# Petition for Writ of Certiorari — Gumby v. General Public Utilities Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 906

## Text

No. 91-

61-676

In the al
Supreme Court of the Auited States

OCTOBER TERM, 1991

pO One Cen

RECEIVED
HAND DELIVERED

OCT 23199]

SUPREME COURT. U.S.

JOHN W. GUMBY, SR., et al.,

Vz.

GENERAL PUBLIC UTILITIES CORPORATION, METRO- —

POLITAN EDISON CO., JERSEY CENTRAL POWER AND

LIGHT CO., PENNSYLVANIA ELECTRIC CO., BABCOCK

& WILCOX. CO., McDERMOTT INC., U.E. & C.-CATA-

LYTIC, INC., BURNS & ROE ENTERPRISES, INC., AND
DRESSER INDUSTRIES INC.,

Petitioners,

Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Arnold Levin’

Fred S. Longer

LEVIN, FISHBEIN, SEDRAN
& BERMAN

320 Walnut Street

Suite 600

Philadelphia, PA 19106

(215) 592-1500

and

Lee C. Swartz

Harrisburg, PA

and

John R. O'Donnel!

Philadelphia, PA

and

*“Counsel of Record
October 23, 199]

Joseph D. Shein
Philadelphia, PA
and

Louis M. Tarasi, Jr
Pittsburgh, PA
and

James R. Adams
Lancaster, PA
and

Peter J. Neeson
Philadelphia, PA
and

William E. Chillas
Lancaster, PA

Attorneys for Petitioners
John W. Gumby, Sr., et al.

SEE EE TEE ELE ED
SMITH- EDWARDS. DUNLAP COMPANY. 2867 F ALLEGHENY AVENUE. PHILADELPHIA, PA 19134215) 425-8800

QUESTIONS PRESENTED

1. Does the Third Circuit's grant of appellate jurisdiction
over certain interlocutory orders contained in 28 U.S.C.
§1292(b) create a new, previously unrecognized exception to
the express statutory prohibition against review of remand
orders “on appeal or otherwise” contained in 28 U.S.C.
§$1447(d) in conflict with decisions by the Fifth, Ninth and
Tenth Circuits and in conflict with this Court’s decision in
Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336
(1975)?

2. May Congress, pursuant to the Price-Anderson
Amendments Act of 1988, 42 U.S.C. §2210(n)(2), confer orig-
inal jurisdiction on the federal courts consistent with Article
III's “arising under” clause:

(a) When Congress intended for state law to provide the
substantive rules of decision rather than legislating
federal rules of decision;

(b) When Congress intended that there be concurrent
(not exclusive) jurisdiction between the state and
federal courts;

(c) When Congress, by granting only concurrent juris-
diction, did not intend that there be a uniform body of
federal law applicable to public liability actions; and

(d) When state law remains the independent source of
the private rights at issue?

3. Did Congress impermissibly exercise the Article III
judicial function or interfere with state sovereignty and
federalism by deciaring these state law claims as federal
causes of action and retroactively providing a federal forum
without changing the substantive applicable law, although
courts have previously determined that these cases comprise
entirely state law claims?

LIST OF INTERESTED PARTIES

The interested parties, petitioners, who appeared before
the United States Court of Appeals for the Third Circuit in
this proceeding are listed in the Appendix at A-1-A-22.! All
respondents appear in the caption of the case.

1. Pursuant to Sup.Ct.R. 29.1, Petitioners state that all corporate peti-
tioners have no parent companies or subsidiaries to be listed.

TABLE OF CONTENTS

ese 8 ks 2)
LIST OF INTERESTED PARTIES ................ 7
ps 5
MU cee cece tenn ceceens.
En a a a

CONSTITUTIONAL PROVISIONS AND STATUTES
co 8 6 ee

ee)

A. CHIEF JUSTICE REHNQUIST’S WARN-
ING IN THERMTRON HAS COME TO
FRUITION: THE THIRD CIRCUIT HAS
RENDERED MEANINGLESS THE APPEL
LATE REVIEW PROHIBITION OF §1447(D)
BY EXCEPTING INTERLOCUTORY RE-
eS cua eka nies <ul ese eve 8

B. REVIEW SHOULD BE GRANTED TO DE-
TERMINE WHETHER THERE EXIST ANY
MEANINGFUL LIMITS TO ARTICLE. III,
“ARISING UNDER’ JURISDICTION ......

C. REVIEW SHOULD BE GRANTED TO DE-
TERMINE WHETHER THE AMEND-
MENTS’ RETROACTIVE CONFERRAL OF
ARISING UNDER JURISDICTION INTER-
FERES WITH STATE SOVEREIGNTY AND
re cralt, sys fava ek cd de we

ec ivi nce s ow «os be ve oes eau daa
ee oe vc cn eas nh bo ee een eee vee cl

iil

to

= OF NM NW

1]

12

TABLE OF AUTHORITIES

CASES Page
In re Bear River Drainage Dist., 267 F.2d 849 (10th Cir.
SI lt i Te ee ree ar ae = 4,10

In re Consolidated U.S. Atmosphere Testing Litigation,
320 F.2d 982, (9th Cir1987), cert. denied sub nom.,
Konizeski v. Livermore Labs, 485 U.S. 905 (1988).. 16

Duke Power Co. v. Carolina Environmental Study Group,

Bac. SOB U.S. TE CIGTE). « «sence cncnes 5, 12, 14, 16
English v. General Electric Co., __U.S.__, 110 S.Ct. 2270

SU 2G COL COC EL UN lap cwra a alathite eae TE Fess 12
Federal Savings and Loan Insurance Corp. v. Frumenti,

OST FA Ge Ce Coe, BUDD) 6 oc oie ch de cies. 4,10

Ferens v. John Deere & Co., 819 F.2d 423 (3d Cir. 1987),
vacated, 487 U.S. 1212, on remand, 862 F.2d 31 (3d
Cir. 1988), rev'd, __U.S.__, 110 S.Ct. 1275 (1990) . 5

Garcia v. San Antonio Metropolitan Transit Authority,
ee Ss CE 5 5 hc Se kn Sen toe niece enn wt 16

Hammond v. United States, 786 F.2d 8 (1st Cir. 1986) 15, 16
Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir.

| ___EERS TR un py FOS Lage Ua 5,6
Mesa v. California, __U.S.__, 109 S.Ct. 959 (1989) .... 13
Morey v. Lockhart, 123 U.S. 56 (1887)................ 10
National Mutual Insurance Co. v. Tidewater Transfer Co.,

ee ee I os poy cc eee esa oes eb ens 14
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.)

MINS rc oo was wir cis sey eee oe ea vee ss 4,12
Pension Benefit Guarantee Corp. v. R.A. Gray & Co., 467

ee Pe i i orca tere eee ree. 15
Railway Company v. Whitton’s Administrator, 80 U.S.

Cee ee ey ress aes 5,15
Richards v. Federated Department Stores, Inc., 812 F.2d

ee EE ENE 3 eds hh ialevinclen suas 4,10

iv

TABLE OF AUTHORITIES—( Continued )

CASES Page
Rodrigue v. Aetna Casualty Co., 395 U.S. 352 (1969)... 14
Sedima, S.P.R.L. v. Imrex Company, Inc., 473 U.S. 479
CORN 6 vcs too anu dendu teed eee eee 9
Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900).... 14
Shulthis v. McDougal, 225 U.S. 561 (1912)............ 14

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) 5, 12, 14
Stibitz v. General Public Utilities Corp., 746 F.2d 993 (3d

Cir. 1984), cert. denied, 469 U.S. 1214 (1985)..... 5
Textile Workers Union v. Lincoln Mills, 353 U.S. 448
tg Re rt etry ho Se re 14

United States v. Klein, 800 U.S. (13 Wall.) 128 (1871).. 15
United States v. Sioux Nation of Indians, 448 U.S. 371

8 Re rear ran oe ee par iiyer op enrs 15
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480

GR. 53 s'd3 acca pata eae ee ae ee eee ae passim
Volvo of America Corp. v. Schwarzer, 429 U.S. 1331

CFP he ivesvcak tans cuseeete rau tan eee 1]

CONSTITUTIONAL PROVISION

U.S. Constitution, Article III, Section 2, Clause 1... passim

STATUTES, RULES AND REGULATIONS

The Financial Institutions Reform, Recovery and En-
forcement Act of 1989, 12 U.S.C. §1219(b)(2)(c). .. 9

28 U.S.C. §1252, repealed, Pub.L. 100-352, §1, June 27,
SEs See I EE ooh een ee ke eee ee eee 10

SP UA SEE) his chek nciecevi terse 2
Se We. SRD sv is avcedeeince SESEee ere passim

TABLE OF AUTHORITIES—(Continued )

STATUTES, RULES AND REGULATIONS Page
Sr ,, MPEG y eiine evens suave Pitre veeneeN ee passim
, 2k | | | ors mem arr Pa erenrrer passim
fis 7 i i rere wee eric yi) 6
pe Ms cack cya 4 eee eee eee 14
42 U.S.C. §2014(hh)............. ue ee ee 2,6
42 U.S.C. §2210(MX(2).......-. eee wesc cece eee ees 2,5, 13
er dr Loe gee 5
PL 2 oe) Se Am rrr yh ey ee 14
Es STUD GODS cos ivetidvectaneensn cegeesas 4
I ss ese keke ee ee te ae 15

OTHER AUTHORITIES

Note, Over Protective Jurisdiction? A State Sovereignty
Theory of Federal Questions, 102 Harvard L.Rev. 1948

CR os ns adap so oe en Ph le ee 16
Tee Petrict-News, July 27; 1001 260. 6 eG ees 6
Report of Committee on Interior and Insular Affairs on

Bee Se COD 0 oso seve Seer eee ee 13

Report on Energy and Commerce on HR 1414 (1987).. 15

vi

No. 91-

In the
Supreme Court of the Cnited States

OCTOBER TERM, 1991

JOHN W. GUMBY, SR., et al.,

Petitioners,
Vv.

GENERAL PUBLIC UTILITIES CORPORATION, METRO-

POLITAN EDISON CO., JERSEY CENTRAL POWER AND

LIGHT CO., PENNSYLVANIA ELECTRIC CO., BABCOCK

& WILCOX CO., McDERMOTT INC., U.E. & C.-CATA-

LYTIC, INC., BURNS & ROE ENTERPRISES, INC., AND
DRESSER INDUSTRIES INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Petitioners, John W. Gumby, Sr., et al., (“Petitioners”),
respectfully pray that a writ of certiorari issue to review the
judgment and opinion of a panel of the United States Court of
Appeals for the Third Circuit, which reviewed and reversed
an Order of the United States District Court for the Middle
District of Pennsylvania remanding these proceedings for
lack of subject matter jurisdiction.

OPINIONS BELOW

The majority and concurring opinions of the United
States Court of Appeals for the Third Circuit, reproduced at
A-23-A-138, are reported at 940 F.2d 832 (3d Cir. 1991). The
opinion and orders of the United States District Court for the
Middle District of Pennsylvania, dated March 16, 1990, are
reproduced at A-139-A-158, and reported at 735 F.Supp. 640
(M.D. Pa. 1990). The opinion of the United States District
Court for the Middle District of Pennsylvania dated June 14,
1990, on reconsideration is reproduced at A-159-A-161, and is
not reported.

JURISDICTION

The judgment of the Court of Appeals was entered on
July 26, 1991. This Court has jurisdiction to review the judg-
ment of the Court of Appeals by writ of certiorari pursuant to
28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED IN THE CASE

The text of the United States Constitution, Article III, Sec-
tion 2, Clause 1, 28 U.S.C. §1447(c), 28 U.S.C. §1447(d), 42
U.S.C. §2014(hh) and 42 U.S.C. §2210(n)\(2) are set forth in the
Appendix at A-162, A-162, A-162, A-163 and A-163, respectively.

STATEMENT OF THE CASE
PRELIMINARY STATEMENT

This case presents a unique opportunity for this Court to
finally address the limitations of federal power and federal juris-
diction that lie at the heart of the Constitution. Never before has
the fundamental constitutional issue embodied in Article III
arrived before this Court in the procedural posture presented by
this case. Thus this Court is in a position to rule on the con-
straints imposed by Article III as it has never done before.

Several important issues are raised but primarily there

are two: 1) The threshold issue of whether the scope of Con-
gresss mandate that remand orders are not reviewable “on
appeal or otherwise” precludes appellate review of a 1292(b)
certified question concerning the constitutionality of an Act of
Congress (here, the Price-Anderson Amendments Act of
1988); and 2) Whether there are any meaningful limitations
to Article III “arising under” jurisdiction which preclude the
federal government from divesting the states of their tradi-
tional authority to provide tort remedies to their citizens as
well as exercising their jurisdiction over cases already pro-
ceeding under state tort law.

In this case, the Third Circuit recognized that the district
court had properly issued its remand order on grounds within
the statutory authority of the remand statute, §1447(c), by
determining that it lacked subject-matter jurisdiction. How-
ever, because the district court's conclusion regarding its ju-
risdiction resulted from the determination that Congress ex-
ceeded its authority to grant federal jurisdiction, the Third
Circuit found inapplicable the bar of §1447(d) precluding
appellate review. The result-oriented Court of Appeals em-
barked on “virgin territory” to create a new exception to
§1447(d) for instances when district courts make constitu-
tional determinations for which the court of appeals wish
appellate review. This judicial activism contravenes Con-
gresss express intent and this Court's precedent to prevent
review of remand orders by making the district courts the
final arbiters of whether Congress intended that specific ac-
tions were to be tried in a federal court.

After creating its jurisdiction, the Third Circuit held that
Congress may confer original jurisdiction on the federal
courts over state law cases by simply decreeing that these
actions now arise under a federal law, even though that law
expressly relies on state law to provide the substantive rules of
decision. Under this analysis, the bounds of Article III hold
no limits on Congress's ability to confer original jurisdiction
on the federal judiciary: Congress simply has to say jurisdic-
tion exists for it to exist. However, as this Court has held,
purely jurisdictional grants of federal jurisdiction such as the

Price-Anderson Amendments Act Of 1988 lack the necessary
federal ingredient to create federal jurisdiction.

Review by this Court pursuant to a writ of certiorari is
warranted because the Third Circuit's decision 1) conflicts
with the decisions of other United States courts of appeals; 2)
has impacted on important questions of federal law which
have not been, but should be, settled by this Court; and 3) has
decided a federal question in a way that conflicts with applica-
ble decisions of this Court. See Rules of the Supreme Court of
the United States (“Sup.Ct.R.”) 10.1(a), (c). More specifically,
review by this Court is warranted because:

(1) The Third Circuit’s holding that it has appellate juris-
diction pursuant to 28 U.S.C. §1292(b) conflicts with
the decisions of the United States Court of Appeals
for the Fifth Circuit in Richards v. Federated Depart-
ment Stores, Inc., 812 F.2d 211 (5th Cir. 1987), the
Ninth Circuit in Federal Savings and Loan Insurance
Corp. v. Frumenti, 857 F.2d 665 (9th Cir. 1988) and
the Tenth Circuit in In re Bear River Drainage Dist.,
267 F.2d 849 (10th Cir. 1959);

(2) The Third Circuit’s statutory construction that the
prohibition of appellate review of 28 U.S.C. §1447(d)
permits review pursuant to 28 U.S.C. §1292(b)
rather than by mandamus (a method of review not
available here as remand was proper) conflicts with
this Court's decision in Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336 (1975);

(3) The Third Circuit’s ruling that the Price-Anderson
Amendments Act of 1988 creates original federal ju-
risdiction over state law cases reaches the question
not addressed by this Court in Osborn v. Bank of the
United States, 22 U.S. (9 Wheat.) 738 (1824) and
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.
480 (1983), i.e., the precise limits of Article III and
the extent to which Congress may confer federal
jurisdiction over state law cases that will not neces-
sarily implicate substantive federal questions;

(4) The Third Circuit's finding that state sovereignty and
federalism are not implicated when Congress, at the
behest of industry lobbying, targets legislation to oust
a state court of jurisdiction over specific cases after
that jurisdiction has already been established and
exercised, contravenes this Court's ruling in Railway
Company v. Whitton’s Administrator, 80 U.S. (13
Wall.) 270 (1871).

STATEMENT OF FACTS

These Pennsylvania and Mississippi cases redressing
plaintiffs’ state-created causes of action, predominantly per-
sonal injury tort claims, were filed following the Three Mile
Island nuclear facility |[“TMI”] disaster of March 28, 1979.
The Respondents are the companies that, at the time of the
disaster, were the owners, operators or suppliers of TMI.

Respondents removed these cases to the United States
District Courts in Pennsylvania and Mississippi alleging that
Plaintiffs’ claims arose under the Price-Anderson Act |here-
after referred to as “the Act”]. 42 U.S.C. §2210. Following this
Court's decisions in Duke Power Co. v. Carolina Environmen-
tal Study Group, Inc., 438 U.S. 59, 98-99 (1978) (Rehnquist,
J., concurring) and Silkwood v. Kerr-McGee Corp., 464 U.S.
238, 251-54, 256 (1984), the Third Circuit twice ruled in
Stibitz v. General Public Utilities Corp., 746 F.2d 993, 997 (3d
Cir. 1984), cert. denied, 469 U.S. 1214 (1985) and Kiick v.
Metropolitan Edison Co., 784 F.2d 490, 493 (3d Cir. 1986),
that the Act created no federal tort causes of action and that
there was no basis for federal jurisdiction for Petitioner's state
law claims. Consequently, the actions were then remanded
back to the state courts from which they were removed.

Following Stibitz and Kiick, Respondents lobbied Con-
gress to amend the Act to authorize retroactive removal of all
claims created by a “nuclear incident” (as opposed to an
“extraordinary nuclear occurrence” as previously required) to
a single federal court. See 42 U.S.C. §2210(n)(2). One of the
chief purposes of the retrospective provision for which the
Respondents lobbied is to justify an attempt to rob the Peti-

tioners filing under Mississippi's six-year limitations statute of
cognizable, legitimate claims.2 To further appease Re-
spondents’ desire tc circumvent the Third Circuit's rulings in
Stibitz and Kiick, Congress added that Petitioners’ state-cre-
ated claims were “public liability actions” which arise under
federal law. See 42 U.S.C. §2014(hh). A-162. The Price Ander-
son Act Amendments of 1988 [hereafter referred to as the
“Amendments”| became law on August 20, 1988.

Following the enactment of the Amendments, Re-
spondents again removed these actions to the district court.
Petitioners moved the district court for remand as Congress's
amendments to the Act could not confer Article II jurisdic-
tion without providing a substantive rule of decision in the
Amendments, and Congress still relied on the substantive
rules of decision of the fifty states to describe a public liability
action. 42 U.S.C. §2014(hh). A-162. The Respondents op-
posed the petition and the United States of America inter-
vened pursuant to 28 U.S.C. §2403 in the proceedings below.

On March 16, 1990, the lower court ruled that public
liability actions are state-created causes of action:

In this case, the Act provides that public liability
actions are deemed to “arise under” section 170 of
the Atomic Energy Act of 1954 (42 U.S.C. §2210).
The law of the state in which the nuclear incident
occurs will govern the rules for decision in such
cases unless the applicable state law is inconsistent
with section 170. Consequently, Congress has not

2. The Respondents have always revealed an intent to argue that once
these claims have been removed to the federal courts in Pennsylvania that
Pennsylvania's two year statute of limitations must apply. But see Ferens v.
John Deere & Co., 819 F.2d 423 (3d Cir. 1987), vacated, 487 U.S. 1212, on
remand, 862 F.2d 31 (3d Cir. 1988), rev'd, _. U.S. __, 110 S.Ct. 1275
(1990). Respondents’ counsel confirmed this intent following the Third Cir-
cuit’s opinion. See The Patriot-News, July 27, 1991, at A5 (“Alfred H.
Wilcox, an attorney for GPU, reiterated that the main reason the utility
wanted the cases heard in federal court was to better coordinate the pro-
ceedings. He said about 700 claims may be dropped because of the statute
of limitations.”).

“codifie|d| the standards” governing personal injury
actions resulting from nuclear incidents “as an as-
pect of substantive federal law” Verlinden, 461 U.S.
at 497. On the contrary, this Act precludes a “stan-
dard” because of the variances in state tort laws.
A-150.

The lower court continued:

Here, the right at issue is the right to bring an action
for recovery of damages for alleged tortious injuries
resulting from nuclear incidents. That right is cre-
ated by state law and exists regardless of the provi-
sions of the Act. A-152.

The lower court concluded that since no federal cause of
action was created by the Amendments, no federal jurisdic-
tion existed and it therefore lacked subject matter jurisdiction
as required by 28 U.S.C. §1447(c). The actions were re-
manded for lack of subject matter jurisdiction pursuant to 28
U.S.C. §1447(d). A-139-A-140, A-153. Simultaneously, the
lower court stayed its remand order and certified its constitu-
tional ruling for interlocutory appeal. A-139-A-140.

The United States and the Respondents filed inter-
locutory appeals pursuant to 28 U.S.C. §1292(b). Re-
spondents also filed notices of appeals on April 13, 1990.
Petitioners and the United States filed in the district court
motions for reconsideration. Petitioners sought to lift the stay
of remand and certification for interlocutory appeal. The
United States sought to have the district court issue an ad-
visory opinion to end run the prohibition of appellate review of
remand orders.

The Third Circuit, by order dated April 17, 1990, stayed
the interlocutory appeals pending a ruling by the district
court on the two motions for reconsideration. On June 14,
1990, the district court denied both motions. A-159. Re-
spondents filed notices of appeal from the June 14, 1990
order. A petition for a Writ of Mandamus was also filed. On
July 12, 1990, the Third Circuit consolidated the inter-

locutory appeals with the direct appeals and oral argument
took place on February 7, 1991.

The Third Circuit in an opinion and judgment filed on
July 26, 1991, reversed the district court. The Third Circuit
made several rulings challenged herein: that despite finding
that the district court's remand order was authorized by the
removal statute, the prohibition against appellate review of
remand orders did not apply; that Congress can confer Article
III jurisdiction over federal courts of state-law causes of action
without creating any federal substantive law; and that Con-
gress, in conformity with constitutional principles of state
sovereignty and federalism, may retrospectively divest a state
court of jurisdiction of long-pending, properly filed, state law
claims.

On August 14, 1991, Petitioners moved to stay the man-
date of the Third Circuit. On August 30, 1991, the Third
Circuit granted Petitioners’ motion and stayed the mandate
until October 24, 1991.

Petitioners now seek review of these actions in this
Court.

REASONS. FOR ALLOWING THE WRIT

A. CHIEF JUSTICE REHNQUIST’S WARNING IN
THERMTRON HAS COME TO FRUITION: THE
THIRD CIRCUIT HAS RENDERED MEAN-
INGLESS THE APPELLATE REVIEW PROHIBI- -
TION OF §1447(D) BY EXCEPTING INTER-
LOCUTORY REVIEW

As then Justice Rehnquist, in his dissent in Thermtron
Products, Inc. v. Hermansdorfer, 423 U.S. 336, 357 (1975)
(Rehnquist, J.), warned of the mandamus exception engrafted
upon the §1447(d) prohibition of appellate review of remand
orders: “Such devices would soon render meaningless Con-
gress express, and heretofore fully effective, directive prohib-
iting such tactics because of their potential for abuse by those
seeking only to delay” Here, the Third Circuit refused to
heed this warning and recklessly created a new §1292(b)

exception to §1447(d)—a method of review not even permit-
ted by the majority’s holding in Thermtron.

Until the Third Circuit's opinion, it was always recog-
nized, notwithstanding the limited Thermtron mandamus ex-
ception, that Congress's express prohibition of appellate re-
view of remand orders means what it says, i.e.:

An order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to
the State court from which it is removed pursuant to
section 1443 of this title shall be reviewable by ap-
peal or otherwise.

28 U.S.C. §1447(d). Thus, except in civil rights cases, appel-
late review of remand orders is forbidden, unless mandamus
must be exercised to ensure that the district court’s remand
order complies with §1447(c).° Thermtron, 423 U.S. at 351.
The Third Circuit does not agree with this interpretation and
now advocates interlocutory appeals pursuant to §1292(b)
whenever a district court “certifies an unsettled question of
constitutional proportion.” 840 F.2d at 848. A-66.

Congress, however, has for over 100 years intended that
there be no doubt as to the finality of an order of remand to a

3. Evident by the language of the statute itself, Congress clearly knows
how to make exceptions to the prohibition of appellate review when it de-
sires appellate review. Congress has created similar exceptions in other stat-
utes. See e.g. The Financial Institutions Reform, Recovery and Enforce-
ment Act of 1989, 12 U.S.C. §1819(b)(2)(C). This argument was not lost on
the Third Circuit which in its drive to reach the merits of this case, ignored,
as not being dispositive, Congress's omission of an exception to appellate
review of a remand order to the Amendments. 940 F.2d 848 n.10. A-67. The
Third Circuit also ignored this Court's directive that Congress's silence on
the creation of federal jurisdiction must yield to the express language of the
statute itself. See e.g. Sedima, S.PR.L. v Imrex Company, Inc., 473 U.S. 479,
495 n.13 (1985). In the present situation, Congress has balanced between
appellate review and interference in the conduct of litigation commenced in
state court. Appellate review lost that battle; it is not the Third Circuit's
province to act as a super-legislature over Congress and rewrite the law. See
Sedima, 473 U.S. at 499 (“Yet this defect—if defect it is—is inherent in the
statute as written, and its correction must lie with Congress’ ).

10

state court. See e.g. Morey v. Lockhart, 123 U.S. 56 (1887).
Congress's clear purpose has been to avoid protracted disputes
over questions of jurisdiction by allowing the district courts to
be the final arbiters of removal disputes. Congress decided
that the elimination of the delay caused by appellate review
outweighs correcting the district courts’ occasional errors in
remand orders. Underlying Congress's decision is the fact that
the removing party is not out of court, rather it is simply in a
different forum than it would prefer.

This legislative scheme has been recognized by the Fifth
Circuit to preclude review of remand orders where constitu-
tional determinations are made by the district court. See Rich-
ards v. Federated Department Stores, Inc., 812 F.2d 211 (5th
Cir. 1987). Congress's intent to prevent appellate review of
remand orders, even those which touch upon questions of
constitutional proportions, is supported by the repeal of the
specific statute that provided appellate review of any order of a
federal court which found an Act of Congress unconstitu-
tional. See 28 U.S.C. §1252, repealed, Pub.L. 100-352, §1,
June 27, 1988, 102 Stat. 662. Thus, as this Court held in
Morey v. Lockhart, 123 U.S. at 65:

It is difficult to see what more could be done to make
the action of the [district] court final, for all the
purposes of the removal, and not the subject of re-
view in this court. First, it is declared that there shall
be no appeal or writ of error in such a case; and then,
to make the matter doubly sure, the only statute
which ever gave the right of such an appeal or writ of
error is repealed.

Similarly, the Ninth and Tenth Circuits recognize that
Congress intended to preclude appellate review of instances
where the district court certifies questions pursuant to
§1292(b). See Federal Savings and Loan Insurance Corp. v.
Frumenti, 857 F.2d 665, 669 (9th Cir. 1988) and In re Bear
River Drainage Dist., 267 F.2d 849, 851 (10th Cir. 1959).

Nevertheless, despite the unambiguous bar to appellate
review, the Third Circuit found that the statute’s language,

1]

“not reviewable on appeal or otherwise,” does not preclude an
interlocutory appeal on a certified question when the district
court makes a constitutional determination. The Third Cir-
cuit’s opinion irreconcilably conflicts with Congress’ ex-
pressed intent and the Fifth, Ninth and Tenth Circuits, and
ill-advisedly expands the jurisdiction of the Courts of Appeals.
Contrary to the balancing inherent in Congress's enactment of
§1447(d), the Third Circuit's judicial fiat plainly disregards
Congress's expressed intent to prohibit appellate jurisdiction in
its drive to reach the merits of the case. See 940 F.2d at 845-46.
A-61-A-64. The Third Circuit plainly refused to acknowledge
what had always been establ’ hed law. In so doing, it created a
loophole to appellate jurisdiction of unknown dimensions.

As readily evident from the Third Circuit's opinion, what
is a “federal question” is not readily discernable. What the
Third Circuit means by a “question of constitutional propor-
tion” could easily confound the Courts of Appeals and district
courts for years through countless appeals—all adding un-
necessary delay to thousands of cases remanded but arguably
touching on so-called “questions of constitutional proportion,’
Given the increasingly heavy dockets of the Courts of Appeals,
the Third Circuit's ill-defined guideline for expanding appel-
late jurisdiction further is unwarranted, let alone being con-
trary to congressional intent.

Congress and this Court have clearly stated that appellate
review of remand orders based on a jurisdictional determina-
tion will not be tolerated, regardless of whether the District
Court’s determination of its jurisdiction is right or wrong. See
Thermtron, 423 U.S. at 343. See also Volvo of America Corp. v.
Schwarzer, 429 U.S. 1331, 1332 (1976). These same rulings
must apply even where the district court's jurisdictional deter-
mination is premised upon a question of constitutional pro-
portion. Indeed, Congress has repealed appellate jurisdiction
for orders which find Acts of Congress unconstitutional.

While, the Third Circuit may not agree with these direc-
tives, it may not judicially legislate them away. This Court
should review this case to ensure that the congressional policy
prohibiting appellate review of remand orders is not further

12

disrupted or eroded and to settle the inter-circuit conflict
created by the Third Circuit's judicial activism.

B. REVIEW SHOULD BE GRANTED TO DETER-
MINE WHETHER THERE EXIST ANY MEAN-
INGFUL LIMITS TO ARTICLE III, “ARISING
UNDER’ JURISDICTION

Not since Osborn v. Bank of the United States, 22 U.S.
(9 Wheat.) 738 (1824), has the issue of the limits of the
Constitution, Article III “Arising Under” jurisdiction been
specifically addressed by this Court. This case squarely pre-
sents that issue. As Circuit Judge Scirica recognized in his
concurring opinion, “|t|his case, therefore, raises the question
of the extent to which Congress may confer federal jurisdic-
tion over state law cases that will not necessarily implicate
substantive federal questions.” 940 F.2d at 862. A-102.

This Court has long recognized that a mere jurisdictional
grant by Congress is constitucionally deficient. Osborn, 22
U.S. at 827. Congress must go further than simply confer
jurisdiction; it must provide some substantive matter deter-
minative of the outcome. Verlinden, 461 U.S. at 496. Congress
did not make the necessary effort in the Amendments; there
is still no federal ingredient in the Petitioners’ claims.

Both the Act and the Amendments express Congress's
intent to encourage the development of the nuclear industry.
However, as this Court held in Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 98-99 (1978)
(Rehnquist, J., concurring) and Silkwood v. Kerr-McGee Corp.,
464 U.S. 238, 251-54, 256 (1984) the Act did not create a
federal cause of action. State law remedies, such as the Peti-
tioners’, were left undisturbed. Cf. English v. General Electric
Co., __ U.S. __, 110 S.Ct. 2270, 2280 (1990). Those issues
were litigated before the Third Circuit in Stibitz and Kiick.
There, the Third Circuit also found that Petitioners’ claims
were state tort claims which did not raise a federal question.
The Respondents then successfully lobbied Congress to
change the Act. Congress enacted the Amendments which, in
essence, purport to say that Petitioners’ state law claims now

13

arise under federal law and confer original (albeit concurrent)
jurisdiction on the federal courts. See 42 U.S.C. §§2014(hh),
2210(n)(2).

Query: Whereas before the Amendments no federal
claims were present, can Congress now simply by saying that
these same claims arise under federal law satisfy the Con-
stitution? “[Wle are squarely presented with the question of
defining the “gap” between the scope of the statutory grant
and the limits of Article III.” 940 F.2d at 865. A-108. This
important question of federal law can only be decided by this
Court and should finally be settled by this Court.

If the Third Circuit is correct, then Congress is not lim-
ited by Article III, because Article II] means nothing. Under
the Third Circuit's analysis, mere incantation of the magical
words—“arising under”—satisfies Congresss obligations to
the Constitution. Surely, this is not the case. Yet, it remains
uncertain how far Congress can go before it approaches the
limit of the “arising under” clause. See Verlinden B.V. v. Cen-
tral Bank of Nigeria, 461 U.S. 480, 492-93 (1983). See also
Mesa v. California, —_. U.S. __, 109 S.Ct. 959, 968-69 (1989).

While tiiere is no doubt that Congress would like to
provide a federal forum to litigate these state law cases, is that
enough? Must not Congress provide a substantive rule of
decision for it to do so? If so, the legislative history of the
Amendments and the concurring opinion of the panel below
reveal that Congress did not make the necessary effort to
satisfy the Constitution. See Report of Committee on Interior
and Insular Affairs on HR 1414 (1988) at 18 (“Rather that
designing a new body of substantive law to govern such cases,
however, the bill provides that the substantive rules for deci-
sion in such actions shall be derived from the law of the State
in which the nuclear incident involved occurs|.|”). See also
940 F.2d at 863 (“I believe Congress intended for state law,
acting of its own force, to provide the rules of decision in
public liability actions.”). A-105. The Amendments are noth-
ing more than an attempt to adopt state law as federal law,
which is contrary to this Court's precedents. Among these are:

14

* Shoshone Mining Co. v. Rutter, 177 U.S. 505, 508
(1900) (“The recognition by Congress of local customs
and statutory provisions as at times controlling the

right of possession does not incorporate them into the
body of Federal law”).

¢ Shulthis v. McDougal, 225 U.S. 561 (1912) (A dispute
regarding title to lands obtained by federal law does not
raise a federal question).

* Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480,
492-93 (1983)(Questioning the validity of such a broad
application of Article III).

The Amendments do not express an intent to create a
federal common law, a situation in which this Court has
found a sufficient congressional intent to confer federal juris-
diction. See Textile Workers Union v. Lincoln Mills, 353 U.S.
448 (1957) (Congress intended to create a federal common
law under the Taft-Hartley Act, 29 U.S.C. §185). Nor do the
Amendments approach a recognized domain of exclusive
federal interest, such as bankruptcy or federal lands. See
National Mutual Insurance Co. v. Tidewater Transfer Co., 337
U.S. 582 (1949); Rodrigue v. Aetna Casualty Co., 395 US.
352 (1969) (Congress intended for federal law to be supple-
mented by state law in the Outer Continental Shelf Lands
Act, 43 U.S.C. §1331 et seq.).4 In light of Congress's omis-
sions, the legislative scheme of the Amendments lacks con-
stitutional foundation and is contrary to this Court's prece-
dent.

Given the determinant role state law plays in the Amend-
ments, the scarce likelihood of a federal question ever coming
into play in Petitioners’ tort claims can not confer original
jurisdiction. While Congress may have an interest or concern

4. The Third Circuit, relying principally on Rodrigue found that the
Amendments satisfied Article III. However, the federal interest underlying
the Lands Act, i.e., federal lands, has no comparable reference in the
Amendments, which do not implicate any exclusive federal interest but
rather address state law liability for the private nuclear industry. See Silk-
wood, supra; Duke Power, supra.

15

for uniform treatment of these cases, that interest alone
cannot confer jurisdiction without the concomitant creation
of federal substantive law.

This Court should review this case to decide if Congress
satisfied Article III.

C. REVIEW SHOULD BE GRANTED TO DETER-
MINE WHETHER THE AMENDMENTS’ RET-
ROACTIVE CONFERRAL OF ARISING UNDER
JURISDICTION INTERFERES WITH STATE
SOVEREIGNTY AND FEDERALISM

The Amendments were specifically targeted at this litiga-
tion. Congress specifically earmarked these cases for removal,
by giving the Amendments retroactive effect.© See Report of
Committee on Energy and Commerce on HR 1414 (1987) at
19 (“This ensures that claims arising from the 1979 Three
Mile Island accident will be covered by these provisions’).
Snatching this litigation out of the state courts, for no reason
other than the nuclear industry's desire for a federal forum, is
particularly offensive to our federal system of government and
the autonomy of the independent sovereign states and does
not satisfy any legitimate legislative purpose furthered by
rational means. Therefore this case is contrary to this Court's
decisions in Railway Co. v. Whitton’s Administrator, 80 U.S.
270 (1872) and Pension Benefit Guarantee Corp. v. R.A. Gray
& Co., 467 U.S. 717 (1984).’

5. Congress's interest in uniformity is belied by its grant of concurrent
rather than exclusive jurisdiction, and the fact that the states can handle
these cases uniformly. For example, the Pennsylvania state courts have
the ability to transfer like cases to one jurisdiction for disposition.
Pa.R.Civ.P. 213.1.

6. Congress may have also contravened the separation of powers doc-
trine by directing the federal courts to find that a federal cause of action
arising under the constitution exists in these cases, when, it has already
been judicially determined that only a state tort claim is present. See United
States v. Klein, 80 U.S. (13 Wall.) 128 (1871); United States v. Sioux Nation
of Indians, 448 U.S. 371, 429 (1988) (Rehnquist, J., dissenting).

7. The First and Ninth Circuits found a limited exception for national
security which satisfied a legitimate legislative purpose in Hammond v.

16

Congress can not exceed that degree of sovereignty not
relinquished by the states. Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 548-557 (1985). Here, Con-
gress clearly has gone too far. The Amendments rob the state
courts of their authority to hear cases and violate the princi-
ples of federalism embodied in the Tenth Amendment of the
Constitution. The power to take pending cases away from a
state court through legislative fiat is the power to destroy state
governments and the principles underlying our federalist sys-
tem. See Note, Over-Protective Jurisdiction? A State Sov-
ereignty Theory Of Federal Questions, 102 Harvard L.Rev.
1948, 1961 (1989).

This Court should grant a writ of certiorari to review this
important issue interfering with the delicate balance of our
government.

United States, 786 F.2d 8, 12 (1st Cir. 1986) and In re Consolidated U.S.
Atmospheric Testing Litigation, 820 F.2d 982, 990 (9th Cir. 1987), cert. de-
nied sub nom., Konizeski v. Livermore Labs, 485 U.S. 905 (1988). However,
this Court in Duke Power found no similar exception for the private nuclear
power industry.

17

CONCLUSION

For the foregoing reasons the petition for a writ of cer-
tiorari should be granted.

Respectfully submitted,

/S/ CE Cee

Counsel of Record

Fred S. Longer

LEVIN, FISHBEIN, SEDRAN
& BERMAN

320 Walnut Street, Suite 600

Philadelphia, PA 19106

(215) 592-1500

and

Lee C. Swartz
Harrisburg, PA
and
John R. O'Donnell
Philadelphia, PA
and

Joseph D. Shein
Philadelphia, PA
and

Louis M. Tarasi, Jr.
Pittsburgh, PA

and

James R. Adams
Lancaster, PA

and

Peter J. Neeson
Philadelphia, PA
and

William EF. Chillas
Lancaster, PA
Attorneys for Petitioners
John W. Gumby, Sr., et al.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2921%3A1. Public record. Not legal advice.