On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Justice REHNQUIST, dissenting.
The Court of Appeals for the Fifth Circuit held in this case
that an order of the District Court for the Southern District of
Georgia remanding a case to the state court from which it was
removed was reviewable through a petition for a writ of mandamus.
This conclusion is directly contrary to the plain language of 28
U.S.C. 1447(d), which provides that "[a]n order remanding a case to
the state court from which it was removed is not reviewable on
appeal or otherwise." Such manifest disregard of the language of
Congress should in my opinion warrant at least review by this
Court, if not summary reversal.
The complicated course of this litigation began in 1972, when
respondent filed an action against petitioner International Union
in state court. Petitioner did not answer the
Page 450 U.S.
949 , 950
complaint but instead moved to dismiss it for improper service.
This motion was denied and a default judgment eventually entered
against petitioner. A state trial was held for the sole purpose of
calculating damages. The judgment entered for respondent, however,
was ultimately reversed by the Georgia Supreme Court on the ground
that the International had not been properly served. Sheet Metal
Workers' International Assn. v. Carter, 241 Ga. 220,
244 S.E.2d 860
(1978). When the action was reinstituted and petitioner was
properly served, it removed the action to federal court. As early
as pretrial conference it clearly developed that respondent's only
claim was a state-law claim for intentional infliction of emotional
distress, App. to Pet. for Cert. 1a, but respondent never moved to
remand the case and the court did not do so sua sponte. The case
proceeded to trial and the jury awarded compensatory and punitive
damages in favor of respondent. Petitioner then moved to have the
judgment vacated and the case remanded for lack of subject-matter
jurisdiction. The District Court concluded that jurisdiction was
lacking, set aside the verdict and judgment, and remanded the
action to state court. The court then stated: "Notwithstanding 28
U.S.C. 1447(d), this Court hopes this Order is appealable. Perhaps
another exception may be carved out of the statute." Id., at
3a.
The Court of Appeals acceded to the wishes of the District
Court. It granted respondent's petition for a writ of mandamus,
vacated the remand order, and directed the District Court to
consider if it had pendent jurisdiction of the state-law claim. It
overcame to its satisfaction the seemingly clear prohibition of
1447(d) on the ground that 1447(c) required remand "[i]f at any
time before final judgment it appears that the case was removed
improvidently and without jurisdiction," while the District Court
ordered remand after final judgment. Relying on our decision in
Thermtron Products, Inc. v. Hermansdorfer,
423 U.S. 336, 96 S. Ct.
584 (1976), the
Page 450 U.S.
949 , 951
court reasoned that the remand order was not within 1447(c) and
thus review was not prohibited by 1447(d).
In Thermtron, however, the Court stated that "[i]f a trial judge
purports to remand a case on the ground that it was removed
'improvidently and without jurisdiction,' his order is not subject
to challenge in the court of appeals by appeal, by mandamus, or
otherwise." 423 U.S., at 343. The District Court remanded this case
precisely for the quoted reason. While Thermtron also stated that
"[t]here is no indication whatsoever that Congress intended to
extend the prohibition against review to reach remand orders
entered on grounds not provided by the statute," id ., at 350, this
remand order was entered on grounds permitted by the statute and
therefore comes under that portion of the Thermtron opinion stating
that "we neither disturb nor take issue with the well-established
general rule that 1447(d) and its predecessors were intended to
forbid review by appeal or extraordinary writ of any order
remanding a case on the grounds permitted by the statute." Id., at
351- 352. See Briscoe v. Bell,
432 U.S. 404, 414, n. 13,
2433, n. 13 (1977) ("Where the order is based on one of the
enumerated grounds, review is unavailable no matter how plain the
legal error in ordering the remand"); Gravitt v. Southwestern Bell
Telephone Co.,
430
U.S. 723 (1977) (" Title 28 U.S.C. 1447(c) provides for
remanding a removed action when the district court determines that
'the case was removed improvidently and without jurisdiction'; and
when a remand has been ordered on these grounds, 28 U.S.C. 1447(d)
unmistakably commands that the order 'remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise' "). Nothing in Thermtron suggests a further exception to
the clear prohibition of 1447(d) based merely on the timing of the
district judge's remand order.
The Court of Appeals stated that appellate review of remand
orders entered after final judgment served the policy concerns
underlying 1447( d). Not only is such policy
Page 450 U.S.
949 , 952
analysis inappropriate in light of the plain language of the
statute, it is unsound also. Congress' purpose in enacting 1447(d)
was to "prevent delay in the trial of remanded cases by protracted
litigation of jurisdictional issues." Thermtron, supra, 423 U.S.,
at 351. When the appellate court undertakes review of a remand
order entered after final judgment and concludes that remand was
appropriate, the wasteful delay is clear. Although a retrial in
state court may be avoided if a reviewing federal court determines
remand was inappropriate, such a benefit can only be had by
subjecting all remand orders after final judgment to review. The
present case is actually a paradigmatic example of the delay
Congress intended to prevent, since the Court of Appeals did not
even resolve the jurisdictional issue, but remanded to the District
Court for further proceedings. A clearer instance of the evil
Congress intended to avoid-"delay in the trial of remanded cases by
protracted litigation of jurisdictional issues"-would be difficult
to imagine.
This Court obviously cannot grant certiorari to review every
case in which four of its Members believe an important issue is
presented and wrongly decided. But where, as here, we deal not with
shades of gray clustering on both sides of a wavering legal line,
but instead with a jurisdictional statute in which Congress has
stated in bright-line terms that "[a]n order remanding a case to
the state court from which it was removed is not reviewable on
appeal or otherwise," the case for plenary consideration is
considerably stronger.
In these days of proliferating litigation, there is a tendency
to lose sight of the very sensible observation of Justice Brandeis,
dissenting in Burnet v. Coronado Oil & Gas Co.,
285 U.S.
393, 406, 447 (1932), that "in most matters it is more
important that the applicable rule of law be settled than that it
be settled right." This is particularly true of jurisdictional
statutes and statutes and rules regulating trial procedures and
appellate review. Here the Court of Appeals, contrary to the
opinion inThermtron, supra, reviewed by extraordinary writ
Page 450 U.S.
949 , 953
(mandamus) an order remanding a case on grounds permitted by the
applicable statute. If it may without further review here breathe
life into the District Court's hope that "another exception may be
carved out of the statute," the congressional policy underlying the
statute will soon be at the mercy of any court of appeals which
wishes to disobey it.
Since the litigation in question has been protracted, and
because petitioner may be suspected of having engaged in tactical
maneuvering in order to bring itself within the ambit of the
congressional prohibition against such review, there is natural
sympathy for respondent. But sympathy so generated is not a sound
basis for administering a system of justice involving sensitive
federal-state questions such as this. Since the action of the Court
of Appeals was squarely contrary to the express congressional
language referred to above, I would grant the petition for
certiorari and reverse the judgment.
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