U.S. 386, 391-93 (1987) (holding that ordinarily a case
`may not be removed on the basis of a federal defense unless the "com-
`plete pre-emption doctrine" applies); California Fed. Sav. & Loan Ass’n
`v. Guerra, 479 U.S. 272, 282-84 (1987) (holding Title VII only preempts
`state law inconsistent with it). On appeal, Coburg admits the "preemption
`defense to Dixon’s claim could [not] by itself warrant federal jurisdic-
`tion. . . . [But] is further proof of the substantial federal issues at stake
`. . . ." Br. of Appellee at 17 n.6 (citations omitted).
`
`

`
`DIXON v. COBURG DAIRY, INC.
`
`15
`
`for the Confederate battle flag,3 conflicts with an employer’s affirma-
`tive duty to provide a harassment-free workplace under Title VII. See
`Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (stating
`Title VII’s "‘primary objective’, like that of any statute meant to
`influence primary conduct, is not to provide redress but to avoid
`harm" (citation omitted)); id. (stating employers have an "affirmative
`obligation to prevent violations").
`
`Coburg states that to prevent harassment in the workplace and to
`avoid charges of a hostile work environment, it has implemented an
`anti-harassment policy through which it investigates and responds to
`employee complaints. In this case, one of Dixon’s Black co-workers
`was offended by Dixon’s Confederate battle flag stickers and asked
`Dixon to remove them. When Dixon refused, the Black co-worker
`informed Coburg that he found the Confederate battle flags Dixon
`displayed to be racially offensive and in violation of the company’s
`anti-harassment policy. As a result, Coburg investigated the complaint
`and "t[ook] prompt and adequate action to stop" the offensive conduct
`after being placed on notice. Mikela v. City of Durham, 183 F.3d 323,
`332 (4th Cir. 1999). Coburg and Amicus Curiae Equal Employment
`Advisory Council assert that the South Carolina Code places a bur-
`densome competing duty on employers. On the one hand, under Title
`VII, an employer must provide a harassment-free workplace. On the
`other, if Mr. Dixon’s interpretation of S.C. Code Ann. § 16-17-560
`prevails, the employer must allow employees to display symbols, like
`the Confederate battle flag, which other employees find offensive,
`