Thermtron Products, Inc. v. Hermansdorfer

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Stewart join, dissenting.

The Court begins its discussion in this case by asking the wrong questions, and compounds its error by arriving at the wrong answer to at least one of the questions thus posed. The principal, and in my view only, issue pre *354 sented for review is whether the Court of Appeals was correct in concluding that it was without jurisdiction to review the order of remand entered by the District Court for the Eastern District of Kentucky. If no jurisdiction existed, it of course follows that there was no power in the Court of Appeals to examine the merits of petitioners’ contentions that the order of remand exceeded respondent’s authority, and that its order denying relief must be affirmed. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884). As I think it plain that Congress, which has unquestioned authority to do so, Sheldon v. Sill, 8 How. 441 (1850), has expressly prohibited the review sought by petitioners, I dissent.

I

The Court of Appeals not unreasonably believed that 28 U. S. C. § 1447 (d) means what it says. It says:

“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .”

Nor was the Court of Appeals confronted with a question of first impression. As the Court recognizes, the limitation found in § 1447 (d) has remained substantially unchanged since its enactment in 1887, and this Court has consistently ruled that the provision prohibits any form of review of remand orders.

Congress’ purpose in barring review of all remand orders has always been very clear — to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand. The removal jurisdiction extended by Congress works a significant interference in the conduct of litigation commenced in state court. While Congress felt that making available a federal forum in appropriate instances justifies some such interruption and delay, it obviously *355 thought it equally important that when removal to a federal court is not warranted the case should be returned to the state court as expeditiously as possible. If this balanced concern is disregarded, federal removal provisions may become a device affording litigants a means of substantially delaying justice.

It is clear that the ability to invoke appellate review, even if ultimately unavailing on the merits, provides a significant opportunity for additional delay. Congress decided that this possibility was an unacceptable source of additional delay and therefore made the district courts the final arbiters of whether Congress intended that specific actions were to be tried in a federal court.

I do not doubt that the district courts may occasionally err in making these decisions, and certainly Congress was not unaware of these probabilities. All decision-makers err from time to time, and judicial systems frequently provide some review to remedy some of those errors. But such review is certainly not compelled. Congress balanced the continued disruption and delay caused by further review against the minimal possible harm to the party attempting removal — who will still receive a trial on the merits before a state court which cannot be presumed to be unwilling or unable to afford substantial justice — and concluded that no review should be permitted in these cases. Congress has explicitly indicated its intent to achieve this result; indeed “[i]t is difficult to see what more could be done to make the action of [remand] final, for all the purposes of the removal, and not the subject of review . . . Morey v. Lockhart, 123 U. S. 56, 57 (1887). Yet the Court today holds that Congress did not mean what it so plainly said.

The majority attempts to avoid the plain language of § 1447 (d) by characterizing the bar to review as limited to only those remand orders entered pursuant *356 to the directive of § 1447 (c), i. e., those cases “removed improvidently and without jurisdiction.” But such a crabbed reading of the statute ignores the undoubted purpose behind the congressional prohibition. If the party opposing a remand order may obtain review to litigate whether the order was properly pursuant to the statute, his ability to delay and to frustrate justice is wide ranging indeed. By permitting such a result here, the Court effectively undermines the accepted rule established by Congress and adhered to for almost 90 years.

Nor is it any more than a naive hope to suppose, as the Court apparently does, that the effect of today’s decision will be limited to the unique circumstances of this case. According to the Court, this case is beyond the reach of § 1447 (d) by virtue of the fact that respondent appears to have expressly premised his remand of the case before him on a ground not authorized by Congress, a conclusion purportedly drawn from the face of respondent’s order. I may agree, arguendo, that an order of remand based upon the clogged docket of the district court and a desire to obtain for the parties a trial in some forum without unreasonable delay, however salutary the motivation behind it, is not within the discretion placed in district courts by Congress. But I fail to see how such an order of remand is any more unauthorized than one where the district court erroneously concludes that an action was removed “improvidently and without jurisdiction.” Surely such an error equally contravenes congressional intent to extend a “right” of removal to those within the statute’s terms. Yet such an error, until today, never has been thought subject to challenge by appeal or extraordinary writ.

The Court seems to believe the instant case different because it has determined to its satisfaction that respondent’s order was not merely an erroneous applica *357 tion of § 1447 (c), but was based upon considerations district courts are not empowered to evaluate. I think the Court’s purported distinction both unworkable and portentous of the significant impairment of Congress’ carefully worked out scheme. The Court relies upon its belief that respondent’s order made clear that he was not acting in accordance with § 1447 (c). But there was no requirement that respondent issue any explanation of the grounds for his remand order, and there is no reason to expect that district courts will always afford such explanations. If they do not, is there now jurisdiction in the courts of appeals to compel an explanation so as to evaluate potential claims that the lower court was not acting pursuant to subsection (c)? And what if the district court does state that it finds no jurisdiction, using the rubric of § 1447 (c), but the papers plainly demonstrate such a conclusion to be absurd? Are potential challengers to such an order entitled to seek the aid of the court of appeals, first to demonstrate that the order entered by the lower court was a sham and second to block that order pursuant to today’s decision? If the Court’s grant of certiorari and order of reversal in this case are to have any meaning, it would seem that such avenues of attack should clearly be open to potential opponents of orders of remand. Yet it is equally clear that such devices would soon render meaningless Congress’ express, and heretofore fully effective, directive prohibiting such tactics because of their potential for abuse by those seeking only to delay.

II

The majority’s only support for its conclusion that § 1447 (d) no longer means what everyone thought it did is the fact that the predecessor statute provided:

“Whenever any cause shall be removed from any State court into any district court of the United *358 States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal from the decision of the district court so remanding such cause shall be allowed.” 28 U. S. C. § 71 (1946 ed.).

In the Court's view the words “so remanding” limited the bar of the prior statute. But this appears a novel construction of the former § 71. If “so remanding” had any limiting effect upon the prohibition against review, it would seem to have restricted the bar to only those cases which a district court determined to have been “improperly removed,” as described in the above-quoted sentence. Yet this Court early held that the original prohibition against review of remand orders contained in the Act of Mar. 3, 1887, 24 Stat. 563 , applied to bar review not only of remands of removals taken on account of prejudice or local influence — which were not remanded because “improperly removed” but rather pursuant to independent statutory directives requiring the district courts to remand such cases unless they found the opposing party could not obtain justice in the state court — but also of all other remands entered by a district court. Rejecting an argument essentially identical to that advanced by the majority, the Court there held:

“The fact that it is found at the end of the section, and immediately after the provision for removals on account of prejudice or local influence, has, to our minds, no special significance. Its language is broad enough to cover all cases, and such was evidently the purpose of Congress.” Morey, 123 U. S., at 58 .

*359 In Employers Reinsurance Corp. v. Bryant, 299 U. S. 374 (1937), the Court reiterated its Morey holding, ruling that even though the 1911 revision of the Judicial Code had split removal and remand provisions into various sections, the prohibition against review continued to bar all attempts to challenge orders of remand. The majority characterizes Bryant as holding that orders of remand issued pursuant to former 28 U. S. C. § 80 (1946 ed.) were cases “improperly removed” within the meaning of § 71 of that Title. Ante, at 348. But there is no such statement anywhere in Bryant , and that case’s clearly stated holding is that the prohibitions against review of remand orders originally enacted in 1887 (and still in effect) “are intended to reach and include all cases removed from a state court into a federal court and remanded by the latter.” 299 U. S., at 381 . See United States v. Rice, 327 U. S. 742, 752 (1946).

Even if one were to accept the majority’s theory that “so remanding” somehow limited the otherwise universal prohibition against review, there is no such phrase in the current statute. The majority attempts to avoid this by contending that Congress “intended to restate the prior law with respect to remand orders and their re-viewability.” Ante, at 349-350. But this assertion flies in the face of the fact that in revising and codifying Title 28, Congress intended to, and did, work significant changes in prior law governing the Judicial Code and the judiciary. The House Committee made clear that the proposed revisions to the removal provisions effectuated a substantially altered and less cumbersome scheme of removal, in which several prior avenues to federal court had been removed so as to restrict federal jurisdiction. H. R. Rep. No. 308, 80th Cong., 1st Sess., 6, A133-A134. *360 And with respect to the section at issue here, § 1447, the House Judiciary Committee noted that the new

“[sjection consolidates procedural provisions of sections 71, 72, 74, 76, 80, 81 and 83 of title 28, U. S. C. 1940 ed., with important changes in substance and phraseology.” Id., at A-136.

It is difficult to see how changes thus described by the Committee can have had no effect on the law.

The Court stresses that the 1949 reintroduction of the bar to review, apparently inadvertently omitted from the 1948 revision of the Judicial Code, was intended to enact the same rule of finality previously in effect. Ante, at 350 n. 15. I agree with this interpretation, but not with the Court’s application of it. The “former law as to finality” which was continued by subsection (d) is that which had been in effect from 1887. Congress has made all judgments “remanding a cause to the state court final and conclusive.” In re Pennsylvania Co., 137 U. S. 451, 454 (1890); Bryant, supra. Until today it has not been doubted that

“Congress, by the adoption of these provisions, . . . established the policy of not permitting interruption of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed. This was accomplished by denying any form of review of an order of remand . . . .” United States v. Rice, supra, at 751 .

Ill

Finally, I perceive no justification for the Court’s decision to ignore the express directive of Congress in favor of what it personally perceives to be “justice” in this case. If anything is clear from the history of the prohibition against review, it is that Congress decided that po *361 tential errors in individual cases did not justify permitting litigants to challenge remand orders. To carry out its policy of avoiding further interruption of the litigation of removed causes, properly begun in state courts, see Rice, supra, at 751-752 , Congress decided to place final responsibility for implementation of its removal scheme with the district courts. It is not for this Court to strike that balance anew.

Congress has demonstrated its ability to protect against judicial abuses of removal rights when it thought it necessary to do so. See Georgia v. Rachel, 384 U. S. 780 (1966); City of Greenwood v. Peacock, 384 U. S. 808 (1966). And it is apparent that the judiciary is not without the means of dealing with such errors as pose some danger of repetition. * Rather than leaving future repetition of cases such as this to Congress, the Court sets out to right a perceived wrong in this individual case. In the process of doing so it reopens an avenue for dilatory litigation which Congress had explicitly closed. Because I am convinced that both the Court of Appeals and this Court are without jurisdiction to consider the merits of petitioners’ claims, I would affirm the judgment below.

The panel of the Court of Appeals below indicated its intention to report respondent’s actions “to the Circuit Council for the Sixth Circuit, which has supervisory powers over the District Court.”