OCTOBER TERM, 1997
Syllabus
LEXECON INC. ET AL.
v. MILBERG WEISS BERSHAD HYNES &
LERACH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 96-1482. Argued November 10, 1997-Decided March 3, 1998
Petitioners, a law and economics consulting firm and one of its
principals (collectively, Lexecon), were defendants in a class
action brought against Charles Keating and the American Continental
Corporation in connection with the failure of Lincoln Savings and
Loan. It and other actions arising out of that failure were
transferred for pretrial proceedings to the District of Arizona
under 28 U. S. C. § 1407(a), which authorizes the Judicial Panel on
Multidistrict Litigation to transfer civil actions with common
issues of fact "to any district for coordinated or consolidated
pretrial proceedings," but provides that the Panel "shall" remand
any such action to the original district "at or before the
conclusion of such pretrial proceedings." Before the pretrial
proceedings ended, the plaintiffs and Lexecon reached a
"resolution," and the claims against Lexecon were dismissed.
Subsequently, Lexecon brought this diversity action in the Northern
District of Illinois against respondent law firms (hereinafter
Milberg and Cotchett), claiming several torts, including
defamation, arising from the firms' conduct as counsel for the
class-action plaintiffs. Milberg and Cotchett moved for, and the
Panel ordered, a § 1407(a) transfer to the District of Arizona.
After the remaining parties to the Lincoln Savings litigation
reached a final settlement, Lexecon moved the Arizona District
Court to refer the case back to the Panel for remand to the
Northern District of Illinois. The law firms filed a countermotion
requesting the Arizona District Court to invoke § 1404(a) to
"transfer" the case to itself for trial. With only the defamation
claim against Milberg remaining after a summary judgment ruling,
the court assigned the case to itself for trial and denied
Lexecon's motion to request the Panel to remand. The Ninth Circuit
then denied Lexecon's petition for mandamus, refusing to vacate the
self-assignment order and require remand because Lexecon would have
the opportunity to obtain relief from the transfer order on direct
appeal. After Milberg won a judgment on the defamation claim,
Lexecon again appealed the transfer order. The Ninth Circuit
affirmed on the ground that permitting the transferee court to
assign a case to itself upon completion of its pretrial work was
not only consistent with the statutory language but conducive to
efficiency.
27
Held: A district court conducting pretrial proceedings
pursuant to § 1407(a) has no authority to invoke § 1404(a) to
assign a transferred case to itself for trial. Pp. 32-43.
(a) Two sources of ostensible authority for Milberg's espousal
of selfassignment authority are that the Panel has explicitly
authorized such assignments in Panel Rule 14(b), which it issued in
reliance on its rulemaking authority; and that § 1407(a)'s
limitations on a transferee court's authority to the conduct of
"coordinated or consolidated" proceedings and to "pretrial
proceedings" raise no obvious bar to a transferee's retention of a
case under § 1404. Beyond this point, however, the textual pointers
reverse direction, for § 1407 not only authorizes the Panel to
transfer for coordinated or consolidated pretrial proceedings, but
obligates the Panel to remand any pending case to its originating
court when, at the latest, those pretrial proceedings end. The
Panel's remand instruction comes in terms of the mandatory "shall,"
which normally creates an obligation impervious to judicial
discretion.
Anderson v.
Yungkau, 329 U. S. 482, 485.
Reading the statute whole, this Court has to give effect to this
plain command, see
Estate of Cowart v.
Nicklos Drilling
Co., 505 U. S.
469,476, even if that will reverse the longstanding practice
under the statute and the rule, see
Metropolitan Stevedore
Co. v.
Rambo, 515 U. S. 291, 300. Pp.
32-37.
(b) None of Milberg's additional arguments based on the
statute's language and legislative history can unsettle § 1407's
straightforward language imposing the Panel's responsibility to
remand, which bars recognizing any self-assignment power in a
transferee court and consequently entails the invalidity of the
Panel's Rule 14(b). Pp. 37-41.
(c) Milberg errs in arguing that a remedy for Lexecon can be
omitted under the harmless-error doctrine. That § 1407's strict
remand requirement creates an interest too substantial to be left
without a remedy is attested by a congressional judgment that no
discretion is to be left to a court faced with an objection to a
statutory violation. The § 1407 mandate would lose all meaning if a
party who continuously objected to an uncorrected categorical
violation of the mandate could obtain no relief at the end of the
day.
Caterpillar Inc. v.
Lewis, 519 U. S. 61,
distinguished. Pp.41-43.
102 F.3d
1524, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, which was
unanimous except insofar as SCALIA, J., did not join Part II-C.
Michael K. Kellogg argued the cause for petitioners.
With him on the briefs were
Mark C.
Hansen, Sean A.
Lev,
28
Stephen M. Shapiro, Michele L. Odorizzi, and Kenneth S.
Geller.
Jerold S.
Solovy argued the cause for respondents.
With him on the brief for respondents Milberg Weiss Bershad Hynes
& Lerach et al. were
Ronald L. Marmer, C.
John Koch,
Jeffrey T. Shaw, Paul M. Smith, Thomas J.
Perrelli, Arthur
R. Miller, and
Michael Meehan. Gerald Maltz filed a
brief for respondents Cotchett et al. *
JUSTICE SOUTER delivered the opinion of the Court.t Title 28 U.
S. C. § 1407(a) authorizes the Judicial Panel on Multidistrict
Litigation to transfer civil actions with common issues of fact "to
any district for coordinated or consolidated pretrial proceedings,"
but imposes a duty on the Panel to remand any such action to the
original district "at or before the conclusion of such pretrial
proceedings."
Ibid. The issue here is whether a district
court conducting such "pretrial proceedings" may invoke § 1404(a)
to assign a transferred case to itself for trial. We hold it has no
such authority.
I
In 1992, petitioners, Lexecon Inc., a law and economics
consulting firm, and one of its principals (collectively, Lexecon),
brought this diversity action in the Northern District of
*Briefs of
amici curiae urging reversal were filed for
the Regents of the University of California by
Shirley M.
Hufstedler, Harold J.
McElhinny, and
P. Martin
Simpson, Jr.; and for the Washington Legal Foundation by
Daniel J.
Popeo.
Briefs of
amici curiae urging affirmance were filed for
the Aerospace Industries Association of America, Inc., by
Thomas J.
McLaughlin and
Mac S.
Dunaway; for the American Council of Life Insurance et al.
by
Theodore B. Olson, Theodore J.
Boutrous, Jr., Phillip
E. Stano, Craig Berrington, and
Phillip Schwartz; for
Eli Lilly and Co. by
Charles E. Lipsey; for Owens-Illinois,
Inc., by
James D. Miller; and for Credit Suisse First Boston
Corp. et al. by
Joseph T. McLaughlin and
Monroe
Sonnenborn.
tJU8TICE SCALIA joins this opinion, except as to Part II-C.
29
Illinois against respondents, the law firms of Milberg Weiss
Bershad Hynes & Lerach (Milberg) and Cotchett, Illston &
Pitre (Cotchett), claiming malicious prosecution, abuse of process,
tortious interference, commercial disparagement, and defamation.
The suit arose out of the firms' conduct as counsel in a prior
class action brought against Charles Keating and the American
Continental Corporation for violations of the securities and
racketeering laws. Lexecon also was a defendant, charged with
giving federal and state banking regulators inaccurate and
misleading reports about the financial condition of the American
Continental Corporation and its subsidiary Lincoln Savings and
Loan. Along with other actions arising out of the failure of
Lincoln Savings, the case against Lexecon was transferred under §
1407(a) for pretrial proceedings before Judge Bilby in the District
of Arizona, where the matters so consolidated were known as the
Lincoln Savings litigation. Before those proceedings were over, the
class-action plaintiffs and Lexecon reached what they termed a
"resolution," under which the claims against Lexecon were dismissed
in August 1992.
Lexecon then filed this case in the Northern District of
Illinois charging that the prior class action terminated in its
favor when the respondent law firms' clients voluntarily dismissed
their claims against Lexecon as meritless, amounting to nothing
more, according to Lexecon, than a vendetta. When these allegations
came to the attention of Judge Bilby, he issued an order stating
his understanding of the terms of the resolution agreement between
Lexecon and the classaction plaintiffs.
102 F.3d
1524, 1529, and n. 2 (CA9 1996). Judge Bilby's characterization
of the agreement being markedly at odds with the allegations in the
instant action, Lexecon appealed his order to the Ninth
Circuit.
Milberg, joined by Cotchett, then filed a motion under § 1407(a)
with the Judicial Panel on Multidistrict Litigation seeking
transfer of this case to Judge Bilby for consolidation with the
Lincoln Savings litigation. Although the judge en-
30
tered a recusal because of the order he had taken it upon
himself to issue, the law firms nonetheless renewed their motion
for a § 1407(a) transfer.
The Panel ordered a transfer in early June 1993 and assigned the
case to Judge Roll, noting that Lexecon's claims "share questions
of fact with an as yet unapproved settlement involving Touche Ross,
Lexecon, Inc. and the investor plaintiffs in the Lincoln Savings
investor class actions in MDL-834." App. 18. The Panel observed
that "i) a massive document depository is located in the District
of Arizona and ii) the Ninth Circuit has before it an appeal of an
order [describing the terms of Lexecon's dismissal from the Lincoln
Savings litigation] in MDL-834 which may be relevant to the
Lexecon claims."
Ibid. Prior to any dispositive
action on Lexecon's instant claims in the District of Arizona, the
Ninth Circuit appeal mentioned by the Panel was dismissed, and the
document depository was closed down.
In November 1993, Judge Roll dismissed Lexecon's statelaw
malicious prosecution and abuse of process claims, applying a
"heightened pleading standard," 845 F. Supp. 1377, 1383 (Ariz.
1993). Although the law firms then moved for summary judgment on
the claims remaining, the judge deferred action pending completion
of discovery, during which time the remaining parties to the
Lincoln Savings litigation reached a final settlement, on which
judgment was entered in March 1994.
In August 1994, Lexecon moved that the District Court refer the
case back to the Panel for remand to the Northern District of
Illinois, thus heeding the point of Multidistrict Litigation Rule
14(d), which provides that "[t]he Panel is reluctant to order
remand absent a suggestion of remand from the transferee district
court." The law firms opposed a remand because discovery was still
incomplete and filed a countermotion under § 1404(a) requesting the
District of Arizona to "transfer" the case to itself for trial.
Judge Roll deferred decision on these motions as well.
31
In November 1994, Lexecon again asked the District Court to
request the Panel to remand the case to the Northern District of
Illinois. Again the law firms objected and requested a § 1404
transfer, and Judge Roll deferred ruling once more. On April 24,
1995, however, he granted summary judgment in favor of the law
firms on all remaining claims except one in defamation brought
against Milberg, and at the same time he dismissed Milberg's
counterclaims. 884 F. Supp. 1388, 1397 (Ariz. 1995). Cotchett then
made a request for judgment under Federal Rule of Civil Procedure
54(b). Lexecon objected to the exercise of Rule 54(b) discretion,
but did not contest the authority of the District Court in Arizona
to enter a final judgment in Cotchett's favor. On June 7, 1995, the
court granted respondent Cotchett's Rule 54(b) request.
In the meantime, the Arizona court had granted the law firms' §
1404(a) motions to assign the case to itself for trial, and
simultaneously had denied Lexecon's motions to request the Panel to
remand under § 1407(a). Lexecon sought immediate review of these
last two rulings by filing a petition for mandamus in the Ninth
Circuit. After argument, a majority of the Circuit panel, over the
dissent of Judge Kozinski, denied Lexecon's requests to vacate the
self-assignment order and require remand to the Northern District
of Illinois. The Circuit so ruled even though the majority was "not
prepared to say that [Lexecon's] contentions lack merit" and went
so far as to note the conflict between "what appears to be a clear
statutory mandate [of § 1407 and § 1404]" and Multidistrict
Litigation Rule 14(b), which explicitly authorizes a transferee
court to assign an action to itself for trial.
Lexecon v.
Milberg Weiss, No. 95-70380 (CA9, July 21, 1995), p. 4. The
majority simply left that issue for another day, relying on its
assumption that Lexecon would have an opportunity to obtain relief
from the transfer order on direct appeal: "[t]he transfer order can
be appealed immediately along
32
with other issues in the event the petitioners lose on the
merits [at tria!]."
Id., at p. 3.
Trial on the surviving defamation claim then went forward in the
District of Arizona, ending in judgment for Milberg, from which
Lexecon appealed to the Ninth Circuit. It again appealed the denial
of its motion for a suggestion that the Panel remand the matter to
the Northern District of Illinois, and it challenged the dismissal
of its claims for malicious prosecution and abuse of process, and
the entry of final judgment in favor of Cotchett. Lexecon took no
exception to the Arizona court's jurisdiction (as distinct from
venue) and pursued no claim of error in the conduct of the
trial.
A divided panel of the Ninth Circuit affirmed, relying on the
Panel's Rule 14 and appellate and District Court decisions in
support of the District Court's refusal to support remand under §
1407(a) and its decision to assign the case to itself under §
1404(a). 102 F. 3d, at 1532-1535. While the majority indicated that
permitting the transferee court to assign a case to itself upon
completion of its pretrial work was not only consistent with the
statutory language but conducive to efficiency, Judge Kozinski
again dissented, relying on the texts of §§ 1407(a) and 1404(a) and
a presumption in favor of a plaintiff's choice of forum. We granted
certiorari, 520 U. S. 1227 (1997), to decide whether § 1407(a) does
permit a transferee court to entertain a § 1404(a) transfer motion
to keep the case for trial.
II A
In defending the Ninth Circuit majority, Milberg may claim
ostensible support from two quarters. First, the Panel has itself
sanctioned such assignments in a rule issued in reliance on its
rulemaking authority under 28 U. S. C. § 1407(f). The Panel's Rule
14(b) provides that "[e]ach transferred action that has not been
terminated in the transferee district court shall be remanded by
the Panel to the
33
transferor district for trial, unless ordered transferred by the
transferee judge to the transferee or other district under 28 U. S.
C. § 1404(a) or 28 U. S. C. § 1406." Thus, out of the 39,228 cases
transferred under § 1407 and terminated as of September 30, 1995,
279 of the 3,787 ultimately requiring trial were retained by the
courts to which the Panel had transferred them. Administrative
Office of the United States, L. Mecham, Judicial Business of the
United States Courts: 1995 Report of the Director 32. Although the
Panel's rule and the practice of self-assignment have not gone
without challenge, see,
e. g., 15 C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure § 3866, p. 619 (2d
ed. 1986) (hereinafter Wright, Miller, & Cooper); Trangsrud,
Joinder Alternatives in Mass Tort Litigation, 70 Cornell L. Rev.
779, 809 (1985); Levy, Complex Multidistrict Litigation and the
Federal Courts, 40 Ford. L. Rev. 41, 64-65 (1972), federal courts
have treated such transfers with approval, beginning with the
Second Circuit's decision in
Pfizer, Inc. v.
Lord,
447 F.2d
122, 124-125 (1971)
(per curiam) (upholding MDL Rule
15(d), the precursor to Rule 14(b)). See,
e. g.,
In re
Fine Paper Antitrust Litigation, 685 F.2d
810, 820, and n. 7 (CA3 1982);
In re Air Crash Disaster at
Detroit Metro. Airport, 737 F. Supp. 391, 393-394 (ED Mich.
1989);
In re Viatron Computer Sys. Corp., 86 F. R. D. 431,
432 (Mass. 1980).
The second source of ostensible authority for Milberg's espousal
of the self-assignment power here is a portion of text of the
multidistrict litigation statute itself:
"When civil actions involving one or more common questions of
fact are pending in different districts, such actions may be
transferred to any district for coordinated or consolidated
pretrial proceedings." 28 U. S. C. § 1407(a).
Although the statute limits a transferee court's authority to
the conduct of "coordinated or consolidated" proceedings and
34
to those that are "pretrial," these limitations alone raise no
obvious bar to a transferee's retention of a case under § 1404. If
"consolidated" proceedings alone were authorized, there would be an
argument that self-assignment of one or some cases out of many was
not contemplated, but because the proceedings need only be
"coordinated," no such narrow limitation is apparent. While it is
certainly true that the instant case was not "consolidated" with
any other for the purpose literally of litigating identical issues
on common evidence, it is fair to say that proceedings to resolve
pretrial matters were "coordinated" with the conduct of earlier
cases sharing the common core of the Lincoln Savings debacle, if
only by being brought before judges in a district where much of the
evidence was to be found and overlapping issues had been
considered. Judge Bilby's recusal following his decision to respond
to Lexecon's Illinois pleadings may have limited the prospects for
coordination, but it surely did not eliminate them. Hence, the
requirement that a transferee court conduct "coordinated or
consolidated" proceedings did not preclude the transferee Arizona
court from ruling on a motion (like the § 1404 request) that
affects only one of the cases before it.
Likewise, at first blush, the statutory limitation to "pretrial"
proceedings suggests no reason that a § 1407 transferor court could
not entertain a § 1404(a) motion. Section 1404(a) authorizes a
district court to transfer a case in the interest of justice and
for the convenience of the parties and witnesses. See § 1404(a).
Such transfer requests are typically resolved prior to discovery,
see Wright, Miller, & Cooper § 3866, at 620, and thus are
classic "pretrial" motions.
Beyond this point, however, the textual pointers reverse
direction, for § 1407 not only authorizes the Panel to transfer for
coordinated or consolidated pretrial proceedings, but obligates the
Panel to remand any pending case to its originating court when, at
the latest, those pretrial proceedings have run their course.
35
"Each action so transferred shall be remanded by the panel at or
before the conclusion of such pretrial proceedings to the district
from which it was transferred unless it shall have been previously
terminated." § 1407(a) (proviso without application here
omitted).
The Panel's instruction comes in terms of the mandatory "shall,"
which normally creates an obligation impervious to judicial
discretion.
Anderson v.
Yungkau, 329 U. S. 482, 485
(1947). In the absence of any indication that there might be
circumstances in which a transferred case would be neither
"terminated" nor subject to the remand obligation, then, the
statutory instruction stands flatly at odds with reading the phrase
"coordinated or consolidated pretrial proceedings" so broadly as to
reach its literal limits, allowing a transferee court's
self-assignment to trump the provision imposing the Panel's remand
duty. If we do our job of reading the statute whole, we have to
give effect to this plain command, see
Estate of Cowart v.
Nicklos Drilling Co., 505 U. S. 469, 476
(1992), even if doing that will reverse the longstanding practice
under the statute and the rule, see
Metropolitan Stevedore
Co. v.
Rambo, 515 U. S. 291, 300 (1995)
(" 'Age is no antidote to clear inconsistency with a statute'"
(quoting
Brown v.
Gardner, 513 U. S. 115, 122
(1994))).
As the Ninth Circuit panel majority saw it, however, the
inconsistency between an expansive view of "coordinated or
consolidated pretrial" proceedings and the uncompromising terms of
the Panel's remand obligation disappeared as merely an apparent
conflict, not a real one. The "focus" of § 1407 was said to be
constituting the Panel and defining its authority, not
circumscribing the powers of district courts under § 1404(a). 102
F. 3d, at 1533. Milberg presses this point in observing that §
1407(a) does not, indeed, even apply to transferee courts, being
concerned solely with the Panel's duties, whereas § 1407(b),
addressed to the transferee courts, says nothing about the Panel's
obligation to remand. But this analysis fails to persuade, for the
very reason that it
36
rejects that central tenet of interpretation, that a statute is
to be considered in all its parts when construing anyone of them.
To emphasize that § 1407(b) says nothing about the Panel's
obligation when addressing a transferee court's powers is simply to
ignore the necessary consequence of selfassignment by a transferee
court: it conclusively thwarts the Panel's capacity to obey the
unconditional command of § 1407(a).
A like use of blinders underlies the Circuit majority's
conclusion that the Panel was not even authorized to remand the
case under its Rule 14(c), the terms of which condition the remand
responsibility on a suggestion of the transferee court, a motion
filed directly with the Panel, or the Panel's
sua sponte
decision to remand. None of these conditions was fulfilled,
according to the Court of Appeals, which particularly faulted
Lexecon for failing to file a remand motion directly with the
Panel, as distinct from the transferee courU This analysis, too, is
unpersuasive; it just ignores the fact that the statute places an
obligation on the Panel to
1 The Ninth Circuit stopped short of expressly inferring a
waiver from Lexecon's failure to file a motion for remand directly
with the Panel, and any inference of waiver would surely have been
unsound. Although the Panel's Rule 14(c)(i) does authorize a party
to file such a motion, Rule 14(d) comes close to saying that only
under extraordinary circumstances will such a motion be granted
without a suggestion of remand by the transferee court. (The Rule
reads: "The Panel is reluctant to order remand absent a suggestion
of remand from the transferee district court.") Therefore, even if
a party may waive the § 1407 remand requirement by failing to
request remand from the transferor court, see 28 U. S. C. §
1406(b), Rule 14(d) precludes an inference of waiver from mere
failure to request remand from the Panel.
In this case, moreover, one can say categorically that a motion
before the Panel would have failed; the transferee court denied
Lexecon's motion for a remand suggestion simultaneously with an
order assigning the case to itself for trial, thus exercising the
authority that the Panel's Rule 14(b) expressly purported to
recognize. Under the Panel's own rules, in sum, Lexecon never had a
chance to waive a thing.
37
remand no later than the conclusion of pretrial proceedings in
the transferee court, and no exercise in rulemaking can read that
obligation out of the statute. See 28 U. S. c. § 1407(f) (express
requirement that rules be consistent with statute).
B
Milberg proffers two further arguments for overlooking the
tension between a broad reading of a court's pretrial authority and
the Panel's remand obligation. First, it relies on a subtle reading
of the provision of § 1407(a) limiting the Panel's remand
obligation to cases not "previously terminated" during the pretrial
period. To be sure, this exception to the Panel's remand obligation
indicates that the Panel is not meant to issue ceremonial remand
orders in cases already concluded by summary judgment, say, or
dismissal. But according to Milberg, the imperative to remand is
also inapplicable to cases self-assigned under § 1404, because the
self-assignment "terminates" the case insofar as its venue depends
on § 1407. When the § 1407 character of the action disappears,
Milberg argues, the strictures of § 1407 fall away as well,
relieving the Panel of any further duty in the case. The trouble
with this creative argument, though, is that the statute manifests
no such subtlety. Section 1407(a) speaks not in terms of imbuing
transferred actions with some new and distinctive venue character,
but simply in terms of "civil actions" or "actions." It says that
such an action, not its acquired personality, must be terminated
before the Panel is excused from ordering remand. The language is
straightforward, and with a straightforward application ready to
hand, statutory interpretation has no business getting
metaphysical.
Second, Milberg tries to draw an inference in its favor from the
one subsection of § 1407 that does authorize the Panel to transfer
a case for trial as well as pretrial proceedings. Subsection (h)
provides that,
38
"[n]otwithstanding the provisions of section 1404 or subsection
(f) of this section, the judicial panel on multidistrict litigation
may consolidate and transfer with or without the consent of the
parties, for both pretrial purposes and for trial, any action
brought under section 4C of the Clayton Act."
Milberg fastens on the introductory language explicitly
overriding the "provisions of section 1404 or subsection (f),"
which would otherwise, respectively, limit a district court to
transferring a case "to any other district or division where it
might have been brought," § 1404(a), and limit the Panel to
prescribing rules "not inconsistent with Acts of Congress," §
1407(f). On Milberg's reasoning, these overrides are required
because the cited provisions would otherwise conflict with the
remainder of subsection (h) authorizing the Panel to order trial of
certain Clayton Act cases in the transferee court. The argument
then runs that since there is no override of subsection (a) of §
1407, subsection (a) must be consistent with a transfer for trial
as well as pretrial matters. This reasoning is fallacious, however.
Subsections (a) and (h) are independent sources of transfer
authority in the Panel; each is apparently written to stand on its
own feet. Subsection (h) need not exclude the application of
subsection (a), because nothing in (a) would by its terms limit any
provision of (h).
Subsection (h) is not merely valueless to Milberg, however; it
is ammunition for Lexecon. For the one point that subsection (h)
does demonstrate is that Congress knew how to distinguish between
trial assignments and pretrial proceedings in cases subject to §
1407. Although the enactment of subsection (a), Act of Apr. 29,
1968, 82 Stat. 109, preceded the enactment of subsection (h), Act
of Sept. 30, 1976, § 303, 90 Stat. 1394, 1396, the fact that the
later section distinguishes trial assignments from pretrial
proceedings generally is certainly some confirmation for our
conclusion, on independent grounds, that the subjects of
pretrial
39
proceedings in subsections (a) and (b) do not include
selfassignment orders.2
C
There is, finally, nothing left of Milberg's position beyond an
appeal to legislative history, some of which turns out to ignore
the question before us, and some of which may support Lexecon.
Milberg cites a House Report on the bill that became § 1407, which
addresses the question of trial transfer in multidistrict
litigation cases by saying that, "[o]f course, 28 U. S. C. 1404,
providing for changes of venue generally, is available in those
instances where transfer of a case for all purposes is desirable."
H. R. Rep. No. 1130, 90th Cong., 2d Sess., p. 4 (1968) (hereinafter
H. R. Rep.), cited in Brief for Respondents Milberg et al. 25. But
the question is not whether a change of venue may be ordered in a
case consolidated under § 1407(a); on any view of § 1407(a), if an
order may be made under § 1404(a),3 it may be made after remand of
the case to the originating district court. The relevant question
for our purposes is whether a transferee court, and not a
transferor court, may grant such a motion, and on this point, the
language cited by Milberg provides no guidance.
If it has anything to say to us here, the legislative history
tends to confirm that self-assignment is beyond the scope of the
transferee court's authority. The same House Report that spoke of
the continued vitality of § 1404 in § 1407 cases also said
this:
2 It is well to note the limitations of a related argument. It
may be tempting to say that the incompatibility of a
self-assignment under § 1404(a) with the Panel's mandate is
confirmed by the authority of a transferor court to assign a case
to a § 1407(a) transferee district for trial if that would be
appropriate following pretrial proceedings under § 1407(a). But
there is one circumstance in which a transferor court would be
unable to do that. As noted, transfers under § 1407 are not limited
by general venue statutes; those under § 1404 are.
3 See n. 2, supra.
40
"The proposed statute affects only the pretrial stages in
multidistrict litigation. It would not affect the place of trial in
any case or exclude the possibility of transfer under other Federal
statutes.
"The subsection requires that transferred cases be remanded to
the originating district at the close of coordinated pretrial
proceedings. The bill does not, therefore, include the trial of
cases in the consolidated proceedings." H. R. Rep., at 3-4.
The comments of the bill's sponsors further suggest that
application of § 1407 (before the addition of subsection (h)) would
not affect the place of trial. See,
e. g., Multidistrict
Litigation: Hearings on S. 3815 and S. 159 before the Subcommittee
on Improvements in Judicial Machinery of the Senate Comm. on the
Judiciary, 90th Cong., 1st Sess., pt. 2, p. 110 (1967) (Sen.
Tydings) ("[W]hen the deposition and discovery is completed, then
the original litigation is remanded to the transferor district for
the trial"). Both the House and the Senate Reports stated that
Congress would have to amend the statute if it determined that
multidistrict litigation cases should be consolidated for trial. S.
Rep. No. 454, 90th Cong., 1st Sess., p. 5 (1967).
D
In sum, none of the arguments raised can unsettle the
straightforward language imposing the Panel's responsibility to
remand, which bars recognizing any self-assignment power in a
transferee court and consequently entails the invalidity of the
Panel's Rule 14(b). See 28 U. S. C. § 1407(f). Milberg mayor may
not be correct that permitting transferee courts to make
self-assignments would be more desirable than preserving a
plaintiff's choice of venue (to the degree that § 1407(a) does so),
but the proper venue for resolving that issue remains the floor of
Congress. See
Am-
41
chem Products, Inc. v. Windsor,
521 U. S. 591, 628-629
(1997); Finley v. United States,
490 U. S. 545, 556
(1989).4
III
The remaining question goes to the remedy, which Milberg argues
may be omitted under the harmless-error doctrine. Milberg posits a
distinction between a first category of cases erroneously litigated
in a district in which (absent waiver) venue may never be laid
under the governing statute, see
Olberding v.
Illinois
Central R. Co., 346 U. S. 338, 340
(1953), and a second category, in which the plaintiff might
originally have chosen to litigate in the trial forum to which it
was unwillingly and erroneously carried, as by a transfer under §
1404. In the first, reversal is necessary; in the second,
affirmance is possible if no independent and substantial right was
violated in a trial whose venue was determined by a discretionary
decision. Since Lexecon could have brought suit in the Arizona
district consistently with the general venue requirements of 28 U.
S. C. § 1391, and since the transfer for trial was made on the
authority of § 1404(a), Milberg argues, this case falls within the
second category and should escape reversal because none of
Lexecon's substantial rights was prejudicially affected, see §
2111. Assuming the distinction may be drawn, however, we think this
case bears closer analogy to those in the first category, in which
reversal with new trial is required because venue is precluded by
the governing statute.
Milberg's argument assumes the only kind of statute entitled to
respect in accordance with its uncompromising terms is a statute
that categorically limits a plaintiff's initial choice of forum.
But there is no apparent reason why courts
4 Because we find that the statutory language of § 1407
precludes a transferee court from granting any § 1404(a) motion, we
have no need to address the question whether § 1404(a) permits
self-transfer given that the statute explicitly provides for
transfer only "to any other district." 28 U. S. C. § 1404(a).
42
should not be equally bound by a venue statute that just as
categorically limits the authority of courts (and special panels)
to override a plaintiff's choice. If the former statute creates
interests too substantial to be denied without a remedy, the latter
statute ought to be recognized as creating interests equally
substantial. In each instance the substantiality of the protected
interest is attested by a congressional judgment that in the
circumstances described in the statute no discretion is to be left
to a court faced with an objection to a statutory violation. To
render relief discretionary in either instance would be to allow
uncorrected defiance of a categorical congressional judgment to
become its own justification. Accordingly, just as we agree with
Milberg that the strict limitation on venue under, say, § 1391(a)
(diversity action "may ... be brought only ... ") is sufficient to
establish the substantial character of any violation, Brief for
Respondents Milberg et al. 43 (citing
Olberding, supra), the
equally strict remand requirement contained in § 1407 should
suffice to establish the substantial significance of any denial of
a plaintiff's right to a remand once the pretrial stage has been
completed.
Nor is Milberg correct that our recent decision in
Caterpillar Inc. v.
Lewis, 519 U. S. 61 (1996), is to
the contrary.5 In
5 In its brief to this Court, Milberg suggests that any decision
rejecting multidistrict litigation courts' practice of ruling on §
1404 transfer motions should be applied only prospectively under
Chevron Oil Co. v.
Huson, 404 U. S. 97,106-107
(1971). Because this argument was not presented below, see Brief
for Milberg Defendants in No. 95-16403 et al. (CA9), or to this
Court when Milberg opposed petitioners' petition for certiorari,
see Brief in Opposition for Respondents Milberg et al., it is
unnecessary for us to consider it here.
Milberg's brief also argues that petitioners are not entitled to
relief because the only claim that survived for trial should have
been dismissed during pretrial proceedings. We do not address the
propriety of the District Court's decision to allow this claim to
go forward; the issue falls outside the question on which we
granted certiorari. See this Court's Rule 14.1(a) ("Only the
questions set forth in the petition, or fairly included therein,
will be considered by the Court").
43
that case, which got no new trial, the jurisdictional defect (a
lack of complete diversity) had been cured by subsequent events.
While the statutory error (failure to comply with the § 1441(a)
requirement that the case be fit for federal adjudication when the
removal petition is filed) "remained in the unerasable history of
the case," id., at 73, in the sense that it had not been cured
within the statutory period, it had otherwise been cured by the
time judgment was entered. The instant case is different from that
one, inasmuch as there was no continuing defiance of the
congressional condition in
Caterpillar, but merely an
untimely compliance. It was on this understanding that we held that
considerations of "finality, efficiency, and economy" trumped the
error, id., at 75. After
Caterpillar, therefore, since
removal is permissible only where original jurisdiction exists at
the time of removal or at the time of the entry of final judgment,
the condition contained in the removal statute retains
significance. But the § 1407(a) mandate would lose all meaning if a
party who continuously objected to an uncorrected categorical
violation of the mandate could obtain no relief at the end of the
day.6
Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
So ordered.
6 Although Cotchett's request for an order of dismissal under
Rule 54(b) was not granted until after the Arizona court had
assigned the case to itself for trial, there is no reason to
reconsider that dismissal order. It was perfectly proper as a
pretrial order and, for that matter, was merely the formal
reflection of the Arizona court's decision on the merits of the
claims that had been resolved prior to that court's decision on the
§ 1404 transfer.
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