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January 3, 1979


The opinion of the court was delivered by: CAHN


Crown Cork & Seal (Crown Cork) has asked this court to declare that I.R.C. § 6103 does not allow it to disclose its payroll records to the Pennsylvania Human Relations Commission (Commission) and justifies its refusal to comply with the Commission's orders and subpoenas. This court lacks jurisdiction over such an action. Public Service Commission of Utah v. Wycoff, 344 U.S. 237, 248, 73 S. Ct. 236, 97 L. Ed. 291 (1952); Thiokol Chemical Corp. v. Burlington Industries, Inc., 448 F.2d 1328, 1930-31 (3d Cir. 1971), Cert. denied, 404 U.S. 1019, 92 S. Ct. 684, 30 L. Ed. 2d 668 (1972). See LaChemise Lacoste v. Alligator Co., Inc., 506 F.2d 339, 343 (3d Cir. 1974), Cert. denied, 421 U.S. 937, 95 S. Ct. 1666, 44 L. Ed. 2d 94 (1975); Allegheny Airlines, Inc. v. Pennsylvania Public Utility Commission, 465 F.2d 237, 241 (3d Cir. 1972), Cert. denied, 410 U.S. 943, 93 S. Ct. 1367, 35 L. Ed. 2d 609 (1973).

 Plaintiff, Crown Cork, is a corporation which is currently involved in proceedings before the defendant Commission. In 1970 and 1971 the Commission and several individuals filed complaints against Crown Cork charging it with discrimination against females in violation of the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43 §§ 951-963 (Purdon) (hereinafter the Act). As provided by the Act, the Commission then began to gather information for presentation at a public hearing. Following a pre-hearing conference on February 10, 1977, a Commissioner issued an order requiring plaintiff to produce the payroll records of all persons employed by it from July 9, 1969, to the present. The following month the Commissioner subpoenaed those records.

 Crown Cork failed to comply with both the order and the subpoena. On August 1, 1977, the Commission moved for the production of computer record layout data pertaining to persons employed by Crown Cork during the period in question. On August 9, 1977, Crown Cork filed an answer to the Commission's motion. Crown Cork objected to disclosing any payroll records and argued that I.R.C. § 6103 prohibited the disclosure of such information. The Commissioner overruled Crown Cork's objection and ordered it to produce the documents requested. Crown Cork petitioned the Commission for reconsideration of that order but on October 20, 1977, the Commissioner denied the petition. Although the Commission has not tried to enforce its orders, Crown Cork filed this action in December, 1977. *fn1"

 Crown Cork asks this court to declare that I.R.C. § 6103 prohibits it from disclosing the documents which the Commission seeks. *fn2" Section 6103 is the Internal Revenue Code's confidentiality provision. It carries out two basic policy objectives. First, it assures taxpayers that the returns and information which they supply to the government in connection with the assessment and payment of taxes will not become public knowledge. I.R.C. § 6103(a). Second, it provides for access to the information by persons who are deemed to have a material interest therein. *fn3" I.R.C. § 6103(e). Under § 6103(e)(1)(D)(iii) holders of more than one percent of the stock of a corporation are deemed to have a material interest in the corporation's returns and are therefore given access to them. However, anyone who has had access to the information pursuant to that provision may not disclose it to anyone else. § 6103(a)(3).

 Crown Cork owns more than one percent of its own stock. Notwithstanding that Crown Cork did not obtain the information in question either from the government or as a result of its position as a one percent stockholder, it has taken the position that the precise language of § 6103(a) applies to it and prohibits it from disclosing the information which the Commission seeks. Due to the jurisdictional problems presented by the procedural posture of this case this court need not decide the merits of Crown Cork's claim.

 Crown Cork avers that 28 U.S.C. § 1331 gives this court jurisdiction to hear its claim. It maintains that since it is asking the court to construe I.R.C. § 6103, a federal statute, the case "arises under the . . . laws . . . of the United States." 28 U.S.C. § 1331. This oversimplification ignores the impact of the Supreme Court's decisions on the scope of federal question jurisdiction. In particular, the Court has refused to find federal question jurisdiction where the federal question arises only as a defense to a state law claim. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (1908). That is precisely the situation in this case; plaintiff's § 6103 claim arises only as a defense to the defendant's state law action to compel the production of documents.

 Although Mottley did not involve a declaratory judgment action, the Supreme Court's opinion in that case provides the starting point for an analysis of the issues presented in this case. The plaintiffs in Mottley brought an action in federal court seeking specific performance of their contract with the defendant railroad. They claimed that the defendant had agreed to provide them with free passes for the rest of their lives and that a subsequent act of Congress which forbade the giving of free passes did not excuse the railroad's noncompliance with the terms of the contract. If it did, the plaintiffs argued, it was unconstitutional. Since any determination by the court required it to construe the federal statute, the plaintiffs averred that the court had federal question jurisdiction. The Supreme Court thought otherwise; it dismissed the action for lack of subject matter jurisdiction.

 In Mottley the Court announced what has become known as the well pleaded complaint rule. The Court reasoned that although the plaintiffs had referred to the federal statute in their complaint, they would not have done so if they had pleaded correctly. The statute was relevant to the case only as a defense to the plaintiff's future breach of contract (state law) claim; it gave the plaintiffs no affirmative rights which they could ask a federal court to enforce. Therefore, it did not belong in the complaint. As the Court explained,

(A) suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution.

 Crown Cork argues that its case does not contravene the teachings of Mottley because it seeks an affirmative declaration of its rights under I.R.C. § 6103, an act of Congress. Plaintiff is correct only if the Declaratory Judgment Act substantially expands the jurisdiction of the federal courts. It does not. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S. Ct. 876, 94 L. Ed. 1194 (1950).

 The Declaratory Judgment Act allows one who would otherwise be a defendant to obtain a determination of his rights before anyone has instituted an action against him. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240, 57 S. Ct. 461, 81 L. Ed. 617 (1937). The Declaratory Judgment Act is only a procedural device and does not expand the jurisdiction of the federal courts. Skelly Oil Co. v. Phillips Petroleum Co., supra, at 671-72, 70 S. Ct. 876. To determine the existence of federal question jurisdiction in a declaratory judgment action the court must proceed with the knowledge that "in many actions for declaratory judgment, the realistic position of the parties is reversed." Public Service Commission of Utah v. Wycoff, 344 U.S. 237, 248, 73 S. Ct. 236, 242, 97 L. Ed. 291 (1952). In this case that means that the court must proceed as if the Commission were the plaintiff. The court must determine whether a federal question would appear on the face of the Commission's well pleaded complaint. Gully v. First National Bank, 299 U.S. 109, 113, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (1908). It is clear that it would not.

 The Commission's complaint against Crown Cork would allege only sex discrimination in violation of state law. *fn4" Like the holders of the rail passes in Mottley, the Commission could not obtain federal jurisdiction by anticipating a defense to its request for the production of documents. As in Mottley, the federal courts would not have jurisdiction over the claim. Crown Cork cannot change this result by bringing a declaratory judgment action. To hold otherwise would be to allow the ...

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