Opposition Brief — Aerovias Nacionales de Colombia, S.A. v. Calderon

@ 3

fupreme Court, U.S,

No. 91-418 FILED

In The

Supreme Court of the United

-—

—-

October Term, 1991

AEROVIAS NACIONALES DE COLOMBIA, S.A., AVIANCA,

INC. and COMMODORE AVIATION, INC.,

Petitioners,

Ay

JESUS E. CALDERON, as Personal Representative of the

ESTATE OF ELVIA MERCEDES CALDERON, Deceased, and

on behalf of JESUS E. CALDERON, CARLOS ARTURO

CALDERON, CLAUDIA ELENA CALDERON and LUIS

ALFONSO CALDERON,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JON E. KRUPNICK

Counsel of Record

KRUPNICK, CAMPBELL, MALONE

AND ROSELLI, P.A.

Attorneys for Respondent

700 Southeast Third Avenue

Suite 100

Fort Lauderdale, Florida 33316-1186

(305) 763-8181

1141

tz *NJ (908) 257-6850°(800) 3 APPEAL*NY (212) 840-4640eMA (617) 542-1114

te @. OC (202) 783-7288°PA (215) 925-6500°USA (800) 5 APPEAL

QUESTION PRESENTED FOR REVIEW

Whether the United States Court of Appeals for the Eleventh

Circuit correctly refused to review the district court’s order of

remand pursuant to 28 U.S.C. § 1447(d)?

i

TABLE OF CONTENTS

Page

Question Presented for Review ...................006- i

ee Or IIS ok hoy 5 iu ckineudduacese ce baseerveds li

Te Te Is os Siu ne cece ne Paes eee eee il

SE GE TE GD foi. oo od che dcaenaseubasaekeeeess 2

Reasons for Denying the Writ ........................ 2

I. The order of remand was not reviewable under the

Court’s decision in Waco v. United States Fidelity and

Garant? Co. OF GURGIWIOR. .. os ccc cccctcssancs: 2

Ii. Although the exclusivity of the Warsaw Convention

is an important issue, review of an order of remand

is not the proper avenue to address the issue. .... 13

III. The Circuit Courts of Appeals’ Decisions regarding

review of remand orders are consistent. ......... 13

Conclusion ......... ae ieale eae eae . 1S

TABLE OF CITATIONS

Cases Cited:

Allen v. Ferguson, 791 F.2d 611 (7th Cir. 1986) ........ +

Armstrong v. Alabama Power Company, 667 F.2d 1385 (11th

+ 2, er hele 4

iil

Contents

Page

Clorox v. United States District Court for the Northern

District of California, 779 F.2d 517 (9th Cir. 1985)

Foster v. Chesapeake Insurance Company, 933 F.2d 1207 (3d

ne a 4

Glasser v. Amalgamated Workers’ Union Local 88, 806 F.2d

i Ss revoke sesesstesteuvess 5, 6, 7

Hansen v. Blue Cross of California, 891 F.2d 1384 (9th Cir.

oe ell hh, Stl an a RR, OES 5, 6 7,8

In re Air Disaster at Lockerbie, Scotland, on December 21,

1988, 928 F.2d 1267 (2d Cir. 1991), cert. filed, No.

ois ce Gis reersveerevedees 13

Karl Koch Erecting Co. v. N.Y. Convention Center Dev.

Coen. mae bum Gore (26 Cir. 1968)... ec ceees 4

Katsaris v. United States, 684 F.2d 758 (11th Cir. 1982)

ee cecscsvesvivetves: 4

Koreza v. Spirito, 723 F.2d 1003 (Ist Cir. 1983) ........ 4

Krentz v. Connecticut General Life ienmenee Company, 886

F.2d 1177 (9th Cir. 1989) .............cce eee ee. 10, 12

Mitchell v. Carlson, 896 F.2d 128 (Sth Cir. 1990) ....... 4

Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741

CN a 4, 5, 6, 8

iv

Contents

Page

Regis Associates v. Rank Hotels (Management) Ltd., 894 F.2d

i ee CE aso 04.4 a Bn oN oh wo ke ees 4

Soley v. First Nat’! Bank of Commerce, 923 F.2d 406 (Sth

en RRR ot are Wee wa 6 Wistka ee ee wall ee ee as 12

Southeast Mortgage Company v. Mullins, 514 F.2d 747 (Sth

i a a ila ie kk Ree Ra ie ee wees 4

Survival Systems Division of the Whitaker Corporation v.

United States District Court of the Southern District of

California, 825 F.2d 1416 (9th Cir. 1987) ..... 6, 8, 9, 10

Thermatron Products Inc. v. Hermansdorfer, 423 U.S. 336

ik skekds cea ale< ha le aoe le ow ee o tay 43, 94

Waco v. United States Fidelity and Guaranty Co., 293 U.S.

Sr Ges CE Sky F686 2S0 i. See ee y ae oe

Whitman v. Raley’s Inc., 886 F.2d 117 (9th Cir. 1989)

Statutes Cited:

Convention for the Unification of Certain Rules Relating to

the International Transportation by Air, October 12,

1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in

note following 49 U.S.C. App. § 1502 ........... passim

Employee Retirement Income Security Act., 29 U.S.C.

es SOs bee Wad de ia cad ce CES eRe eek 7

Contents

Page

Oe Ee as eS ees ee oe res chee heaeee eee 12, 14

Fe sc Es 0 S5k 8-0 Sv ce ots oe be 2, 3, 5, 14

No. 91-418

In The

Supreme Court of the Uniteu States

October Term, 1991

AEROVIAS NACIONALES DE COLOMBIA, S.A., AVIANCA,

INC. and COMMODORE AVIATION, INC.,

Petitioners,

VS.

JESUS E. CALDERON, as Personal Representative of the

ESTATE OF ELVIA MERCEDES CALDERON, Deceased, and

on behalf of JESUS E. CALDERON, CARLOS ARTURO

CALDERON, CLAUDIA ELENA CALDERON and LUIS

ALFONSO CALDERON,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Respondent would agree with petitioners’ Statement of the

Case except in the following regard:

Petitioners’ characterization of the district court’s order of

remand is inaccurate. The district court reached a single decision

to remand the case to the state court based upon its finding that

the petitioners had pled no federal cause of action.

REASONS FOR DENYING THE WRIT

The petition for a writ of certiorari should be denied for at

least three reasons. First, the United States Court of Appeals for

the Eleventh Circuit correctly refused to review the district court’s

decision remanding this case to the state court. Secondly, even

though the issue of the exclusivity of the Warsaw Convention

is an important one, appeal of a remand order is not a proper

avenue of review, especially when there is pending before this

Court a petition for a writ of certiorari in a case where review

would be appropriate. Thirdly, the Circuit Court of Appeals’

decisions consistently apply this Court’s opinions in Thermatron

Products Inc. v. Hermansdorfer, 423 U.S. 336 (1976) and Waco

v. United States Fidelity and Guaranty Co., 293 U.S. 140 (1934),

as well as the provisions of 28 U.S.C. § 1447(d).

I.

THE ORDER OF REMAND WAS NOT REVIEWABLE

UNDER THE COURT’S DECISION IN WACO v. UNITED

STATES FIDELITY AND GUARANTY CO. OR OTHERWISE.

Petitioners seek review of the Eleventh Circuit’s dismissal

of the petitioners’ appeal of the district court’s order remanding

this case to the state court. Such an appeal is specifically prohibited

by 25 U.S.C. § 1447(d) which in pertinent part provides as follows:

An order remanding a case to the State court from

which it was removed was not reviewable on appeal

or otherwise . .

As such, the Eleventh Circuit’s dismissal of petitioners’ appeal

was entirely proper.

Petitioners seek to avoid § 1447(d)’s_ straightforward

prohibition on appeal by characterizing the district court’s order

as one falling within a narrow exception to the statute’s

prohibition. In doing so, petitioners rely upon this Court’s decision

in Waco v. United States Fidelity and Guaranty Co., 293 U.S.

140 (1934). However, this Court’s decision in Waco offers no

support for petitioners’ argument. in Waco, this Court established

a narrow exception to the ban on review. In that case, the district

court dismissed a third-party action which had been the sole basis

for federal jurisdiction. As a result of that dismissal, the district

court determined that it was without federal jurisdiction and

remanded the case to the state court. This court in reviewing the

Fifth Circuit’s dismissal of an appeal from that order stated as

follows:

True, no appeal ties from the order of remand;

but in logic and in fact the decree of dismissal

preceded that of remand and was made by the

district court while it had control of the cause.

Indisputably, this order is the subject of an appeal;

and, if not reversed or set aside, is conclusive upon

the petitioner.

This exception to the ban on review is patently not applicable

to the order in this case. There was no order preceding the order

of remand which dismissed any federal claim or party. Neither

EEO

does the remand order effect any substantive right of the

petitioners. Petitioners are free to raise the Warsaw Convention

as a defense in the state court action.

- Petitioners cite numerous Circuit Court of Appeals cases

which have followed the Waco decision and have recognized a

right to appeal. While respondent would agree that these cases

correctly interpret the Waco exception to the ban on review,

respondent would disagree that they are at all applicable to the

case herein. Some of the cases are almost identical to the Waco

situation, that is, the district court dismisses the party upon whom

federal jurisdiction is based and then remands the case. See, e.z.,

Mitchell v. Carlson, 896 F.2d 128 (Sth Cir. 1990); Alien v.

Ferguson, 791 F.2d 611 (7th Cir. 1986); Koreza v. Spirito, 723

F.2d 1003 (ist Cir. 1983); Armstrong v. Alabama Power

Company, 667 F.2d 1385 (11th Cir. 1982); Katsaris v. United

States, 684 F.2d 758 (11th Cir. 1982); and Southeast Mortgage

Company v. Mullins, 514 F.2d 747 (Sth Cir. 1975). As in Waco,

the order of dismissal was reviewable in these cases.

The other cases involve situations where the district court

made a substantive decision, completely separate and

distinguishable from any jurisdictional decision, which dictated

remand of the case. The most prevalent of such decisions involves

the interpretetion of ‘‘forum-selection clauses.’’ In fact, the other

cases cited by the petitioners are either forum-selection or forum-

waiver cases. See Pelleport Investors, Inc. v. Budco Quality

Theatres, Inc., 741 F.2d 273 (9th Cir. 1984); Foster v. Chesapeake

Insurance Company, 933 F.2d 1207 (3d Cir. 1991); Regis

Associates v. Rank Hotels (Management) Lid., 894 F.2d 193 (6th

Cir. 1984); Karl Koch Erecting Co. v. N.Y. Convention Center

Dev. Corp., 838 F.2d 656 (2d Cir. 1988); Clorox v. United States

District Court for the Northern District of California, 779 F.2d

517 (9th Cir. 1985).

The ‘‘forum-selection clause’’ exception to § 1447(d)’s ban

on review was first recognized by the Ninth Circuit in Pelleport

Investors, Inc. v. Budco Quality Theaters, Inc., 741 F.2d 273 (9th

Cir. 1984). In that case, Pelleport brought a contract claim against

Budco in the state court. Budco subsequently removed the case

to the federal district court where Pelleport filed a motion for

remand arguing that a forum-selection clause in the contract

required the case to be in the state court. The district court

determined that the forum-selection clause was valid and

enforceable and remanded the case.

On appeal, the Ninth Circuit held *‘the district court’s contract

interpretation is appealable’’ because ‘‘it reached a substantive

decision on the merits apart from any jurisdictional decision’’.

Pelleport, 741 F.2d 276-277. In addition, the court found the order

interpreting the contract was reviewable, because it was conclusive

on the question, and to refuse the appeal deprived Budco of a

right to appeal a substantive determination of contract law.

The Ninth Circuit capsulized its Pelleport decision in the case

of Clorox v. United States District Court for the Northern District

of California, 779 F.2d 517 (9th Cir. 1985), stating:

When a district court’s remand order is based on

a resolution of the merits of soms matter of

substantive law ‘‘apart from any jurisdictional

decision’’, § 1447(d) does not foreclose appellate

review of that decision.

Clorox, 779 F.2d at 520.

Clearly the Pelleport line of decisions has no applicability

to the instant case. This fact is demonstrated by the opinions in

Hansen v. Blue Cross of California, 891 F.2d 1384 (9th Cir. 1989),

and Glasser v. Amalgamated Workers’ Union Local 88, 806 F.2d

1539 (11th Cir. 1986), as well as Survival Systems Division of

the Whitaker Corporation v. United States District Court of the

Southern District of California, 825 F.2d 1416 (9th Cir. 1987),

and Whitman v. Raley’s Inc., 886 F.2d 117 (9th Cir. 1989).' In

Glasser, the plaintiff brought a state court claim against the union

alleging that he had been wrongfully denied certain medical

benefits under an employee-benefit plan. The union removed the

case to the district court claiming that the Employee Retirement

Income Security Act (ERISA) preempted all of the plaintiff’s state

claims. The district court found that the plaintiff’s only pled state

law claims and that appellant’s federal claims were merely defenses.

Applying the well-pled complaint rule, the district court concluded

that it lacked jurisdiction and remanded the case to the state court.

On appeal, the union sought to argue that the court should

adopt the ‘‘matter of substantive-law’’ exception created by the

Ninth Circuit in Clorox and Pelleport. However, as the Eleventh

Circuit court noted, the exception is a narrow one.

[I]t permits appellate review of a district court

remand order only where that order is based solely

on a matter of substantive law. It expressly does

not permit review of a remand order based on a

lack of jurisdiction. Clorox, 779 F.2d at 520.

Pelleport, 741 F.2d at 276-77. Therefore, we will

not consider whether we will adopt this exception

because, even if we did, the remand order in the

1. Petitioners argue that the court’s decisions in G/asser and Hansen are

not applicable because the district court’s remands therein were based upon

their finding that the federal law which the defendants invoked ‘o support

removal did not apply to the factual allegations in the complaint. .. G/asser,

this is clearly not the case. As for Hansen, although the district court found

that federal law did not apply, the reasoning of ths Ninth Circuit is still very

instructive.

instant case would not be appealable. The district

court expressly based its decision to remand on

the conclusion that it lacked subject matter

jurisdiction.

It is true, as in Clorox and Pelleport, the decision

underlying the remand order involved a conclusion

of substantive law. However, unlike in those cases,

here the substantive-law decision related to the

question of jurisdiction; the remand order did not

affect the substantive rights of the parties.

Compare Clorox, 779 F.2d at 520; Pelleport, 741

F.2d at 276-77. In particular, the court did not

reach the merits of the preemption argument. The

state court may, in fact, rule that ERISA does

preempt appellee’s state-law claims and that

appellees must proceed as appellants contend,

under § 1132(a)(1)(B) of ERISA.

(Emphasis added.) Glasser, 806 F.2d at 1540.

In Hansen, Mrs. Hansen brought a claim in the state court

against Blue Cross for failure to pay insurance benefits. Blue Cross

removed the action based solely on the existence of a federal

question contending that Employee Retirement Income Security

Act, 29 U.S.C. § 1001, et seq., (ERISA) preempted the state-law

claims. The district court determined that under the allegations

of the complaint, Hansen’s claims were not ERISA claims because

she had paid her own premiums. Accordingly, the district court

remanded the case. In this regard, petitioner is correct that the

decision to remand was based upon the court’s determination that

the federal law did not apply to the plaintiff’s claim. However,

this fact offers no support to petitioners and was rejected by the

Ninth Circuit. On appeal, before the Ninth Circuit, Blue Cross

argued that because the district court made a factual determination

that Hansen paid her own premiums and then concluded that

her policy was not covered by ERISA that the order was

reviewable. The Ninth Circuit disagreed stating that the district

court had not decided a disputed issue of fact, but merely looked

to the allegations of Hansen’s complaint. Secondly, the Ninth

Circuit found Pelleport did not apply because:

Blue Cross fails to demonstrate how the district

court’s legal decision was apart from the question

of subject-matter jurisdiction as required to fall

within the exception to non-reviewability

establishsd by Thermatron and its progeny... .

In deciding whether subject-matter jurisdiction

exists, a district court will reach legal conclusions

concerning the presence of diversity or a federal

question. Blue Cross merely disagrees with the legal

conclusion that the district court drew ....

Assuming, without holding, that such a decision

is erroneous, section 1447(d) precludes review of

remand ordsrs based on lack of subject-matter

jurisdiction even when the decision is wrong.

Hansen, 591 F.2d at 1388.

Blue Cross also argued that it could appeal the district court’s

finding that Hansen’s complaint was not an artfuily pled state-

law claim. However, as the Ninth Circuit noted:

A district court’s decision that a complaint is not

artfully pled is a jurisdictional decision related to

the application of the well-pleaded complaint rule.

Hansen, 891 F.2d at 1389.

Similarly, in the case of Survival Systems Division of the

Whitaker Corporation v. United States District Court of the

Southern District of California, 825 F.2d 1416 (9th Cir. 1987),

the plaintiff brought a state-court action asserting various wrongful

discharge claims and claims for intentional and negligent infliction

of emotional distress against her employer. The employer removed

” the case to the federal court based on preemption under federal

labor law. The court found that all but one of the employee’s

claims was preempted by the National Labor Relations Act and

thus dismissed them. However, it found that her claim for

intentional infliction of emotional distress was not preempted.

Based upon this finding, the district court remanded the emotional

distress claim to the state court. The employer appealed relying

upon the Ninth Circuit’s previous decisions in Pelleport and

Clorox. The Ninth Circuit denied review stating as follows:

In this case, the order of remand did not resolve

a matter of substantive law, as in Pelleport or

Clorox. The ruling of the district court was that,

the state cause of action alleged in Rodriquez’

complaint was not an artfully pled federal claim

that was preempted by federal labor law. This did

not finally resolve the issue of preemption, which

could still be raised as a defense to the state claim

in the state court. Thus, if the proof in state court

were such as to justify the conclusion that the cause

sd of action was completely preempted by federal

labor law, the defense of preemption could be

sustained. The ruling of the district court was

simply that the allegations of the complaint did

not justify such a result.

Thus, the only issue decided by the remand ordsr

is the jurisdictional issue that the claim of

intentional infliction of emotional distress was a

state claim and not an arifully pled federal claim.

Re ee

10

The district judge then exercised her discretion in

remanding that state claim. Therefore, the remand

is not reviewable on appeal as a substantive

decision under the doctrine of Pelleport and

C'orox.

Survival Systems, 825 F.2d at 1418.

Finally, in two companion cases out of the Ninth Circuit,

Whitman v. Raley’s Inc., 886 F.2d 117 (9th Cir. 1989) and Krentz

v. Connecticut General Life Insurance Company,’ 886 F.2d 117

(9th Cir. 1989), the court posed the following issue and response:

Does 28 U.S.C. § 1447(d) bar review of remand

orders that are based on a finding that federal law

does not completely preempt plaintiff’s state

claims? We hold that it does.

In reaching this decision, the court applied the following

reasoning:

A distinction must be drawn between the inquiry

the district court faces in considering whether a

case was properly removed and the inquiry as to

whether a preemption defense exists. At the

removal stage, the inquiry is solely whether

congress intended a preemptive force so powerful

as to displace entirely any state cause of action

within the ambit of the federal cause of action

2. In Whitman, the issue raised was whether § 301 of the Labor

Management Relations-Act completely preempted plaintiff’s state claims. And

in Krentz, the issue was whether or not ERISA completely preempted plaintiff’s

state claims.

11

This jurisdictional issue of whether ‘‘complete

preemption’’ exists is very different from the

substantive inquiry of whether a ‘‘preempticn

defense’’ may be established. The jurisdictional

question concerning ‘‘complete preemption’”’

centers on whether it was the intent of Congress

to make the cause of action a federal cause of

action and removable despite the fact that the

plaintiff’s complaint identifies only state claims.

The latter inquiry, concerning a ‘‘preemption

defense’’, is a substantive inquiry as to whether

a legal defense exists. This would be a matter for

trial by a court having jurisdiction. The possible

existence of a ‘‘preemption defense’’ does not

justify removal ....

On a remand petition where the removal petition

is based on complete preemption, the sole issue

before the district ccurt is whether the plaintiff’s

claim is one of those claims that is ‘‘complstely

preempted’”’ by federal law. If the court rules that

the claim is not ‘‘completely preempted’’, the

federal court lacks jurisdiction to rule on the

Substantive preemption defense.

A remand based on lack of ‘‘complete

preemption’’ is a remand required by 28 U.S.C.

§ 1447(c) .... When a case is remanded on the

ground that the federal court is without jurisdiction

pursuant to § 1447(c), the remand order ‘‘is not

reviewable on appeal or otherwise’’. 28 U.S.C.

§ 1447(d); Thermatron Products Inc. v.

12

Hermansdorfer, 423 U.S. 336 (1976).’

As one can see, neither Waco or its progeny in any way

support review of the order of remand entered by the district court

in this case. Petitioners have failed to demonstrate that the district

court’s legal decision regarding the Warsaw Convention was apart

from the question of subject-matter jurisdiction. The ruling of

the district court was that the state cause of action alleged in

respondent’s complaint was not an artfully pled federal claim that

was preempted by federal law. The only issue decided by the

remand order was the jurisdictional issue that plaintiff’s claim

was a State claim and that the federal court thus lacked jurisdiction

to hear the matter. This did not finally resolvs the issue of whether

or not the Warsaw Convention applies to the case because this

can still be raised as a defense to the state claim in the state court.

The remand in this case was based on the lack of ‘‘complete

preemption’’, and thus was a remand required by 28 U.S.C.

§ 1447(c). When a case is remanded on the ground that the federal

court is without jurisdiction pursuant to § 1447(c), remand order

is not reviewable on appeal or otherwise. Thermatron Products

Inc. v. Hermansdorfer, 423 U.S. 336 (1976). As such, the Eleventh

Circuit properly dismissed petitioners’ appeal. This Court should.

likewise deny petitioners’ petition for a writ of certiorari.

3. The reasoning in Whitman/Krentz was followed by the Fifth Circuit

in Soley v. First Nat’l Bank of Commerce, 923 F.2d 406 (Sth Cir. 1991).

13

ALTHOUGH THE EXCLUSIVITY OF THE WARSAW

CONVENTION IS AN IMPORTANT ISSUE, REVIEW OF AN

ORDER OF REMAND IS NOT THE PROPER AVENUE TO

ADDRESS THE ISSUE.

Respondent would agree that the issue of whether the Warsaw

Convention provides plaintiff’s exclusive cause of action is an

important issue. However, respondent strongly disagrees that

this petition for writ of certiorari is the appropriate avenue for

this Court to address that issue. It is noted by petitioner that this

Court has on several occasions addressed the Warsaw Convention

but always as the result of a proper avenue of review. Moreover,

the plaintiffs in Jn re Air Disaster at Lockerbie, Scotland, on

December 21, 1988, 928 F.2d 1267 (2d Cir. 1991), cert. filed, No.

91-259 (Aug. 12, 1991) have petitioned this Court for review of

the Second Circuit ruling on the exclusivity issue. As such, this

Court does have an appropriate avenue to review the issue of

the Warsaw Convention’s exclusivity should it wish to do so.

THE CIRCUIT COURTS OF APPEALS’ DECISIONS

REGARDING REVIEW OF REMAND ORDERS ARE

CONSISTENT.

Petitioners’ assertion that the Circuit Courts of Appeals differ

widely in their determination of the reviewability of remand orders

is erroneous. As demonstrated earlier, the Circuit Courts of

Appeals have been able to properly apply the criteria set forth

by this Court in Thermatron Products Inc. v. Hermansdorfer,

423 U.S. 336 (1976) and Waco v. United States Fidelity and

Guaranty Co., 293 U.S. 140 (1934).

14

Where the district courts entered an order dismissing a federal

party or claim prior to the order of remand, the Circuit Courts

of Appeals have appropriately allowed review of the order of

dismissal. The courts have also allowed review of substantive

orders which precede the order of remand and which decide

substantive issues completely separate from jurisdiction which are

binding upon the parties.

The Circuit Courts of Appeals have also consistently refused

to review orders of remand in situations where the order of remand

is based upon a substantive decision which is intrinsically

‘intertwined with a jurisdictional issue. Such courts have correctly

interpreted this Court’s decision in Thermatron as banning review

of remand orders issued under 28 U.S.C. § 1447(c). Where, as

here, the decision to remand the case is based upon a district court’s

finding that it is without jurisdiction to hear the matter, the courts

have correctly dismissed appeals of the remands. Petitioner is

unable to point to a single case where under such circumstances

a Circuit Court of Appeals has granted review. The Circuit Courts’

interpretation is not an expansion on the prohibition found at

28 U.S.C. § 1447(d), rather it is merely a proper interpretation

of a straightforward legislative enactment prohibiting review. If

petitioners are dissatisfied with the ban on review of remand

orders, the avenue for relief is through the legislative process not

by insupportable judicial interpretation of the statute.

15

CONCLUSION

In conclusion, the petition for a writ of certiorari should be

denied.

Dated: October 14, 1991

Respectfully submitted,

JON E. KRUPNICK

Counsel of Record

KRUPNICK, CAMPBELL,

MALONE AND ROSELLI, P.A.

Attorneys for Respondent

KEVIN A. MALONE

KELLEY B. GELB

CARLOS VELASQUEZ

Of Counsel