Reply Brief — Gumby v. General Public Utilities Corp.

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No. 91-676 res & 6 Ne

OFFICE GE THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

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

Petitioners,

v.

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.-CATALYTIC,

INC., BURNS & ROE ENTERPRISES, INC., AND

DRESSER INDUSTRIES, INC.,

Respondents.

REPLY BRIEF IN SUPPORT OF 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'Donnell

Philadelphia, PA

“Counsel of Record

February 25, 1992

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

SMITH-EDWARDS DUNLAP COMPANY, 2867 E ALLEGHENY AVENUE, PHILADELPHIA, PA 19134 (215) 425-8800

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TABLE OF CONTENTS

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Il. REPLY REASONS FOR ALLOWING WRIT ......

A. THE THIRD CIRCUITS APPROVAL OF AP-

PELLATE REVIEW FOR REMAND ORDERS

CREATES INTERCIRCUIT CONFLICTS

AND CONFLICTS WITH DECISIONS BY

ko RA a aI Po tear Ral eae a ar ee

B. THE THIRD CIRCUIT'S APPROVAL OF CON-

GRESSIONAL AUTHORITY TO CONFER

ORIGINAL JURISDICTION OVER STATE

LAW CLAIMS CONFLICTS WITH DECI-

ER PT EES EET BUREN AIIIOUS 5 oo reds oy es

C. CONGRESS'S RETROACTIVE APPLICATION

OF THE AMENDMENTS OFFENDS THE

Ul

6

TABLE OF AUTHORITIES

CASES

Bear River Drainage Dist., In re, 267 F.2d 849 (10th Cir.

|) SR SI re cree ye toe)

Demarest v. Manspeaker, —— U.S. —_, 111 S.Ct. 599

CTR ac fs oc e5e eaten ee

Duke Power Co. v. Carolina Environmental Study Group,

fac., 448.4). SOUISTS) so ee eee

Fed. Sav. and Loan Ins. Corp. v. Frumenti, 857 F.2d 665

(MC ORGS... ccd saved

Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir.

NO Se lara Reece sree wes ee a

Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989)... ..

McDermott International, Inc. v. Lloyds Underwriters,

944 €.20 1199 (ab Ck: 3981): 2:

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.)

$e (PGES). os op cc Wa eee eee

Richards v. Federated Dept. Stores, Inc., 812 F.2d 211

(Sth Cir.), cert. denied, 484 U.S. 824 (1987).......

Robertson v. Seattle Audubon Society, —— U.S. ——, 111

S.Ct ZERG (IGO1). . aie eee

Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900)... .

Shulthis v. McDougal, 225 U.S. 561 (1912)............

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) ....

Stibitz v. General Public Utilities Corp., 746 F.2d 993 (3d

Cir. 1984), cert. denied, 469 U.S. 1214 (1985) .....

Thermtron Products, Inc. v. Hermansdorfer, 423 US.

eet CAG TS) ee cnt ee ee

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) ...

United States v. Sioux Nation of Indians, 448 U.S. 371

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TABLE OF AUTHORITIES—( Continued )

CASES Page

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480

| pte TR Te ena ea 3,4

CONSTITUTIONAL PROVISION

Uo. Cormmtution, Article Hil .............6.0-6.52... 4

I ope oo Pe ad hee vicina cedavdanss 2

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ES 23

Price-Afgerson Act ........................0005. 4

Price-Anderson Amendments Act of 1988.......... 34,5

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No. 91-676

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

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

Petitioners,

V.

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.-CATALYTIC,

INC.. BURNS & ROE ENTERPRISES, INC., AND

DRESSER INDUSTRIES, INC.,

Respondents.

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

i. INTRODUCTION

Respondents and the United States, in their briefs, spend

a significant time contesting the merits of Petitioners claims.

These arguments simply highlight the significant issues

raised in this petition and why this Court should grant a Writ

of Certiorari. The Third Circuit’s expansion of both appellate

jurisdiction over remand orders and congressional authority

to confer original jurisdiction over state law claims is clearly

in conflict with numerous precedent of this Court and other

ho

circuits and threatens the traditional role of the federal judici-

ary as courts of limited jurisdiction. This brief reply responds

to the arguments opposing further review by this Court.

Il. REPLY REASONS FOR ALLOWING WRIT

A. THE THIRD CIRCUIT’S APPROVAL OF APPEL-

LATE REVIEW FOR REMAND ORDERS CRE-

ATES INTER-CIRCUIT CONFLICTS AND CON-

FLICTS WITH DECISIONS BY THIS COURT

The unambiguous prohibition of 28 U.S.C. §1447(d) for-

bidding appellate review of remand orders is collapsing. Prior

to Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1975), appellate review of remand orders was considered

impossible. In light of the Third Circuit's opinion, A23—A138,

the limited mandamus exception in Thermtron to remand

orders outside of the scope of 28 U.S.C. §1447(c), is now

overtaking the rule and demands this Court's attention to

reverse this trend. Compare McDermott International, Inc. v.

Lloyds Underwriters, 944 F.2d 1199, 1204 (Sth Cir. 1991)

(Recognizing an exception under 28 U.S.C. §1291 for con-

tractual remand orders) with Lauro Lines S.R.L. v. Chasser,

490 U.S. 495 (1989) (Rejecting §1291 appeal based on a

contractual forum-selection clause).

The Respondents and the United States contend that the

exception created by the Third Circuit, pursuant to 28 U.S.C.

§1292(b), for appellate review of the district court's remand

order, neither conflicts with §1447(d) or Thermtron. That is

not so. The language of the statute—“not reviewable on ap-

peal or otherwise”—requires no interpretive construction. See

Demarest v. Manspeaker, _— U.S. __, 111 S.Ct. 599, 604

(1991). It means what it says: no appellate review.

The Ninth and Tenth Circuits thus refuse to except from

the §1447(d) prohibition certifications under §1292(b). See In

re Bear River Drainage Dist., 267 F.2d 849, 851 (10th Cir.

1959); Fed. Sav. and Loan Ins. Corp. v. Frumenti, 857 F.2d

665, 669 (9th Cir. 1988). The Fifth Circuit even refuses

appellate review of remand orders for “constitutional infir-

mities,” an opinion diametrically opposite that of the Third

Circuit. See Richards v. Federated Dept. Stores, Inc., 812 F.2d

211 (Sth Cir.), cert. denied, 484 U.S. 824 (1987). Additionally,

the Third Circuit's opinion conflicts with this Court's ruling in

Thermtron, which requires that the remand order be outside

the authority of 28 U.S.C. §1447(c) to escape the bar to

appellate review. Thermtron, 423 U.S. at 351. This case was

remanded on grounds within §1447(c), and the district court

so held: “Clearly, the decision to remand the cases at bar is

based on §$1447(c)” (A154).

The Third Circuit's opinion is plainly at odds with other

Circuit Court of Appeals’ decisions, this Court’s opinions, and

with the long-standing Congressional intent to make the dis-

trict courts the final arbiters of whether “specific actions were

to be tried in a federal court.” Thermtron, 423 U.S. at 355

(Rehnquist, J., dissenting). Because the Third Circuit's expan-

sion of appellate jurisdiction over remand orders conflicts

with the foundational underpinnings of removal jurisdiction,

review of this judicial repeal of §1447(d) should be exercised.

B. THE THIRD CIRCUIT’S APPROVAL OF CON-

GRESSIONAL AUTHORITY TO CONFER ORIG-

INAL JURISDICTION OVER STATE LAW

CLAIMS CONFLICTS WITH DECISIONS BY

THIS COURT

The Respondents and the United States responded to

this petition by defending the Third Circuit's opinion on the

merits. They argue that the Price-Anderson Amendments Act

of 1988 (the “Amendments”) was more than a jurisdictional

grant because it created an “overlay of federal law” (A91) and

that the Third Circuit's opinion corresponds with 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).

Petitioners disagree. These two decisions do not sustain this

result and the Third Circuit’s opinion bears this out. It was

only with great difficulty that the majority and concurring

opinions construed the only two major decisions of this Court

to force their results.

The provisions referred to as the “federal overlay” existed

in similar form prior to the Amendments in the Price-Ander-

son Act, yet that same “overlay” was previously found insuffi-

cient to create a federal cause of action. See Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59, 99

(1978)(Rehnquist, J., concurring); Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 625 (1984); Stibitz v. General Public

Utilities Corp., 746 F.2d 993 (3d Cir. 1984), cert. denied, 469

U.S. 1214 (1985); Kiick v. Metropolitan Edison Co., 784 F.2d

490 (3d Cir. 1986). The exceptions to the pre-existing overlay

referred to by the Respondents and the United States are the

retroactive jurisdictional grant (42 U.S.C. §2014(hh)) and the

prospective-only limitation on punitive demages (42 U.S.C.

§2210(s)) of the Amendments. Petitioners submit that this

mere jurisdictional grant is insufficient to confer original

federal jurisdiction and allow removal of state proceedings

after years of litigation to a federal forum. See Verlinden,

supra. See also Shoshone Mining Co. v. Rutter, 177 U.S. 505,

508 (1900); Shulthis v. McDougal, 225 U.S. 561 (1912).

The tensions reflected in these arguments weigh in favor

of granting certiorari. Important questions of federal law have

still not been decided. Congress cannot simply state the magic

words that a public liability action “arises under” federal law

and satisfy the Constitutional requirements to create original

federal jurisdiction. Osborn and Verlinden clearly do not dic-

tate this result. Because both cases addressed the Article II]

power to confer federal question jurisdiction where uniquely

federal interests, i.e., the National Bank and foreign relations,

existed, neither case supplies a meaningful standard where

no obvious or uniquely federal interest exists. As this Court

ruled in Duke Power that there is no such federal interest with

regard to the Price-Anderson Act, the merits of this case are

argued in a background devoid of precedent.

Review should therefore be granted because this Court

must set a meaningful standard to define the constitutional

limits of Congress’ ability to confer federal jurisdiction and

especially for removal of advanced state proceedings. There is

an important constitutional question at stake here, which

only this Court can resolve and the issue is too important for

the Court to leave unresolved.

C. CONGRESS’S RETROACTIVE APPLICATION

OF THE AMENDMENTS OFFENDS THE SEPA-

RATION OF POWERS DOCTRINE

The Amendments direct the judiciary to find that these

specific cases, which were determined to be state law claims

in Duke Power, supra, Stibitz, supra, Kiick, supra, are now

federal claims. This contravention of the separation of powers

doctrine conflicts with decisions of this Court. 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). Clearly, Congress lacks the authority to have

free and unrestricted power to void state litigation in mid-

stream because the state jurisdiction no longer suits the goals

of a litigant. This issue is of significant national importance as

evidenced by this Court's granting a Writ of Certiorari in

Robertson v. Seattle Audubon Society, —— U.S. ——, 111 S.Ct

2886 (1991). Accordingly, this case should likewise be consid-

ered for review.

III. CONCLUSION

For the foreXoing reasons and those set forth in Pet

tioners opening brief, the petition for a writ of cert

should be granted.

and

Joseph D. Shein

Philadelphia, PA

and

Respectfully submitted,

rnold Levin

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

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.

/