Petition — Chevron Chemical Co. v. Gilmore

Supreme Court brief1983

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Office -Supr Court, U.S.

FILED

MAR 7% 1083

8 ys i aI 4 8 6 ALEXAHOCR L STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

NO.

CHEVRON CHEMICAL COMPANY, A Delaware Corporation,

Petitioner,

vs.

HON. HORACE W. GILMORE, United States District Court Judge

for the Eastern District of Michigan,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

TIlE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT OR IN THE ALTERNATIVE,

PETITION, FOR WRIT OF MANDAMUS

BUSHNELL, GAGE, DOCTOROFF & REIZEN

GEORGE E. BUSHNELL, JR. (P11472)

(Counsel of Record)

NOEL A. GAGE (P13786)

CARL J. MARLINGA (P17102)

JOHN K. PARKER (P29563)

3000 Town Center, Suite 1500

Southfield, Michigan 48075

(313) 444-4848

THE INLAND PRESS, DETROIT, MICHIGAN

QUESTIONS PRESENTED

‘

Whether a district judge (Respondent), in an otherwise prop-

erly removed action, should allow joinder of a nondiverse, non-

indispensable party even though such joinder results in remand?

Il.

Whether an order of remand predicated upon such joinder

(which has not, in fact, been entered at the time of remand) is

reviewable under Thermtron Products Inc. v. Hermansdorfer,

423 US 336 (1976) in this Court by mandamus?

II.

Whether a district judge’s (Respondent’s) sua sponte entry of

a “sham” and “form” order of remand which recites the rubric

of 28 USC §1447(c) but which, in fact, is predicated upon

wholly different and unauthorized grounds, is reviewable in

this Court by mandamus?

TY.

Whether 28 USC §1447(d) is to be read in conjunction with

§§13 & 14 of the Judiciary Act of 1789, as ultimately consoli-

dated into 28 USC §1651(a), so as to permit this Court to exer-

cise its authority to supervise the arbitrary and capricious

conduct of the inferior federal judiciary (Respondent), not-

withstanding 28 USC §1447(d) and the fact that such conduct

occurred in the context of remand proceedings?

¥.

Whether 28 USC §1447(d), as read by the Court of Appeals to

preclude exercise of mandamus jurisdiction to correct the

otherwise arbitrary and capricious conduct of an inferior federal

judge (Respondent) solely because such occurred in the remand

context, constitutes an unconstitutional encroachment and lim-

itation by Congress upon Article ITI functions of this Court?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......cccccccccccccens i

TEs OE CONTE ES ciiccvescecavecsccnceseaven ii

INDEX OF AUTHORITIES .....cccccccccccccees iv

OPINIONS BELOW .....ccccccccvccsvcvvecveees 2

JURISDICTION ...cccccccccccccccccccvesssecece 2

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED .....cecccccccvvscves 3

STATEMENT OF THE CASE .....ccecceccecceges 3

REASONS WHY THE WRIT SHOULD ISSUE..... 8

Introduction g

I. The Joinder, in a Properly Removed Action, of a

II.

ITI.

Nondiverse, Nonidispensable Party Whose Pres-

ence Defeats Diversity and An Order of Remand

Based on Such Joinder Constitutes a Nondiscre-

tionary Erroneous act Which Calls For This

Court to Exercise Its Power of Supervision

Over Respondent and Over the Court of Appeals

for Sanctioning His Conduct............. oe B15

This Court Has Never Considered Whether a

Remand Predicated Upon Joinder, In Properly

Removed Action, of a Nondiverse, Nonindispen-

sable Party Whose Presence Defeats Diversity,

is Reviewable in this Court or in the Court of

Appeals by Mandamus. Moreover, the Question

Presents the Court with an Opportunity to Clar-

Ey NN SONOS. Siac ccvsscescebasisants 15-20

The Entry of a “Sham Order” of Remand Calls

for this Court to Exercise Its Power of Supervi-

sion Over Respondent and Over the Court of

Appeals for Sanctioning His Conduct. Moreover,

This Court Has Never Addressed Whether It

Can and/or Should Exercise That Power Regard-

ing Such a “Sham Order,” Notwithstanding 28

ill

USC §1447(d). Additionally, The Question Has

Been Explicitly Cited by Members of This Court

as a Ground for Granting Certiorari and Pres-

ents the Court with an Opportunity te Harmon-

ISS Bee CONE i 6 boned cs cenesinncnes 20-25

IV. This Case Presents the Court with a Unique

Opportunity to: 1) Establish that the 1948 Judi-

cial Code Did Not Eliminate this Court's Statu-

tory Supervisory Power Over the Lower Fed-

eral Judiciary derived from §§13-14 of the Judici-

ary Act of 1789; 2) Establish that this Court

Has Inherent Supervisory Power Over the Lower

Federal Judiciary; and, 3) Demonstrate that,

Under Certain Circumstances, Congress Cannot

Interfere with Such Powers of this Court,

Although It Can Limit Analogous Powers of

the Court of Appeals. Moreover, These Ques-

tions Have Never Been Definitely Addressed

by this Court and Should Be Considered In

View of the Far Reaching Impact They Could

Have Upon Clarifying the Operative Powers,

and Limitations Thereon, of the Judiciary and

the Congress Under Article III..............25-29

CAE bcc viccededrssvndvesess ccesceessese OO

INDEX OF AUTHORITIES

Page

I. CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

A. Constitutional Provisions

1. U.S. Constitution

Creations APC REE; G3 veck ec ccce sv aveeavvarsas 25, 28

US. Constitution Art 524,92 pvcsvecescvenccccctcces'’s 28

oy CS FON Fo loc a cae eceesCewtadapecaws 2]

2. Other

EO oa asc ck hee ea rbaeeasaawes 4 26

B. Statutes

1. Presently Codified Statutes

28. UBC GOOUGNZ) ccccsvereccvesccsevscdsscsccuces 26

Be DR SION) coisa web vecekaresraieseeveccees 2n.2

2B UBC S144] cn cccnvcccscccccnccscccvecseccesaecs 4

OE UBG SIGNS is ive ised vcviencstustcenesvaswene 4

28 USC §1447(c) .... 5n.3, 6, 7, 8, 9, 10, 11n.7, 12, 15, 16n.13,

17, 18, 22, 23

28 USC §1447(d) ..... 2, 5n.3, 8, 9, 15, 16, 24, 25, 26, 27, 28, 29

TB UBL GIGOHA) ccciccsccvcceecdsssactenvers 2-3n.2, 8, 28

Ee, Sen itt ie ees a CAMNCY Nac ge OD 11

BS BI SOND apes Kidd ce eedendnevensecesdedeves 2

2. Other Statutes

§234 Judicial Code of 1911 .....ccccsccccscsccccccees 28

§262 Judicial Code of 1911 ......ccccccccvccccvevceces 28

$13 Judiciary Act of 1789 .....ccccccccccccscvccceves 25, 27

614 Judiciary Act of 1789 ....ccccsccccvccsvccseecens 25, 27

C. Rules

1. Rules Of Civil Procedure

SB ts Me FOR) ck vaccccccesxcs OR 1 Te hed

TB UR Fee TD) ccc cccccccececcce ORD 12 1208 143)

eS i Mnap ae cavewae che vnaw eres 12, 13n.10, 14n.11

Se Ss ee EN Ges Cae awenssosne cadena 12, 13n.10, 14n.11

es ee BUS eo 8G eee ek Bsr eUs eA kRES hE eae 22

Page

2. Local Rules Of Court

US Supreme Court Rule 21.110) ....ccccedececcoees In.]

DE i hesddsekaexnaen 3

| EN rr errr 3n.2

DE a vaca ceees tases vas 3n.3

SERIES Speer aaa, noe earn In.1, 2

US Court of Appeals For The Sixth Circuit

i Pee Cece. Cede R saa Se Ke eed Ode veeewa en 2n.1

II. DECISIONAL AUTHORITIES

A. Decisions Of This Court

Chandler v Judicial Council, 398 US 74 (1970) ......6. 28

Er Parte Crane, 30 US (5 Pet) 190 (1831) ..........05- 27

Er Parte Pennsylvania Co, 137 US 451 (1890) «6.6.65. 27

Gravitt v Southwestern Bell Tel. Co. 430 US 723

teen Cae bin dba nwo eens 18, 19, 20, 22, 23

REE IEN CED cccncnscaveccsceseces 28

Mansfield, Coldwater & Lake Mich. Ry v Swan, 111 US 379

eto t Cd anes eden neeepbewetenebessen 10

Marbury v Madison, 5 US (1 Cranch) 137 (1803) ....... 28

Mollan v Torrance, 22 US (9 Wheat.) 537 (1824) ....... 10

Owen Equip. & Er. Co. v Kroger, 437 US 365 (1978) .... 12

St. Paul Mercury Indemn. Co. v Red Bar Cab, 303 US 283

eee oa ana ae ah ep wbaee eden deseaeke 10

Sheldon v Sill, 51 US (8 How) 441 (1850) ............. 25

Thermtron Products Inc. vy Hermansdorfer, 423 US 336

i.) ie 2n.2, 8, 9, 10, 14n.10, 15, 16, 17, 18, 19 & n.6, 20

23 & n.20, 24 & n.21, 25, 27, 28

Thermtron Products, Inc. vy Hermansdorfer, 420 US 923 (1975)

i saan es ke wesassecacnal wave 2n.2

Petition for Writ of Certiorari, Thermtron Products, Inc. v

Hevmmamedorfer ..ccccccccccccccccccccsccccccvess 2n.2

Page

B. Decisions Of The Courts Of Appeals

Chesapeake & Ohio Rwy. Co. v U.S. District Court, Slip op.

(6th Cir. No. 82-1155 May 21, 1982) ......ccessccvcees 18n.15

Chiodo v General Waterworks Corp., 380 F2d 860

SPP TER PUTT CETTE EP TTETEe 11, 13n.10

Desert Emp. Bank v Insurance Co. Of No. Am., 623 F2d 1371

OE he cee e dak behenesesesccveeess 11, 14n.11

Highway Constr. vy McClelland, 15 F2d 187 (8th Cir

ARR RE a A ES a 14n.11

IMFC Prof. v Latin Am. Home Health, 676

op Et te 13n.10, 16n.13

In re Carter, 618 F2d 1092 (5th Cir (1980), cert denied,

ee PUNE voc deacadsiccccedcevesees bavuane 19n.17

In re Chevron Chemical, Slip Op. (6th Cir No. 82-8063,

I I ED orn ok ccus cane xnscesesces os Ohm FOn16

In re Greyhound Lines Inc., 598 F2d 883 (5th Cir

| ARE eet SONS Ry CHE ONE AC ae ee eee ee 19nn.15, 17

In re Merrimack Mut. Fire Ins. Co. 587 F2d 642 (5th

COP FUEO) ssa cnccvess 11 & n.7, 13n.10, 16n.13, 19.15, 23n.19

In re Shell Oil Co., 631 F2d 1156 (5th Cir 1980) ........ 19n.17

In re Weaver, 610 F2d 335 (5th Cir 1980) .........008- 18n.15

Levy v Weissman, 671 F2d 766 (3rd Cir 1982) ..... 19nn.15, 17

Meadows vy United States, 665 F2d 1009 (11th Cir

BO IIE EEA ae re re 20

Merrill, Lynch et al v Gayden, 637 F2d 391 (5th Cir

EE CURD RCRA UGGS Epa 5 50000354500 F008 05000080008 19n.17

Reynolds v Wabash R.R. Co., 236 F2d 387 (8th Cir

1956) oc cccesescecevcenssesscenceevessencenns 11, 13n.10

Robertson v Ball, 534 F2d 63 (5th Cir 1975) ...... 11n.7, 23n.19

Royal v State Farm Fire & Cas.. Co., 685 F2d 124 (5th Cir

EOS A ee er ee are 19n.16, 23n.19

Ryan v State Bd. of Elections, 661 F2d 1130 (7th Cir

DOU Ser w bes 0 004 Svea seenestnsccccesc 16n.13, 18, 19n.17

vil

Page

Sheet Metal Worker's Intl Ass'n AFL-CIO v Seay, 693

F2d 1000 (10th Cir 1982) ...... 11n7, 15, 16n.13, 17, 19n.17

State Farm Mut. Aut Ins. v Baasch, 644 F2d 94 (2nd Cir

BOOED 666d eda svcdbeesrers cee rsebevtenenessedees 18n.15

Television Recpt. Corp. vy Dunkan, 426 F2d 174

Re BPOOE cacenecnuenpatevevecseseciuyens 10, 14.10

Three J. Farms Inc. v Alton Box Bod. Co., 609 F2d 112

(CCAP TOTO) bbs dreicveccenccevecrcocceccunsucs 191.17

Wallace vy Knapp-Monarch Co.,, 234 F2d 853 (8th Cir

BPD pc case ad reecreraevetdresenenséseasrseuces 13n.10

C. Decisions Of The District Courts

Alexander v Lancaster, 330 F Supp 341 (W.D. La.

BOIAD cer ccasneneevavscaereburadicecossenesesess 13n.10

Barrett vy MceDonald’s Of Okla, City, 419 F Supp 792

CFF BA SPO TRG) cccccserccccscnscccecesvess 13n.10

Checker Motors Corp. v Chrysler Corp, 39 F.R.D. 37

Ss Ps BE bk kos ne bP Rs Revekendet shake eas 13n.10

Fort Howard Paper Co. vy Affiliated F.M. Inc. Co., 60

Pee CAEN PUM SOUR) concn cesikenddaveane’ 13n.10

Harper Fine. Corp. v Hanson Oil Co., 403 F Supp 1405

Ce END sé ieee cr sacees cevkaveiressenves 13n.10

Ingersoll v Pearl Assum. Co, 153 F Supp 558 (N.D.

SE Shack ac eCb cease peeiwed nese eden seenen 14n.11

Littlefickl vy CNA, 475 F Supp 887 (C.D. Cal. 1979) ..... 14n.11

Miller v Davis, 464 F Supp 458 (D.D.C. 1978) ......... 14n.11

Pacific Gas & Elec. Co. v Fireboard Prod. Inc., 116 F

oo eh RR A eae 13n.10

Perimeter Lighting, Inc. v Karlton, 456 F. Supp. 355

Re EE in cere he Cand dace NKasdRe bodes’ 13n.10

Shaw v Mumford, 526 F Supp 1209 (S.D. N.Y. 1981) ....14n.11

Skinner v American Oil Co., 470 F Supp 229 (S.D.

fg RET PEELE CUE T ESET eT CTE 13n.10, 14n.11

vill

Page

Soam Corp. v Trame Co., 506 F Supp 302 (S8.D.

Si OOEe dveracnceansnaureeaukhaweueeiateaeee 15n.11

Thorp v Petrola, 81 F.R.D. 513 (N.D. W. Va. 1979) ..... 13n.10

D. Foreign Decisions

Rex v Vice-Chancellor of Cambridge University

(Earl of Hardwicke’s Case), 3 Burr 1648; 97 E.R.

| re Ory. rire re nr 27

Ill. OTHER AUTHORITIES

A. Books & Treatises

Hart & Wechsler, The Federal Courts & The Federal

System (2d ed 1973) .......06. PCAekiiebaennne ames 10

9 Moore’s Federal Practice 9110.27 .......cccceeeeees 2n.2

T. Tapping, The Law & Practice of the High

Prerogative Writ of Mandamus 56 (1853) ........... 26

B. Law Review Articles

Meyers, Federal Appellate Review of Remand

Orders: Expansion or Eradication? 48 Miss.

Sil: FON CUUTED 4200 ka ccugncsnseesseucnen 20n.18, 23n.20

Note, Remand Order Review After Thermtron, 1977

ee Peer rere 18n.14, 19n.15, 23n.20

Rible, Federal Courts: Review of the Remand Order,

9 St. Mary’s L. J.274 (1977) .cccccccccccces 23n.20, 24n.21

Sager, The Supreme Court Term 1980-Foreward:

Constitutional Limitations On Congress’ Authority

to Regulate The Jurisdiction Of The Federal

Courts, 95 Harv. L. Rev. 17 (1981) .......ccecceeees 25

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

NO.

CHEVRON CHEMICAL COMPANY, A Delaware Corporation,

Petitioner,

vs.

HON. HORACE W. GILMORE, United States District Court Judge

for the Eastern District of Michigan,

Respondent. '

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT OR IN THE ALTERNATIVE,

PETITION, FOR WRIT OF MANDAMUS

Petitioner prays that a writ of certiorari issue to review the

Order of the United States Court of Appeals for the Sixth

Circuit, entered December 10, 1982, denying the Petitioner's

Petition for a writ of mandamus; or in the alternative, Peti-

tioner prays this Court isSue a writ of mandamus to the

United States Court of Appeals for the Sixth Circuit compel-

ling it to direct the Respondent to vacate the Order of Remand

‘As required by Rule 21,1(b) the following gives a history of this case and

lists all the parties, In the United States District Court For The Eastern

District Of Michigan, the matter was captioned Marie E. Munn & George

E. Munn, Plaintiffs v Chevron Chemical Company, Defendant, Civil Action

No, 81-70555, When mandamus review was sought in the United States

Court of Appeals for the Sixth Circuit that matter was captioned, as

required by Sixth Cir, R. 23, /n re: Chevron Chemical Company, Petitioner,

Case No, 82-8063,

The Munns, Plaintiffs below and (real) Respondents herein, are Michi-

gan citizens, Mr. George Munn is deceased,

Also pursuant to Rule 28,1, Supreme Court Rules, Petitoner Chevron

Chemical Company is a Delaware Corporation and is wholly owned by

Standard Oil Company of California, a Delaware Corporation, There are a

number of affiliate corporations, each including “Chevron” in their com-

pany name and all of which are wholly owned by Standard Oil Company

of California.

oP)

entered by him dated September 27, 1982, or, in the

further alternative, to issue a writ of mandamus directly to the

Respondent compelling him to vacate said Order,

RULE 28, RULES OF THE SUPREME COURT

Notice is hereby given that 28 USC 2403(a) may be applic-

able. To the best of Petitioner’s knowledge, no court has certi-

fied to the Attorney General the fact that the constitutionality

of 28 USC §1447(d) has been drawn in question,

OPINIONS BELOW

The Order of the United States Court of Appeals for the

Sixth Cireuit dated December 10, 1982 denying Petitioner's

Petition for Writ of Mandamus is unreported and appears in

the Appendix, pp. la-3a, The Ruling and the Order of the United

States District Court for the Eastern District of Michigan

remanding the action styled Maria FE. Munn and George E.

Munn v Chevron Chemical Company, No, 81-70555, to Wayne

County (Michigan) Circuit Court are set forth, respectively, in

the Appendix hereto, pp. 3a-6a.

JURISDICTION

The Order of the United States Court of Appeals for the

Sixth Circuit was entered on December 10, 1982. The Jurisdic-

tion of this Court is invoked pursuant to 28 USC §1254(1), or,

alternatively, pursuant to 28 USC §1651(a)?

?Where a Court of Appeals has denied a petition for a writ of mandamus to

review an improper Order of Remand as is involved here, this Court has

elected to review the same under its statutory certiorari jurisdiction over

the Courts of Appeals, 28 USC §1254(1), See Petition for Writ of Certior-

ari, Thermtrom Products, Inc. v Hermansdorfer, at 2; Thermtrom Products,

Ince. v Hermansdorfer, 420 US 923 (1975) (certiorari granted); Thermtrom

Products, Inc. v Hermansdorfer, 423 US 336 (1976), In fact, this appears to

be the preferred procedural avenue of review, see 9 Moore's Federal Prac-

fice 9110.27, However, there is nothing precluding this Court from review-

ing such a matter on an original petition in this Court for mandamus

pursuant to 28 USC $1651 (a) or otherwise, in the event this Court elected

to use that jurisdictional avenue and/or if review was otherwise precluded,

If the Court elects to assume jurisdiction over this matter as a Petition

for an extraordinary writ in the nature of mandamus under the All Writs

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED

Appendix Page

U.S, Constitution Art ITT, §61&@2 ...ccceceeees 6a-7Ta

US. Constitution Amend V ...csccscrscvcvees Ta

DP SUOR ek Secs vet reves utars Sear wee neas Ta-8a

ee SEO 54k aoc Rhea SeA dAdo e eh eeedas 8a-10a

a er rer ree rrr e re 10a

dr er Co se 10a-1la

$234 Judicial Code of 1911 .....ccccscccveccees lla

Soe omaeies COGe OF TOT) ic iis cena vevecesess lla

6 are ee ee lla-12a

DEO Sete POCO TIOO ick costae vccerescsusvs 12a

Pe SE OO es hia sce cun we kauea des cudnaes 12a-13a

Rk Perce eral Trey 13a-14a

RU PTL ee eee TREE l4da

All of the above referenced Statutes can be found in the

Appendix as permitted by Rule 21.1(f).

STATEMENT OF THE CASE

On February 13, 1981, Plaintiffs, GEORGE E. MUNN and

MARIE E. MUNN, (hereinafter PLAINTIFFS) citizens of

Michigan, commenced an action against Defendant CHEV-

RON CHEMICAL COMPANY, a Delaware Corporation with

its principal place of business in California (hereinafter PETI-

TIONER), in Michigan’s Wayne County Cireuit Court. The

Complaint alleged that Petitioner had defectively manufac-

tured a product which caused GEORGE E, MUNN to con-

tract a terminal carcinoma (and also caused a consequential

loss of consortium to MARIE E. MUNN), resulting in dam-

ages in excess of ten thousand ($10,000.00) dollars. On Febru-

ary 20, 1981, Petitioner filed a timely Petition for Removal in

Act, 28 USC §1651(a) or otherwise, as opposed to a Petition for statutory

certiorari, then, pursuant to Rule 27.1 of this Court, this action should be

captioned In re: Chevron Chemical Company. Also, if the Court elects to so

proceed, an actual Petition is included in the Appendix hereto, pp, 66a-67a,

as required by Rule 27.2(a). That Petition incorporates, by reference, the

same grounds for issuance of that writ as those that this Petition assert as

grounds for issuance of a writ of certiorari, Rule 27.2(b),

compliance with 28 USC §$1441 & 1446, in the United States

District Court for the Eastern District of Michigan because

the action was one that could have been commenced there origi-

nally, Petitioners posted a bond and took all other steps

necessary to insure proper removal in a timely fashion, as

required by 28 USC $1446. Neither the Plaintiffs nor the Dis-

trict Court ever questioned or challenged the removal as being

anything but wholly proper. Furthermore, it is uncontroverted

that the District Court recognized, assumed and exercised

jurisdiction over the case, there being no jurisdictional defects

regarding the removal.

After having been assigned to first one District Judge and

then another, on September 21, 1982 (19 months after com-

mencement of the action) a motion was made to Amend the

Complaint and add, as a Defendant, DOW CHEMICAL COM.-

PANY, a Michigan Corporation. On the same day, the Judge

to whom the case was then assigned, disqualified himself on

the basis of stock ownership in DOW and the matter was

immediately reassigned to the Honorable Horace W. Gilmore,

(hereafter RESPONDENT),

On the following day, September 22, 1982, counsel for Peti-

tioner was orally notified that he was compelled to appear,

within twenty-four hours (ie, on September 23, 1982), at a

Remand Hearing. On the eve of the trial and at that hearing,

the Respondent rejected arguments relative to his lack of

authority to add a nonindispensable party (although he acknow1-

edged that this characterization was not incorrect, Appendix,

p. 5a) and to remand, and focused in upon the “equities” favor-

ing remand, More important than what was argued to, and

rejected by Respondent is a purview of the arguments counsel

could not make simply because of the truncated nature of the

proceedings.’ Correlatively, these arguments — especially the

‘For example, Petitioner did not have an adequate opportunity to prepare

or even file written memoranda in opposition, nor to demonstrate that the

very relief sought by Plaintiffs was precluded by Judge Cohn's Order

requiring the addition of parties by Septémber 1, 1982. He was not able to

present substantial authority to the effect that a District Court has no

ones touching upon the history of the case — demonstrate

that there was no way Respondent could have possibly famil-

iarized himself with the matter in one day.

Never-the-less, the Court elected to rule immediately, stating

the issue was whether to allow the amendment to add Dow

and that if the Amendment vas allowed, “it destroys diversity

and the case would automatically be remanded to Wayne Cir-

euit Court.” In a one and one-half page Opinion, Respondent

extracted from and focused upon language in a Moore's Fed-

eral Practice citation, ruling that he felt there were “strong

equities” favoring amendment so that a proper fact finder

could make a determination with everyone in front of it.

Respondent then granted the Amendment and stated “I will

remand the case to the Wayne County Cireuit Court.” Re-

discretion to grant an amendment under such circumstances; or that Peti-

tioner could well be left without any remedy to correct the Respondent's

abbreviated approach to the motions, given the general prohibition of

review of remand orders found in 28 USC §1447(d); or that complex and

difficult questions regarding the limited circumstances in which remand is

appropriate under 28 U.S.C, $1447(¢) are implicated by the case,

There was no opportunity to present arguments regarding the gross

inadequacy of the motions to demonstrate particularly how Dow was

implicated; as they merely asserted that “Dow could be involved in the

litigation.” These motions also did not specify the nature or identity of the

mysterious carcinogenic substance or its relationship to Petitioner's prod-

ucts, or the names, dates and specific testimony of the witness(es) who

allegedly triggered counsel's fancy to pursue Dow, Additionally, there was

no opportunity to establish that, by admission in their own pleadings,

Plaintiffs’ acknowledged a thoroughly wrongfull purpose for their discovery

efforts against Petitioner-to seek out new Defendants and bravely go where

the Rules do not permit litigants to travel! Furthe’ , Petitioner was unable

to establish that a proposed Amended Complaint had not been attached to

the Motion,

Moreover, because the Respondent acted with such haste, Petitioner

was unable to point to authority warning District Judges to be aware of

collusive efforts by Plaintiffs to obtain Remands back to their formerly

selected forum; or to argue that the delay inherent in a remand to Wayne

Circuit, should be seriously considered by Respondent because the very

purpose for the general prohibition against review of remand orders, i.e., to

avoid delays, is foiled under such circumstances. Finally, Petition » was

unable to present arguments that explicit language in Fed. R. Civ. P. 19(a)

forbids addition of even an indispensable party whose presence destroys

diversity jurisdiction but rather only permits the Court to determine

whether to continue with the action without the party or to dismiss the

action as provided for in Fed. R. Civ, P. 19(b).

spondent neither cited the remand statute, nor did he purport

to act pursuant to it, nor did he attempt to enumerate grounds

remotely resembling the standard for remand, ie., that the case

was originally removed improvidently and without jurisdic-

tion, 28 USC §1447(e).

Petitioner had intended on contesting, in presentment of

order proceedings, any proposed order from Plaintiffs’ counsel

which did not exactly conform to the Petitioner's September

23, 1982 Opinion and Ruling.! However, Petitioner was once

again foiled by Respondent's unorthodox abridgements of the

normal adversarial processes. Apparently, in an effort to get

the matter removed from the docket with all possible haste,

(and Petitioner must infer the intent was to accomplish this

by the end of the month of September, at which time Respond-

ent was required to file a monthly report with the Dir,

Admin. Office of the U.S, Courts, 28 USC §604(a)(2)) Respond-

ent did not wait for a proposed order from Plaintiffs’ counsel

— much less the conclusion of presentment proceedings.

Rather, on September 27, 1982, Respondent, on his own

Motion, entered a “form” order of Remand to Wayne County

Circuit Court to which the words “lacking total diversity” were

added after the form's standard language regarding absence of

jurisdiction. This Order in no way reflects the content of

Respondent's consideration and Opinion of September 23,

1982 regarding Amendment and Remand.’ Moreover, at the

‘Petitioner wanted to proceed in such a fashion because of the importance

the content of such order bears upon any attempt to obtain relief from it in

the Court of Appeals or in this Court, Moreover, Petitioner was entitled to

present Respondent with those argumen*s and emphasizes that it was

forestalled from making by the truncation of the proceedings prior to the

signing of the order,

‘The Order states the “case was improvidently removed” but there was

absolutely nothing in the Opinion (or in the entire record of the case) to

even intimate that Respondent ever considered the improvidence of remo-

val, either relative to the time the case was removed or at any other time!

Similarly, the Order states that “there is no federal jurisdiction . . . lacking

total diversity” but the Opinion no where discussed or even mentioned the

word jurisdiction; Respondent simply said that if he permitted the Amend-

ment diversity would be destroyed and the case would automatically be

time the Order was entered no Order Granting the Amend-

ment had been entered (n »* has any such order ever been

entered) and, therefore, the nondiverse party was not before the

Court.

On October 15, 1982, Petitioner being without any appellate

remedy, sought extraordinary relief in the United States Court

of Appeals for the Sixth Cireuit, by filing a Petition for Writ

of Mandamus praying that the Respondent be compelled to

Vacate the Order of Remand, That Petition with the State-

ment of Reasons Why the Writ should Issue are set forth in the

Appendix hereto, pp. 14a-59a, The contentions made in the Court

of Appeals fell into three (3) major categories: 1) remand based

upon the addition, after removal, of a nondiverse, nonindes-

pensable party in view of “strong equities” is a ground not

permitted by, and affirmatively predicated upon grounds wholly

different from those described in 28 USC §1447(c), and, there-

fore, is reviewable and should be vacated by mandamus; 2) the

“form” order actually entered by Respondent was a “sham” not

reflecting either the content, tenor, or substance of the ruling

of September 23, 1982 and, therefore, was reviewable and

should be vacated by mandamus; and 3) the conduct of the

Respondent in his remanding of the matter deprived Peti-

tioner of due process regarding its right to a federal forum.

Therefore, the Order of Remand predicated upon such conduct

was reviewable and should be vacated by mandamus, without

regard to whether or not such an Order was otherwise unre-

viewable,

On October 22, 1982, Respondent filed a Response in Oppo-

sition to the Petition, Plaintiffs filed their Response in Oppo-

sition to the Petition on December 8, 1982, These Responses in

Opposition are set forth, respectively, in the Appendix hereto, pp.

60a-62a, pp. 62a-65a. On December 10, 1982, the Court of Appeals

remanded, The only items really discussed in relation to remand are totally

absent from the Order; to-wit, there is no mention therein that “strong

equities” favored the amendment nor of the discussion regarding Dow not

being an indispensable party nor of the finding that, in any event, there

was no need to show such to grant the amendment,

entered an Order Denying The Petition because it had no

jurisdiction to review the Remand Order, “once the nondiverse

party was added” (although no order was ever entered adding

the nondiverse party).

REASONS WHY THE WRIT

SHOULD ISSUE

INTRODUCTION

As already noted, the Petitioner has no appellate right of

review of the Remand Order entered by Respondent, More-

over, 28 USC §1447(d) would appear to preclude all review by

mandamus under the All Writs Act, 28 USC §1651(a), or

otherwise. However, as argued, infra, in this Petition, and in

the Court of Appeals Appendix, pp. 35a-54a, Petitioner asserts

that the peculiar procedural manner in which this case comes

to the Court in conjunction with Thermtron Products Inc. v

Hermansdorfer, 423 US 336 (1976), renders the remand order

reviewable as within the mandamus jurisdiction and prero-

gative process of this Court,

Further, even should this Court elect to ultimately deny

issuance of a writ of mandamus, both the jurisdictional and

substantive questions presented are in and of themselves of

such significance as to warrant issuing a writ of certiorari for

a full consideration on the merits. Indeed, the jurisdictional

questions are of such moment — particularly those relative to

the unique place and powers the Constitution delegates to this

Court — as to warrant a consideration on the merits even if

they are answered in the negative. Moreover, there is a sub-

stantial confict among the Circuit Courts of Appeals relative

to the underlying substantive question (Question I) of whether

or not, in an otherwise properly removed action, a nondiverse,

nonindispensable party may be added to defeat diversity and

whether or not remand based thereon is permitted under 28

USC §1447(¢). Only this Court can resolve that conflict.

The Joinder, in Properly Removed Action, of a Non-

diverse, Nonindispensable Party Whose Presence Defeats

Diversity and An Order of Remand Based on Such

Joinder Constitutes a Nondiscretionary Erroneous Act

Which Calls For This Court to Exercise Its Power of

Supervision Over Respondent and Over the Court of

Appeals for Sanctioning His Conduct.

The underlying substantive question in the matter here

presented is of such great significance to both a harmonious

federalism and a consistent application of federal procedure

that it is first addressed,

May a District Judge in an otherwise properly removed

action, order joinder of a nondiverse, nonindispensable party

and then remand the action based upon such joinder?

The removal statute, 28 USC §1447(¢), provides that an

action can be remanded only when “it appears that the case

was removed improvidently and without jurisdiction, ,..” Due

to the general unreviewability of remand orders in the Courts

of Appeals, however, the state of the law as to what this

language means and under what circumstances remand is or is

not appropriate has to be, at best, balkanized, At the very

worst, it is submitted, experience teaches that District Judges

solipsistically remand cases, irrespective of statutory grounds,

for judicial “housekeeping” or other reasons they may deem

appropriate, being sure only to ‘cover their tracks’ by couching

their remand orders in terms of ‘the improvidence of removal

and the lack of jurisdiction,’

Because this Court has never addressed the question presen-

ted nor provided a detailed construction of 28 USC §1447(c)

(except to articulate that remand for docket control is not

permitted see Thermtron Products Inc, v Hermansdorfer, 423

US 336) and because the Courts of Appeals are generally

unable to address the removal statute in view of the proserip-

tions of 28 USC §1447(d), it is all the more compelling that this

Court grant this petition for certiorari and conclusively resolve

the problem for the entire federal system, The question eludes

review, and if the Court avoids it in this matter, the ensuing

disharmony in the precedents and the federal system will

continue indefinitely, Even if this Court were to rule that it

had no jurisdiction to review the question, ipse dirit regarding

the proper construction and application of the remand statute

relative to the addition of parties or otherwise, would at least

provide the lower federal judiciary with a workable standard

relative to remand, The vast majority of District Judges must

surely welcome such direction, As things stand now, however,

there is not even uniformity of precedents within the Cireuits,

much less a national standard for remand or a uniform con-

struction of §1447(¢)° Only this Court can alleviate these

incongruities and difficulties by granting certiorari,

From the early days of the Republic, one of the cornerstones

of our federal judicial system has been the principle that once

federal court jurisdiction attaches, the litigants cannot, by

subsequent acts (nor can subsequent events of their own force)

oust that jurisdiction, whether such arose originally or by

virtue of removal, See Mollane v Torrance, 22 US (9 Wheat)

537 (1824), Correlatively, the critical time frame for measuring

the propriety of removal from state court and the existence of

federal court jurisdiction under 28 USC $1447 has been the

time of the filing of the removal petition; subsequent events

deemed irrelevant, See Saint Paul Mercury Indemn, Co. v Red

Bar Cab Co,, 303 US (1988); Mansfield, Coldwater & Lake Mich,

Ry v Swan, 111 US 379 (1884); Hart & Weschler, The Federal

Courts & The Federal System 1062, 1218 (2d ed 1973),

Nevertheless, and despite the fact that the Sixth Circuit has

explicitly recognized this principle, Television Reept. Corp, v

Dunkan, 426 F2d 174, 177 (6th Cir 1970), the Respondent

ordered the remand wholly based upon events subsequent to

removal; events (i.e, the joinder of the nondiverse, nonin-

dispensable party) he affirmatively ordered! In view of such a

nondiscretionary act departing from this long line of estab-

lished precedents, this Court should grant the writ of certio-

rari, review the case upon the merits and then exercise its

supervisory powers over the Respondent and over the Court of

*Compare and contrast the authorities cited in notes 10-11 infra,

Appeals for sanctioning this departure from such authorities,’

There appears, however, to be one contemporary opinion

from a Court of Appeals in conformance with the position

taken by the Respondent (although not cited by him), not-

withstanding the decisions of this Court rendering the time of

removal as the universal benchmark for determining jurisdic -

tion, Desert Emp. Bank v Insu ence Co, Of No, Am, 623 F2d

1371, 1376 (9th Cir 1980) That decision and the position of the

Respondent as sustained by the Sixth Circuit, when compared

with the overwhelming majority of decisions of the Cireuit

Courts bearing upon the point to the contrary, creates a

conflict as to the application of the principle in the context of

the joinder of nondiverse parties, Compare In re Merrimack

Mut. Fire Ins, Co,, 587 F2d 642, 647 n8 (Sth Cir, 1978); Chiodo v

General Waterworks Corp, 380 F2d 860, 867 (0th Cir 1967),

Reynolds v Wabash R.R. Co,, 236 F2d 387 (8th Cir 1956), Only

this Court can resolve this conflict,

Additionally, the Congress and this Court, while performing

their rulemaking functions, 28 USC §2071, have given life to

this universal principle of measuring removal jurisdiction and

propriety at the time the petition for removal is filed, as it

"It must be emphasized that the clear conjunctive language of 28 USC

§1447(c) would appear to require both improvident removal and removal

without jurisdiction, See Sheet Metal Worker's Int? Ass'n AFL-CIO v Seay,

693 F2d 1000, 1005 & nn7-8 (10th Cir, 1982), Nevertheless, the Fifth Cir-

cuit has apparently elected to read this language in the disjunctive, Robert-

son Vv Ball, 534 F2d 63, 65 n2 (th Cir 1975), but even then narrowly

construes “improvidently" to mean procedurally defective, Jn re Merrimack

Mut Fire Ins Co, 587 F2d 642, 645 n3 (Sth Cir 1978),

In the instant matter, remand was predicated upon joinder - long after

removal - of a nondiverse, nonindispensable party because “strong equi-

ties” favored having everyone before the same trier of fact, Although Peti-

tioner has vehemently contested below the remand being characterized as

one based on lack of jurisdiction (see Appendix pp, 36a-37a) — jurisdiction

indisputably existing at the time of removal, and because the order’ grant -

ing the amendment to add the nondiverse party was never entered —

nevertheless, there was never any question of or discussion regarding the

improvidence of removal, The Respondent's unarticulated reading of

§1447(c), therefore, was necessarily in the disjunctive, and presents this

Court with the opportunity to resolve a split among and between the Cir-

cuits and a reading of an Act of Congress by Courts of Appeals contrary to

its plain and obvious meaning,

relates to the joinder, subsequent to proper removal, of non-

diverse parties, 28 USC Rule 19(a) forbids the joinder of even

an indispensable party, only permitting, under 28 USC Rule

19(b), the court to dismiss the case or to continue on without

the nondiverse party, Application of this principle of jurisdic -

tional preservation is at its zenith when a nondiverse, nonindis-

pensable party is sought to be added under 28 USC Rule 21.

Notwithstanding this clear mandate, however, Respondent

here ruled that the nondiverse, nonindispensable party must

be added in view of “strong equities.” Neither the rules nor the

remand statute authorize such discretionary grounds for either

adding a party whose presence destroys federal jurisdiction or

a remand base thereon. Indeed, this Court has recently reiter-

ated that “it is axiomatic that the Federal Rules of Civil

Procedure do not create or withdraw federal jurisdiction .. .”

Owens Equip & Er. Co. v Kroger, 437 US 365, 370 (1978)

(emphasis supplied).

Moreover, 28 USC §1447(¢) must be read in conjunction

with 28 USC Rule 19, 20 & 21 to determine that such a

remand is not thereby contemplated. ‘I'he vast majority of the

Cireuit Courts of Appeals and District Courts that have

addressed these problems have ruled that a nondiverse party

cannot be joined and neither can a case be remanded based

upon such joinder, Only if the party is indispensable and the

action cannot proceed without that party will federal jurisdic -

tion be destroyed — and only then by dismissal.* There is,

however, one Court of Appeals decision that authorizes such a

joinder and remand’ This, in conjunction with the position

adopted by the Respondent and as sub silentio sustained by

the Sixth Circuit, evidences a serious circuit split that only

this Court can resolve.

Correlatively, regardless of whether viewed as a matter of

rule and/or statutory construction or as an application of the

universal principle that subsequent events cannot oust or alter

removal jurisdiction, the vast majority of lower federal courts

® See note 10 infra.

9See note 11 infra.

that have addressed the question have held that a District

Court cannot add a nondiverse, nonindispensable party to an

otherwise properly removed action and then remand.’ There

The majority of Federal District Courts and Cireuit Courts of Appeals

having addressed the question have held that after a proper removal (as

determined at the time of removal), the District Court has no discretion

(and/or that it is improper) to add a nondiverse, nonindispensable party

and then remand, See, e.g. [MFC Prof v Latin Am. Home Health, 676 F2d

152, 159 ni4 (Sth Cir 1982) (issue should be squarely addressed); In re

Merrimack Mut Fire Ins, Co., 587 F2d at 647 n&; Chiodo vy General Water-

works Corp., 330F2d 860, 867 (10th Cir 1967) (even indispensable party

cannot be joined if it would destroy the jurisdiction of the court and if

indispensable party cannot be joined court should dismiss action); Rey-

nolds vy Wabash R.R. Co,, 236 F2d 387 (8th Cir 1956) (no power in federal

district judge to add nondiverse party whose presence would destroy juris-

diction); Wallace vy Knapp-Monarch Co,, 234 F2d 853, 860 (8th Cir 1956)

(Court affirms trial court refusal to add nondiverse party citing Red Cab

Co, but there is dicta that the power to amend is discretionary); Thorp v

Petrola, 81 F.R.D, 513, 515-16 (N.D. W. Va 1979) (nondiverse, nonindis-

pensable parties cannot be added nor can nondiverse, indispensable parties

be added; construction of explicit language of Rule 19, 20 and 21 control

over Rule 15; “if the court were to allow the adding or dropping of parties

pursuant to a motion under Rule 15, which would deprive the court of

subject matter jurisdiction, the policy of Rules 19, 20, and 21 would be

emasculated merely by ignoring it”); Skinner v American Oil Co., 470 F

Supp 229, 235 & n2 (S.D. Iowa 1979) (attempt to join nondiverse Defend-

ant following remand irrelevant for purpose of determining whether to

remand; indeed, because of Rule 19 improper to add such a Defendant);

Perimeter Lighting Inc. v Karlton, 456 F Supp 355, 359-60 (N.D. Ga. 1978)

(removability determined at the time of filing the removal petition and

acknowledges authority prohibiting amendment of nondiverse party after

proper removal); Barrett v McDonald’s Of Okla. City, 419 F Supp 792, 793

(W.D. Oklahoma 1976) (Court should ignore addition of nondiverse party

by Plaintiff because removal is viewed at time removal petitoin is filed);

Harper Fin, Corp. v Hanson Oil Corp., 403 F Supp 1405, 1407 (W.D. Tenn.

1975) (amendment not permitted to add nondiverse Defendant unless

amendment also substantially alters the very nature of the cause of action);

Fort Howard Paper Co. v Affiliated F.M. Ins. Co., 60 F.R.D. 62, 63-64 (E.D.

Wis. 1973) (Court must protect Defendant's right to removal and not allow

amendment to include parties whose presence could oust the Court of

jurisdiction); Alerander v Lancaster, 330 F Supp 341, 343 (W.D. La. 1971)

(attempts to join any nondiverse party after proper removal irrelevant to

remand-must view diversity only at time of removal); Checker Motors Corp.

v Chrysler Corp. 39 F.R.D. 37, 38 (S.D. N.Y. 1965) (to bring in parties by

amendment, Rule 13(b) requires that their presence not defeat the Court's

jurisdiction); Pacific Gas & Elec, Co. v Fireboard Prod. Inc., 116 F Supp

377 (N.D. Cal. 1953) (removal's propriety determined at time of removal and

any conflict in Rule 15 regarding amendment must be considered with

specific language in other rules precluding destruction of jurisdiction;

appear to be, however, a few opinions to the contrary."! This

remand to add nondiverse party not allowed), See also Television Recpt

Corp. v Dunkan, 426 F2d 174, 177 (6th Cir 1970) (federal removal jurisdic-

tion not defeated by events occurring subsequent to commencement of

action),

There are authorities subsequent to Thermtron (see this footnote infra)

that have held that under some circumstances remand subsequent to re-

moval by virtue of the addition of nondiverse parties is appropriate, Peti-

tioner submits these authorities are clearly erroneous in view of the fact

that Thermtron itself forbids discretionary remand and because none really

deal with the explicit language of Congressionally mandated policy ex-

pressed in 28 USC Rule 19, 20 & 21, Indeed, it would appear that explicit

language in Rule 19 regarding indispensable rarties states they cannot be

added if their presence would “deprive the Court of jurisdiction over the

subject matter.” The only thing the District Court can do is dismiss the

action, Skinner v American Oil Co., 470 F Supp 229, 233-34 (S.D. Iowa

1979),

Notwithstanding this, however, the contra authorities (see this footnote

infra) are thoroughly inapposite here because, first, the Respondent did

not make even the slightest intimation that he was referring to or rely-

ing upon them, Second, the Respondent explicitly relied upon the disere-

tionary ground that “strong equities” required joinder, while none of the

contra authorities has ever articulated such a discretionary and nonstatu-

tory ground for remand without a thorough weighing of the adverse juris-

dictional effects, contra authorities, and the possibility of collusive jurisdic -

tion, Third, most of the courts permitting remand have not discussed the

indispensable/dispensable distinction; Respondent here, by contrast, stated

that Dow was not indispensable (and/or that that distinction was irrele-

vant). Soam Corp. v Trame Co., 506 F Supp 302 (S.D, N.Y. 1980); Littlefickl

v CNA, 475 F Supp 887 (C.D, Cal. 1979); Miller vy Davis, 464 F Supp 458

(D.D.C, 1979); Ingersoll vy Pearl Assum. Co., 153 F Supp 558 (N.D. Cal. 1957);

Highway Constr, vy McClelland, 15 F2d 187 (8th Cir 1926) (decided under

different rules of procedure), Fourth, some of the Courts have said an

amendment that defeats diversity should not be granted unless it also con-

templates a substantial alteration of the nature of the cause of action-

something clearly not involved here, Miller v Davis, 464 F Supp 458, 460

(D.C.C, 1978); Harper Fine. Corp, vy Hanson Oil Co., 403 F Supp 1405, 1407

(W.D. Tenn, 1975).

Finally, the few courts which have erroneously allowed the permissive join-

der of a nondiverse, nonindispensable party have explicitly predicated their

exercise of such discretionary power upon a very careful consideration of

whether the requested amendment is but a collusive means of obtaining

return to the forum formerly selected by Plaintiff. Desert Emp. Bank v

Insurance Co, Of No, Am., 623 F2d 1371, 1376 (9th Cir 1980); Shaw v Mum-

ford, 526 F Supp 1209, 1215 (S.D. N.Y. 1981). There is absolutely nothing

in this record to establish that Respondent considered such important fac-

tors. Therefore, even under application of these authorities which Peti-

tioner contents are erroneous — authorities of which the District Court

was totally unaware — Respondent's actions are not only erroneous, but

clearly abusive of discretion.

alone warrants review by this Court since the Circuits have

reached different results for at least twenty five (25) vears,

Moreover, assuming argeendo the few opinions supportive of

Respondent's ordering joinder are correct, none supports his

rationale (or lack thereof)!’ Rather, like Judge Hermansdorfer

in Thermtron, Respondent completely ignored his affirmative

duty to remand only for reasons authorized by the statute. The

unprecedented remanding of the case for “equitable reasons”

calls for this Court to exercise its supervisory powers over the

Respondent and over the Court of Appeals for not correcting

this clear abandonment of cuty and abuse of discretion. See Sheet

Metal Worker's Int? Ass’n AFL-CIO v Seay, 694 F2d 1000

(10th Cir 1982) (court issues a writ of mandamus to vacate

remand granted because it was more “equitable” for Plaintiff

to be in state court due to federal limitation upon remedies).

Il.

This Court Has Never Considered Whether a Remand

Predicated Upon Joinder, In an Otherwise Properly Re-

moved Action, of a Nondiverse, Nonindispensable Party

Whose Presence Defeats Diversity, is Reviewable in this

Court or in the Court of Appeals by Mandamus. Moreover,

the Question Presents this Court with an Opportunity to

Clarify Earlier Opinions.

This Court has never squarely addressed the question of

whether an order of remand based upon the joinder of a non-

diverse, nonindispensable party is reviewable by mandamus,

either here or in the Court of Appeals. All of the reasons

asserted relative to the need for the Court to grant certiorari

and resolve the merits of the question of whether such joinder

is permissible are reasserted to establish the need to grant cer-

tiorari to resolve the antecedent jurisdictional question of

whether or not the remand order can be reviewed and vacated

by mandamus,

In Thermtron Products, this Court construed 28 USC §1447(d)

in part materia with 28 USC §1447(¢), and concluded “that

2 See narrative in note 11 supra relative to the comparison of the precedents

therein cited, with Respondent's ruling.

only remand orders issued under §1447(¢) invoking the grounds

specified therein — that removal was improvident and without

jurisdiction — are immune from review under §1447(d).” Jd, at

346, Reviewability under Thermtron, therefore, necessarily

reverts back to an inquiry into the merits of whether the

remand is proper under, or authorized by §1447(c). In fact it

was specifically noted that,

We are not convinced that Congress ever intended to

extend carte blanche authority to the district courts to

revise the federal statutes governing removal by remand-

ing cases on grounds that seem justifiable to them but

which are not recognized by the controlling statute.

Id. at 351.

Such language is clearly apposite here, For the Respondent,

without even a recitation of the statute or mention of the

grounds permitting remand therein, concluded in his ruling,

that “strong equities” favored joinder of a nondiverse, nonin-

dispensable party — grounds wholly unrelated to those recog-

nized by 28 USC §1447(c) but apparently justifiable to him.

The Fifth Circuit Court of Appeals has recognized that such

joinder of a party constitutes an improper ground for remand

warranting vacation by mandamus.'8

Moreover, there is absolutely nothing in the remand statute,

'S In re Merrimack Mut. Fire Ins, Co., 587 F2d 642, 646-47 & n8 (5th Cir

1978). Although that Court went on to deny the writ because of an ambi-

guity in the order, the Merrimack Court did explicitly recognize, by foot-

note, that permitting joinder of a nonindispensable, nondiverse defendant

clearly was outside of a District Court's discretion, and that such an exer-

cise of discretion was one outside of the exclusive grounds of 28 USC

§1447(c) and hence a remand predicated thereon was reviewable by man-

damus, Id, at 647 & n8.

In fact, the Fifth Cireuit has recently restated the importance of the

question,” [w]e reserve for decision when the issue is squarely presented

whether a district court may allow joinder of a nondiverse party who is

not indispensable even though such joinder may result in remand.” /MFC

Prof. v Latin Am. Home Health, 676 F2d 152, 159 n14 (5th Cir 1982),

Additionally, the Tenth and the Seventh Circuit have held that remands

based upon discretionary grounds not found in 28 USC §1447(c) are sub-

ject to review by the Court of Appeals by mandamus and must be vacated.

Sheet Metal Workers Int? Ass'n AFL-CIO v Seay, 693 F2d 1000, 1002,

1005 & n7 (10th Cir 1982); Ryan v State Bd. of Elections of State of Ill., 661

F2d 1130, 1133 (7th Cir 1981),

28 USC 91447(c), that even remotely resembles as grounds for

remand the addition of parties whose nonindispensable pres-

ence destroys otherwise proper jurisdiction because “strong

equities” compel that presence “so that in one lawsuit a proper

fact finder can in due course make a determination with every-

one in front of it.” Appendix, p. 30a. The Tenth Cireuit

recently vacated, by mandamus, a remand based on the ground

that the state court was “the most equitable forum,” in view of

a restriction of federal remedies. Sheet Metal Workers’ Int?

Ass'n AFL-CIO v Seay, 693 F2d 1000, 1002 & n2 (10th Cir

1982). The Court of Appeals reasoned that this was not a

ground authorized by §1447(¢) and then analogized the non-

statutory ground asserted to those utilized in Thermtron. In

both instances, the District Judges had erroneously ordered

remand because the ‘plaintiff's rights of redress was being

severely impaired.’ Jd. at 1005, citing Thermtron v Hermans-

dorfer, 423 US at 340-41, In the instant matter, the Respond-

ent also improperly ordered remand because he felt Plaintiffs’

right of redress was impaired in federal court. For that reason

Respondent's Order of Remand should be similarly vacated.

There are also facts or events peculiar to this case which not

only evidence a remand affirmatively predicated upon non

statutory grounds, but which also warrant this court exercis-

ing its supervisory power over Respondent. First, the Order of

Remand that Respondent entered sua sponte on September 27,

1982 bore absolutely no resemblance to the ruling upon which

he actually based the remand. Petitioner submits (as discussed

in detail elsewhere in this Petition and extensively in the court

below Appendix, p. 4a), that the Order was a “sham.”

Second, unlike any remotely analogous situation in any

reported decision, the parties here were actually still diverse at

the time the Court entered the Order of Remand. No written

Order had been entered at that time (or at anytime) permitting

the Amended Complaint. Dow Chemical Company, the alleged

nondiverse Defendant, was not before the District Court even

as a named, but unserved Defendant. Therefore, even the

untenable ground for the remand — that “equity” required the

nondiverse’ nondispensable Dow Chemical’s presence in the

suit — did not in fact exist when the Remand Order was

entered!

Third, the unstated but possibly controlling motive for the

sua sponte September 27, 1982 Remand Order was to clear the

matter from his overerowded docket by the end of the month,

This concern over an overcrowded docket was precisely the

disapproved rationale utilized by Judge Hermansdorfer in

Thermtron,

Your Petitioner is not unaware that the most recent deci-

sion of this Court addressing the reviewability of remand

orders by mandamus, Gravitt v Southwestern Bell Tel. Co, 430

US 723 (1977), involved an erroneous, and vet unreviewable

understanding of the absence of diversity jurisdiction which

precipitated remand, None-the-less, Gravitt is inapposite here

for a variety of reasons. Foremost of these is that the Re-

spondent Judge, in his discussion allowing the amendment in

view of “strong equicies,” which he noted would ‘destroy diver-

sity automatically, acknowledged that federal jurisdiction was

entirely proper and present! Cf. Ryan v State Bd. of Elections,

661 F2d 1130, 1333 & n3 (7th Cir 1981), The Court of Appeals

completely ignored this fact when it ruled that once the nondi-

verse party was added, remand was proper.

Moreover, it should also be noted that subsequent to what

has been characterized as the terse Gravitt per curiam,'* the

Courts of Appeals have been faced with ambiguity and an

absence of clarity relative to the avenue of reviewability opened

by Thermtron. Most of them have taken Gravitt as a signal

from this Court that unless “the order does not clearly rely on

reasons other than those permitted under the statute,” ie., 28

USC §1447(c), “the remand order cannot be reviewed.” Only

4 See Note, Remand Order Review After Thermtron Products, 1977 Th L.

Forum 1086, 1103.

' In re Chevron Chemical, Slip Op, at 2 (6th Cir, No, 82-8063, December 10,

1982); Chesapeake & Ohio Rwy Co. v U.S. District Court, Slip Op, at 2 (6th

Cir, No, 82-1155. May 21, 1982); State Farm Mut. Aut Ins. v Baasch, 644

F2d 94, 96 (2nd Cir, 1981); Jn re Weaver, 610 F2d 335, 337 (Sth Cir 1980);

in the rarified and exceptional case where the District Judge

does not mention the statute or the standards of remand of

§1447(c), and thereafter affirmatively states grounds for rever-

sal not contained therein, do the Circuits obviously believe that

they may review an order of remand by mandamus.

Some of the Courts have stated it somewhat differently fo-

cusing in on restrictive language appearing in Thermtron and,

at least to their understanding, adhered to and reiterated in

Gravitt: “if a trial judge purports to remand a case on the

ground that it was remanded ‘improvidently and without

jurisdiction,’ his order is not subject to challenge in the Court

of Appeals ...."8 Despite such restrictions, however, the

Courts of Appeals subsequent to Gravitt, have, with a concomi-

tant frequency, issued writs in the nature of mandamus com-

pelling District Judges to vacate orders of remand.”

Given the convolutions of the state of the law in this area, it

is difficult for litigants and the Courts of Appeals to determine

when review by mandamus is authorized and appropriate and

when it is not. One Circuit has attempted a workable and sim-

plified definition relative to the limits of its authority:

It thus appears that where we are specifically forbid-

den to review action by a district judge when the judge

In re Grevhound Lines Inc, 598 F2d 883, 884-85 (Sth Cir 1979); In re

Merr' mack Mut. Fire Ins, Co., 587 F2d 642, 647 (Sth Cir 1978), See also

Levy Vv Weissman, 671 F2d 766, 769 & n9 (3rd Cir 1982), See also Note,

Remand Order Review After Thermtron, 1977 Tl L. Forum 1086, 1103-04,

6 Royal v State Farm & Cas Co, 685 F2d 124, 126 (Sth Cir 1982), citing,

Thermtron Products Inc. vy Hermansdorfer, 423 US at 343 (emphasis in

Royal),

"See, eg. Sheet Metal Worker's Ass'n AFL-CIO v Seay, 693 F2d 1000 (10th

Cir 1982); Levy vy Weissman, 671 F2d 766 (3rd Cir 1982); In re Shell Oil

Co., 631 F2d 1156 (Sth Cir 1980); In re Carter, 618 F2d 1093 (5th Cir 1980),

cert denied, 450 US 949 (1981); In re Greyhound Lines, Inc,, 598 F2d 883

(Sth Cir 1979), See also, Ryan v State Bd. of Elections, 661 F2d 1130 (7th

Cir 1981); Merrill, Lynch et al v Gayden, 637 F2d 391, 396 n9 (5th

Cir 1981); Three J. Farms, Inc. vy Alton Bor Bod Co,, 609 F2d 112 (4th

Cir 1979) (mandamus appropriate to vacate vacation of remand); Jn re

Merrimack Mut. Fire Ins. Co., 587 F2d 642 (5th Cir 1978) (although writ

would not lie in case regarding ambiguous order, clearly improper ground

of remand after allowing amendment of nondiverse, nonindispensable

party would warrant issuing the writ).

is authorized to act, it may, nevertheless be our duty to

decide whether or not the action was, indeed, authorized.

Erroneous action taken within authority may not be

corrected; unauthorized acts may be curbed,

Meadows v United States, 665 F2d 1009, 1012 (11th Cir 1982)

(emphasis supplied),

It is apparent, however, that even under this simplified

articulation, the joinder of a nondiverse, nonindispensable party

and basing remand thereon, necessarily mandates inquiry into

the merits of remand; an inquiry not even attempted in this

instance by the Sixth Circuit Court of Appeals.’* See also

Thermtron Products, Inc. vy Hermansdorfer, 423 US at 356

(Rehnquist, J, dissenting). Moreover, whether or not these

same limitations apply to review in this Court was not ad-

dressed in Thermtron or Gravitt. In view of this confusion and

lack of clarity, this Court should grant a writ of certiorari to

clarify and harmonize Thermtron and Gravitt and delineate

when review by mandamus is appropriate in the Court of

Appeals and/or in this Court.

Ill.

The Entry of a “Sham Order” of Remand Calls for this

Court to Exercise Its Power of Supervision Over Respon-

dent and Over the Court of Appeals for Sanctioning His

Conduct. Moreover, This Court Has Never Addressed

Whether It Can and/or Should Exercise That Power

'**Of more importance is the elimination of dissatisfaction by the general

public with our system of jurisprudence, a goal which can best be accom-

plished by reducing the possibility for error and increasing the likelihood

of uniformity of decisions, Congress should seriously consider repeal or

amendment of the removal statutes to allow appellate review of remand

orders. In the interim the judiciary should, at a minimum, reduce the com-

plerity of this issue by inquiring through mandamus into the grounds

underlying those remands which do nothing more than recite the “improvi-

dently removed” and “without jurisdiction” language. Such a policy may

result in the ultimate reduction of delay in the federal courts and even the

elimination of unneccessary litigation, It will certainly have the salutary

consequences of abrogating the abuses which permeate this area of the law

and ultimately advancing the interests of justice.”

Myers, Federal Appellate Review of Remand Orders; Expansion or Eradi-

cation? 48 Miss, LJ, 741, 754 (1977) (emphasis added).

Regarding Such a “Sham Order,’ Notwithstand-

ing 28 USC §1447(d). Additionally, The Question Has Been

Explicitly Cited by Members of This Court as a Ground

for Granting Certiorari and Presents the Court with an

Opportunity to Harmonize Earlier Opinions.

Petitioner further contends that the Respondent's entry of

the September 27, 1982 Remand Order which was thoroughly

dissimilar to the content, substance or tenor of his ruling of

September 23, 1982, constitutes a severable and separate abuse

of discretion reviewable by mandamus, It is respectfully sub-

mitted, that the September 27, 1982 Order is a sham, or at best

an order entered with gross disregard for either the statutes or

due process. By way of background, it is important to note

that there was a breakdown of the adversary processes in

relation to the remand so as to deprive Petitioner of the most

rudimentary aspects of due process of law. Respondent, one

day after transfer of the case to his docket and one day after

the filing of the Motions to Amend and for Remand, orally

ordered counsel to appear at a Remand Hearing the following

day. At that hearing, the Respondent refused to address the

correctness of the original removal as well as Petitioner's

request to present pape.s in opposition and then and there

ordered remand because, he felt, the equities justified it. By

thus acting impetuously and arbitrarily, the Respondent pre-

cluded Petitioner from presenting a legion of arguments as to

why remand was not permitted and further illustrated his

intention to remove the matter from his docket, without regard

to the law.

If this were not enough to establish the non-adversarial and

unconstitutional characteristics of Respondent's con-

duct, it is important to also note what happened subsequent to

the remand hearing. Petitioner adamantly intended on pur-

suing presentment of order proceedings but, again, the adver-

sarial process was aborted by Respondent's sua sponte entry of

the Remand Order before the end of September. Had counsel

been permitted to participate as to the Order’s form, they

would have been able to demonstrate that the record bore

absolutely no resemblance to the language of the Order and

also that no order granting the amendment had ever been en-

tered,

There was absolutely nothing in the Court's September 23,

1982 ruling, counsels’ argument or the moving papers of the

Plaintiffs that intimated improvident removal. Similarly, the

‘standard form’ language (“it appearing that there is no federal

jurisdiction in the above-entitled matter” with the words “lack-

ing total diversity” typed in thereafter), does not comport in

the slightest with the then present posture of the case, the

Court’s rulings or Plaintiffs’ moving papers.

Lest Respondent's mere recitation of the words, “there is no

federal jurisdiction,” lead to the misunderstanding that this

was an erroneous, but nevertheless unreviewable finding, if is

essential to again note that Respondent acknowledged the pres-

ence of diversity jurisdiction prior to considering the motion to

remand because he admitted such was capable of being “destroyed”

if he granted the amendment.

Simply put, the form language of the Remand Order does

not, in the slightest, reflect the content of the Respon-

dent's ruling nor does it contain anything reflecting the real

basis for the remand, i.e., the totally arbitrary finding that

“equity” required the amendment, Moreover, the Order claims

the case “lacks diversity” when in fact no Order of Amend-

ment was ever entered, By entering the Remand Order the

Respondent did not merely compound his error, he imple-

mented one unauthorized act by committing another.

Ironically, the very grounds the Petitioner asserts consti-

tutes a separate ground warranting the use of mandamus, ie.

the entry of an Order that does not in the least comport with

Respondent’s ruling, might sadly be said to be an item which

might altogether preclude review, One Court of Appeals, in

dicta and in acknowledging its understanding of what Gravitt

compels, has stated that a mere recitation of §1447(¢), or of the

grounds therein, automatically insulates a remand order from

review, irrespective of the grounds upon which the Judge has

based his ruling!’ Various scholars have also so read Gravitt

but not without first severely criticizing such a result2° Peti-

tioner recites this state of affairs and understanding of the law

if only to demonstrate the absurdity of the position, Courts

and scholars find it unpalatable that the utterance of a talis-

man by a trial judge makes his actions totally immune from

review of either the circumstances of the case or the extent of

his arbitrariness, Yet, such will continue to be the legacy of

Gravitt unless the Court grants certiorari and thereafter cor-

rects such abuse by issuing its writ of mandamus.

Although the “magic word” understanding of unreview-

ability might arguably be an educated, but exaggerated extrapo-

lation of this Court's precedents, and although it appears to

mandate repudiation, the question has never been faced full

front by this Court, Justice Rehnquist prophetically recited

the issue, and the fact that it would have to be addressed, in

his dissent in Thermtron:

(W)hat if the distriet court does state that it finds no

jurisdiction, using the rubric of §1447(¢), but the papers

"See Royal v State Farm Fire & Cas, Co, 685 Fd 124, 126-27 (th Cir

1982); Jn ore Merrimack Mut, Fire Ins, Co,, 587 Fld at 648 ('Distriet Court

invocation of S1447(e) will preelude review of a remand order no matter

how clearly erroneous the order appears on its face"), Robertson vy Ball,

534 Fed 63, 655th Cir 1975),

"TA district court apparently can insulate its remand order from any

review under Thermtron by mechanically invoking the §1M47(e) grounds

for remand,”

Note, Remand Order Rewmew After Thermtron Products, V977 Tl, 1. Rorum

1086, 1106,

“Southwestern Bell is particularly disappointing in that the Supreme

Court placed emphasis exclusively on rote reeitation of language and gave

no consideration to the erroneous decision-making process underlying the

remand order,” »

Meyers, Federal Appellate Remew of Remand Orders; Expansion on Eradi-

cation? 48 Miss, L. J, 741, 754 (1977),

“Apparently, a remand order whieh so much as mentions “improper

removal” will be precluded from review, Even mandamus will not lie to

prevent a judge from remanding for reasons completely irrelevant to

147(¢) grounds, as long as his order recites “improper removal”

Rible, Federal Courts; Review of the Remand Order, 9 St. Mary's LJ, 274,

285-86 (1977),

plainly demonstrate such a conclusion to be absurd?

Are potential challengers to such an order entitled to

seek the aid of the court of appeals, first to demonstrate

that the order entered by the lower court was a sham

and second to block that order pursuant to today's

decision, If the Court's grant of certiorari and order of

reversal in this case are to have any meaning, it would

seem that such avenues of attack should clearly be open

to potential opponents of orders of remand,

Thermtron Products Ine. v Hermansdorfer, 423 US at 357

(Rehnquist, J., dissenting). Several scholars agree that such a

sham order must be reviewable!

Despite this and the fact that the integrity of the entire

judicial system is undermined when Judges enter “sham”

orders, the Sixth Cireuit Court of Appeals failed to even

discuss the matter, To foreclose review by mandamus, under

such circumstances, would not only serve to emas-

culate Thermtron and the effectiveness of the great prerogative

writ to correct injustice, but reward abuse if “validated” by

hollow recitations. Moreover, in view of the Respondent's

attempt to avoid review of his unconstitutional conduct by

entering an “insulated order,” it is even more compelling that

the caviler and precipitous treatment afforded Petitioner be

subject to review,

For these reasons, it is respectfully urged that this Court

should issue its writ of certiorari and, after a full considera-

tion upon the merits, thereafter either a) issue a writ of

mandamus directly to the Respondent compelling him to

vacate the remand order, or b) direct the Court of Appeals for

"The ineffectiveness of precluding review by evaluating only the face of a

remand order seems clear, If the district judge in Thermtron, who remanded

because of a crowded docket, had simply stated in the order that the case

had been “improperly removed,” his action would have been nonreviewable

under the apparent logic of the per curiam decision in Southwestern Bell,

The purpose of mandamus is to correct discretionary abuse, If such abuse

may be precluded from review simply by masking the remand order as

being pursuant to “improper removal,” the avenue of appeal opened in

Thermtron becomes virtually nonexistent.”

Rible, Federal Courts; Review Of The Remand Order, 9 St, Mary's L. J. at

286,

the Sixth Cireuit to issue a writ of mandamus to the Respon

dent compelling him to vacate said order,

IV.

The Case at Bar Presents the Court with a Unique Oppor-

tunity to; 1) Establish that the 1948 Judicial Code Did Not

Eliminate this Court's Statutory Supervisory Power Over

the Lower Federal Judiciary Derived from §§13-14 of the

Judiciary Act of 1789; 2) Establish that this Court Has

Inherent Supervisory Power Over the Lower Federal Judic-

iary; and, 3) Demonstrate that, Under Certain Circumstances,

Congress Cannot Interfere with Such Powers of this Court,

Although It Can Limit Analogous Powers of the Court of

Appeals, Moreover, These Questions Have Never Been

Definitely Addressed by this Court and Should Be Consi-

dered In View of the Far Reaching Impact They Could

Have Upon Clarifying the Operative Powers, and Limita-

tions Thereon, of the Judiciary and the Congress Under

Article III,

Dissenting in Thermtron, Justice Rehnquist suggested that

in view of the fact that Congress, under Art ITT, $1, had the

sole constitutional prerogative to create the Courts of Appeals

and their jurisdiction, it could, in any fashion, correspondingly

limit that jurisdiction, Thermtron Products Inc. v Hermans-

dorfer, 423 US at 354, citing, Sheldon v Sill, 51 US (8 How) 441

(1850), Petitioner suggested in the Court below that even if this

proposition were not debatable, (but see Sager, The Supreme

Court Term-1980 Forward; Constitutional Limitations on Con-

gress’ Authority To Regulate The Jurisdiction Of The Federal

Courts, 95 Harv. L. Rev. 17, 25-29 (1981)), such rationale could

not dispossess this Court of jurisdiction to correct the other-

wise arbitrary and capricious conduct of Respondent, it being

a constitutional Court not created by Congress, Nevertheless, it

would appear to be the view of at least one (or more) of the

members of this Court that §1447(d) catagorically precludes

review in both the Court of Appeals and this Court, Thermtron

Products Inc. v Hermansdorfer, 423 US at 361 (Rehnquist, J.,

dissenting). However, the Thermtron majority suggested other-

wise, Thus, by granting the writ of certiorari herein prayed

for, this Court not only has the unique opportunity to resolve

this ambiguity but also has the opportunity to establish var-

ious far reaching principles relative to the extent of, and lim-

itations upon the respective powers the Court and the Con-

gress retain relative to the “judicial power” of the United

States.

The reading of §1447(d) by the Sixth Cireuit Court of

Appeals, in the instant matter, squarely puts such issues

before this Court; that review was precluded once the nondi-

verse party was added, and that presentation of grounds inde-

pendent of the remand existed to issue a writ of mandamus

would not be permitted. As a result, the question of whether or

not the same bar does or can apply to the jurisdiction of this

Court is clearly presented,

Simply put, did Congress intend to, or may it constitution -

ally impair the supervisory powers of this Court over the con-

duct of the inferior federal judiciary merely because that con-

duct occurred in the remand context? These questions have

never been addressed, and, due to the fact that they go to the

heart of the operation of the federal judiciary and, correla-

tively, to aspects of the inter-relationship that exists between

Congress and the Federal Courts under Article III, they

require resolution,

First, it is important to recognize that such an impairment

of this Court's power to review and supervise the conduct of

the inferior federal judiciary by mandamus would be to dis-

mantle one of the greatest (and oldest) engines of justice ever

devised, The great prerogative writ of mandamus is said to

have its origins in that clause of the Magna Charta that

declares “nulli vendemus, nulli negabimus, aut differemus rec-

tum vel justitian” — to none will we sell, to none will we deny,

or delay equity or justice. Magna Charta, Cl. 40, See T. Tap-

ping, The Law & Practice of the High Prerogative Writ of Man-

damus 56 (1853), Our common law heritage of the writ being

that last resort to remedying judicial or quasi-judicial abusive

conduct was put most aptly by Lords Mansfield and Wilmot

when they said,

[The Petitioner] has a right to come here for this

writ, this great prerogative writ of mandamus, (a remedy

which turns more, in my opinion, upon principle than

upon precedent;) and we ought to grant it, because

there is no other remedy.

If there is a clear right in [Petitioner], the Court

ought ... to find out a suitable and adequate remedy;

and...even to have made a precedent, if they could not

have found one: for where there is a right, law and jus-

tice require that there should be some remedy or other. . . .”

Rex v Vice-Chancellor of Cambridge University (Earl of Hard-

wicke’s Case), 3 Burr 1648, 1660; 97 E.R. 1027, 1033 (1765)

(Mansfield & Wilmot, L.JJ.). Moreover, there is no doubt that

this noble history was incorporated into our constitutional

framework so as to permit this Court to supervise the inferior

federal courts. See Ex Parte Crane, 30 US (5 Pet) 190, 191-93

(1831) (Marshall, C.J). Indeed, the first judiciary act specifi-

cally authorized it. Judiciary Act of 1789, §13.

Petitioner primarily submits that Congress in enacting 28

USC §1447(d) could not have intended the abrogation of this

Court’s supervisory powers, to be exercised via mandamus in

aid of its appellate jurisdiction and derived from §13 of the

Judiciary Act of 1789, in correction and supervision of the

conduct of the inferior federal judiciary. Particularly must this

be true in those cireumstances where grounds independent of

remand exist for issuance of the writ, for such would clearly

undermine both an independent judiciary and tarnish the

authority of this Court as “Supreme.” And this proposition is

posited, notwithstanding dicta to the contrary, in Ex Parte

Pennsylvania Co., 137 US 451 (1890), which, parenthetically,

appears to have been repudiated in Thermtron Products, Inc. v

Hermansdorfer, 423 US at 343 (review precluded “in the court

of appeals by appeal, by mandamus, or otherwise”).

Second, and ancillary to this contention, this Court has the

rare opportunity to definitely establish that $13 and $14 of the

Judiciary Act of 1789, as they conferred supervisory powers

over the inferior judiciary upon this Court lid in facet survive

incorporation into §§234 & 262 of the Judicial Code of 1911 and

further consolidation into the 1948 revision of the Code in the

All Writs Act, 28 USC §1651(a). See Chandler v Judicial

Council, 398 US 74, 127-28 n.15 (1970) (Harlan, J., concurring).

Third, although this Court’s mandamus jurisdiction has long

been determined to exist only in aid of its appellate jurisdiction

and does not arise originally, Marbury v Madison, 5 US

Cranch) 137, 175 (1803), it is “[b]evond” cavil, the issuance of a

writ of mandamus to an inferior court is an exercise of appel-

late jurisdiction.” Chandler v Judicial Council, 398 US at 96

(Harlan J., concurring), citing, In re Winn, 213 US 458, 465-66

(1909), Additionally, although it is generally agreed that while

Congress may make exceptions to and regulations concerning

the appellate jurisdiction of this Court by virtue of Art. ITT, §2,

Petitioner would submit that there must exist some restric-

tions upon that power, See Sager, The Supreme Court—1980

Term: Foreward, 95 Harv. L. Rev. at 33 & n42. Even assuming

arguendo that such was contemplated by 1447(d), this submis-

sion is particularly compelling when Congress, as here attempts

to restrict a function fundamentally necessary to the operation

of the federal judiciary — supervision of that judiciary by this

Court. Petitioner would also suggest that perhaps the tension

existing between the majority and the dissenters in Thermtron

was an unarticulated disagreement over whether any such re-

strictions do or can exist upon this Congressional prerogative.

Finally, Petitioner further submits that having bestowed

broad powers of supervision upon this Court by virtue of 28

USC §1651(a) or otherwise, Congress cannot constitutionally

abrogate those powers relative to the correction of a Judge’s

abusive conduct even if such conduct occurs in a remand pro-

ceeding. Cf. Thermtron Products Inc. vy Hermansdorfer, 423 US

336. Moreover, even if such power of supervision were not con-

ferred by statute, it is submitted that it does exist for it is

inherently necessary to the operation of this Court as “Su-

preme.” Indeed, Art. ITI, §1 specifically categorizes this Court

as “Supreme” in relation to “inferior courts” and that charac-

terization must, necessarily, carry with it the supervisory abil-

itv to act ‘the part.” Such jurisdiction is, or would have to be

self-effectuating although it is entirely appellate in’ nature.

Therefore, Congressional attempts (eg. §1447(d) as read by the

Court of Appeals) to restrict the supervisory authority of this

Court over Respondent in view of conduct independent of the

remand would patently violate the doctrine of separation of

powers for what lies at the core of Article IT] — the ultimate

authority of this Court to review the acts of the federal ju-

diciary — would be negated,

In view of the uniqueness of the questions discussed, this

Court is respectively urged to grant its writ of certiorart and

review this matter of its merits in order that the respective

roles and limitations the Constitution delegates between this

Court and the Congress under Article ITT may be defined,

Thereafter, it is equally urged, that a writ of mandamus issue

vacating the Remand Order entered by the Respondent,

CONCLUSION

For all of the aforementioned reasons, a writ of certiorari

should issue to review the Order of the United States Court of

Appeals for the Sixth Circuit. Alternatively, a writ of manda-

mus should issue to the Sixth Circuit compelling it to direct

the Respondent to vacate the Order of Remand, or in the

further alternative, this Court should issue a writ of manda-

mus directly to Respondent compelling him to do the same.

Respectfully submitted,

BUSHNELL, GAGE, DOCTOROFF

& REIZEN

BY: GEORGE E, BUSHNELL, JR.

(P11472) (Counsel of record)*

NOEL A. GAGE (P 13786)

CARL J. MARLINGA (P17102)

JOHN K. PARKER (P29563)

Attorneys for Petitioner

3000 Town Center, Suite 1500

Southfield, Michigan 48075

(313) 444-4848

DATED: February 21, 1983

*Admitted to practice before the Bar of this Court on Febru-

ary 22, 1971.

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