Reply Brief — Betty R. Shipley, Petitioner v. Helping Hands Therapy, et al.

No. 21-481

In the Supreme Court of the United States

________________________

BETTY R. SHIPLEY,

Petitioner,

v.

HELPING HANDS THERAPY and SARAH BEAUGEZ,

Respondents.

_____________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

REPLY BRIEF FOR THE PETITIONER

________________________

DAVID A. O’NEIL

Counsel of Record

DEBEVOISE & PLIMPTON LLP

801 Pennsylvania Ave. N.W.

Washington, D.C. 20004

(202) 383-8000

daoneil@debevoise.com

MATTHEW SPECHT

ANAGHA SUNDARARAJAN

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, NY 10022

ROBERT PRINCE

G. COE BAXTER

PRINCE, GLOVER & HAYES

1 Cypress Point

701 Rice Mine Road N.

Tuscaloosa, AL 35406

(205) 345-1234

rprice@princelaw.net

i

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Preliminary Statement ...............................................1

Argument.....................................................................2

A. There Is a Deep and Entrenched Circuit

Split on the Question Presented. ...................2

B. The Decision Below Is Incorrect. ...................8

Conclusion .................................................................11

ii

TABLE OF AUTHORITIES

Page

CASES

Allen v. Christenberry, 327 F.3d 1290 (11th

Cir. 2003)............................................................. 9

Arnold Crossroads, LLC v. Gander Mountain

Co., 751 F.3d 935 (8th Cir. 2014) ................... 2, 6

BEPCO, L.P. v. Santa Fe Minerals, Inc.,

675 F.3d 466 (5th Cir. 2012)......................passim

BEPCO, L.P. v. Santa Fe Minerals, Inc.,

Case No. 11-0132, 2011 WL 4499322

(W.D. La. April 25, 2011).................................... 5

Carlsbad Technologies, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009)............................................. 7

City of Albuquerque v. Soto Enterprises, 864

F.3d 1089 (10th Cir. 2017).................................. 6

Cohn v. Petsmart, Inc., 281 F.3d 837

(9th Cir. 2002) ..................................................... 5

Grubbs v. General Elec. Credit Corp.,

405 U.S. 699 (1972)......................................... 2, 7

Harvey v. UTE Indian Tribe of the Uintah &

Ouray Reservation, 797 F.3d 800

(10th Cir. 2015) ................................................... 6

iii

Mitskovski v. Buffalo and Fort Erie Public

Bridge Authority, 435 F.3d 127

(2d Cir. 2006)....................................................... 7

Northern California District Council of

Laborers v. Pittsburg-Des Moines Steel Co.,

69 F.3d 1034 (9th Cir. 1995)....................... 3, 4, 5

Novick v. Bankers Life Ins. Co. of New York,

450 F. Supp. 2d 196 (E.D.N.Y. 2006) ................. 7

Pierpoint v. Barnes

94 F.3d 813 (2d Cir. 1996) .............................. 2, 6

Powerex Corp. v. Reliant Energy Serv. Inc.,

551 U.S. 224 (2007)................................... 1, 7, 10

Pretka v. Kolter City Plaza II, Inc.,

608 F.3d 744 (11th Cir. 2010)............................. 5

Schexnayder v. Entergy Louisiana, Inc.,

394 F.3d........................................................... 6, 8

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941)............................................. 7

Tennessee Gas Pipeline Co. v. Continental Cas.

Co., 814 F. Supp. 1302 (M.D. La. 1993) ............. 7

Thermtron Prod., Inc. v. Hermansdorfer,

423 U.S. 336 (1976)....................................... 9, 10

United States v. Rice, 327 U.S. 742 (1946) ........ 1, 10

Velchez v. Carnival Corp., 331 F.3d 1207

(11th Cir. 2003) ................................................... 6

iv

Willingham v. Morgan, 395 U.S. 402 (1969) ........... 5

STATUTES

28 U.S.C. § 1447(c) ..........................................passim

28 U.S.C. § 1447(d)..........................................passim

OTHER AUTHORITIES

Fed. R. Civ. P 12(h) .................................................. 8

Fed. R. Civ. P. 60...................................................... 8

Motion, Black’s Law (11th Ed. 2019)....................... 9

1

PRELIMINARY STATEMENT

Respondents acknowledge that 28 U.S.C.

§ 1447(d) significantly restricts the jurisdiction of the

court of appeals to review remand orders. Opp. at

12. Indeed, Respondents do not dispute that Section 1447(d) generally bars review “on appeal or otherwise,” of any order “remanding a case to the State

court from which it was removed,” unless that order

falls into two narrow, carefully crafted exceptions—

for cases alleging violations of federal civil rights

laws or for cases involving federal officers. See 28

U.S.C. § 1447(d). The statute’s express bar on appellate jurisdiction is by design, and was specifically

intended to prevent “prolonged litigation of questions

of jurisdiction,” Powerex Corp. v. Reliant Energy

Serv. Inc., 551 U.S. 224, 238 (2007) (quoting United

States v. Rice, 327 U.S. 742, 751 (1946)), including in

circumstances where the court of appeals would otherwise conclude that the district court committed

reversible error, id. at 238–39 (“Appellate courts

must take [section 1447(d)’s] jurisdictional prescription seriously, however pressing the merits of the

appeal might seem.”).

Respondents simultaneously assert that the circuit split on the question presented is “shallow or

nascent,” Opp. at 4, and that there is no conflict, see

Opp. at 7 (“Although Petitioner presents [BEPCO,

L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466 (5th

Cir. 2012)] as in conflict with its sister Circuits, the

result in BEPCO would not have differed under the

analysis adopted by the Ninth and Eleventh Circuits.”). But both the Fifth and Eleventh Circuits

expressly acknowledged the split, see Pet. App. 4a–5a

(“Our sister circuits have split on this issue.”); BEP-

2

CO, L.P., 675 F.3d at 470 n.4 (“We are unpersuaded

by [the Ninth Circuit]’s Section 1447(c) analysis, and

thus refuse to follow it.”), and two other courts of appeals have acknowledged the confusion on this question, see, e.g., Pierpoint v. Barnes, 94 F.3d 813, 820

(2d Cir. 1996); Arnold Crossroads, LLC v. Gander

Mountain Co., 751 F.3d 935, 941 (8th Cir. 2014) (“We

therefore need not address the sometimes vexing

question of whether an appellate court has jurisdiction over a remand based on a procedural flaw not

timely raised.”). This Court should grant certiorari

to resolve this acknowledged, active split.

Respondents are also mistaken in their assertion

that the question presented does not implicate an

“important issue of federal law.” See Opp. at 11. The

decision below undermines the goal of Congress—

and this Court—to ensure that “removal statutes . . .

have uniform nationwide application.” See Grubbs v.

General Elec. Credit Corp., 405 U.S. 699, 705 (1972).

And the decision below will force Petitioner to litigate her state-law claims in federal court as opposed

to her chosen court, which is the traditional forum

for resolution of claims like hers.

The decision below not only improperly extends

appellate jurisdiction beyond the text of the statute,

it also undermines the effective and uniform operation of Section 1447(d). Certiorari is thus warranted.

ARGUMENT

A. There Is a Deep and Entrenched Circuit

Split on the Question Presented.

Three courts of appeals have squarely addressed

whether a court of appeals has jurisdiction under 28

3

U.S.C. § 1447(d) to review a remand order based on a

procedural defect articulated on reply. Respondents

dismiss this conflict as “shallow or nascent,” Opp. at

4, or non-existent, Opp. at 7. Respondents misread

these decisions.

The circuit split on the question presented is entrenched and active. Two of the three courts of appeals to decide the question have acknowledged a

circuit split. The Eleventh Circuit, in the decision

below, expressly acknowledged that the “circuits

have split on this issue.” Pet. App. 4a–5a. The Fifth

Circuit similarly described the Ninth Circuit’s contrary holding in Northern California District Council

of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d

1034 (9th Cir. 1995), as “unpersuasive” and “thus

refuse[d] to follow it.” BEPCO, L.P., 675 F.3d at 470

n.4. This split has not resolved on its own since it

developed in 2012, and Respondents have not provided any reason to believe that any court is reconsidering its approach.

Respondents seek to harmonize these decisions

by suggesting that the Fifth, Ninth, and Eleventh

Circuits reached different outcomes because of the

unique facts presented in each case. But the underlying facts, and the published opinion of each court of

appeals, confirm that these three decisions reflect a

fundamental disagreement about the effect of Section 1447(c)’s 30-day time limit on Section 1447(d)’s

bar on appellate review.

In each of the three cases that define the split—

BEPCO, Pittsburg-Des Moines Steel, and the decision

below—the plaintiff filed a motion to remand within

30 days of the notice of removal. BEPCO, L.P., 675

F.3d at 468–69; Pittsburg-Des Moines Steel Co., 69

F.3d at 1037; Pet. App. 2a. In each of the three cas-

4

es, the plaintiff filed a reply in support of their motion to remand more than 30 days after the notice of

removal, and raised a procedural defect not initially

raised in the motion to remand. BEPCO, L.P., 675

F.3d at 469; Pittsburg-Des Moines Steel Co., 69 F.3d

at 1037; Pet. App. 3a. And in each of the three cases,

the district court ordered—on the basis of the procedural defect raised on reply—that the proceedings be

remanded to state court. BEPCO, L.P., 675 F.3d at

469; Pittsburg-Des Moines Steel Co., 69 F.3d at 1036;

Pet. App. 3a.

In BEPCO, the Fifth Circuit dismissed the appeal of the remand order for want of appellate jurisdiction. 675 F.3d at 472. In doing so, the Fifth Circuit held that whether “a removal defect is not raised

by a plaintiff in the motion to remand, or is raised

more than 30 days after removal, does not matter.”

Id. at 471. Where a plaintiff files a “timely motion to

remand,” and the district court relies “on a permissible Section 1447(c) ground,” “the district court’s remand order [is] unreviewable on appeal.” Id. The

court relied on “the unambiguous statutory language” to conclude that it is the timing of a remand

motion, rather than the timing of the presentation of

a removal defect, that “matters for a timeliness analysis under Section 1447(c)” and for purposes of determining appellate jurisdiction to review the order.

Id.

In Pittsburg-Des Moines Steel and the decision

below, the Ninth and Eleventh Circuits, respectively,

vacated the district courts’ remand orders. Pittsburg-Des Moines Steel Co., 69 F.3d at 1038; Pet. App.

8a–9a. The Ninth Circuit held “that 1447(c) prohibits a defect in removal procedure from being raised

more than 30 days after the filing of the notice of re-

5

moval, regardless of whether a timely remand motion has been filed.” Pittsburg-Des Moines Steel Co.,

69 F.3d at 1038. It reasoned that the plain text of

Section 1447(c) “requires that a defect in removal

procedure be raised within 30 days after the filing of

the removal petition,” id. at 1037, and explained that

the “purpose of the 30-day time limit is to resolve the

choice of forum at the early stages of litigation, and

to prevent the shuffling of cases between state and

federal courts after the first thirty days,” id. at 1038

(internal citations and quotations omitted). The

Eleventh Circuit agreed. Pet. App. 5a–7a

Respondents seek to harmonize this clear split of

authority by observing that the plaintiff’s reply in

BEPCO rested on a procedural defect that was first

disclosed in the defendant’s opposition to remand,

and that courts “may treat new information disclosed

in an opposition to a motion to remand as an

amendment of the Notice of Removal.” Opp. at 7 (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,

773 (11th Cir. 2010); Cohn v. Petsmart, Inc., 281 F.3d

837, 840 n.1 (9th Cir. 2002); and Willingham v. Morgan, 395 U.S. 402, 408 n.3 (1969)). Under “this paradigm,” Respondents suggest, the Fifth Circuit could

have reasoned that Section 1447(c) was satisfied because the reply raising the procedural defect was

filed within 30 days of the defendant’s opposition to

remand. Opp. at 8. But neither the district court

nor the Fifth Circuit adopted, or even considered,

that argument or any of the three inapposite cases

on which Respondents rely. See generally, BEPCO,

L.P., 675 F.3d 466; BEPCO, L.P. v. Santa Fe Minerals, Inc., Case No. 11-0132, 2011 WL 4499322 (W.D.

La. April 25, 2011), report and recommendation

adopted at 2011 WL 4499359 (W.D. La. Sept. 27,

6

2011). Indeed, the Fifth Circuit’s decision was based

entirely on an interpretation of Section 1447(c) that

is at odds with the interpretation adopted by the

Ninth and Eleventh Circuits.

Nor can Respondents show that this split, which

concerns a fundamental question of federal jurisdiction, is unimportant. In addition to the three courts

of appeals that have resolved the question presented,

two others have acknowledged the confusion in this

area, see Pierpoint, 94 F.3d at 820; Arnold Crossroads, LLC, 751 F.3d at 941, and a third has referenced the disagreement in passing, see Harvey v.

UTE Indian Tribe of the Uintah & Ouray Reservation, 797 F.3d 800, 804 (10th Cir. 2015). The courts

of appeals have also struggled more generally to consistently interpret and apply the appellate review

bar embodied in Section 1447(d), resulting in confusion among the lower courts. Compare City of Albuquerque v. Soto Enterprises, Inc., 864 F.3d 1089,

1097–98 (10th Cir. 2017) (remand order based on

common law principles of waiver was reviewable under Section 1447(d)), with Pierpoint, 94 F.3d at 818

(Section 1447(d)’s appellate review bar applies to “all

challenges to removal based on any impropriety . . .

in the removal procedure”).

This confusion extends to the question whether

appellate review is appropriate when a district court

grants a party’s timely motion to remand, but relies

on a procedural defect not asserted by the moving

party. Two courts of appeals, including the Eleventh

Circuit, have held that such orders are not reviewable, see Velchez v. Carnival Corp., 331 F.3d 1207,

1210 (11th Cir. 2003); Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 285 (5th Cir. 2004), while

at least one other court has reached the opposite con-

7

clusion, see Mitskovski v. Buffalo and Fort Erie Public Bridge Authority, 435 F.3d 127, 131–32 (2d Cir.

2006) (remand order granting a timely motion to remand based on a procedural defect identified by the

court was reviewable); see also Carlsbad Technologies, Inc. v. HIF Bio, Inc., 556 U.S. 635, 643 (2009)

(Scalia, J., concurring) (describing the jurisprudence

with respect to section 1447(d)’s appellate review bar

as a “mess—entirely of our own making”).

Respondents also ignore that this issue has arisen in federal courts with some regularity. See, e.g.,

Tennessee Gas Pipeline Co. v. Continental Cas. Co.,

814 F. Supp. 1302, 1311 (M.D. La. 1993) (“As long as

a motion to remand is timely filed within the thirty

day period, the court should be allowed to determine

all procedural defects which are raised while the motion to remand is pending.”); Novick v. Bankers Life

Ins. Co. of New York, 450 F. Supp. 2d 196, 197–98

(E.D.N.Y. 2006) (denying remand on the basis of a

procedural defect raised on reply).

The confusion among the lower courts arises in a

context in which uniformity is particularly important. See Grubbs, 405 U.S. at 705; Shamrock Oil

& Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941). Allowing defendants in Selma, but not in New Orleans,

to “interrupt[] . . . litigation of the merits of a removed case” by seeking appellate review of remand

orders undermines the effective operation of the

statute and creates unnecessary confusion with respect to the proper allocation of cases between the

state and federal courts. See Powerex Corp., Inc., 551

U.S. at 238.

8

B. The Decision Below Is Incorrect.

Respondents defend the Eleventh Circuit’s decision below on the basis that the court simply applied

the “plain text” of the removal statute. Opp. at 9.

But the Fifth Circuit’s decision adopting the opposite

interpretation also invoked “the unambiguous statutory language.” BEPCO, L.P., 675 F.3d at 471. Further, the Eleventh Circuit’s rule is contrary to both

the plain text of Sections 1447(c) and 1447(d), and

Congress’s intent to bar appellate review of almost

all removal orders, save those expressly exempted

from Section 1447(d)’s mandate.

a. Section 1447(c) requires only that a “motion

to remand a case on the basis of any defect other

than lack of subject matter jurisdiction . . . be made

within 30 days after the filing of the notice of removal.”

28 U.S.C. § 1447(c).

By its terms, Section 1447(c) “is limited to motions, not issues,”

Schexnayder, 394 F.3d at 284, and it requires the

party who objects to removal to ask the district court

to return the case to state court within 30 days. The

plain text of the statute does not, however, require a

party to identify particular issues within a set period

of time. See BEPCO, L.P., 675 F.3d at 471 (“On its

face, Section 1447(c)’s 30-day requirement governs

the timeliness of the filing of a motion to remand, not

the time limit for raising removal defects.”). Indeed,

where a party is required to present specific issues

within a set period of time, a statute or rule says so

explicitly. Compare 28 U.S.C. § 1447(c), with Fed. R.

Civ. P 12(h) (certain bases for dismissal must be

raised within a specified period of time); Fed. R. Civ.

P. 60 (enumerating the bases for a motion for relief

9

from judgment and setting a one-year time limit on

motions based on specific grounds for relief).

Here, Section 1447(c) defines the timing requirement for the vehicle a party must use to seek remand—“a motion.” 28 U.S.C. § 1447(c); see also Motion, Black’s Law (11th Ed. 2019) (defining “motion”

as merely “[a] written or oral application requesting

the court to make a specified ruling or order”). It

does not prescribe the time within which a party

must present each issue in support of that motion.

And, to the extent the statute is ambiguous, this ambiguity should be construed against removal and in

favor of resolution in the state courts. See, e.g., Allen

v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.

2003).

Respondents’ contention that the Eleventh Circuit simply applied the “plain text” of Section 1447(c)

by requiring Petitioner to raise particular issues

supporting the motion to remand within the 30-day

statutory time limit thus finds no support in the text

of that provision.

b. Furthermore, Respondents do not dispute

that the plain text of Section 1447(d) is categorical:

it bars appellate review of an “order remanding a

case to State court . . . on appeal or otherwise,” unless that order falls within one of two clearlyenumerated exceptions. 28 U.S.C. § 1447(d). This

broad prohibition on appellate review, like Section 1447(c)’s 30-day time requirement, is designed

to prevent additional delay or interference with the

orderly resolution of the case. See Thermtron Prod.,

Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976). Indeed, both Congress and this Court have consistently

and expressly restricted appeals from orders remanding a case to state court since 1887 to ensure

10

the swift and efficient resolution of cases on their

merits in the appropriate court. Rice, 327 U.S. at

748–49. And, they have consistently done so even in

circumstances in which the court of appeals would

otherwise find that the district court committed reversible error. Powerex Corp., 551 U.S. at 237–39

(noting that the Court is “well aware [of] § 1447(d)’s

immunization of erroneous remands” but affirming

that “[a]ppellate courts must take [section 1447(d)’s]

jurisdictional prescription seriously, however pressing the merits of the appeal might seem”); Thermtron

Products, Inc., 423 U.S. at 351 (“Congress immunized from all forms of appellate review any remand

order . . . whether or not that order might be deemed

erroneous by an appellate court.”).

The Eleventh Circuit’s decision undermines this

goal, and improperly expands appellate review to

remand orders based on a timely filed motion, after

both parties had a full and fair opportunity to be

heard in connection with the bases for remand.

11

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

DAVID A. O’NEIL

Counsel of record

DEBEVOISE & PLIMPTON LLP

801 Pennsylvania Ave. N.W.

Washington, D.C. 20004

(202) 383-8000

daoneil@debevoise.com

MATTHEW SPECHT

ANAGHA SUNDARARAJAN

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, NY 10022

ROBERT PRINCE

G. COE BAXTER

PRINCE, GLOVER & HAYES

1 CYPRESS POINT

701 RICE MINE ROAD N.

TUSCALOOSA, AL 35406

(205) 345-1234

rprice@princelaw.net

December 2021