# Reply Brief — Gravitt v. Southwestern Bell Telephone Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1283%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1977 - **Citation:** 430 U.S. 723 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1283%3A3. Public record. Not legal advice.