Reply Brief — Gravitt v. Southwestern Bell Telephone Co.

Supreme Court, U. S,

m— FILED

MAR 14 1977

IN THE "| MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1976

No. /6-1036

OLETA GRAVITT, ETC., ET AL..

Petitioners.

VERSUS

SOUTHWESTERN BELL TELEPHONE COMPANY. ET AL..

Respondents.

PETITIONERS’ REPLY TO

BRIEF FOR RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

PURSUANT TO RULE 24, RULES OF THE

SUPREME COURT OF THE UNITED STATES

LAW OFFICES OF PAT MALONEY. INC.

Pat Maloney

Jack Pasqual

2001 Frost Bank Tower

San Antonio, Texas 78205

ATTORNEYS FOR PETITIONERS

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 76-1036

OLETA GRAVITT, ETC., ET AL.,

Petitioners,

VERSUS

SOUTHWESTERN BELL TELEPHONE COMPANY, ET AL..,

Respondents.

PETITIONERS’ REPLY TO

BRIEF FOR RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

PURSUANT TO RULE 24, RULES OF THE

SUPREME COURT OF THE UNITED STATES

OF COUNSEL:

LAW OFFICES OF PAT MALONEY, INC.

Pat Maloney

Jack Pasqual

2001 Frost Bank Tower

San Antonio, Texas 78205

ATTORNEYS FOR PETITIONERS

PETITIONERS’ REPLY BRIEF

Petitioners respectfully file their Reply to Respondent’s

Brief and call to the attention of the Honorable Supreme Court

the following authority decided on November 15, 1976 and,

therefore, not included in the original Petition for Certiorari,

viz: Volvo Corporation of America, Applicant vs; William W.

Schwarzer, Judge; United States District Court for the Northern

District of California (Charlene P. Rosack, Etc., Et Al — Real

Parties in Interest). No. A-395. (97 S. Ct. 285 1976).

The cited case (significantly absent from Respondent’s Brief)

is entirely dispositive of this matter. The case clearly demon-

strates that the Opinion of the Fifth Circuit in the case at bar

conflicts with Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d. 542 (1976), and the

Ninth Circuit (Volvo Corporation of America, supra).

Justice Rehnquist, in the Volvo case, points out precisely

why the Fifth Circuit Opinion in the instant case is erroneous,

Stating:

“Applicant’s position would mean that any allegedly

erroneous application of Sec. 1447(c) would be

reviewable by Writ of Mandamus, leaving the Sec.

1447(d) bar extant only in the case of allegedly

proper applications of Sec. 1447(c); a reading too

Pickwickian to be accepted and contrary to the clear

language of Thermtron.”

The District Judge in the instant case made the determination

that he was without jurisdiction. The Order of Remand now

presented to this Honorable Court for review, was made pur-

suant to 28 U.S.C. Sec. 1447(c). Therefore, as noted by Justice

Rehnquist, in Volvo:

meme

“It is unquestioned in this case and conceded by

Petitioner that this Section prohibits review of all

remand orders issued pursuant to Sec. 1447(c)

whether erroneous or not . . . if 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.” (Thermtron,

423 US. at 343, 96 S. Ct. at 589) (Emphasis added).

It is apparent that the District Judge in Thermtron, while

admitting jurisdiction, issued the Remand Order as a device to

clear his docket. Judge Spears, on the other hand, determined

that he lacked jurisdiction, and therefore, remanded the case

to the State Court.

The effect of the ruling of the Fifth Circuit in this case means

that any party aggrieved by an allegedly erroneous application

of 28 U.S.C. Sec. 1447(c) may make such Order of Remand

reviewable by Writ of Mandamus; clearly contrary to the intent

of the Statute as interpreted by this Court in Thermtron.

Respectfully submitted,

LAW OFFICES OF PAT MALONEY, INC.

Pat Maloney

Jack Pasqual

Pat Maloney

2001 Frost Bank Tower

San Antonio, Texas 78205

ATTORNEYS FOR PETITIONERS

Dated this

9th day of March, 1977

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

pleading has been furnished to counsel for Respondents and to

the Solicitor General of the United States.

Pat 4m Pts ny .4.5.

Pat Maloney

March 9, 1977