Reply Brief — Acuna Castillo v. Shell Oil Co.

Eunrame Court, U.S |

F I i. EB D>

'

>) DEC eet

as coc ii |

No. 91-713 DAFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

¢

GERARDO ACUNA CASTILLO, et al.,

Petitioners,

versus

SHELL OIL COMPANY, et al.,

Respondents.

Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

¢

REPLY BRIEF OF PETITIONERS

®

CHARLES S. SIEGEL

Counsel of Record

BARON & Bubp, P.C.

3102 Oak Lawn Avenue

Suite 1100

Dallas, Texas 75219

(214) 521-3605

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ee ge oe iG evaw eyed x swe vase day

I. THE DECISIONS BELOW INESCAPABLY CON-

FLICT WITH VOLVO, GRAVITT, AND BRISCOE,

FOR THERE IS NO NEW RULE THAT ALL

REMANDS FOR REASONS OTHER THAN

LACK OF SUBJECT MATTER JURISDICTION

oe Be er ee eee pee

Il. THE DECISIONS BELOW CONFLICT WITH

Nt eee ie SU d ocr a puter s Ree ek RS*

CONCLUSION

Sek oe A oe ee ie oe eS ae ee a we ee ee ee oe a ee

“tat A oe on ae ay ee ee ee ee ee a oy a ee a A a oe a a A A a a oe a

ii

TABLE OF AUTHORITIES

Page

Cases

Briscoe v. Bell, 432 U.S, 404 (1977). 6.6 ccc cc cesesss 1,5

Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3d Cir.),

cert. denied, 112 SAA: BAS CUBPED 6. oo csc esse deseess 5

Gravitt v. Southwestern Bell Telephone Co., 413 U.S.

Fae CUSFAD occ cn nde cans Ch sean eee dees os

Midland Mortgage Co. v. Winner, 532 F.2d 1342

(10th Cis. 2506). 30+ ss00 pp keaaeee eer oneeee Geese 3, 4

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

S36 (UDG) 066 cans ceded cere eae ees i

Volvo Corp. v. Schwarzer, 429 U.S. 1331 (Rehnquist,

Circuit judthon TOPG) so ceca eee rene 1,5

Washington Suburban Sanitary Commission v. CRS/

Sirrine, Inc., 917 F.2d 834 (4th Cir. 1990) ......... 3, 4

STATUTES

20 USAC. BRON go ie eee 3

28 USC. GGG) «60... eee i

26 USC. GIG . ote areata ee ee a ae

2 USC. 1400). 3 See 4

REPLY ARGUMENT

I. THE DECISIONS BELOW INESCAPABLY CON-

FLICT WITH VOLVO, GRAVITT, AND BRISCOE,

FOR THERE IS NO NEW RULE THAT ALL

REMANDS FOR REASONS OTHER THAN LACK

OF SUBJECT MATTER JURISDICTION CAN BE

REVIEWED.

The only attempt by Respondents to distinguish

Volvo Corp. v. Schwarzer, 429 U.S. 1331 (Rehnquist, Circuit

Justice 1976), Gravitt v. Southwestern Bell Telephone Co., 413

U.S. 723 (1977), and Briscoe v. Bell, 432 U.S. 404 (1977), is

with the argument that the remands in those cases were

for lack of subject matter jurisdiction; all other remands,

Respondents argue, are now reviewable, and so those

cases don’t apply. See Brief in Opposition at 7 (“[Rleview

is unavailable only where the Court below lacks subject

matter jurisdiction.”), and at 7 n. 2 (“The Courts below

had subject matter jurisdiction and, consequently, since

the remand orders in question were not based on lack of

subject matter jurisdiction but on an alleged defect under

1441(b), the District Court Orders were not immune from

review under §1447(c)... ”).

Needless to say, there is no such new rule. 28 U.S.C.

§1447(d) has not been amended to concern only subject

matter remands; it still provides that “[a]n order remand-

ing a case to the state court from which it was removed is

not reviewable on appeal or otherwise. .. .” Nor has this

Court, nor any court other than the Fifth Circuit, made

such a holding.

Respondents seem to suggest that the amendment to

§1447(c), prescribing a 30-day time limit on some remand

motions, has worked a change in §1447(d) as well. They

state that Ҥ1447(c) was amended in 1988 so that now the

only ground specified in 1447(c) is lack of subject matter

jurisdiction.” Brief in Opposition at 7 n. 2. The amend-

ment to §1447(c), however, did nothing more than set out

the time limit for certain motions; it says nothing in

regard to reviewability.

Aside from the plain and unchanged language of

§1447(d), the argument that only subject matter jurisdic-

tion remands are unreviewable has been rejected before

and after the 1988 amendments. First, the implicit con-

struction given Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) by Respondents, in a footnote, is

wrong. Contrary to that intimation, review was available

in Thermtron not because something other than subject

matter jurisdiction was involved; rather, the remand

below had been granted because of a wholly

unprescribed preference on the part of the district judge.

This Court specifically noted that removal jurisdiction, as

well as subject matter jurisdiction were unquestioned:

“{I]t has not been questioned in this case... .

that it is within the so-called diversity jurisdic-

tion of the District Court and that it could have

been initially filed in the District Court pursuant

to 28 U.S.C. §1331. It also seems common ground

that there is not express statutory provision forbid-

ding the removal of this action and that the cause

was timely removed in strict compliance with 28

U.S.C. §1446.

Id., 423 U.S. at 343-44 and n. 8 (emphasis added).

Thermtron thus reaffirms that a remand on any authorized

ground, certainly including lack of removal jurisdiction,

is immune from scrutiny.

One of the first cases to construe Thermtron held that

a remand based on the presence of local defendants could

not be reviewed by mandamus. In Midland Mortgage Co. v.

Winner, 532 F.2d 1342 (10th Cir. 1976), the district court

remanded a case in which there was complete diversity

but several defendants were forum residents. In rejecting

the mandamus petition, the Tenth Circuit stated:

We have no case like Thermtron where the Dis-

trict Court remanded because of the crowded

condition of its civil docket, a ground not pro-

vided for remand in §1447(c). Without reaching

or deciding whether remand was proper in the

instant case, it is sufficient to say that the court

cleariy based the order of remand on grounds

provided by the statute.

Id., 532 F.2d at 1344. Midland Mortgage presents the same

situation found here: remand because of the statutory

restriction on removal in §1441(b). The Tenth Circuit's

refusal of mandamus demonstrates that Thermtron review

does not extend to this class of remand orders.

Review of remands for reasons other than lack of

subject matter jurisdiction, indeed for reasons outside

§1447(c), has continued to be denied after the 1988

amendments to the removal statutes. In Washington Sub-

urban Sanitary Commission v. CRS/Sirrine, Inc., 917 F.2d 834

(4th Cir. 1990), a case was removed to the United States

District Court for the District of Maryland on the basis of

diversity. That court permitted plaintiff to amend its com-

plaint to add a defendant who destroyed diversity and

then remanded the case pursuant to 28 U.S.C. §1447(e).

Defendants appealed and petitioned for mandamus.

The Fourth Circuit dismissed the appeal and the

petition, finding that §1447(d) prevented review. The

court rejected the argument that only §1447(c) orders are

immune from review.

We note that much of the language in Thermtron

is cast in terms of the grounds given for remand

in §1447(c). Section 1447(e) was not added to

§1447 by Congress until 1988. We fail to see any

reason to treat the grounds for remand autho-

rized by §1447(e) in a different way than the

Supreme Court treated the grounds authorized

in §1447(c). Our opinion is reinforced by the

policy behind the Congressional decision to

limit review of remand orders. In the words of

the Supreme Court, “[t]here is no doubt that in

order to prevent delay in the trial of remanded

cases by protracted litigation of jurisdictional

issues .. . Congress immunized from all forms

of appellate review any remand order issued on’

the grounds specified” in the state. Thermtron,

423 U.S. at 351, 96 S.Ct. at 593 (citation deleted)

It seems to us that the interest in preventing

delay is the same whether the remand is based

on the grounds authorized in §1447(c) or based

on the grounds authorized in §1447(e).

Id., 917 F.2d at 836 n. 5. CRS/Sirrine and Midland Mortgage,

supra, are in direct conflict with the holding below, and

with the rule announced by the Fifth Circuit and

advanced by Respondents that only subject matter

remands are immune from scrutiny. These cases show

that it has never been true, either before or after the 1988

amendments, that remands for any reason other than lack

of subject matter jurisdiction are reviewable.

More fundamentally, the decisions below remain in

irreducible conflict with the Volvo, Gravitt, and Briscoe

cases of this Court. That the remands in those cases

involved subject mater jurisdiction makes no difference,

for any authorized remand is unreviewable.' Tellingly,

Respondents state that “[t]his Court has found erroneous

remands such as the one before the Court today subject to

review,” Brief in Opposition at 5, but nothing is cited.

The Court should summarily reverse on the authority

of its clear precedents, or should grant certiorari and

delineate clearly any change that has occurred in

reviewability of remand orders.

Il. THE DECISIONS BELOW CONFLICT WiTH FOS-

TER.

Respondents attempt to explain away the patent con-

flict with Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3d

Cir.), cert. denied, 112 S.Ct. 302 (1991), by saying that the

cases “simply address different aspects of what is a

‘defect in removal procedure. ...’” Brief in Opposition

at 9. The fact remains, however, that in the Fifth Circuit,

anything other than the court’s subject matter jurisdiction

' Briscuve did not even involve a remand below; the court of

appeals in that case had analogized to Thermtron in holding a

certain jurisdictional determination reviewable. This Court

rejected the analogy and reaffirmed the rule that if remand is

ordered on any recognized ground, review is unavailable. Bris-

coe v. Bell, 432 U.S. 404, 423 n. 13 (1977).

is part of removal procedure, whereas in the Third Cir-

cuit, numerous other grounds may yield remand after

thirty days. These grounds cannot negate federal jurisdic-

tion in some circuits but not others, and this Court should

resolve the obvious conflict.

¢

CONCLUSION

Petitioners request the Court to reverse simply on the

basis of the settled rule against review of remand orders.

Alternatively, Petitioners request the Court to grant cer-

tiorari to examine whether reviewability has changed and

to resolve the conflict between the Circuits as to the

meaning of removal procedure.

Respectfully submitted,

CHARLES S. SIEGEL

BARON & Bupbp, P.C.

3102 Oak Lawn Avenue

Suite 1100

Dallas, Texas 75219

(214) 521-3605

th

é

’

ee? ie 3 Sa «