Balazik v. County of Dauphin

Opinions of the United

1995 Decisions States Court of Appeals

for the Third Circuit

1-5-1995

Balazik v County of Dauphin

Precedential or Non-Precedential:

Docket 94-7338

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 94-7350

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JOSEPH C. BALAZIK; EDITH C. BALAZIK;

DAVID BEDARD; JUDITH L. BEDARD; DONALD

F. FRICCHIONE, M.D.; MARIA CLAUDIA

FRICCHIONE; JOSEPH F. SALZINGER; DOUGLAS

G. RICKER; CHRISTINE L. RICKER, on behalf

of themselves and all owners of real

property that was constructed or

rehabilitated in the defendant townships

since July 1, 1983

v.

COUNTY OF DAUPHIN; DAUPHIN COUNTY BOARD

OF ASSESSMENT APPEALS; DERRY TOWNSHIP;

LOWER PAXTON TOWNSHIP; LOWER SWATARA

TOWNSHIP; SUSQUEHANNA TOWNSHIP; SWATARA

TOWNSHIP; CENTRAL DAUPHIN SCHOOL DISTRICT;

DERRY TOWNSHIP SCHOOL DISTRICT; LOWER

DAUPHIN SCHOOL DISTRICT; MIDDLETOWN AREA

SCHOOL DISTRICT; STEELTON-HIGHSPIRE

SCHOOL DISTRICT; SUSQUEHANNA SCHOOL

DISTRICT

THE HONORABLE WILLIAM W. CALDWELL,

Nominal Respondent

SWATARA TOWNSHIP,

Petitioner

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On Petition for Writ of Mandamus to the

United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 94-00401)

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Argued Tuesday, November 29, 1994

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No. 94-7338

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JOSEPH C. BALAZIK; EDITH C. BALAZIK;

DAVID BEDARD; JUDITH L. BEDARD; DONALD

F. FRICCHIONE, M.D.; MARIA CLAUDIA

FRICCHIONE; JOSEPH F. SALZINGER; DOUGLAS

G. RICKER; CHRISTINE L. RICKER, on behalf

of themselves and all owners of real

property that was constructed or

rehabilitated in the defendant townships

since July 1, 1983

v.

COUNTY OF DAUPHIN; DAUPHIN COUNTY BOARD OF

ASSESSMENT APPEALS; DERRY TOWNSHIP; LOWER

PAXTON TOWNSHIP; LOWER SWATARA TOWNSHIP;

SUSQUEHANNA TOWNSHIP; SWATARA TOWNSHIP;

CENTRAL DAUPHIN SCHOOL DISTRICT; DERRY

TOWNSHIP SCHOOL DISTRICT; LOWER DAUPHIN

SCHOOL DISTRICT; MIDDLETOWN AREA SCHOOL

DISTRICT; STEELTON-HIGHSPIRE SCHOOL DISTRICT;

SUSQUEHANNA SCHOOL DISTRICT

SWATARA TOWNSHIP,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 94-00401)

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Submitted Under Third Circuit LAR 34.1(a)

Tuesday, November 29, 1994

BEFORE: HUTCHINSON, NYGAARD and GARTH Circuit Judges

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(Opinion filed January 5, 1995)

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Anthony R. Sherr (Argued)

Deborah Z. Winfield

Sherr, Joffe & Zuckerman

200 Four Falls Corporate Center

P.O. Box 800, Suite 400

West Conshohocken, Pennsylvania 19428-0800

Attorneys for Township of Swatara

Petitioner/Appellant

Robert A. Swift (Argued)

Dennis F. Sheils

Kohn, Nast & Graf

1101 Market Street

24th Floor

Philadelphia, Pennsylvania 19107

Theodore A. Adler

Reager & Adler

127 State Street

Harrisburg, Pennsylvania 17101

Richard D. Adamson

Adamson & Kennedy

253 West Main Street

Kutztown, Pennsylvania 19530

Attorneys for Joseph C. Balazik, Edith

C. Balazik, David Bedard, Judith L.

Bedard, Donald F. Fricchione, Maria

Claudia Fricchione, Joseph F.

Salzinger, Douglas G. Ricker and

Christine L. Ricker

Respondents/Appellees

Carl G. Wass

Caldwell & Kearns

3631 North Front Street

Harrisburg, Pennsylvania 17110

Attorney for Dauphin County and

Dauphin County Board of Assessment

Appeals

Respondents/Appellees

Richard H. Wix

Wix, Wenger & Weidner

200 Prince Street

Harrisburg, Pennsylvania 17109-3099

Attorney for Township of Lower Paxton

Respondent/Appellee

John A. Roe

John A. Roe Law Office

107 North Front Street

Harrisburg, Pennsylvania 17101

Attorney for Susquehanna Township

Respondent/Appellee

Stuart L. Knade

Cleckner & Fearen

31 North Second Street

Harrisburg, Pennsylvania 17101

Attorney for Central Dauphin School,

Derry Township School District, Lower

Dauphin School, Middletown School

Area, and Susquehanna School District

Respondents/Appellees

Douglas B. Marcello

Thomas, Thomas & Hafer

305 North Front Street

P.O. Box 999

Harrisburg, Pennsylvania 17108

Attorney for Steelton-Highspire

School District

Respondent/Appellee

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OPINION OF THE COURT

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GARTH, Circuit Judge:

An appeal and a petition for mandamus seek review of an

order of the district court judge remanding this proceeding to

state court pursuant to Fair Assessment in Real Estate Ass'n,

Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271

(1981). The central issues presented are whether this Court's

review is barred by the operation of 28 U.S.C. § 1447(d), and, if

not, whether the remand was proper. Because review of a district

court's remand order is generally available, if at all, only

through a mandamus proceeding, we will dismiss the appeal at 94-

7338. We conclude that we may review the remand order by way of

a mandamus, and because remand should have been ordered, we will

also deny the petition.

I

Nine plaintiffs-respondents-appellees (the

"Balaziks"),1 recent purchasers of real property in Dauphin

County, Pennsylvania, commenced this putative class action

pursuant to 28 U.S.C. § 1983 in the Court of Common Pleas of

Dauphin County on March 1, 1994, against 13 defendants, including

defendants-appellants Dauphin County and the Dauphin County Board

of Assessment Appeals, and defendant-appellant-petitioner Swatara

Township (collectively, "Swatara"). The Balaziks, and the other

similarly situated plaintiffs, seek to recover damages allegedly

sustained as the result of the defendant taxing authorities'

1

. For ease of reference, we will refer to the nine plaintiffs-

respondents-appellees collectively as the "Balaziks."

practice of reassessing and taxing at fair market values newly

acquired and rehabilitated properties without similarly

reassessing longer held, non-rehabilitated properties. The

Balaziks allege that this "Welcome Stranger" policy results in a

higher tax burden for taxpayers such as themselves, and

constitutes a violation of their rights under the Equal

Protection Clause of the Fourteenth Amendment of the United

States Constitution.

On March 18, 1994, defendants Dauphin County, Dauphin

County Board of Assessment Appeals and Swatara removed the case

from the Court of Common Pleas to the U.S. District Court for the

Middle District of Pennsylvania pursuant to 28 U.S.C. §§ 1331,

1441 and 1443. Swatara has candidly admitted that it sought

removal in order to avoid the effects of Murtagh v. County of

Berks, 535 Pa. 50, 634 A.2d 179 (Pa. 1993), a recent decision of

the Pennsylvania Supreme Court which held that taxpayers need not

exhaust the administrative remedies available to them under state

law in order to file a § 1983 action in state court. The

remaining ten defendants did not join in Swatara's removal

notice.2

2

. It appears from the record that the following defendants did

not join in the removal: Derry Township, Lower Paxton Township,

Lower Swatara Township, Central Dauphin School District, Derry

Township Public Schools, Lower Dauphin School District,

Middletown Area School District, and Susquehanna School District.

Susquehanna Township and Steelton-Highspire School District,

which had not joined initially, later concurred in the removal.

App. 19-20.

Having removed the case to federal court, Swatara

proceeded to seek dismissal of the Balaziks' complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure for failure of

the Balaziks to pursue state procedural remedies. In response,

the Balaziks made a timely motion to have the proceedings

remanded to state court under 28 U.S.C. § 1447(c), claiming that

the district court lacked subject matter jurisdiction.

On May 11, 1994, the district court rejected the

Balaziks' contention that it lacked jurisdiction, but ordered the

case remanded as a matter of comity pursuant to Fair Assessment

in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102 S.Ct.

177, 70 L.Ed.2d 271 (1981) (holding that taxpayers are barred by

the principle of comity from asserting § 1983 damages actions in

federal courts based on the administration of state tax systems).

The district court also noted that not all plaintiffs

had joined in the notice of removal, although it did not rule on

this issue in deciding Balazik's motion to remand. Dist. Ct.

Memo. at 3 n. 1.

On June 1, 1994, at Docket 94-7338, Swatara appealed

the remand order, and on June 10, 1994, Dauphin County and the

Dauphin County Board of Assessment Appeals also filed a notice of

appeal from the remand order. On June 20, 1994, at Docket 94-

7350, Swatara petitioned this Court pursuant to 28 U.S.C. § 1651

to issue a writ of mandamus compelling the district court judge

to vacate his remand order and to adjudicate the case. These

actions have been consolidated.

As discussed hereafter, 28 U.S.C. § 1447(d) bars

review, by direct appeal or otherwise, of remands ordered on the

basis of a defect in removal procedure or for lack of federal

subject matter jurisdiction. On appeal, and in support of its

petition, Swatara has argued that the remand order is (1)

reviewable because it was predicated on McNary comity grounds,

and (2) improper because McNary should be read to permit only

dismissals of proceedings, not remands.

On the other hand, before us, but not before the

district court, the Balaziks have urged that the failure of all

the defendants to join in the removal was a defect in the removal

procedure warranting remand. They suggest that this defect bars

our review by the operation of § 1447(d). In addition, the

Balaziks contend that remand is in all events proper because

McNary is a permissible basis for remand.

The threshold question, then, is whether we have

jurisdiction to entertain Swatara's objections to the remand,

and, if so, on what basis.

II

28 U.S.C. § 1447(d), with one exception not applicable

here (see footnote 7, infra), provides that "[a]n order remanding

a case to the State court from which it was removed is not

reviewable on appeal or otherwise. . .." This apparently global

bar to appellate review of remand orders has been interpreted by

the Supreme Court to apply only to remand orders issued pursuant

to 28 U.S.C. § 1447(c),3 Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 343 (1976) ("Thermtron"), and since

Thermtron was decided we have held a variety of remand orders to

be reviewable. See Aliota v. Graham, 984 F.2d 1350, 1355 (3d

Cir.), cert. denied, __ U.S. __, 114 S.Ct. 69 (1993) (citing

Third Circuit cases reviewing remand orders); see also Carr v.

American Red Cross, 17 F.3d 671 (3d Cir. 1994); Pacor, Inc. v.

Higgins, 743 F.2d 984 (3d Cir. 1984). However, when the bar of

§ 1447(d) does apply, it is absolute, forbidding not only appeals

but also writs of mandamus, the "or otherwise" referred to in the

statute. Thermtron, 423 U.S. at 336.

Thus, whether we may review the May 11th remand order

of the district court turns on the basis for the remand. As we

noted in PAS v. Travelers Ins. Co., 7 F.3d 349 (3d Cir. 1993),

"[c]ases may be remanded under § 1447(c) for (1) lack of district

court subject matter jurisdiction or (2) a defect in the removal

procedure." Id. at 352. Our review is therefore barred only if

one of these grounds formed the basis of the remand.

The Balaziks contend, first, that no review may be had

because not all of the defendants joined in the removal, thus

3

. 28 U.S.C. § 1447(c) (1994), as amended, provides in relevant

part as follows:

A motion to remand the case on the basis of

any defect in removal procedure must be made

within 30 days after the filing of the notice

of removal under section 1446(a). If at any

time before final judgment it appears that

the district court lacks subject matter

jurisdiction, the case shall be remanded.

constituting a "defect in removal procedure." We agree that the

failure of all defendants to remove creates a defect in removal

procedure within the meaning of § 1447(c). We would have been

required to resolve the issue of our review on that basis, had

the district court so held. However, as earlier noted, and as we

discuss infra, the district court did not rule on a § 1447(c)

ground. Thus, the bar to appellate review commanded by § 1447(c)

and § 1447(d) is inapplicable in light of the district court's

ground of decision, and we are obliged to disagree with the

Balaziks that our review is forestalled in the instant case.

A

Section 1446(a) of 28 U.S.C. requires that "[a]

defendant or defendants desiring to remove any civil

action . . . shall file . . . a notice of removal." Despite the

ambiguity of the term "defendant or defendants," it is well

established that removal generally requires unanimity among the

defendants. See, e.g., Chicago, R. I. & P. Ry. Co. v. Martin,

178 U.S. 245, 247, 20 S.Ct. 854, 44 L.Ed. 1055 (1900) ("if a suit

arises under the Constitution or laws of the United States, or if

it is a suit between citizens of different states, the defendant,

if there be but one, may remove, or the defendants, if there be

more than one. . .."); Lewis v. Rego Co., 757 F.2d 66, 68 (3d

Cir. 1985) ("Section 1446 has been construed to require that when

there is more than one defendant, all must join in the removal

petition").4

Failure of all defendants to join is a "defect in

removal procedure" within the meaning of § 1447(c), but is not

deemed to be jurisdictional. See Johnson v. Helmerich & Payne,

Inc., 892 F.2d 422, 423 (5th Cir. 1990) (the "failure to join all

the defendants in a removal petition is not a jurisdictional

defect"); In re Amoco Petroleum Additives Co., 964 F.2d 706, 713

(7th Cir. 1992); McGlinchey v. Hartford Accident and Indem. Co.,

866 F.2d 651, 653 (3d Cir. 1989).

Here, while it appears from the record that not all of

the defendants joined in the removal notice, this fact was merely

noted, and neither ruled upon nor relied upon, by the district

court in entering its remand order. Dist. Ct. Memo. at 4 n.1.

Thermtron forestalls review only when the remand order is issued

"pursuant to" § 1447(c). Thermtron, 423 U.S. at 343. "If a

trial judge purports to remand a case on [§ 1447(c) grounds], his

order is not subject to challenge in the court of appeals, by

mandamus or otherwise." Id. (emphasis added).

4

. The unanimity rule may be disregarded where: (1) a non-

joining defendant is an unknown or nominal party; or (2) where a

defendant has been fraudulently joined. See McManus v.

Glassman's Wynnefield, Inc., 710 F.Supp. 1043, 1045, n.5 (E.D.Pa.

1989) (citing Fellhauer v. City of Geneva, 673 F.Supp 1445, 1447

n.4 (N.D. Ill. 1987). See also 1A J. Moore & B. Ringle, Moore's

Federal Practice ¶ 0.168[3.-2-2]. Another exception is when a

non-resident defendant has not been served at the time the

removing defendants filed their petition. See Lewis, 757 F.2d at

69. Swatara has not argued that any of these exceptions apply to

the present case.

Thus, our review is forestalled only when the stated

reasons for the remand include procedural or jurisdictional

defects: "[O]nly remand orders issued under 1447(c) and invoking

the grounds specified therein . . . are immune from review under

§ 1447(d)." Id. at 346 (emphasis added). The mere existence of

a defect in removal procedure, where timely objection is not made

and where the district court does not rely on § 1447(c) as the

ground of its decision, does not preclude our review. Hence, our

review is not proscribed even if a remand could have been ordered

based on a § 1447(c) ground, but was not. Because the district

court expressly declined to base its remand order on § 1447(c)

grounds, we cannot rely upon a § 1447(c) procedural defect, i.e.

the failure of all the defendants to join in the removal notice,

as a bar to our review.5

B

The Balaziks next argue that the district court's

remand, even if based only on McNary grounds, is nonetheless

unreviewable. They state that "[r]eview [of remand orders]

should not be permitted when, as here, the district court's

decision to remand is based upon grounds, that it has authority

to consider, that lead the district court to conclude that it is

5

. Our examination of the record shows that the Balaziks did not

draw the district court's attention to the failure of all the

defendants to join in removal, even though the district court

recognized that fact. Thus, they neither preserved the issue for

appeal nor acted within the 30 day statutory time limit provided

for in § 1447(c). See McGlinchey, 866 F.2d at 653.

required to remand the action to state court." Plaintiff's

Letter Memorandum 7/18/1994 at 6-7.

This argument, which amounts to the contention that

§ 1447(d) bars review in all cases where a remand is required,

must be rejected, as it contravenes the Supreme Court's ruling in

Thermtron that review is barred only when the remand is based on

§ 1447(c): "There 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."

Thermtron, 423 U.S. at 350. Further, it fails to consider this

Court's decisions reviewing, and in some cases affirming, remands

that were not based on § 1447(c).6 As we have previously noted:

[W]hile section 1447(d) was intended "to

prevent delay in the trial of remanded cases

by protracted litigation of jurisdictional

issues," -- and the district court is

therefore given the last word on whether it

has jurisdiction to hear the case --, that

policy does not apply when the district court

has reached beyond jurisdictional issues or

issues of defective removal, and has remanded

for other reasons.

Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1211 (3d

Cir.), cert. denied, __ U.S. __, 112 S.Ct. 302 (1991) (quoting

Thermtron, 423 U.S. at 351).

6

. See, e.g., Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir.

1989) (holding review appropriate where district court had

remanded case for procedural defects after 30-day time limit in

§ 1447(c) had expired); Foster v. Chesapeake Ins. Co., Ltd., 933

F.2d 1207 (3d Cir.), cert. denied, __ U.S. __, 112 S.Ct. 302

(1991) (holding remand based on a forum selection clause was not

within § 1447(c), hence reviewable, and proper). See also Aliota

v. Graham, 984 F.2d 1350, 1355 (3d Cir. 1993) (citing cases);

Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir. 1984).

Because the district court did not purport to remand

these proceedings on grounds contained in § 1447(c), the

jurisdictional bar of § 1447(d) does not apply, and we have

jurisdiction to review the May 11, 1994 order of the district

court.7

III

As the Supreme Court explained in Thermtron, "because

an order remanding a removed action does not represent a final

judgment reviewable by appeal, '[t]he remedy in such a case is by

mandamus to compel action, and not by writ of error to review

what has been done.'" Id., 423 U.S. at 352-53 (quoting Chicago &

Alton R.R. Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 508, 23 L.Ed.

103 (1875)). Thus, we have held that an appeal will not

ordinarily lie from a remand order, and that review is to be had,

if at all, only by mandamus. See PAS, 7 F.3d at 352-53; see

7

. Swatara also contends that we may review the remand under an

exception to §1447(d) pertaining to cases removed pursuant to the

Civil Rights Removal Act, 28 U.S.C. § 1443. This argument is

without merit, as § 1443 provides for removal by a defendant for

the protection of the defendant's civil rights (or interests in

respecting such rights). See City of Greenwood, Miss. v.

Peacock, 384 U.S. 808, 814, 824 n. 22 (1966). Here, state taxing

authorities are allegedly seeking to perpetuate, rather than

eradicate, tax inequalities. As one author has noted, removal

under § 1443 must be "sharply distinguished from the removal of

an action brought by a plaintiff under 42 U.S.C. § 1983 to

redress a violation of the plaintiff's civil rights." 1A J. Moore

& B. Ringle, Moore's Federal Practice ¶ 0.165 (emphasis added).

Moreover, § 1443 is available only when the civil rights at issue

are matters of racial equality. State of Georgia v. Rachel, 384

U.S. 780, 792 (1966). There is no contention that race is

implicated in the instant dispute.

also Antonio Garcia v. Island Program Designer, Inc., 4 F.3d 57,

59 (1st Cir. 1993) (remand reviewable only by mandamus).8

Because mandamus is the appropriate review mechanism,

we will dismiss Swatara's appeal and confine ourselves to a

consideration of whether the writ of mandamus should issue.

IV

Swatara strenuously objects to the district court's

decision to remand the case. In essence, Swatara contends that

McNary, which itself affirmed a dismissal, permits no other

result, such as a remand. We understand the policy enunciated by

the Supreme Court in Carnegie-Mellon University v. Cohill, 484

U.S. 343 (1988) (upholding remand to a state court of a removed

case involving pendent state law claims partly on comity grounds)

to apply with equal force to a McNary remand. We therefore

conclude that remand is an option open to the district court in

8

. There are exceptions to this general rule. For instance, a

direct appeal may sometimes be had when a remand involves a

"collateral order" under Moses H. Cone Memorial Hosp. v. Mercury

Construction Corp., 460 U.S. 1, 8-10 (1983). See Carr v.

American Red Cross, 17 F.3d 671 (3d Cir. 1994) (holding that an

appeal may lie from both a dispositive order and a subsequent

remand when the district court's dispositive order is separable

from the subsequent order of remand and meets the finality

requirement of 28 U.S.C. § 1291, and where that final dispositive

order triggers the order of remand); Foster (order remanding a

case pursuant to a forum selection clause is collateral final

order on the merits which may be reviewed by appeal). But see

PAS, 7 F.3d at 353 (stating that "development of the collateral

order doctrine did not nullify Wiswall's holding that review in

such cases should be accomplished by mandamus"). Here, we are

dealing with a "garden variety" remand involving no collateral

issues, hence no exceptions to the general rule of non-

appealability (as contrasted with mandamus) pertain.

McNary cases provided that there exists the same predicate to

dismissal required by McNary, i.e. a "plain, adequate and

complete" remedy at the state level. Because Pennsylvania law

provides such a remedy, remand here was proper and Swatara's

request for the writ will therefore be denied.

The Tax Injunction Act, 28 U.S.C. § 1341, provides that

"[t]he district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law where a

plain, speedy and efficient remedy may be had in the courts of

such State." Section 1341 has been read to bar both injunctive

and declaratory actions involving state taxes in federal court.

California v. Grace Brethren Church, 457 U.S. 393, 408 (1982).

On facts similar to those in the present case, the issue in

McNary was whether § 1341, which in terms refers only to

equitable relief, also prevents federal courts from entertaining

damage actions predicated on an allegedly unconstitutional tax.

Rather than determine whether the Tax Injunction Act

also bars subject matter jurisdiction over § 1983 damage suits in

federal courts, the McNary Court concluded that the need for

deference to the states in matters involving the administration

of state and local taxes meant that "taxpayers are barred by the

principle of comity from asserting § 1983 actions against the

validity of state tax systems in federal courts. Such taxpayers

must seek protection of their federal rights by state remedies,

provided . . . that those remedies are plain, adequate, and

complete. . .." McNary, 454 U.S. at 116 (emphasis added).9

The Balaziks' § 1983 challenge to the "Welcome

Stranger" taxpayer policy is in all relevant respects identical

to the action considered in McNary. The McNary Court, however,

affirmed the district court's dismissal of the plaintiff's action

without addressing the issue of whether a remand might have been

9

. The McNary Court, at 454 U.S. 100, 108 n. 6, cited with

approval the explanation given by Justice Brennan, in Perez v.

Ledesma, 401 U.S. 82 (1971), for federal-court deference in

matters regarding state tax administration:

The special reasons justifying the policy of

federal noninterference with state tax

collection are obvious. The procedures for

mass assessment and collection of state taxes

and for administration and adjudication of

taxpayers' disputes with tax officials are

generally complex and necessarily designed to

operate according to established rules.

State tax agencies are organized to discharge

their responsibilities in accordance with the

state procedures. If federal declaratory

relief were available to test state tax

assessments, state tax administration might

be thrown into disarray, and taxpayers might

escape the ordinary procedural requirements

imposed by state law. During the pendency of

the federal suit the collection of revenue

under the challenged law might be obstructed,

with consequent damage to the State's budget,

and perhaps a shift to the State of the risk

of taxpayer insolvency. Moreover, federal

constitutional issues are likely to turn on

questions of state law, which, like issues of

state regulatory law, are more properly heard

in the state courts.

Id. at 128, n. 17 (Brennan, J., concurring in part and dissenting

in part).

appropriate, and it is this question which we are now called upon

to resolve.

In support of its argument that McNary requires

dismissal rather than remand, Swatara cites Thermtron for the

proposition that a district court may remand a removed case only

on the grounds stated in § 1447(c) (lack of jurisdiction or

defect in the removal procedure). Although Thermtron contained

passages which support this reading, the Supreme Court's

interpretation of Thermtron in Cohill makes clear that the

provisions of § 1447(c) do not exhaust the scope of the federal

remand power. As this Court has already recognized, "the

circumstance that a remand is based on non-statutory grounds,

though important post-Thermtron, is, post-Cohill, of diminished

significance. Cohill clearly overruled Thermtron to the extent

that Thermtron had held that only statutory grounds for remand

are authorized." Foster, 933 F.2d at 1214.

In Thermtron, the district court had remanded the case

to state court in order to avoid delay due to the size of its own

docket. The Thermtron Court, after noting that removal had been

proper and that the district court therefore had subject matter

jurisdiction over the dispute, stated that:

[W]e are not convinced that Congress ever

intended to extend carte blanche authority to

the district courts to revise the federal

statutes governing removal by remanding cases

on grounds that seem justifiable to them but

which are not recognized by the controlling

statute. . . . Because the District Judge

remanded a properly removed case on grounds

that he had no authority to consider, he

exceeded his statutorily defined power. . ..

Thermtron, 423 U.S. at 351.

This passage appears to limit remand to grounds

specified by a "controlling statute," and Swatara has seized upon

it to support its argument that remand under the non-statutory

McNary rational must be improper. An examination of Cohill and

our post-Cohill decisions suggests otherwise.

Cohill held that it is within the discretion of a

district court to remand to a state court a removed case

involving pendent claims once the plaintiff has dismissed the

federal question counts of the complaint. After pointing out

that "[i]n Thermtron, the District Court had no authority to

decline to hear the removed case," the Court stated that "[i]n

contrast, when a removed case involves pendent state-law claims,

a district court has undoubted discretion to decline to hear the

case. The only remaining issue is whether the district court may

decline jurisdiction through a remand as well as through

dismissal." Cohill, 484 U.S. at 356.

The Court in Cohill thus explained that while

Thermtron's application of mandamus applies when a federal court

is obliged to hear the case in the first instance, "an entirely

different situation is presented when the district court has

clear power to decline to exercise jurisdiction." Id.

In Foster, we held that the district court was within

its authority in remanding, rather than dismissing, an otherwise

properly removed case when a forum selection clause granted the

plaintiff the right to choose a state forum, stating that:

Unlike the district court in Thermtron, the

district court here did not refuse to hear a

case properly before it. Indeed, the

district court in this case accepted

jurisdiction and, in the exercise of that

jurisdiction, determined, as a threshold

matter on the merits, that . . . the case

ought not [to] have been in federal court.

Id. at 1215-16. We concluded that "as no one doubts the district

court's power to dismiss pursuant to a properly construed forum

selection clause if a plaintiff violates the clause, 'Congress's

silence in the removal statute [as to other potential grounds for

remand] does not negate the power to . . . remand . . ..'" Id. at

1215 (quoting Cohill, 484 U.S. at 354) (footnote omitted,

emphasis supplied in Foster). In so holding we emphasized that

"Congress is concerned that removal procedure be handled in a

manner that promotes economy, convenience, and fairness -- the

very concerns used by the Court to justify remand in Cohill."

Foster, 933 F.2d at 1216.10

10

. Other courts have similarly held that Thermtron in light of

Cohill does not absolutely limit the instances in which a remand

may be had. See Corcoran v. Ardra Ins. Co., Ltd., 842 F.2d 31,

36 (2nd Cir. 1988) (holding that abstention in a removed case was

a proper ground for remand, and citing Cohill for the proposition

that when a district court has the authority to dismiss a case,

it also has authority to remand a case in appropriate

circumstances).

Our decision in Bradgate Associates, Inc. v. Fellows,

Read & Associates, Inc., 999 F.2d 745 (3d Cir. 1993) also

addressed the remand principle set forth in Foster. We stated

therein that "[w]e do not read Foster to say that district courts

may remand a case merely because they have the authority to

dismiss. . .." Id. at 750 n. 4. This statement must be

understood in context. Bradgate involved a removed action which

had been consolidated with an action originally filed in federal

court. Upon determining that it lacked subject matter

jurisdiction over the disputes, the district court remanded both

cases to state court. We reversed only in part, holding the

We believe that the same reasoning applies to the

present case. Here, unlike Thermtron, it is clear that the

district court not only had the authority to decline to hear the

case, but was in fact required to relinquish jurisdiction under

McNary. Here, there is no question of the district court

improperly refusing to hear a case properly before it, as

occurred in Thermtron. In such circumstances, requiring the

district court to dismiss, rather than remand, a removed § 1983

damage action involving state taxation policies and practices

would promote neither comity nor efficiency, and would detract

from the importance of state courts hearing § 1983 claims which

challenge state taxation regimes, a jurisdiction which the

Pennsylvania Supreme Court has recently asserted with vigor. See

Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993)

(holding that § 1983 actions may be brought directly in state

trial courts without first having to exhaust other administrative

and judicial remedies available to them under state law in order

to file a § 1983 action in state court).

As in Foster, permitting a remand in such circumstances

helps sustain the district court's "inherent powers to correct

abuses of federal practice and procedure, vindicating the

(..continued)

remand of the federal action to be improper as "lack of subject

matter jurisdiction terminates a case originally filed in federal

court because [Federal Rule of Civil Procedure] 12(h)(3)

instructs the district court to dismiss cases which do not meet

jurisdictional prerequisites." Id. at 751. Bradgate thus stands

for the unsurprising proposition that only removed cases may be

remanded. Here, of course, we deal only with a removed state

court case.

improper use of removal," 933 F.2d at 1216. In short, we see no

reason why comity should prevent us from remitting such disputes

to the courts of the very sovereignty whose interests informed

the McNary doctrine in the first place.

We therefore hold that remand is available under

McNary, subject to the limitation expressed in that case that

there must exist a "plain, adequate and complete" remedy at the

state level.

V

The Tax Injunction Act removes jurisdiction from

federal courts over injunctive or declaratory state taxation

actions provided a "plain, speedy and efficient" remedy is

available at the state level. McNary similarly states that

comity will only be exercised in damages actions if the state

remedy is "plain, adequate and complete," McNary, 454 U.S. at

116, a formula which the Court equated with the "plain, speedy

and efficient" language of the Tax Injunction Act. We have

understood that this requirement, like that of the Tax Injunction

Act, is to be read narrowly. Hardwick v. Cuomo 891 F.2d 1097,

1105 (3d Cir. 1989). A state remedy is thus considered "plain,

speedy and efficient" provided state procedures do not "preclude

presentation and consideration of . . . federal rights."

Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 514-15 (1981).

In 1991 we examined the relevant causes of action

cognizable in Pennsylvania courts and Pennsylvania procedures for

appealing tax assessments, and concluded that Pennsylvania

provides an adequate remedy for the purposes of the Tax

Injunction Act. Behe v. Chester County Bd. of Assessment

Appeals, 952 F.2d 66 (3d Cir. 1991). Upon review of the state

law canvassed in Behe, we see no need to rehearse these findings

here, other than to note that since that time the Pennsylvania

Supreme Court has made it easier for taxpayers to bypass existing

statutory procedures and bring an action directly in state court.

We hold that Pennsylvania provides a "plain, adequate

and complete" remedy for § 1983 plaintiffs challenging state

taxation policies. Thus, remand was proper under McNary.11

VI

Mandamus, authorized by the All Writs Act, 28 U.S.C.

§ 1651(a), is traditionally used to "confine an inferior court to

a lawful exercise of its prescribed jurisdiction or to compel it

to exercise its authority when it is its duty to do so." Roche

v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). Thus, "a writ

is not available unless the district court has committed a clear

abuse of discretion or engaged in conduct amounting to usurpation

11

. We note that the fact that it was the state taxing

authorities themselves which removed the case does not alter our

conclusion that the comity rational of McNary applies. Like the

jurisdictional limitations imposed by the Tax Injunction Act, the

comity rational of McNary acts as a restriction on the power of

the courts (or, more precisely in McNary cases, on the exercise

of that power). See Hardwick, 891 at 1104 (defendant taxing

authorities may not waive the jurisdictional bar of the Tax

Injunction Act); Cox Cable Hampton Roads, Inc. v. City of

Norfolk, Va., 739 F. Supp. 1074, 1076-77 (E.D.Va. 1990)

(defendant taxing authorities may not waive the comity bar to

adjudication of state tax damage actions).

of the judicial power." PAS, 7 F.3d at 353 (internal quotations

and citations omitted).

Because we have determined that the district court

acted properly in remanding the case to state court, we find no

reason or ground to issue the writ, which would vacate the

district court's remand order. Swatara's petition at Docket 94-

7350 will therefore be denied, and the appeals from the remand

order at Docket 94-7338 will be dismissed.

Costs will be taxed equally amongst Swatara Township,

County of Dauphin, and the Dauphin County Board of Assessment

Appeals.