Record and brief — Carnegie-Mellon Univ. v. Cohill

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NOe B671U21"°CFX Title: Carnegie=-Melton University, et al., Petitioners

Status: GRANTED Ve

Maurice B. Cohills Jre, Judges United States

District Court for the western District of

Docketed: Pennsylviar et al.

Jecenber 234 1986

Court: United States Court of Appeals

for the Third Circuit

Counsel for petitioner: DeForest III-walter P.

Counsel yor respondent: Solicitor General, OpsitnicksAllan

Entry Date Note Proceedings and Orders

1 Dec é3 4+ S 44D. for writ of 7iprerers filed. e ¢ dad

: a a é Jane YS? KX Briet of resoondent w am arrie Boyle in opposition

EDITOR'S NOTE tiles.

_ : — — DY 5 Jan 28 1987 DISTRIBUTED. Fedruary 20, 1987

> aak Sak ae eee =? fat tee a 4 Fed 17 1987 K Reoly orief of petitioners Carnegie-Mellon Univer et al.

’ ; : : +: ' tiled.

“meme 4 2 mr TAINE CHE

BETTER COPY CAN BE OBTAINED, A NEW FICHE 5 Feo 23 1987 Petition GRANTED.

WILL BE ISSUED, RRRRERRER TERRE REREEREEEERERERERRREERRE REAR ERE EERE eee

ce) Apr 8 1987 JOINt apdencix filed.

7 Aor 8 1987 Sriet of petitioners Carnegie=Mellon Univers et al. filed.

y Aor 23 1987 Order extending time to file brief of respondent on the

merits until June 22, 1987.

1VU May 7 1987 Record filed.

17 May 7 1987 Certified copy of appendix, briefs and partial

proceedings received.

12 Jun 22 1987 Briet of respondent william & Carrie Boyle filed.

15 Jun 22 1987 Brie? amicus curiae of California, et al. filed.

14 Jun 22 1987 Sriet amicus curiae of Department Of Water and Power filed.

15 Jun 29 1987 Record filed.

16 Jul 2 1987 CIRCULATED.

1¢ Aug 31 1987 SET FOR ARGUMENT. Tuesdays November 107 1987. (3re

case).

18 Oct 29 1987 XK Reply oriet of petitioners Carnegie=Mellon Univer et ai.

tiled.

ly Nov 10 1987 ARGUED.

PETITION

FOR WRIT OF

CERTIORARI

86-1021)[, mrs

er ts DEC 23 1986

In the CLERK

Supreme Court of the Umeed Seates

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

Vv.

HONORABLE MAURICE B. COHILL, JR..,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents.

Petition For a Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

*Wacter P. DeForest III

W. THomMas McGouGu, Jr.

Mark A. FONTANA

REED SMITH SHAW & McCLAY

Mellon Square

435 Sixth Avenue

Pittsburgh, Pennsylvania 15219

(412) 288-3383

*Counsel of Record Counsel for Petitioners

for Petitioners Carnegie-Mellon University

and John Kordesich

QUESTION PRESENTED

Whether a district court has authority to remand a

properly removed case to state court for a reason not set

forth in 28 U.S.C. § 1447(c)--i.e., elimination, by amend-

ment of the complaint, of the federal claim that had

formed the basis for removal--a question as to which the

circuits are split and as to which the appellate court below.

sitting in banc, was evenly divided.

TABLE OF CONTENTS

Page

oh oye 8 | ee i

TABLE OF AUTHORITIES............... stoneus TT

PEED sccntovececicesssusteweeueet 2

PEE vecnccdvtcencvabéccsacuhbaceses 3

PPPOE. cccocsesccoceatéeseenasns 3

SEATERGEINE OF Tite CAGE... ww ccc cccees: TTT Ee

REASONS FOR GRANTING THE WRIT.......... 10

I. The Third Circuit's refusal to issue a writ of

mandamus, when the district court admit-

tedly remanded a case for a reason not pro-

vided in 28 U.S.C. § 1447(c), conflicts with

decisions of other courts of appeals on this

BD cocncvencadéuncheéeudunessounesnenee 10

Il. Whether a district court has the power to

remand a properly removed action for rea-

sons other than specified in the controlling

Statute 1s an important question of federal

law that should be settled by this Court ..... 16

OP ee 19

PEED ov cvcacosenssecdaneaceusnne la

TABLE OF AUTHORITIES

CASES

Page

Boelens v. Redman Homes, Inc.,

759 F.2d $04 (Sth Cir. 1985).................. 13

Cook v. Weber,

698 F.2d 907 (7th Cir. 1983)............... 12. 14

Fox v. Custis,

FE Cee I Gs PU ng 6 vk ccc tevccccens 11

In re Greyhound Lines, Inc.,

598 F.2d 883 (Sth Cir. 1979)............... 12. 13

Hofbauer v. Northwestern Nat. Bank of Rochester,

Fao F280 CEP? Gee Cie. 1963S)... . cc ccc ecneee 11

IMFC Professional Services, Inc. v. Latin American

Home Health, Inc.,

ee GE : . 13

Naylor v. Case & McGrath, Inc.,

SE 11

In re Romulus Community Schools,

729 F.2d 431 (6th Cir. 1984)............... 11.14

Ryan v. State Board of Elections,

66) F.28 0450 (ree Cer. 1981)... .....2...26... 12

Shamrock Oil & Gas C orp. v. Sheets,

ee ow cee sieecees 14, 16

Sheet Metal Workers International Association y. Seay,

693 F.2d 1000 (10th Cir. 1982)

modified on other grounds on reh’g,

696 F.2d 780 (10th Cir. 1983)................. 13

In re Shell Oil Co..,

631 F.2d 1156 (Sth Cir. 1980)................. 13

Page

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

Ee Eye 17

Thermitron Products, Inc. v. Hermansdorfer,

ee SD ncaa gkisdueensiewewe passim

United Mine Workers y. Gibbs,

PE ee 9. 11, 13. 14, 15

STATUTES

Judicial Code

CS EE ee ee ee ae 5

re ee 2, 3, 8, 14

ee ee passim

a ene 3

Age Discrimination In Employment Act

abn na wane e663 edse0n in

OTHER AUTHORITIES

1985 Annual Report of the Director of the

Administrative Office of the United

NID LEE OE 18

eu dbo nb bead eee bnas 14

ee ee ehaeenne tne eey 14

pee

gn the

Supreme Court of the Linited States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

HONORABLE MAURICE B. COHILL, JR.,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents.

Petition For a Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

Carnegie-Mellon University (“C-MU”’) and John

Kordesich, Petitioners,' respectfully pray that a writ of cer-

tiorari issue to review the Order of the United States Court

of Appeals for the Third Circuit entered in the above-

entitled case on November 24, 1986. In that Order, the

Third Circuit, sitting in banc upon rehearing, divided five

to five and, accordingly, denied a petition for a writ of

'C-MU has no parent company, affiliates, or subsidiaries, other

than wholly-owned subsidiaries.

mandamus concerning the October 10, 1985 Opinion and

Order of the United States District Court for the Western

District of Pennsy!vania which had permitted Respon-

dents to voluntarily amend their complaint to delete the

federal cause of action for age discrimination and directed

the remand to state court of this case, although the district

court found that this case had been removed properly and

with jurisdiction under 28 U.S.C. § 1441(b).

OPINIONS BELOW

The November 24, 1986 Order of the Third Circuit,

sitting in banc, which denied the petition for the writ of

mandamus because the Third Circuit was equally divided,

is not officially reported and appears as Appendix A (““App.

A”) hereto. The August 29, 1986 Opinion of a panel of the

Third Circuit, which had granted the petition for the writ

of mandamus, is not officially reported but is unofficially

reported at 41 FEP 1046 and appears as Appendix B

(“App. B’’) hereto. The accompanying August 29, 1986

Order granting the petition for writ of mandamus and the

August 29, 1986 writ of mandamus, itself, are not officially

reported and appear as Appendix C (“App. C”) and

Appendix D (“App. D’’) respectively. The September 24,

1986 Order of the Third Circuit, granting Respondents’

petition for rehearing in banc and vacating the panel opin-

ion and the writ of mandamus, is not officially reported

but is unofficially reported at 41 FEP 1888 and appears as

Appendix E (“App. E’’) hereto. The October 10, 1985

Opinion and Order of the district court is not officially

reported and appears as Appendix F (App. F’’) hereto.

JURISDICTION

The Order of the Third Circuit, sitting in banc, upon

rehearing, was entered on November 24, 1986. The juris-

diction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The statutes involved are 28 U.S.C. § 1441 and 28

U.S.C. § 1447. 28 U.S.C. § 1441 provides:

§ 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court

of which the district courts of the United States have

original jurisdiction, may be removed by the defen-

dant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending.

(b) Any civil action of which the district courts

have original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws of the

United States shall be removable without regard to the

citizenship or residence of the parties. Any other such

action shall be removable only if none of the parties in

interest properly joined and served as defendants is a

citizen of the State in which such action is brought.

or cause of action, which would be removabie if sued

upon alone, is joined with one or more otherwise non-

removable claims or causes of action, the entire case

may be removed and the district court may determine

all issues therein, or, in its discretion, may remand all

matters not otherwise within its original jurisdiction.

(d) Any civil action brought in a State court

against a foreign state as defined in section 1603(a) of

this title may be removed by the foreign state to the

district court of the United States for the district and

division embracing the place where such action is

pending. Upon removal the action shall be tried by

the court without jury. Where removal is based upon

this subsection, the time limitations of section 1446(b)

of this chapter may be enlarged at any time for cause

shown.

(e) The court to which such civil action is

removed is not precluded from hearing and determin-

ing any claim in such civil action because the State

court from which such civil action is removed did not

have jurisdiction over that claim.

28 U.S.C. § 1447 provides:

(a) In any case removed from a State court, the

district court may issue all necessary orders and pro-

cess to bring before it all proper parties whether served

by process issued by the State court or otherwise.

(b) It may require the petitioner to file with its

clerk copies of all records and proceedings in such

State court or may cause the same to be brought

before it by writ of certiorari issued to such State

court.

that the case was removed improvidently and without

jurisdiction, the district court shall remand the case,

and may order the payment of just costs. A certified

copy of the order of remand shall be mailed by its

clerk to the clerk of the State court. The State court

may thereupon proceed with such case.

(d) An order remanding a case to the State court

from which it was removed is not reviewable on

appeal or otherwise, except that an order remanding a

case to the State court from which it was removed

pursuant to section 1443 of this title shall be review-

able by appeal or otherwise.

STATEMENT OF THE CASE

William Boyle and Carrie Boyle. the plaintiffs below

(collectively. the “Boyles™), commenced this action by fil-

ing a four count complaint against C-MU and Kordesich

in the Court of Common Pleas of Allegheny County, Penn-

sylvania, on September 7, 1984.

The complaint alleged various causes of action includ-

ing violation of federal and state age discrimination laws.

wrongful discharge in tort, wrongful discharge as breach of

contract, intentional infliction of emotional distress, defa-

mation, misrepresentation, and tortious interference with

a contractual and/or business relationship. The claims set

forth in the complaint arose out of William Boyle’s termi-

nation from employment with C-MU.

On September 21, 1984. C-MU and Kordesich

removed the case to the United States District Court for

the Western District of Pennsylvania. Ihe bases for

removal were the claims in paragraphs |3 and 14 of the

complaint which alleged that William Boyle’s termination

by C-MU was based upon his age, 56, and “was therefore

illegal and improper in violation of the laws of the United

States of America and The Commonwealth of Pennsylva-

nia” and that Boyle was also the victim of discrimination

in not being rehired. Such claims thereby averred a cause

of action subject to federal jurisdiction pursuant to 29

U.S.C. § 626(c\(1) of the federal Age Discrimination In

Employment Act and 28 U.S.C. § 1331. The remova! of the

case was uncontested.

Following its removal, this case was actively litigated.

An answer was filed. C-MU and Kordesich took the depo-

sitions of the Boyles. ‘They also served and obtained

responses to extensive requests for production of docu-

ments, deposed William Boyle’s physician. and reviewed

his medical records. C-MU and Kordesich responded to

the Boyles’ extensive document production requests and

permitted them to review a significant amount of C-MU

documents pursuant to those requests.

In the course of the pretrial proceedings, the Boyles

had sought and obtained several extensions of the discov-

ery period and the dates for filing pretrial narratives. The

district court had originally set March 15, 1985, as the date

of close of discovery, with April 5 and 26, 1985, as the

dates for filing of the parties’ respective pretrial narrative

statements. On March 8, 1985, pursuant to the Boyles’

motion, the district court granted an extension of the dis-

covery period until May 14, 1985, with a corresponding

extension in the dates of filing of pretrial narratives.?

On April 15, 1985, the Boyles filed a motion for leave

to amend the complaint and a motion to remand with the

district court. The Boyles sought leave to amend their

complaint so that they could delete, inter alia, the federal

age discrimination cause of action. In their motion to

remand, the Boyles argued that the case was improvidently

removed within the meaning of 28 U.S.C. § 1447(c) or,

alternatively, that if they were permitted to amend the

- complaint and delete the federal age discrimination claim,

the district court should exercise its discretion and remand

the case. C-MU and Kordesich opposed both motions. In

“These dates were again extended by the district court pursuant to a

second motion for enlargement of time by the Boyles. while their

motion to remand and motion to amend the complaint were pending.

regard to the first motion, C-MU and Kordesich argued,

inter alia, that any removal of such claims from this litiga-

tion should only be through a dismissal with prejudice

(rather than mere voluntary withdrawal) so as to bar any

later reinstitution of such claims by the Boyles. C-MU and

Kordesich opposed a remand to the state court because it

was not authorized under the controlling statute and

because they objected to the Boyles’ manipulation of the

forum in which the case would be decided to the expense,

delay and detriment of C-MU, Kordesich and the judicial

system.

On October 10, 1985, the district court issued its

Opinion and Order granting the Boyles’ motion to amend

the complaint, as well as their motion to remand the case

to state court. App. F. Although the district court held that

the case had not been removed improvidently and without

jurisdiction, it nonetheless remanded the case for discre-

tionary reasons not specified in the controlling statute.

App. F. The district court noted that, by granting the

Boyles’ amendment, the case was reduced to one involving

only state law claims. App. F, at 32a. The district court

held that even though the state and federal claims had

arisen out of “the same nucleus of operative facts,” it

would decline to exercise its jurisdiction over the state

claims and would remand the case back to the state court.

App. F, at 3la-32a.

The district court acknowledged that the “strong

implication” of this Court's decision in Thermtron Prod-

ucts, Inc. vy. Hermansdorfer, 423 U.S. 336 (1976). was that

district courts are limited by reasons provided in the gov-

erning statutes in remanding removed cases. App. F. at

33a. Nevertheless, the district court noted that there was a

split among the various courts of appeals on this issue and

elected to follow those courts of appeals which had permit-

ted the remand of cases for discretionary reasons. App. F,

at 33a-34a. The district court declined to certify the case

for appeal, since it noted that the matter was reviewable

under 7hermtron by means of a petition for writ of manda-

mus. On November 5, 1985, C-MU and Kordesich filed a

petition for writ of mandamus with the court of appeals.

By Order dated December 20, 1985 (Appendix G), the

court of appeals directed the Boyles to file an answer to the

petition for writ of mandamus within twenty days, which

they did.

By Order dated January 27, 1986, the court of appeals

ordered that the case be referred to a merits panel, stating

that “[t}his case presents a novel and important question

of federal jurisdiction.” Appendix H.

By Opinion and Order dated August 29, 1986, the

merits panel granted the petition for writ of mandamus

and directed the district court to vacate its remand order.

Appendices B, C and D. The majority opinion of the mer-

its panel held that there were two statutory provisions

authorizing remand after removal, neither of which per-

mitted remand here. App. B, p. 10a-1 la. The panel major-

ity held that 28 U.S.C. § 1441(c) did not provide a basis for

remand because the state law claims were not “separate

and independent” claims which could be remanded under

28 U.S.C. § 1441(c). The panel majority concurred with the

district court’s finding that the federal and state claims all

arose out of a common nucleus of operative fact, i.e., the

circumstances of William Boyle’s termination. App. B, at

1 la-12a. The panel majority also held that the provisions

of 28 U.S.C. § 1447(c) did not authorize remand because

the case had not been removed improvidently and without

jurisdiction. App. B, at |2a-13a. The panel majority, after

noting the split among the circuit courts, held that this

Court’s decision in Thermiron was controlling and that

remands may not be ordered on grounds not authorized by

statute. App. B, at 13a-15a. The merits panel dissent did

not dispute the absence of any statutory basis for the

remand. Rather, the merits pane! dissent held that,

because the state claims could be dismissed without

prejudice under this Court’s decision in United Mine

Workers v. Gibbs, 383 U.S. 715 (1966), a district court

should be permitted to remand them to state court. App.

B, at 18a. The merits panel dissent relied upon those courts

of appeals that had so held and stated that it believed that

granting the district courts a power to remand was the best

way to protect plaintiffs against statute of limitations

problems. App. B, at 2la-23a. The dissent stated that it

believed that Congress and this Court would have pre-

ferred this result if they had addressed this issue. App. B, at

19a-20a. The writ of mandamus was issued on August 29,

1986. App. D.

By Order dated September 24, 1986, the court of

appeals granted the Boyles’ petition for rehearing in banc

and. accordingly, vacated the panel opinion of August 29,

1986, and the writ of mandamus. App. E. Argument on

rehearing was held on November | 3, 1986. By Order dated

November 24, 1986. the court of appeals. being equally

divided, denied the petition for writ of mandamus. App.

REASONS FOR GRANTING THE WRIT

1. The Third Circuit's refusal to issue a writ of manda-

mus, when the district court admittedly remanded a

case for a reason not provided in 28 U.S.C. § 1447(c),

conflicts with decisions of other courts of appeals on

this issue.

The issue of whether a district court may remand a

properly removed case for reasons not authorized by 28

U.S.C. § 1447(c) has been the subject of considerable judi-

cial interpretation. In Thermtron, 423 U.S. at 342, this

Court held that: “Section 1446 provides the procedure for

removal: and a case removed under that section may be

remanded only in accordance with § 1447...” (footnotes

omitted).’ In the present case, the district court acknowl-

edged that remand was not authorized by the provisions of

§ 1447. App. F, at 3la. The reason stated by the district

court for not following the Thermtron decision was that,

while 7hermtron involved a removal on the basis of diver-

sity of citizenship. the present case was removed on the

basis of a federal claim and, thus, involved pendent juris-

diction over the state law claims. While Petitioners do not

agree with this purported distinction of Thermtron, the

various courts of appeals have divided over the applicabil-

ity of Thermtron beyond the specific factual situation

involved there.

‘In Thermtron. the district court had remanded a properly removed

case because it determined that, due to a congested docket, an adjudica-

tion of the merits of the case would be expedited by remand. 423 US. at

339. The Sixth Circuit demed a petition for a writ of mandamus. /d. at

341-42. This Court granted a petition for a writ of certiorari and

reversed the Sixth Circuit. /d. at 342.

The Court of Appeals for the Sixth Circuit has inter-

preted Thermtron as being prompted by the “extreme cir-

cumstances of that case.” Jn re Romulus Community

Schools, 729 F.2d 431, 436 (6th Cir. 1984). In this decision,

the Sixth Circuit stated: “If Thermtron was intended to

eliminate all discretionary, nonstatutory grounds for

remands, the decision has not uniformly had that effect.

Indeed, the circuits are severely split over the question.”

729 F.2d at 438. Notwithstanding the above-quoted lan-

guage of this Court in the 7hermiron decision, the Sixth

Circuit held that district courts do have the power to

remand cases where the plaintiff voluntarily amends the

complaint to delete the federal claim. 729 F.2d at 440. The

Sixth Circuit, after noting that United Mine Workers vy.

Gibbs, 383 U.S. 715 (1966), permits dismissal of state

claims in certain circumstances, held that the district

courts have the discretion to remand state claims, where

deemed appropriate, even if the statutory requisites of 28

U.S.C. § 1447(c) have not been met. 729 F.2d at 439-40.

The Sixth Circuit apparently concluded that if the district

courts have the power to dismiss the state claims under

Gibbs. they could remand them instead. 729 F.2d at 439-

40. We discuss the flaws in this theory infra at 13-15.

The Fourth, Eighth and Second Circuits have also

held that remands may be made for reasons not set forth in

28 U.S.C. § 1447(c). In Fox v. Custis, 712 F.2d 84, 89-90

(4th Cir. 1983) the Fourth Circuit held that the state claims

should be remanded after the federal claim was dismissed

(there involuntarily). Hofbauer v. Northwestern Nat. Bank

of Rochester, 700 F.2d 1197, 1201 (8th Cir. 1983) was a

similar holding. Naylor v. Case & McGrath, Inc., 585 F.2d

557, 561-62 (2d Cir. 1978) held that state claims should be

remanded even after a voluntary dismissal of federal

claims. It is startling that none of these three decisions

even discussed Thermtron.

On the other side of the conflict, the Seventh, Fifth

and Tenth Circuits have held that remands are not proper

unless made for reasons set forth in 28 U.S.C. § 1447(c). In

Cook v. Weber, 698 F.2d 907, 909 (7th Cir. 1983), the

Seventh Circuit held that remand of the state law claims is

not permitted, notwithstanding even an involuntary dis-

missal of the federal claim that provided the basis for the

removal.

The Seventh Circuit stated:

Removal jurisdiction is based entirely on statutes,

which are to be strictly construed in keeping with con-

gressional intent to limit the right of removal ov. of

concern for state courts’ independent jurisdiction.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Lib-

hart v. Santa Monica Dairy Co., 592 F.2d 1062. 1064

(9th Cir. 1979). In keeping with and in effectuation of

congressional policy as to removal we hold that the

basis for remanding a removed case must be grounded

on federal statutory authority.

698 F.2d at 909. In Rvan v. State Board of Elections. 661

F.2d 1130, 1133-34 (7th Cir. 1981), the Seventh Circuit

held that remands are not permitted for discretionary rea-

sons, such as abstention, which are not authorized by 28

U.S.C. § 1447(c).

In the case of Jn re Grevhound Lines, Inc., 598 F.2d

883, 884-85 (Sth Cir. 1979), the Fifth Circuit issued a writ

of mandamus precluding a remand by the district court in

a Situation virtually identical to the present case. Le.,

where the plaintiff had voluntarily dismissed the federal

claim and contemporaneously requested and obtained a

remand of the state claims. In the case of Jn re Shell Oil

Co., 631 F.2d 1156, 1158 (Sth Cir. 1980), a writ of manda-

mus was issued by the Fifth Circuit where a suit had been

remanded for lack of opposition to the remand, citing

Thermtron as permitting remands only in accordance with

28 U.S.C. § 1447.4

In Sheet Metal Workers International Association v.

Seay, 693 F.2d 1000, 1002-06 (10th Cir. 1982), modified on

other grounds on reh’g, 696 F.2d 780 (10th Cir. 1983), the

Tenth Circuit also held that remands could not be granted

for a reason not specified in 28 U.S.C. § 1447(c) (there the

district court had remanded because the state court, which

could provide more complete relief, was the more equita-

ble forum).

Thus, the Third Circuit’s refusal to issue a writ of

mandamus here, where the district court candidly admit-

ted (App. F at 3la-34a) that the remand was based upon a

reason not provided for in 28 U.S.C. § 1447(c). directly

conflicts with the decisions of the Seventh, Fifth and Tenth

Circuits.

The merits panel dissent in this case concluded that

“specific statutory authority is not necessary [to remand]

and that this matter is governed by United Mine Workers

‘In IMFC Professional Services, Inc. vy. Latin American Home

Health, Inc., 676 F.2d 152. 159-60 (Sth Cir. 1982). a panel of the Fifth

Circuit held that there was discretion to decline jurisdiction over claims

against non-federal defendants once all claims against a federal defen-

dant (which had provided the basis for removal) were dismissed. finding

that the dismissal of the federal defendant made the case one “removed

improvidently and without jurisdiction” and thus subject to remand

under 28 U.S.C. § 1447(c). In a subsequent opinion, the Fifth Circuit

indicated that Jn re Greyhound Lines, Inc., is still good law. Boelens v.

Redman Homes, Inc., 759 F.2d 504, 507 n.2 (Sth Cir. 1985).

v. Gibbs, 383 U.S. 715 (1964) rather than Thermtron...”

App. B, at 18a. Under the Third Circuit's Orders subse-

quently vacating the panel majority opinion and denying

the petition for a writ of mandamus, the district court 1s, in

fact, being permitted to remand this case even though

there is no statutory authority permitting such action. The

Sixth Circuit’s decision in Jn re Romulus Community

Schools, supra, 729 F.2d at 436, also relied in part upon

Gibbs.

However, there are a number of reasons why this

Court’s decision in Gibbs does not authorize remands

absent statutory authority and does not undercut the clear

import of Thermtron, which was decided ten years after

Gibbs. First, it should be noted that Gibbs involved a situa-

tion where there had been an involuntary dismissal of the

federal claims, not a tactical dismissal by the plaintiff as we

have here. In fact, Gibbs reflects an abhorrence of the

notion that a plaintiff could manipulate the forum.‘ Sec-

ond, Gibbs did not involve a removed case. Removal juris-

diction is based entirely upon statutes which are to be

strictly construed. Cook, 698 F.2d at 909, citing Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).

Third, Gibbs involved the dismissal of an action which is a

power traditionally available to the district courts. F.g.,

Fed. R. Civ. P. 12(b) and (h) and 41. There is no compara-

ble traditional power in the federal courts to transfer or

remand cases to the state courts. Fourth, remand of an

action is not the functional equivalent of a dismissal.

There are crucial distinctions between a remand and a

‘This Court in Gibbs noted that a plaintiff should not be permitted

to “impose” upon the court a choice of forum by the nature of the

pleadings (there the manipulation hypothesized was an attempt by a

plaintiff to impose federal court jurisdiction by the shaping of the plead-

ings). 383 U.S. at 726-27.

dismissal, affecting, inter alia, the application of the statute

of limitations, the priority of the case upon its return to

state court, and even the right to and scope of appellate

review of the district court’s order. Cook, 698 F.2d at 908.

Thus, this Court’s decision in Gibbs did not and could

not create a power to remand a removed action, which is

Statutory in nature. In this regard, it should be noted that

Congress could have easily provided, through statutory

language, a power to remand in specific situations, such as

where the federal claim was dismissed, or even could have

provided a general discretionary power to remand. In fact,

Congress chose to provide language in 28 U.S.C. § 1441(c)

allowing remands at the district court’s discretion in situa-

tions involving state claims separate and independent

from the federal claims. However, no such discretionary

language was provided in 28 U.S.C. § 1447(c). The Con-

gressional judgment should be respected. A district court

should not be permitted to remand a case for reasons other

than those specified in the controlling statute. 7hermtron,

423 U.S. at 342.

The eight circuits discussed above, which have specifi-

cally considered this issue, are badly divided. Four have

held that the district courts can remand for reasons not

specified in the controlling statute. Three circuits have held

that such remands are improper. The Third Circuit has,

itself, divided over this issue. Clearly, there should be a

single answer to this question. Only this Court can resolve

this direct conflict.

Il. Whether a district court has the power to remand a

properly removed action for reasons other than speci-

fied in the controlling statute is an important question

of federal law that should be settled by this Court.

The question presented for review concerns the very

jurisdiction of the federal courts and their powers. It raises

the issue of whether the federal district courts have some

general power, not dependent upon statute, to issue orders

transferring cases to state courts, and whether that power

exists even in removed cases where their jurisdiction is

» specially controlled by statute.®

The Third Circuit explicitly recognized that this case

presented an “important question of federal jurisdiction.”

App. H. Unfortunately, the Third Circuit divided five to

five and was unable to resolve the question. Thus, litigants

and district courts in the Third Circuit are currently in a

State of uncertainty as to a litigant’s rights and a district

court’s powers in this area.

Moreover, the existence of an option in the district

court to remand a case for non-statutory reasons will not

deter and may well cause the inclusion of carelessly consid-

ered federal claims in state court complaints. Plaintiffs will

realize that, if a case is removed to federal court, they can

drop the federal claim and seek a remand, with a high level

of confidence that it will be granted, because, after deletion

of the federal claim, the state law claims will inevitably

predominate, as was found here. Thus, the approach taken

by the courts in the present case does not discourage the

inclusion of poorly considered federal claims or the waste

of resources of both litigants and the courts through need-

less removal and remand proceedings.

‘Shamrock Oil & Gas Corp., 313 U.S. at 108-09.

The potential for jockeying and manipulation of

forums by amendment of the complaint—which arises

from a rule that permits remands for reasons not provided

in the controlling statute—is also an important considera-

tion that supports the review and reversal of the lower

courts’ orders in this case. This Court has previously recog-

nized the importance of precluding the manipulation of

the forum. In St. Paul Mercury Indemnity Co. v. Red Cab

Co., 303 U.S. 283 (1938), which concerned the predecessor

to 28 U.S.C. § 1447, the Seventh Circuit had held that a

district court should have remanded to state court a prop-

erly removed diversity case after the plaintiff filed a second

amended complaint with an exhibit indicating that the

plaintiffs damages were less than the requisite jurisdic-

tional amount. 303 U.S. at 285.

This Court, in reversing the Seventh Circuit, held that:

If the plaintiff could, no matter how bona fide his

original claim in the state court, reduce the amount of

his demand to defeat federal jurisdiction the defen-

dant’s supposed statutory right of removal would be

subject to the plaintiff's caprice. The claim, whether

well or ill founded in fact, fixes the right of the defen-

dant to remove, and the plaintiff ought not to be able

to defeat that right and bring the cause back to the

State court at his election.

303 U.S. at 294. In the present case, the Boyles filed a

motion to amend their complaint and a motion to remand

wherein they explicitly requested a remand on the basis

that their federal claim would be deleted by the amend-

ment. This is the type of manipulation of the forum that

St. Paul Indemnity Co. deplores and proscribes.

A district court’s power to remand cases for reasons

not specified in 28 U.S.C. § 1447(c) is neither an isolated

nor a rarely occurring issue as established by the number of

circuit court decisions on this issue cited hereinabove. This

is understandable because a significant number of cases are

removed to the federal district courts each year.’

Finally, the fact that a number of the courts of appeals

have failed to heed the language of the Thermtron deci-

sion, in our view, makes this an important matter. The

lower courts and litigants obviously need further direction

from this Court upon the question of a district court's

powers to remand cases.

"For the twelve-month period ended June 30, 1985, there were

17.439 cases filed in the federal district courts as removals from state

courts. 1985 Annual Report of the Director of the Administrative Office

of the United States Courts at 136. This constituted 6.4 percent of the

cases filed that year. Jd. This percentage of new filings has remained

relatively constant over the past ten years. /d.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be granted.

Respectfully submitted,

*Wacrer P. DeForest Ill

W. THomas McGoucu, Jr.

Mark A. FONTANA

REED SMITH SHAW & McCLAY

Mellon Square

435 Sixth Avenue

Pittsburgh, Pennsylvania 15219

(412) 288-3383

Counsel for Petitioners

Carnegie-Mellon University

and John Kordesich

December 23, 1986

*Counsel of Record for Petitioners

APPENDIX A

United States Court of Appeals

For THe THirpd Circuit

No. 85-3619

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners

VS.

HONORABLE MAURICE B. COHILL., JR.,

United States District Judge,

Nominal Respondent

and

WILLIAM BOYLE AND CARRIE BOYLE,

Respondents

(W.D. Pa. Civil No. 84-2285)

Argued

April 29, 1986

Before: SLOVITER and STAPLETON, Circuit Judges,

and LONGOBARDI, District Judge.*

Argued In Banc

November 13, 1986

Before: ALDISERT, Chief Judge, and SEITZ, ADAMS,

GIBBONS, WEIS, HIGGINBOTHAM, SLOVITER,

BECKER, STAPLETON and MANSMANN,

Circuit Judges.

ORDER

The court in banc being equally divided, it is

ORDERED AND ADJUDGED that the petition for a writ

of mandamus be and is hereby denied.

*Honorable Joseph J. Longobardi, United States District Judge for the

District of Delaware. sitting by designation.

Each side to pay its own costs.

DATED: NOV 24, 1986

BY THE COURT,

ALDISERT .

Chief Judge

APPENDIX B

United States Court of Appeals

For THe Trirp Circuit

No. 85-3619

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners

HONORABLE MAURICE B. COHILL, JR..,

United States District Judge.

Nominal Respondent

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents

ON Petition FOR Writ OF MANDAMUS

ORIGINAL PROCEEDING

(Revarep to W.D. Civit No. 84-2285)

Argued April 29, 1986

Before: SLOVITER and STAPLETON, Circuit Judges,

and LONGOBARDI, District Judge*

(Opinion filed August 29, 1986)

*Hon. Joseph J. Longobardi, United States District Court for the

District of Delaware, sitting by designation

Wacrer P. Di Forest (ARGUED)

Mark A. Fontana

Reed, Smith, Shaw & McClay

Pittsburgh. PA 15219

Attorneys for Petitioners

ALLAN J. Opsitnick (ARGUED)

Hickton & Opsitnick

Pittsburgh, PA 15219

Attorney for Respondents

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This petition for mandamus requires us to decide

whether the district court has the power to remand to state

court a properly removed action after the complaint has

been amended to delete all federal claims.

Facts and Procedural History

The facts in this case are briefly stated. William and

Carrie Boyle initiated this action in the Court of Common

Pleas of Allegheny County, Pennsylvania, against

Carnegie-Mellon University and John Kordesich, an

employee of Carnegie-Mellon, complaining of the termina-

tion of William Boyle's employment. The complaint

alleges William Boyle was discharged because he refused to

accept blame or guilt in connection with improper billings

and certain thefts at the University.

In the complaint, William Boyle alleged causes of

action against Carnegie-Mellon for wrongful discharge in

tort, intentional infliction of emotional distress, defama-

tion, misrepresentation, and breach of express and implied

contracts. The complaint also alleges many of these same

causes of action against Kordesich, who was William

Boyle’s supervisor at Carnegie-Mellon. Carrie Boyle

brought suit against Carnegie-Mellon and Kordesich for

loss of consortium, loss of companionship, loss of her hus-

band’s household services and “income expectancy”, and

“loss of life’s pleasures.”

In addition to the Boyles’ state law claims, Count I| of

the complaint, titled “William S. Boyle vs. Carnegie

Mellon University—In Trespass,” contains the following

language:

Said termination [of Boyle’s employment] was also

based upon Boyle's age, 56, and was therefore illegal

and improper in violation of the laws of the United

States of America and the Commonwealth of

Pennsylvania.

App. at 7a. No other portion of the complaint elaborates

on this claim or makes any further reference to federal law.

and it appears the parties are not diverse. .

Based on the reference to age discrimination,

Carnegie-Mellon and Kordesich (hereafter referred to col-

lectively as Carnegie-Mellon) removed the case on Septem-

ber 21, 1984 to the federal District Court for the Western

District of Pennsylvania. The Boyles did not contest

removal or move to remand.

On April 15, 1985, after a period of discovery, which

was extended by the district court at the Boyles’ request.

the Boyles moved to amend their complaint to delete the

causes of action for age discrimination and defamation

and the request for damages for loss of consortium. The

Boyles gave as the reason for the proposed amendment

that “certain causes of action alleged... are not tenable

and [they] feel that it would be highly unlikely that they

would succeed.” App. at 70a-7la. In discovery. it was dis-

closed that William Boyle had never filed any age discrimi-

nation charge with a federal or state agency, a prerequisite

for suit under the Age Discrimination in Employment Act.

See 29 U.S.C. §§ 626(d), 63d).

At the same time as the motion to amend, the Boyles

filed a motion to remand the case to state court because it

would no longer contain any federal causes of action. The

district court granted the motion to amend the complaint

without discussion, and Carnegie-Mellon has not chal-

lenged this ruling. The court then ordered remand to the

Pennsylvania state court. The court recognized that neither

28 U.S.C. § 1447(c) nor 28 U.S.C. § 1441(c), the two statu-

tory provisions authorizing remand, were applicable in

this case. It nonetheless held that because it had the discre-

tion to dismiss an action from which all federal claims had

been deleted, it also had the discretion to remand a case

under like circumstances.

Carnegie-Mellon appealed this decision and also filed

a petition for mandamus against the district judge, Chief

Judge Cohill, who 1s the nominal respondent here. Appeals

from remand orders are barred with an exception not

applicable here. 28 U.S.C. § 1447(d), and the appeal was

accordingly dismissed. The issue of mandamus is now

before us.

Il.

Mandamus Jurisdiction

We consider first whether mandamus is an available

vehicle to challenge the remand. The Boyles argue that

even if the district court committed error, it is not of the

“magnitude” to justify issuance of a Writ of Mandamus.

Mandamus is, of course, not to be used as a substitute

for appeal, or to thwart the strong congressional policy

against piecemeal appeals. Parr v. United States, 351 U.S.

513, 520-21 (1956). The writ, however, is “appropriately

issued . . . when there is ‘usurpation of judicial power’ or a

clear abuse of discretion.” Schlagenhauf v. Holder, 379

U.S. 104, 110 (1964) (quoting Bankers Life & Casualty Co.

v. Holland, 346 U.S. 379, 383 (1953)). One of its principal

uses is, as in this case, to confine federal courts to the

proper exercise of their limited statutory jurisdiction. See,

e.2., Hoffman v. Blaski, 363 U.S. 335 (1960).

The Supreme Court has made clear that “[a]bsent stat-

utory prohibitions, when a remand order is challenged by a

petition for mandamus in an appellate court, ‘the power of

the court to issue the mandamus would be undoubted.’ ”

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

353 (1976) (quoting Jn re Pennsylvania Co., 137 U.S. 451,

453 (1890)). The Thermtron Court further stated that man-

damus is available ““where the district court... has

remanded [a case] on grounds not authorized by the

removal statutes.” Thermtron, 423 U.S. at 353; accord

Levy v. Weissman, 671 F.2d 766, 768-69 (3d Cir. 1982).

This is precisely the situation presented in this case, and,

therefore, mandamus is available to Carnegie-Mellon to

challenge the remand order.

Ill.

Discussion

A. The District Court's Jurisdiction

In deciding whether the district court had authority to

remand this case to state court, we must first determine

whether the district court had subject matter jurisdiction

over the action at all in the first instance. All parties have

treated the assertion in the Boyles’ complaint that William

Boyle’s discharge violated federal age discrimination laws

as an attempt to state a claim under the federal Age Dis-

crimination in Employment Act, 29 U.S.C. §§ 621-34

(1982) (ADEA). Thus, removal here was pursuant to 28

U.S.C. § 1441(b), which allows for removal of civil actions

over which “the district courts have original jurisdiction

founded on a claim or right under the Constitution, trea-

ties or laws of the United States.”

It has been an idiosyncrasy of federal jurisdiction that

even if an action could have been filed originally in a

federal court, that court does not have jurisdiction over a

removed case if the state court from which it was removed

did not also have jurisdiction. See Lambert Run Coal Co.

v. Baltimore & Ohio Railroad Co., 258 U.S. 377, 382

(1922); 1A J. Moore & B. Ringle, Moore's Federal Practice

§ 0.157[3.-1] at 55-56 (2d ed. 1986). This rule stems from

the derivative nature of removal jurisdiction.

Recently, Congress has sensibly changed this anoma-

lous situation by providing the following addition to 28

U.S.C. § 1441:

(e) The court to which such civil action is

removed is not precluded from hearing and determin-

ing any claim in such civil action because the State

court from which such civil action is removed did not

have jurisdiction over that claim.

Judicial Improvements Act of 1985, Pub. L. No. 99-336

§ 3, 100 Stat. 633 (1986). This amendment applies only to

actions filed in state court after the date of its enactment,

and thus in this case we must still determine if jurisdiction

under the ADEA is exclusive to federal courts. If so, the

Pennsylvania court did not have jurisdiction over this

claim, and the district court could not have derived juris-

diction on removal.

The district court analogized jurisdiction under the

ADEA to jurisdiction under Title VII of the Civil Rights

Act of 1964, and concluded that although the courts are

divided over whether jurisdiction under Title VII was

exclusive to federal courts, the better view was that Title

VII jurisdiction was concurrent in state and federal courts.

We need not decide if the Title VII analysis is correct

because the question is more easily resolved by reference

to the language of the ADEA. The ADEA provides that any

person may bring an action for legal or equitable relief “in

any court of competent jurisdiction.”’ 29 U.S.C.

§ 626(c)(1). In addition, the provision of the Fair Labor

Standards Act, 29 U.S.C. § 216(b), which provides that an

action may be maintained “in any Federal or State court of

competent jurisdiction”! is incorporated into the ADEA.

29 U.S.C. § 626(b).

These provisions signify that Congress intended both

State and federal courts to have jurisdiction over suits

brought under the ADEA. The statutory language is clear

and nothing in the legislative history is to the contrary.

' We note that by contrast, Title VII provides oniy that “{ejach

United States District Court... shall have jurisdiction of actions

brought under™ the Act, 42 U.S.C. § 2000e-5(f)(3).

10a

This conclusion is in accord with the few federal cases we

have found that have considered this question. See Bald-

win v. Sears, Roebuck & Co., 667 F.2d 458, 460-61 (Sth

Cir. 1982); Jacobi v. High Point Label, Inc., 442 F. Supp.

518, 519-20 (M.D.N.C. 1977). We hold, therefore, that

because the Pennsylvania court had jurisdiction over the

ADEA claim, the Boyles’ action was properly removed

from state to federal court.

B. Propriety of Remand

Once the district court granted the Boyles’ motion to

amend their complaint to remove the ADEA claim, only

state law claims remained. The district court decided that

although these claims arose out of “the same nucleus of

operative facts” as the federal claim, this was not an appro-

priate case to exercise pendent jurisdiction pursuant to

United Mine Workers of America v. Gibbs, 383 U.S. 715,

725-27 (1966). This would ordinarily have entailed dismis-

sal of the action without prejudice to the Boyles’ right to

refile their claim in state court. /d.

Here, because the case originally had been removed

from state court, the district court decided to remand. The

court acknowledged that no statute authorized the remand

and that the Supreme Court's decision in Thermtron Prod-

ucts, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), seemed,

in fact, to foreclose it, but it concluded that Thermtron was

distinguishable. Carnegie-Mellon argues that Thermtron

and this court’s decision in Levy v. Weissman, 671 F.2d

766 (3d Cir. 1982), preclude a district court from remand-

ing on the basis of grounds not specified in the controlling

Statute.

There are two statutory provisions authorizing

remand after removal. The district court held that neither

lla

authorized remand in this case, and we agree. The first, 28

U.S.C. § 1441(c), gives district courts discretion to remand

“separate and independent” nonremovable claims or

causes of action when those claims are joined with a

removable claim.’ The district court correctly found that

Boyles’ claims all arose out of a common nucleus of opera-

tive fact and thus that the claims in this case were not

“separate and independent” for purposes of 28 U.S.C.

§ 1441(c). This conclusion follows from the leading

Supreme Court decision interpreting this provision, Amer-

ican Fire & Casualty Co. vy. Finn, 341 U.S. 6 (1951). The

Court held that,

where there is a single wrong to plaintiff, for which

relief is sought, arising from an interlocked series of

transactions, there is no separate and independent

claim or cause of action under § 1441(c).

Id. at 14. Thus, §& 1441(c), as interpreted in Finn, is

intended to apply to situations where the various claims in

a single complaint arise from different factual bases.

The application of the Finn rule has caused some diffi-

culty, see 14A C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure § 3724 at 366 (2d ed. 1985), but a

straightforward application of the rule demonstrates that

§ 1441(c) does not provide a basis for remand in this case.

All the Boyles’ claims arise from William Boyle’s termina-

tion by Carnegie-Mellon. This is indisputably a “single

728 U.S.C. § 1441(c) provides in full:

action, which would be removable if sued upon alone, is joined

with one or more otherwise non-removable claims or causes of

action, the entire case may be removed and the district court may

determine all issues therein, or, in its discretion, may remand all

matters not otherwise within its original jurisdiction.

12a

wrong”, and, therefore, § 1441(c) does not provide a basis

to remand.

The second provision, 28 U.S.C. § 1447(c), requires

remand if the district court finds “that the case was

removed improvidently and without jurisdiction.””’

Although the terms “improvidently” and “without juris-

diction” are joined conjunctively, many decisions treat

them as independent grounds for remand. See, e.g., Ryan

v. State Board of Elections of State of Illinois, 661 F.2d

1130, 1133 (7th Cir. 1981). “Improvidently” generally

refers to failure of the removing party to satisfy a statutory,

nonjurisdictional requirement for removal, such as posting

of a bond or removing within 30 days of the service of the

initial pleading. See, e.g., In re Merrimack Mutual Fire

Insurance Co., 587 F.2d 642, 645-47 & nn. 3 & 8 (Sth Cir.

1978). This term in the statute does not vest the district

court with discretion to remand a properly removed case.

See IMFC Professional Services of Florida, Inc. v. Latin

American Home Health, Inc., 676 F.2d 152, 159 n.14 (Sth

Cir. 1982). Similarly, the term “without jurisdiction”

clearly refers to situations in which the district court is

lacking jurisdiction over the removed case.

Neither of these provisions is applicable in this case.

The removal of the Boyles’ action was not legally defective

in any way that the parties have identified or that we have

been able to discern, and there are no discernible jurisdic-

tional defects. Thus, we are squarely confronted with the

‘28 U.S.C. § 1447(c) provides:

was removed improvidently and without jurisdiction, the district

court shall remand the case. and may order the payment of just

costs. A certified copy of the order of remand shall be mailed by its

clerk to the clerk of the State court. The State court may thereupon

proceed with such case.

13a

issue whether the district court has discretion to remand a

properly removed case.

In Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336 (1976), the Court held that a district judge erred

as a matter of law in remanding a properly removed case

to state court because his docket was overcrowded. /d. at

344-45. The Court criticized the district court’s action in

strong terms, stating that,

an otherwise properly removed action may no more

be remanded because the district court considers itself

too busy to try it than an action properly filed in the

federal court in the first instance may be dismissed or

referred to state courts for such reason.

Id. at 344. In reaching this conclusion, the Court stated:

“The District Court exceeded its authority in remanding

on grounds not permitted by the controlling statute.” /d. at

345. In a footnote, the Court added:

Lower federal courts have uniformly held that cases

properly removed from state to federal court within

the federal court’s jurisdiction may not be remanded

for discretionary reasons not authorized by the con-

trolling statute.

Id. at 345 n.9 (citations omitted). Finally, in holding that

mandamus was available to redress the district court's

action, the Court stated:

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

remanding cases on grounds that seem justifiable to

them but which are not recognized by the controlling

Statute.

Id. at 351.

Interpretation of Thermtron has divided the Courts of

Appeals. The Seventh Circuit has held that 7Thermtron

imposes a rigid rule limiting remand to those grounds

specified in the statutes. See Ryan v. State Board of Elec-

tions, 661 F.2d 1130, 1133-34 (7th Cir. 1981), see also

Cook v. Weber, 698 F.2d 907, 909-10 (7th Cir. 1983). In a

slightly different context, the Tenth Circuit has come to the

same conclusion. See Sheet Metal Workers International

Association v. Seay, 693 F.2d 1900 (10th Cir. 1982). Early

post-7hermtron cases in the Fifth Circuit suggested that

the court viewed Thermtron as laying down a hard and fast

rule against non-statutory remand. See Jn re Greyhound

Lines, Inc., 598 F.2d 883, 885 (Sth Cir. 1979), Jn re Merri-

mack Mutual Fire Insurance Co., $87 F.2d 642 (Sth Cir.

1978). But see 1MFC Professional Services of Florida, Inc.

v. Latin American Home Health, Inc., 676 F.2d 152, 159-

60 (Sth Cir. 1982).

On the other hand, the Sixth Circuit has squarely held,

on facts analogous to those presented here, that the district

courts have discretion to remand a properly removed

action when the federal causes of action have been

removed from the complaint. See Jn re Romulus Commu-

nity Schools, 729 F.2d 431 (6th Cir. 1984). Other circuits

have come to similar results, but without discussing or

even citing to Thermtron. See Fox v. Custis, 712 F.2d 84,

89-90 & n.4 (4th Cir. 1983); Hofbauer v. Northwestern

National Bank of Rochester, 700 F.2d 1197. 1201 (8th Cir.

1983); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561-

63 (2d Cir. 1978).

This court followed Thermtron in Levy v. i eissman,

671 F.2d 766 (3d Cir. 1982). Defendant in a properly

removed action failed to comply with a local district court

rule that required pro se litigants to file an address within

the district where documents could be served. Defendant's

motion challenging the constitutionality of this rule was

denied, and afier defendant failed to comply with the

court's order, the court remanded the case to state court as

a sanction. We granted defendant's petition for mandamus

and, relying on Thermtron, stated the applicable law as

follows:

Where a case has not been removed improvidently or

where subject matter jurisdiction exists, remand is

inappropriate and a federal trial court has no jurisdic-

tion to enter a remand order.

Id. at 768 (footnote omitted).

The holdings in Thermtron and Levy that remand

may not be ordered on grounds not authorized by statute

control our decision today. The district court was instead

persuaded by the Sixth Circuit view that the Supreme

Court’s “forceful pronouncement in Thermtron against

remands unauthorized by statute were prompted by the

extreme circumstances of that case.” Jn re Romulus Com-

munity Schools, 729 F.2d at 436. No language in Therm-

tron limits the Court's holding to the particular circum-

stances of that case.

With respect, we reject the reasoning of the Romulus

court and Judge Stapleton that because pendent jurisdic-

tion as construed in Gibbs affords clear authority for dis-

muissal of a case in which all federal claims have been

dropped. the district court may instead remand the

remaining state claims to state court. Jd. at 436-40. We are

not as “confident” as Judge Stapleton in predicting how

the Supreme Court would have decided Gibbs had the case

arisen in a removal context. Instead of depending on such

prescience, we rely on what that Court stated in Thermtron

16a

ten years after Gibbs. What it stated is directly applicable

here.

Moreover, the Thermtron Court's holding is merely an

application of the fundamental constitutional principle

that the jurisdiction of the inferior federal courts is depen-

dent upor specific statutory authorization. Although the

Romulus court and Judge Stapleton base their position on

plausible policy reasons, primarily to insure a state forum

for state claims, we believe those reasons are best

addressed to Congress.

If we were to hold that federal courts may remand

cases to state courts for reasons not specified in federal

statutes, we would nullify Congress’ effort to delineate the

narrow circumstances in which remand is to be permitted.

We would also frustrate Congress’ purpose in providing a

right of removal, since a defendant who exercises that right

might thereafter be subject to duplicative and costly subse-

quent state proceedings. See Cook v. Weber, 698 F.2d at

909. Furthermore, allowing plaintiffs to obtain remands by

dropping their federal claims could encourage manipula-

tive and strategic remands. Indeed. in this case, Carnegie-

Mellon suggests that the amendment and remand was

sought because, after much effort and expense to it, the

case was now ripe for summary judgment or trial.

Finally, if the district court can remand solely as a

matter of its discretion, as distinguished from pursuant to

narrowly drawn statutory authority, there will be no effec-

tive boundaries to the exercise of its discretion. “The writ

of mandamus is not to be used when ‘the most thui could

be claimed is that the district courts have erred in ruling on

matters within their jurisdiction.” See Schliagenhauf v.

Holder, 379 U.S. 104, 112 (1964) (quoting Parr v. United

States, 351 U.S. $13, 520 (1956)).

17a

We recognize that a most compelling case for a

.emand is presented when the state claims of an innocent

plaintiff will be barred by the running of the statute of

limitations. The Seventh Circuit has suggested that the

district courts will not be without recourse if they cannot

remand since they may, in appropriate cases, retain the

case or dismiss with or without prejudice. Cook v. Weber,

698 F.2d at 909. But see Tully v. Mott Supermarkets, Inc.,

540 F.2d 187, 195-96 (3d Cir. 1976) (when only pendent

claims remain pretrial, “court should ordinarily refrain

from exercising jurisdiction in the absence of extraordi-

nary circumstances”). Moreover, as Judge Stapleton

acknowledges, there is no limitations problem where a

state has a savings clause that would cover this situation.

The serious limitations problem that he gives for encour-

aging us to act where Congress has not yet chosen to can be

readily ameliorated by enactment of such clauses by the

remaining states. In any event, even if we were convinced

that the policies supporting discretion in the district court

to remand outweigh those militating against it, we would

still not be free to deviate from the rule of law laid down in

Thermiron and Levy v. Weissman.

We will therefore «rant Carnegie-Mellon’s petition for

mandamus and direc: the district court to vacate its

remand order.‘

STAPLETON, Cricuit Judge, Dissenting:

The court today holds that a federal district judge 1s

powerless to remand a case to the state court from which it

came even though he or she has properly determined that

the case should not continue in a federal forum because

‘The district court will be free on remand to redetermine the appro-

priate dispos:tion of the pendent claims.

18a

only state claims between non-diverse parties remain to be

litigated. This result is said to be mandated by the

Supreme Court's Thermtron decision and our Levy deci-

sion and by the fact that there is no specific statutory

authority for such a remand. Because I conclude that spe-

cific statutory authority is not necessary and that this mat-

ter is governed by United Mine Workers v. Gibbs, 383 U.S.

715 (1966) rather than Thermtron and Levy, | respectfully

dissent.

When a federal judge in a suit between citizens of the

same state entertains a state law claim related to a federal

one, he exercises what we have come to call pendent juris-

diction. When and how pendent jurisdiction will be exer-

cised is a matter of trial court discretion. Gibbs, 383 U.S. at

725. That discretion is to be exercised based upon such

considerations as “judicial economy, convenience, and

fairness to the litigants” as well as upon comity and the

desirability of avoiding unnecessary federal adjudication

of state law issues. 383 U.S. at 725-26.

These principles governing the exercise of pendent

jurisdiction have been developed by the Supreme Court

and Congress has seen fit to entrust the development of

this area of the law to the courts. The judge who looks for

Statutory guidance on when and how to exercise pendent

jurisdiction will thus look in vain.

In Gibbs, the Supreme Court instructed federal trial

judges to monitor cases involving pendent claims through-

out the life of those cases to ensure that a federal court

remains the appropriate forum for resolving these claims.

It specifically advised that, absent unusual circumstances,

“if the federal claims are dismissed before trial, ... the

state claims should be dismissed as well... and left for

resolution to state tribunals.” 383 U.S. at 726-27. The

19a

Supreme Court cited no statute or rule of court as author-

ity for the proposition that dismissal of the state claims

was appropriate. Indeed, there is no statute or rule of court

specifically authorizing dismissal of a case in which the

Court has jurisdiction over the parties and the subject mat-

ter, the plaintiff is not in default. and the plaintiff's claim

has not been shown to be deficiently pleaded or without

merit.

When the Supreme Court in Gibbs turned from the

issue of when the exercise of federal pendent jurisdiction

should cease to the issue of how a decision to cease should

be implemented, it instructed that the dismissal of the

State-law claims be without, rather than with, prejudice.

This choice was informed, not by a statutory provision or

rule, but by the same considerations which the Court had

previously spelled out as governing the exercise of pendent

jurisdiction. Based on considerations of comity and the

desirability of preserving the state law issues for resolution

by a state tribunal, the Court's choice of dismissal without

prejudice was obvious.

The Gibbs case had not been removed from a state

court, accordingly, a remand was not an option for the

Court in that case. If Gibbs had involved a removed case.

however, | am confident that the Supreme Court would

have done exactly what the district court did in this case. It

would have considered the three available options - dis-

missal with prejudice, dismissal without prejudice, and

remand - in light of the principles which govern the exer-

cise of pendent jurisdiction. I believe it would have con-

cluded, as the district court did here, that where the justifi-

cation for refusing to decide a pendent claim in a removed

case is that the issues involved are better resolved by a

20a

state tnbunal, a remand more efficiently serves the desired

objective than does either of the other alternatives.

Given the absence of statutory law relating to the exer-

cise of pendent jurisdiction generally, it 1s not surprising

that Congress has not expressly addressed the subject of

remand in the context of a case in which an exercise of

pendent jurisdiction has been found to be no longer appro-

priate. However, one can infer from what Congress has

declared that 1t would prefer the common sense result of a

remand in this case. In Section 144l(c) of Title 28, Con-

gress addresses the situation in which a removable claim

over which a federal district court would have original

jurisdiction is joined with one or more unrelated state

claims which would not otherwise be removable. It

provides:

cause of action. which would be removable if sued

upon alone, 1s joined with one or more otherwise non-

removable claims or causes of action. the entire case

may be removed and the distmct court ma) determine

all issues therein, or, in its discretion. may remand all

matters not otherwise within its orginal jurisdiction.

28 U.S.C. § 1441 ic).

Section 144i(c) ts not applicable to this case because

the Boyles’ state and federal claims arose from the same

nucleus of operative facts and therefore are not “scparate

and independent.” See American Fire & Casualty Co. v.

Finn, 341 U.S. 6, 14 (1951). Nevertheless. it reflects a

Congressional! policy similar to the one identified inGibbs-

If removed state claims ought not to go forward in a fed-

eral forum, the status quo should be restored so that these

claims may be resolved by the state tribunal.

2la

As earlier noted. the majority concludes that a dismis-

sal rather than a remand is mandated not only by the

absence of express statutory authority but also by Therm-

tron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1975)

and Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982).

Thermtron and Levy both involve a principle that is funda-

mental to our jurisprudence, but which does not apply to

the case at bar.

When Congress has established a right to have a claim

adjudicated by a federal court, a federal court may not

deny a party that right. In both Thermtron and Levy the

plaintiff had a right to a federal adjudication of their claims

before the court. The question presented was whether a

federal court, in the exercise of its discretion, could never-

theless refuse to adjudicate those claims. There could, of

course, be only one answer to this question. Denial of

discretion to remand was necessary in order to vindicate

the plaintiff's statutory mght to have his claim heard in a

federal forum.

As Gibbs makes clear, the parties to this action cur-

rently have no right to a federal forum. 383 U.S. at 725.

Congress has not provided the plaintiff or the defendant

with a right to have plaintiff's state claims heard in a fed-

eral court divorced from the federal claim. The district

court, applying the principles laid down in Gibbs, found

that it should not retain jurisdiction over these state

claims. This crucial difference between the case at bar and

Thermtron and Levy justifies a different approach in this

case.

As the majority notes, a number of other circuit courts

have not considered the issue before us to be controlled by

Thermtron and have recognized that remand is the more

direct, economical and otherwise desirable alternative. See

22a

In re Romulus Community Schools, 729 F.2d 431, 435-40

(6th Cir. 1984); Fox v. Custis, 712 F.2d 84, 89 n.4 (4th Cir.

1983); Hofbauer v. Northwestern National Bank of Roches-

ter, 700 F.2d 1197, 1201 (8th Cir. 1983); IMFC Profes-

sional Services of Florida v. Latin American Home Health,

676 F.2d 152, 160 (Sth Cir. 1982); Naylor v. Case &

McGrath, Inc., 585 F.2d 557, 561-62 (2d Cir. 1978); Ondis

v. Barrows, 538 F.2d 904, 908 (ist Cir. 1976). Several of

these cases have recognized that in some circumstances a

remand will be the only way to preserve claims that other-

wise would be barred by limitations. Removed cases fre-

quently remain pending in the federal court well past the

limitations deadline. If for any reason a plaintiff's federal

claim is found wanting after that deadline has passed, the

majority’s approach, in states without savings statutes, will

cause the plaintiff to forfeit the right to have his state

claims heard in any forum. The majority's suggestion that

this unfortunate potential for forfeiture may be amelio-

rated by district courts’ choosing to retain and decide state

claims which would be forfeited on dismissal is hardly a

satisfying answer to the problem. Why, one may ask,

should federal courts be compelled to litigate claims which

have been initiated by the plaintiff in a state court and

which, under Gibbs, belong in a state court?

For me, the limitations problem is a far more serious

one than those which the majority foresees resulting from

permitting remands in cases of this kind. Fairness to liti-

gants is one of the Gibbs factors and there is no reason to

believe that district courts will be unable to protect against

the manipulations which the majority fears. Moreover,

while it is true that remand orders are less frequently sub-

ject to appellate review than dismissals without prejudice,

this is not a cause for alarm. The lessons of Gibbs and

23a

Thermtron are clear enough to minimize the risk that a

district court will erroneously remand to state courts

despite the presence of a significant federal interest. For

this reason, I regard the risk of meritorious claims being

forfeited upon dismissal as too high a price to pay for

automatic review of all cases of this kind.

| would hold that the district court committed no

error and that mandamus is, accordingly, inappropriate.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

(A.O. U.S. Courts. G.M.C. Printing. Phila., Pa. 215-568-4264)

24a

APPENDIX C

United States Court of Appeals

For THe THirpd Circuit

No. 85-3619 —

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners

VS.

HONORABLE MARUICE B. COHILL, JR.,

United States District Judge.

Nominal Respondent

and

WILLIAM BOYLE AND CARRIE BOYLE,

Respondents

Present: SLOVITER, STAPLETON, Circuit Judges, and

LONGOBARDI, District Judge*

ORDER

Upon consideration of the Petition for Wirt of Man-

damus, Respondent’s answer, the briefs of the petitioners

and the respondents and after hearing oral argument by

counsel April 29, 1986.

It is ORDERED, ADJUDGED and DECREED by

this Court that the prayer of petitioners is hereby granted

and the Clerk of this Court is directed to issue a writ of

mandamus in accordance with the opinion of this Court.

Each party to bear its own costs.

Do.ores K. SLOVittr

August 29, 1986 Circuit Judge

*Honorable Joseph J. Longobardi. United States District Court for the

District of Delaware, sitting by designation.

25a

APPENDIX D

United States Court of Appeals

For THe THirp Circuit

No. 85-3619

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners

VS.

HONORABLE MAURICE B. COHILL, JR..

United States District Judge,

Nominal Respondent

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents

WRiT OF MANDAMUS

UNITED STATES OF AMERICA, THIRD JUDICIAL

CIRCUIT: SS

To the Honorable Maurice B. Cohill, Chief Judge of the

United States District Court for the Western District of

Pennsylvania,

GREETINGS:

Wuereas, the Honorable Maurice B. Cohill by order

entered October 10, 1985, in W.D. Civil No. 84-2285

remanded that case to the Court of Common Pleas of

Allegheny County, Pennsylvania from which it had been

removed; and,

26a

Wuereas, Carnegie-Mellon University and John

Kordesich filed a petition for writ of mandamus from that

order requesting this Court to direct the said Honorable

Maurice B. Cohill to enter an order vacating the said Octo-

ber 10, 1985, order and to proceed with the case and in

support of said petition the petitioners filed a brief on

February 11, 1986, and a reply brief on March 5, 1986:

and,

Wuereas, the respondents filed a brief on February 25,

1986; and,

Wuereas, this Court having heard oral argument by

counsel April 29, 1986. and having rendered its opinion

and the same being filed on this date, in which the Court

having directed that the prayer of the petitioners for a writ

of mandamus be granted: and

Wuereas, the Court on this date has entered an order

directing the Clerk of this Court to issue a writ of manda-

mus im accordance with its opinion;

Now Tuererore the Honorable Maurice B. Cohill is

hereby REQUIRED and DIRECTED, immediately after

receipt of this writ, and without unreasonable delays. to

vacate the said order entered October 10, 1985.

Francis R. Marysik

Dated: August 29, 1986 Acting Clerk, United States

Court of Appeals

for the Third Circuit

27a

APPENDIX E

United States Court of Appeals

For THe THixrp Circuit

No. 85-3619

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners

Vv.

HONORABLE MAURICE B. COHILL, JR..,

United States District Judge,

Nominal Respondent

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents

(W.D. Civil No. 84-2285)

PRESENT: ALDISERT, Chief Judge, SEITZ.

ADAMS, GIBBONS, WEIS. HIGGINBOTHAM,

SLOVITER, BECKER, STAPLETON and

MANSMANN, Circuit Judges.

ORDER

A majority of the active judges of the circuit in regular

active service having voted for rehearing by the court in

banc, it is hereby ORDERED that the petition for

rehearing filed by William Boyle and Carne Boyle in the

above 1s granted.

28a

| It us Further ORDERED that the Clerk of this Court

list the above case for rehearing before the Court in banc at

the convenience of the Court. and

It is Further ORDERED that the opinion and writ of

mandamus be and are hereby vacated.

BY THE COURT,

Dated: September 24. 1986 Circuit Judge

29a

APPENDIX F

In THE Unitep States District Court

For tHe Western District oF PENNSYLVANIA

WILLIAM BOYLE and

CARRIE BOYLE,

Plaintiffs,

Civil Action

No. 84-2285

Vv.

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Defendants.

OPINION

COHILL, C.J.

Presently before us is Plaintiffs’ Motion to Amend the

Complaint, and, additionally, to remand this action to the

Court of Common Pleas of Allegheny County,

Pennsylvania.

This action was originally brought by Plaintiffs in state

court, asserting claims for wrongful! discharge, intentional!

infliction of emotional distress, defamation, misrepresen-

tation, age discrimination, breach of contract, tortious

interference with contractual relations, and loss of consor-

tuum. The Complaint alleges that Plaintiff, William Boyle.

an employee of Carnegie Mellon University (“CMU”), was

wrongfully discharged in connection with alleged improper

billings and theft, and because of age discrimination. Com-

plaint, #9 10-12,13. The Complaint also alleges “discrimi-

nation in rehiring.” Jd. q 14.

Defendants removed the case to this Court, basing

removal on “Plaintiffs’ assertion of age discrimination” in

30a

violation of the laws of the United States of America.”

Complaint, 913. The Age Discrimination in Employment

Act ““ADEA”), 29 U.S.C. §621 ef seg. prohibits such

discrimination.

Plaintiffs have moved to dismiss from the complaint,

by way of amendment, claims for defamation, age discrim-

ination under both state and federal law, and interference

with marital relations. Motion to Amend, 99 5,6. We will

grant the motion.

Plaintiffs have, in addition, moved for remand of the

remaining claims to state court, based on two arguments.

First, Plaintiffs assert that remand is appropriate under 28

U.S.C. § 1447(c), providing for remand of cases improvi-

dently removed. Alternatively, it would appear, Plaintiffs

argue that where a narrowing of issues results in the dis-

missal of the sole federal claim after removal, the Court

should exercise its discretion to remand the pendent state

claims. Defendants oppose remand.

DISCUSSION

Improvident Removal

Removal jurisdiction is derivative in nature. “If the

State court lacks jurisdiction of the subject matter or of the

parties, the Federal court acquires none, although it might

in a like suit, originally brought there, have had jurisdic-

tion.” Lambert Run Coal Co. v. Baltimore & Ohio R.R.,

258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed 671 (1922).

Whether removal was proper or “improvident™ in the

instant case depends on whether the ADEA is enforceable

in state as well as federal courts. If a federal statute is

enforceable in both state and federal courts, the action

would clearly be removable under 28 U.S.C. § 1441(b).

3la

In Kremer Chemical Construction Corp., 456 U.S.

461. 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Supreme

Court left open the question of whether jurisdiction to

entertain title VII cases is limited to federal courts. /d. at

479 n.20, 102 S.Ct. at 1896 n.20, 72 L.Ed.2d 262 (1982).

The Court of Appeals for the Third Corcuit has not. to our

knowledge, addressed this question. While courts have

come to opposite conclusions on this question, we adopt

the reasoning of those courts which have held that nothing

in the language or structure of title VII mandates a conclu-

sion that jurisdiction is exclusive. See, e.g., Patzer v. Board

of Regents, 577 F.Supp. 1553, 1559 (W.D. Wis. 1984), rev d

on other grounds, 763 F.2d 851 (7th Cir. 1985), Greene v.

County School Board, 524 F.Supp. 43, 44-45 (E.D. Va.

1981); Bennum v. Board of Governors, 413 F.Supp. 1274,

1280 (D.N.J. 1976). We believe this reasoning is equally

persuasive in cases brought under the ADEA. But see Dyer

v. Greif Bros., Inc., 755 F.2d 1391, 1393 (9th Cir. 1985);

Valenzuela v. Kraft, Inc., 739 F.2d 434, 435-36 (9th Cir.

1984), Dickinson v. Chrysler Corp., 456 F.Supp. 43, 45-48

(E.D. Mich. 1978). Thus, we hold that removal in this case

was proper, and do not find section 1447(c) a proper

ground for remanding the case.

Other Grounds for Remand

In the case at bar, the state and federal claims arise out

of the same nucleus of operative facts. Thus, even after

dismissal of the federal claim, (on motion of the Plaintiffs)

we continue to have jurisdiction over the remaining state

claims pursuant to the doctrine of pendent jurisdiction.

See In re Carter. 618 F.2d 1093, 1104 (Sth Cir. 1980)

(citing United Mine Workers v. Gibbs, 383 U.S. 715, 725,

86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)), cert. denied

sub nom. Sheet Metal Workers Int'l Ass'n v. Carter, 450

32a

U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981); Naylor v.

Case & McGrath, $85 F.2d $57, 562 (2d Cir. 1978).

Pendent jurisdiction, however, is a doctrine of discre-

tion. “Its justification lies in considerations of judicial

economy, convenience, and fairness to the litigants... .”

Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, 16 L.Ed.2d 218

(1966). The factors courts are to consider in deciding

whether or not to exercise pendent jurisdiction are

|) whether the federal claims were dismissed before trial:

2) whether state claims predominate, 3) whether the state

claims are closely tied to questions of federal policy; and 4)

whether a jury 1s likely to be confused by divergent legal

theories of relief. /d. at 726-27, 86 S.Ct. at 1139-40, 16

L.Ed.2d 218. In considering these factors in the case at bar,

we find that state claims predominate; the present action is

not ai the point of tral, and that the state claims implicate

no important questions of federal policy. Based on these

considerations, we decline to exercise pendent jurisdiction.

Applying the Gibbs analysis. however, does not

resolve the question of whether a federal court should dis-

miss or remand in such a case as this. As one court has

stated, “[t}he issue can be of substantial importance: it

affects the application of the statute of limitations, the

priority of the case upon its return to the state court, and

the reviewability of the district court's order itself.”

Salveson v. Western States Bankcard Ass'n, 525 F Supp.

566, 581 n.17 (N.D. Calif. 1981). afd in part, rev'd in part

on other grounds, 73) F.2d 1423 (9th Cir. 1984).

We recognize, of course, that remand is a creature of

Statute, provided for in 28 U.S.C. §§ 1441 (c) and 1447(c).

We have previously discussed the inapplicability of

1447(c) as authority for remanding this case, since it was

properly removed. Section 1441(c) is also inapplicable

33a

because it refers to “separate and independent” claims. It

thus does not apply in a case where the claims arise out of

a common nucleus of operative facts. American Fire &

Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S.C. 534, 540, 95

L.Ed. 702 (1951); Salveson, $25 F.Supp. 566, 580 0.17; C.

Wright, Law of Federal Courts, § 39, at 219-25 (4th ed.

1983).

In Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme

Court held that a district court had exceeded its authority

in remanding a properly removed case because of docket

congestion. 46 L.Ed.2d at 550. The strong implication of

the Court's opimion was that district courts are limited by

reasons provided in the governing statutes in remanding

removed cases. Accord. Levy v. Weissman, 671 F.2d 766,

769 (3d Cir. 1982) (district court erred in remanding prop-

erly removed case as sanction for failure to comply with

local rule: Thermtron prohibits remand for reasons not

recognized by controlling statute). See also Boelens v.

Redman Homes, Inc., 789 F.2d 504, S07 n= *s Car.

1985): Cook v. Weber. 698 F.2d 907. 909 (7th Cir. 1983).

Since Thermitron, a significant number of appellate

opimons have approved remand after dismissal of a fed-

eral claim, where, for discretionary reasons, a district court

decides not to retain jurisdiction of pendent state claims.

The leading case, /n re Romulus Community Schools, 729

F.2d 431 (6th Cir. 1984) discusses these and conflicting

cases. We find Romulus persuasive, and adopt its rationale

in remanding the present case. See a/so Kazor v. General

Motors Corp., 585 F.Supp. 62 (E.D. Mich. 1984) for an

excellent review of this issue which 1s consistent with our

result. We also recognize that this decision may conflict

with Levy v. Weissman (supra). However, we believe that

ida

remand is appropriate in situations involving pendent

junsdiction, and that the procedure has been approved by

several courts of appeals. See ¢.¢.. Fox v. Custis, 712 F.2d

84, 89-90 (4th Cir. 1983): Hofhauer v. Northwestern

National Bank of Rochester, 700 F.2d 1197, 1201 (8th Cir.

1983). Brough v. United Steelworkers of America, 437 F.2d

748. 750 (ist Cir. 1971). The question of remand in this

situation was not addressed in Levy

Since, under Thermiron, our order is appealable by

petinon for wrt of mandamus. we need not certify the

issue for appeal pursuant to 28 U.S.C. §1292(b).

San appropriate order will follow.

35a

IN THE UNiteD States District Court

For THE WESTERN District OF PENNSYLVANIA

WILLIAM BOYLE and

CARRIE BOYLE,

Plaintiffs,

Civil Action

No. 84-2285

Vv.

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Defendants.

ORDER

AND NOW, to-wit, this 10th day of October, 1985,

for the reasons stated in the foregoing opinion, it is hereby

ORDERED, ADJUDCED and DECREED that

1) Plaintiffs’ Motion to Amend the Complaint in the

abuve-captioned matter be and hereby is

GRANTED:

2) Plaintiffs’) Motion to Remand be and hereby 1s

GRANTED: the Clerk is directed to remand the

above-captioned action to the Court of Common

Pleas of Allegheny County forthwith.

Maurice B. Cowiie, Jr.

Chief Judge

ce:

36a

ALLAN J. Opsitnick, Esa.

HICKTON & OPSITNICK

527 Second Avenue

Pittsburgh. PA 15219

Water P. DeForest, Eso.

Rosert E. Sueeper, Eso.

REED. SMITH. SHAW & McCLAY

847 Two Mellon Bank Center

Pittsburgh, PA 15219

37a

APPENDIX G

United States Court of Appeals

For THE THIRD CIRCUIT

No. 85-3619 November 7, 1985

CARNEGIE-MELLON UNIVERSITY and

JOHN KORDESICH, Petitioners

vs.

HON. MAURICE B. COHILL, JR., U.S.D_J.,

Nominal Respondent

and

WILLIAM BOYLE and CARRIE BOYLE, Respondents

(Related to W.D.Pa. Civil No. 84-2285)

Present: WEIS, SLOVITER and STAPLETON, Circuit

Judges.

1. Petition for Writ of Mandamus and Appendix in

support of petition,

in the above-entitled case.

Respectfully,

DeNIse TROTTIE

enc. Deputy Clerk 7-1092

Respondents Boyle et al are directed to file an answer to

the petition for mandamus within 20 days of the date of

this order.

By the Court,

Dated: December 20, 1985 dt/ec: (WPDeF, MAF)

AJO

38a

APPENDIX H

United States Court of Appeals

For Tue THirp Circuit

No. 85-3619

CARNEGIE-MELLON UNIVERSITY.

and JOHN KORDESICH,

Petitioners

Vv.

HONORABLE MAURICE B. COHILL, JR..

United States District Judge,

Nominal Respondent

and

WILLIAM BOYLE AND CARRIE BOYLE.

Respondents

Related to (W.D. Pa. Civ. No. 84-2285)

Present: WEIS, SLOVITER and

STAPLETON.

Circuit Judges

ORDER

This case presents a novel and important question of

federal jurisdiction. See 28 U.S.C. § 1441(c), 28 U.S.C.

§ 1447(c). Thermatron Products, Inc. vy. Hermansdorfer,

423 U.S. 336 (1976), Levy v. Weissman, 671 F.2d 766 (3d

Cir. 1982). In re Romulus Community Schools, 729 F.2d

431 (6th Cir. 1984), Fox v. Custis, 712 F.2d 84 (4th Cir.

1983), JMFC Professional Services of Florida, Inc. v. Latin

39a

American Home Health, Inc., 676 F.2d 152 (Sth Cir. 1982),

Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130

(7th Cir. 1981), Cook v. Weber, 698 F.2d 907 (7th Cir.

1983), Jn re Grevhound Lines, Inc., 598 F.2d 883 (Sth Cir.

1979). See also 42 Pa. Cons. Stat. Ann. § 5103 (Purdon

Supp. 1985), Weaver v. Marine Bank, 683 F.2d 744 (3d

Cir. 1982), McLaughlin v. ARCO Polymers, Inc., 72\ F.2d

426 (3d Cir. 1983).

Accordingly, it is ORDERED that this matter is

referred to a merits panel. The Clerk of Court shall fix a

briefing schedule.

BY THE COURT,

Circuit Judge

DATED: January 27. 1986

dt/cc: (Walter P. DeForest, Esq.

(Mark A. Fontana, Esq.

Allan J. Opsitnick, Esq.

Hon. Maurice B. Cohill, Jr.

OPPOSITION

BRIEF

Supreme Court, US,

~ FILED

>) JAN 23 967

No, 86-1021

ANIOL, JR,

In the

Supreme Court of the United States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDEISCH,

Petitioners,

HONORABLE MAURICE B. COHILL, JR.,

United States District Judge,

Nominal Respondent.

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents

Brief in Opposition to Petition for

a Writ of Certiorari to the

* ALLAN J. OPSITNICK

HICKTON & OPSITNICK

$27 Court Place

Pittsburgh, PA 15219

(412) 471-1511

TABLE OF CITATIONS

Cook v. Weber,

698 F.2d 907 (7th Cir. 1983) 4

In Re: Carter,

618 F2.d 1093 (Sth Cir. 1980) 4

Ryan v. State Board of Elections,

661 F.2d 1130 (7th Cir. 1981) 4

Sheet Metal Workers International

Association v. Seay,

693 F.2d 1000 (1982), modi-

fied on other grounds on

rehearing, 696 F.2d 780

(LOth Cir. 1983) 4

Thermtron Products Inc. v.

Hermansdorfer, 423 U.S. 336

(1976) 3

United Mine Workers v. Gibbs,

383 U.S. 715 (1966) 3

No. 86-1021

In the

Supreme Court of the United States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY,

and JOHN KORDESICH,

Petitioners,

Vv.

HONORABLE MAURICE B. COHILL, JR.,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIF BOYLE,

Responcents.

BRIEF IN OPPOSITION TO PETITION “oR

A WRIT OF CERTIOPARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

I. INTRODUCTION

Respondents, William Boyle and

Carrie Boyle (Boyle) are in substantial

agreement with the Statement of the

Case set forth by Petitioners. However,

Petitioners attempt to create the infer-

ence that there was bad faith on the

part of Boyle and that pre-trial

discovery and other motions were vir-

tually completed. This is untrue.

For the reasons set forth below, it

is respectfully requested that this

Honorable Court deny a Writ of

Certiorari.

II. REASONS FOR DENYING THE WRIT

A. There is no conflict among

Circuits regarding this issue of law.

There is no conflict among

Circuits regarding this issue of law.

The District Court, in its Order, uti-

lized the doctrine of pendent jurisdic-

tion as promulgated by this Honorable

Court in United Mine Workers v. Gibbs,

383 U.S. 715 (1966), in a manner con-

sistent with the holding of this

Honorable Court in Thermtron Products,

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

(1976).

Petitioners indicate that remand

of removed cases has been permittea in

the Second, Fourth, Sixth, and Eighth

Circuits, but has not been permitted in

the Fifth, Seventh, and Tenth Circuits.

This is untrue.

In the Fifth Circuit, remand of

a removed case pursuant to pendent

jurisdiction is permitted, In Re:

Carter 618 F.2d 1093 (1980). Carter was

cited before the Third Circuit for this

very proposition, but has not been dis-

cussed or distinguished by Petitioners.

The Seventh Circuit cases of

Cook v. Weber 698 F.2d 907 (1983) and

Ryan v. State Board of Elections 661

F.2d 1130 (1981) are distinguishable in

that remand had occurred without any

authority. Cook and Ryan are not pendent

jurisdiction cases.

Likewise, the Tenth Circuit case

of Sheet Metal Workers International

Association v. Seay 693 F.2d 1000 (1982),

modified on other grounds on rehearing,

696 F.2d 780 (1983) is not a pendent

jurisdiction case.

B. There is no important question

of federal law.

There is no important question

of federal law that requires attention

by this Honorable Court. Because there

is no conflict among circuits, there is

no issue to be settled by this Honorab’e

Court.

Assuming arguendo that there is

an inter circuit conflict, the conflict

is not of such a magnitude as to create

an important question of federal law.

This situation is a limited one and

Petitioners' fear of “manipulation" of

the federal court system is unfounded.

While it is clear that the

rema.d to State Court in *his case is

not ounded in statute, it is based on

clear authority and, as such, is con-

sistent with the abovementioned holdings

of this Honorable Court and indicates

that there is no conflict among circuits

on this narrow point.

-II. CONCLUSION

For the reasons set forth above,

the Petition for Certiorari should be

denied.

Respectfully submitted,

*ALLAN J. OPSITNICK

HICKTON & OPSITNICK

527 Court Place

Pittsburgh, PA 15219

(412)471-1511

*Counsel for Respondents

January 28, 1987

Supreme Court, U.S. |

: FILED

ey FEB 17 198

. _ SPANIOL, JR.

ttt, ms

gn the

Supreme Court of the United States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

Vv.

HONORABLE MAURICE B. COHILL, JR.,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents.

On Petition For a Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

PETITIONERS’ REPLY BRIEF

*Wacter P. DeForest III

W. THomas McGouau, Jr.

Mark A. FONTANA

REED SMITH SHAW & McCLAY

Mellon Square

435 Sixth Avenue

Pittsburgh, Pennsylvania 15219

(412) 288-3383

*Counsel of Record Counsel for Petitioners

for Petitioners Carnegie-Mellon University

and John Kordesich

No. 86-1021

Jn the

Supreme Court of the Limeted States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

HONORABLE MAURICE B. COHILL, JR.,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents.

On Petition For a Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

Petitioners’ Reply Brief

The Brief in Opposition to Petition for a Writ of Certi-

orari submitted by Respondents William Boyle and Carrie

Boyle (“Brief in Opposition’’) asserts that there is no con-

flict among the Circuits regarding the issue presented for

review. In addition to the discussion in the Petition for a

Writ of Certiorari to the United States Court of Appeals

for the Third Circuit (“Petition”) on this point, Petitioners

simply note that both the Third Circuit majority opinion

and the district court recognized the existence of this con-

flict in the Circuits over whether a district court has the

authority to remand a properly removed case to state court

for a reason not set forth in 28 U.S.C. § 1447(c). Petition

App. B, at 14a; App. F, at 33a. Contrary to the assertion in

the Brief in Opposition at 4, the Seventh Circuit's decision

in Cook v. Weber, 698 F.2d 907, 909 (7th Cir. 1983), did

involve the disposition of pendant state law claims. More-

over, the question presented by this case—whether a prop-

erly removed case may be remanded for a reason not speci-

fied in the controlling statute—is not limited to situations

of pendent state law claims. The Fifth Circuit's decision in

In re Carter, 618 F.2d 1093 (Sth Cir. 1980), cert. denied,

sub nom., Sheet Metal Workers Int'l Ass'n v. Carter, 450

U.S. 949 (1981), did not direct a remand of pendent state

claims to the state court. The discussion at the conclusion

of that opinion suggests that the district court’s choice on

remand from the Fifth Circuit was to either dismiss or

retain the state law claims. 618 F.2d at 1105. In any event,

as explained at pp. 12-13 and n.4 of the Petition, the Fifth

Circuit’s decision in Jn re Greyhound Lines, Inc., 598 F.2d

883 (Sth Cir. 1979), is still good law. Boelens v. Redman

Homes, Inc., 759 F.2d 504, 507 n.2 (Sth Cir. 1985).

Further, the importance of this issue was acknowl-

edged explicitly by the Third Circuit in its order accepting

the matter for mandamus review of this issue. Petition

App. H. It was also implicitly acknowledged by the even-

tual scheduling of this case for argument in banc by the

Third Circuit. Petition App. E.

Respectfully submitted,

*Wartter P. DeForest Ill

W. THomas McGouGn, Jr.

Mark A. FONTANA

REED SMITH SHAW & McCLAY

Mellon Square

435 Sixth Avenue

Pittsburgh, Pennsylvania 15219

(412) 288-3383

Counsel for Petitioners

Carnegie-Mellon University

and John Kordesich

February 16, 1987

*Counsel of Record for Petitioners

JOINT

APPENDIX

FiLLED

sPR 6 ISET

ScpH © SPANIOL, JR.

; TLERK

No. 86-1021 aa

gn the

Supreme Court of the United States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

Vv.

HONORABLE MAURICE B. COHILL, JR..,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents.

On WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

JOINT APPENDIX

*ALLAN J. OPSITNICK *Wa ter P. DeForest III

HIcKTON & OPSITNICK MarK A. FONTANA

527 Court Place REED SMITH SHAW & McCLAY

Pittsburgh, PA 15219 Mellon Square

(412) 471-1511 435 Sixth Avenue

Counsel for Respondents Pittsburgh, PA 15219

(412) 288-3383

Counsel for Petitioners

*Counsel of Record

PETITION FOR CERTIORARI FILED DECEMBER 23, 1986

CERTIORARI GRANTED FEBRUARY 23, 1987

TABLE OF CONTENTS

Chronological List of Docket Entries, United

States District Court for the Western District

of Pennsylvania in William Boyle, et al. v.

Carnegie-Mellon University, et al., No. 84-2285. . .

Chronological List of Docket Entries, United

States Court of Appeals for the Third

Circuit in Carnegie-Mellon University,

et al., v. Honorable Maurice B. Cohill, Jr., et all,

March 8, 1985 Order of Court, filed March 8, 1985...

Motion to Remand, filed April 15, 1985

The following opinions, orders and writ of mandamus

have been omitted in printing this Joint Appendix because

they appear on the following pages of the Petition for Writ

of Certiorari:

Opinion and Order of the United States District Court

for the Western District of Pennsylvania in

Civil Action No. 84-2285, dated October 10,

Order of the United States Court of Appeals

for the Third Circuit in No. 85-3619 directing

Respondents to file an answer to the

petition for mandamus, dated

URS Ge, Ge oocecesssekin Pet. App. G, 37a

Order of the United States Court of Appeals

for the Third Circuit in No. 85-3619

referring matter to merits panel and

fixing a briefing schedule, dated

OD GS Ea Pet. App. H, 38a

Opinion of the United States Court of Appeals

for the Third Circuit in No. 85-3619,

dated August 29, 1986............. Pet. App. B, 3a

Order of the United States Court of Appea!s

for the Third Circuit in No. 85-3619

directing the issuance of a writ of mandamus,

dated August 29, 1986............ Pet. App. C, 24a

Writ of Mandamus of the United States Court

of Appeals for the Third Circuit in No. 85-3619,

dated August 29, 1986............ Pet. App. D, 25a

Order of the United States Court of Appeals

for the Third Circuit in No. 85-3619

granting rehearing in banc,

dated September 24, 1986......... Pet. App. E, 27a

Order of the United States Court of Appeals

for the Third Circuit in No. 85-3619

denying petition for wnt of mandamus,

dated November 24, 1986......... Pet. App. A, la

DATE

1984

Sept 21

Oct 10

Oct 15

Nov 14

1985

Mar 7

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

William Boyle and Carrie Boyle

Vv.

Carnegie-Mellen University

NR.

and John Kordesich

Civil Action No. 84-2285

PROCEEDINGS

Notice and Petition for Removal

from Court of Common Pleas filed by

Carnegie-Mellon University and John

Kordesich with copy of complaint;

$250.00 removal bond filed—receipt

No. 46992.

ANSWER filed by deft.

Not of Dep of William Boyle on

10/30/84 at 9:00 AM ,

Not of Pretrial Procedure stating Rule

SII is invoked; discovery ends

3/15/85; Pltfs pretrial due 4/5/85:

defts pretrial due 4/26/85; stip of

counsel 5/15/85

Notice and motion for enlargement of

discovery period filed by plitfs with a

proposed order.

Mar 8

Mar 7

Apr 15

May 2

May 7

w/5

Opposition by defts to pitfs motion

for enlargement of discovery time

filed.

Order entered directing that the par-

ties are permitted to conduct discov-

ery in this case for an add’l 60 days

from 3-15-85; discovery shall end on

5-14-85; the date of the pretrial sub-

missions of the parties and the stipu-

lations of the parties shall be adjusted

accordingly (Cohii, J.)

Notice and motion to remand from

the U.S. District Court for the West-

ern District of Penna to the court of

Common Pleas of Allegheny County

filed by pitfs with a proposed order.

Notice and motion for leave to amend

complaint filed by pitfs with a pro-

posed order.

Notice for motion for enlargement of

time filed by pltfs with proposed

order.

Deft’s response in opposition to pltf’s

motion for enlargement of time filed.

May 8

May 9

w/9

Order entered directing that the par-

ties shall complete discovery by 45

days from the date of deposition of

pltfs motion for remand and motion

for leave to amend complaint; pltfs

pretrial shall be filed by 21 days from

the date of discovery shall end; defts

pretrial shall be filed by 21 days from

the date pltfs pretrial is due and stipu-

lation of counsel shall be filed by 21

days from the date defts pretrial is

due. (Cohill, J.)

Stipulation filed with a proposed

order.

May 9

Oct 10

w/11

Order entered directing that pltfs, any

counsel for pltfs and any other indi-

viduals who are or become associated

with the preparation of pltfs claims

shall not disclose any of the informa-

tion rec’d in discovery from defts or

any personnel or representatives of

defts, except for the sole purposes of

the above captioned lawsuit and for

no other purpose; defts and counsel

for defts and any other individuals

who are or become associated with

the preparation or trial of deft’s de-

fense shall not disclose any informa-

tion rec’d in discovery from pltfs or

any representatives of pltfs, except for

the sole purposes of if the above cap-

tioned lawsuit and for no other pur-

poses; further pltfs and counsel for

pltfs and any other individuals who

are or become associated with the

preparation or trial of pitfs claim shall

return to counsel for defts all records,

files and documents rec’d in discovery

from defts or any personnel or repre-

sentatives of defts. (Cohill, J.)

Opinion filed and order entered that

Pitfs’ motion to amend complaint is

granted; Pitf's motion to remand be

and hereby is granted; the clerk is di-

rected to remand the case to the Court

of Common Pleas of Allegheny Coun-

ty forthwith COHILL, J.

Oct 10

Nov |

Nov 6

Nov 12

Pursuant to order entered this case is

hereby remanded to Ct. of Common

Pleas. of Alleg. County, and mot. to

amend complaint is granted.

Gilbert W. Conley, Clerk

Notices mailed.

Transmittal letter and CC of order

sent to John P. Joyce, Prothonotary of

Alleg. County Ct.

Notice of appeal filed by deft from or-

der dated 10-10-85. (USCA $65.00-

CA $5.00 paid)

Cc of notice of appeal, cc of order dat-

ed 10-10-85, cc of docket entries

mailed to the U.S. Ct. of Appeals;

copy of notice to Judge Cohill, No Ct.

Reporter.

Transcript purchase order filed by ap-

pellants advising that a transcript is

not need; statement of the issues at-

tached thereto.

Record complete for appeal purposes

3 copies of docket entries 1 cert

mailed to the U.S. Ct. of Appeals.

Letter received and filed from the Ct.

of Appeals advising that the case is

docketed at No. 85-3620.

Certified list in lieu of record received

from Ct. of appeals as to 85-3620.

Dec 24

1986

Sept 2

Sept 26

Nov 26

Certified copy of order issued 12-20-

85 in the Ct. of Appeals and filed; di-

recting that the foregoing appeal is

dismissed.

Order rec’d and filed from the Ct. of

Appeals, directing that the petition is

hereby granted and the Clerk of that

Court is directed to issue a writ of

mandamus in accordance with the

opinion of the court; each party to

bear its own costs; writ of mandamus

attached and filed.

Certified copy of order issued 9-24-86

in the Ct. of Appeals rec’d and filed;

directing that the Clerk of that court

list the above case for rehearing before

the Court in banc at the convenience

of the court; further ordered that the

opinion and writ of mandamus be

and are hereby vacated.

Certified copy of order issued 11-24-

86 rec’d and filed from the Ct. of Ap-

peals directing that the petition for a

writ of mandamus be and is hereby

denied; each side to pay its own costs;

Receipt for same mailed to the U:S.

Ct. of Appeals.

Nov 26 18

1986

Dec 4 19

1987

Jan 16 20

Motion of defts for stay pending ap-

plication to the United States Su-

preme Court filed with a proposed

order.

Response by defts to pltfs reply to mo-

tion by defts for stay filed.

Information sheet on post decision

matter rc’d from Ct. of Appeals advis-

ing writ of certiorari was filed 12/24/

86 in Supreme ct at 86-1021

DATE

1985

Nov 6

Nov 7

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners

vs.

HONORABLE MAURICE B. COHILL, JR..,

United States District Judge,

Nominal Respondent

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents

DOCKET No. 85-3619

FILINGS—PROCEEDINGS

Petition for writ of mandamus, filed.

Appendix in support of petition for writ of man-

damus, w/svc., filed. (mgp)

Motion by pets/applts to consolidate appeal in

85-3620 and petition for writ of mandamus in

85-3619, w/sve, filed. (Cv. 85-3619/20) (dt)

Submitted on petition for writ of mandamus.

Coram: Weis, Sloviter and Stapleton, C.J. (dt)

Submitted on pets/applits’ motion to consoli-

date. Coram: Weis, Sloviter and Stapleton,

C.J. (dt)

Dec 20

Jan 9

Jan 27

Aug 29

Order (Weis, Sloviter and Stapleton, C.J.) di-

recting respondents Boyle, et al., to file an

answer to the petition for mandamus within

20 days of the date of this order, filed. (dt)

Answer of respondents to petition for writ of

mandamus, recd at the direction of the Court,

filed. (dt)

Order (Weis, Sloviter and Stapleton, C.J.) refer-

ring the petition for writ of mandamus to a

merits panel. The Clerk of Court shall fix a

briefing schedule, filed. (dt)

Order (Clerk) directing the parties to abide by

the following briefing schedule: |. Brief for

petitioners and the appendix shall be filed and

served on or before 2/11/86; 2. Brief for re-

spondents shall be filed and served on or

before 2/26/86; 3. RB for petitioners, if any,

shall be filed and served on or before 3/5/86;

and it is further ordered that the Clerk shall

list this case for disposition at the earliest con-

venience of the Court, filed. (dt)

Writ of Mandamus by the Acting Clerk of Court

of Appeals filed. (sa) VACATED

Aug 29 Order (Sloviter, Stapleton, Cir. Judges and Lon-

Aug 29

gobardi, Dist. Judge) ordering and adjudging

and decreed by this Court the prayer of part-

ner is granted. The Clerk of Ct. directed to

issue writ of mandamus. Each party to bear

its own costs. (sa) VACATED

Certified copy of writ of mandamus and order

sent to the Clerk of D.C. (sa)

Sept 24

Nov 13

Nov 24

Dec |

Order (Aldisert, Ch Judge Seitz Adams Gibbons,

Weis Higginbotham Sloviter Becker Stapleton

and Mansmann, Cir. Judges.) granting pet. for

rehg. Further ordering that the Clerk list case

for rehg. before the Ct in banc at the conve-

nience of the Ct. & Further ordering that the

opinion and writ of mandamus be vacated.

filed (sa)

Reargued In Banc. Coram: Aldisert, Ch.J., Seitz,

Adams, Gibbons, Weis, Higginbotham,

Sloviter, Becker, Stapleton & Mansmann, CJ.

(ab)

Order (Aldisert, Chief Judge, Seitz, Adams, Gib-

bons Weis, Higginbotham Sloviter Becker

Stapleton and Mansmann, Cir. Judges) Or-

dering and adjudging that the pet. for writ of

mandamus be and is hereby denied. Each side

to pay its own csts. (sa)

Certified copy of above order sent to the Clerk

of the D.C. (sa)

Receipt of 11/24/86, order received from C. of

D.C., filed. (mgp)

UNiTeD States District COURT FOR

THE WESTERN DisTRICT OF PENNSYLVANIA

WILLIAM BOYLE and

CARRIE BOYLE,

Plaintiffs,

v. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY

and JOHN KORDESICH,

Defendants. ;

NOTICE

TO: Prothonotary

Court of Common Pleas of Allegheny

County, Pennsylvania

Allan J. Opsitnick

Hickton & Opsitnick

527 Second Avenue

Pittsburgh, Pennsylvania 15219

Please take notice that a Petition for Removal and

Cash Bond were filed in the United States District Court

for the Western District of Pennsylvania on September 21,

1984. We hereby certify that the Petition for Removal

attached hereto is a true and correct copy of the original as

filed in Federal Court.

Walter P. DeForest

Robert E. Sheeder

Reed Smith Shaw & McClay

847 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

Counsel to Defendants

UnNitep States District COURT FOR

THE WESTERN DisTRICT OF PENNSYLVANIA

WILLIAM BOYLE and

CARRIE BOYLE,

Plaintiffs,

v. Civil Action

CARNEGIE-MELLON No. -

UNIVERSITY

and JOHN KORDESICH,

Defendants. |

PETITION FOR REMOVAL

TO: The Judges for the United States

District Court for the Western

District of Pennsylvania

Petitioners Carnegie-Mellon University and John

Kordesich (hereafter “Petitioners”), hereby petition as

follows:

1. On or about September 13, 1984, a Complaint

against Petitioners was filed in the Court of Common Pleas

of Allegheny County, Pennsylvania. A copy of said Com-

plaint is attached hereto as Exhibit |.

2. In said Complaint, Plaintiffs William Boyle and

Carrie Boyle allege that in September 1983, at the age of

56, William Boyle was discharged from his employment

with Petitioner Carnegie-Mellon University.

3. In Count I of the Complaint, Plaintiffs allege, inter

alia, that William Boyle was wrongfully discharged and

denied employment by Carnegie-Mellon University

because of his age.

4. At Paragraph 13 of the Complaint, Plaintiffs specifi-

cally aver that these alleged discriminatory actions by Peti-

tioner Carnegie-Mellon University were in violation of the

laws of the United States of America.

5. At Paragraph 14, Plaintiffs aver that William Boyle

was also discriminatorily denied rehire by Carnegie-Mel-

lon University because of his age.

6. Paragraphs 13 and 14 clearly aver a cause of action

arising under Federal law, specifically the Federal Age Dis-

crimination in Employment Act, 29 U.S.C. §§621 ef seq.;

and therefore aver a cause of action subject to federal juris-

diction without regard to the amount in controversy or the

citizenship of the parties, pursuant to 29 U.S.C. §626(c\1)

of the Federal Age Discrimination in Employment Act and

28 U.S.C. §§1331 and 1343.

7. Count I of the Complaint also purports to raise an

action under Pennsylvania statutory law and a common

law tort based upon the same alleged operative facts as

underlie the averments of Paragraphs 13 and 14.

8. These additional claims in Count I, arising from the

same alleged operative facts as Plaintiff's Federal claims,

are subject to pendent Federal jurisdiction.

9. Count II of the Complaint avers a common law

Assumpsit action against Petitioner Carnegie-Mellon Uni-

versity, which is based on the same alleged operative facts

as underlie Plaintiffs’ Federal claims, and over which there

is clearly pendent Federal jurisdiction.

10. Count III of the Complaint avers a common law

tort claim against Petitioner John Kordesich which is

based on the same alleged operative facts as underlie Plain-

tiffs’ Federal claims, and over which there is also pendent

Federal jurisdiction.

11. Count IV of the Complaint avers a common law

tort claim against both Petitioners Carnegie-Mellon Uni-

versity and John Kordesich by Plaintiff Carrie Boyle,

which is based on the same alleged operative facts as

underlie Plaintiffs’ Federal claims, and over which there is

also pendent Federal jurisdiction.

12. Petitioners have filed a cash bond with good and

sufficient surety as required by 28 U.S.C §1446(d).

Wuererore, for the above reasons, Petitioners request

that the above-described action, pending in the Court of

Common Pleas of Allegheny County, Pennsylvania be

removed therefrom to this Court.

Walter P. DeForest

Robert E. Sheeder

Reed Smith Shaw & McClay

847 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

Counsel to Petitioners

Dated: September 21, 1984

IN THE COURT OF COMMON PLEAS OF

ALLEGHENY COUNTY, PENNSYLVANIA

WILLIAM BOYLE and

CARRIE BOYLE,

Plaintiffs,

vs.

CARNEGIE-MELLON

UNIVERSITY

and JOHN KORDESICH,

Defendants.

| CERTIFY THIS TO BE A TRUE AND

CORRECT COPY OF THE ORIGINAL

FILED IN THIS CASE.

/s/ Avan J. Orsitnick

ATTORNEY FOR PLAINTIFF

DIVISION-CIVIL

No. GD 84-16147

Issue No.

Pleading—

COMPLAINT IN

CIVIL ACTION

Code—001

ASSUMPSIT/

TRESPASS

Filed on behalf of:

Counsel of Record for

this Party:

Allan J. Opsitnick

Pa. I.D. #28126

HICKTON &

OPSITNICK

Firm #707

527 Second Avenue

Pittsburgh, PA 15219

(412) 471-1511

NOTICE

You have been sued in court. If you wish to defend

against the claims set forth in the following pages, you

must take action within twenty (20) days after this com-

plaint and notice are served, by entering a written appear-

ance personally or by attorney and filing in writing with

the court your defenses or objections to the claims set forth

against you. You are warned that if you fail to do so the

case may proceed without you and a judgment may be

entered against you by the court without further notice for

any money claimed in the complaint or for any other claim

or relief requested by the plaintiff. You may lose money or

property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR

LAWYER AT ONCE. IF YOU DO NOT HAVE OR

KNOW A LAWYER OR CANNOT AFFORD ONE,

THEN YOU SHOULD GO TO OR TELEPHONE THE

OFFICE SET FORTH BELOW TO FIND OUT WHERE

YOU CAN GET LEGAL HELP:

LAWYER REFERRAL SERVICE

ALLEGHENY COUNTY BAR ASSOCIATION

920 CITY-COUNTY BUILDING

PITTSBURGH, PA 15219

TELEPHONE: (412) 261-2088

COMPLAINT IN TRESPASS & ASSUMPSIT

AND Now, come Plaintiffs William S. Boyle and Carrie

Boyle, his wife, by their attorneys, Allan J. Opsitnick, Esq.,

Hickton & Opsitnick, and bring this cause of action against

Defendants as set forth more fully below:

1. Plaintiff William S. Boyle is an adult individual

residing at 6523 Leechburg Road, Penn Hills, Allegheny

County, Pennsylvania.

2. Plaintiff Carrie Boyle is an adult individual, and the

wife of William S. Boyle, residing at 6523 Leechburg Road,

Penn Hills, Allegheny County, Pennsylvania.

3. Defendant, Carnegie-Mellon University, is a corpo-

ration with its principal place of business located at

5000 Forbes Avenue, Pittsburgh, Allegheny County,

Pennsylvania.

4. Defendant, John Kordesich, is an adult individual

employed by defendant, Carnegie-Mellon University, with

his business address at 5000 Forbes Avenue, Pittsburgh,

Allegheny County, Pennsylvania.

5. William §S. Boyle (hereinafter referred to as

“Boyle”’) had been an employee of defendant, Carnegie-

Mellon University (hereinafter referred to as ““University”)

from June, 1967 through and including September 9, 1983.

6. In September, 1983, Boyle was discharged from his

employment by the University. Said discharge was illegal,

improper, and otherwise wrongful, and in violation of con-

tractual obligations on the part of the University and tor-

tious as to be both the University and Defendant

Kordesich (hereinafter referred to as “Kordesich’’).

Count I—William S. Boyle vs Carnegie-Mellon

University—In Trespass

7. Paragraphs | through 6, above, are hereby incorpo-

rated by reference.

8. The discharge of Boyle by the University and subse-

quent failure to rehire Boyle constitutes a tortious and

improper discharge under the laws of the Commonwealth

of Pennsylvania.

9. More specifically, the discharge of Boyle by the

University was wrongful in that:

(a) The discharge was contrary to public policy;

(b) The discharge was contrary to all generally

accepted principles of fairness, good faith and

equity;

Boyle was outrageous and constitutes intentional

infliction of emotional distress;

(d) The University has published defamatory state-

ments regarding Boyle;

(e) The University has made certain misrepresenta-

tions to and regarding Boyle.

10. Said discharge is in violation of the public policy

of this Commonwealth since Boyle was discharged because

he refused to accept any form of blame or guilt in a scheme

involving improper billings and theft of property by a cer-

tain member of the Locksmith Department of the

University.

11. Furthermore, Boyle drew attention to, and tried to

correct instances of theft of University property.

12. Said discharge of Boyle was without any founda-

tion and a competent, industrious and loyal employee was

terminated as a scapegoat after the abovementioned theft

scheme was discovered.

13. Said termination was also based upon Boyle’s age,

56, and was therefore illegal and improper and in violation

of the laws of the United States of America and the Com-

monwealth of Pennsylvania.

14. Boyle was also the victim of discrimination in

rehiring. Norman Gerlach, an air conditioning foreman,

was fired at almost the same time as Boyle, but was rehired

thereafter. Boyle has requested rehiring on a number of

occasions, but has not been rehired. In fact, the University

has stated that it shall not rehire Boyle.

15. The conduct of the University and its agents, ser-

vants and employees, in discharging a long term, compe-

tent, industrious and loyal employee, without any founda-

tion and without economic reason, and more specifically,

discharging Boyle after conjuring up improper reasons for

the discharge constitutes outrageous conduct which led to

the intentional infliction of emotional distress upon Boyle.

16. Said conduct has caused Boyle severe emotional

distress, more specifically, anxiety and other nervous dis-

orders; high blood pressure and nervousness; and interfer-

ence with his heretofore well balanced relationship with his

wife and family.

17. Boyle has been defamed by the University in that

the false statements regarding Boyle that constituted the

basis for his discharge have been communicated to other

members of the University, former fellow employees of

Boyle and prospective employers.

18. These defamatory statements impugn Boyle’s

character generally, and his ability to work as an electrician

and deal with others on the job, more specifically.

19. The publication of defamatory comments has

caused Boyle damage through humiliation and embarrass-

ment in the community and the inability to obtain

employment since his wrongful discharge.

20. The University has engaged in misrepresentation

to both Boyle and to others inside and outside of the Uni-

versity community in that the grounds allegedly the basis

of Boyle’s discharge were communicated to these other

people and said persons have relied on these

misrepresentations.

21. The reliance upon the abovementioned misrepre-

sentations by said third persons have damaged Boyle.

22. The abovementioned tortious conduct by the Uni-

versity is the direct and proximate cause of serious injury

and damage to Boyle.

23. Boyle has suffered injury and damage as follows:

(a) Severe emotional distress;

(b) Anxiety;

(d) High blood pressure;

(e) Interference with a heretofore well balanced rela-

tionship with wife and family;

(f) Embarrassment and humiliation;

(g) Ruination of reputation;

(h) Loss of income from employment, both wages

and benefits;

(i) Expenditures of monies on medical services:

(j) Loss of expected income in promotions, raises

and improvement in benefits:

(k) Pain, suffering and inconvenience.

24. Boyle also demands reinstatement to his former

position as well as punitive damages and counsel fees.

WHEREFORE Boyle respectfully requests that judgment

be entered in his favor and against Defendant University

in an amount exceeding twenty thousand dollars

($20,000.00).

A JURY TRIAL IS DEMANDED.

Count II—William Boyle vs Carnegie-Mellon

University—In Assumpsit

25. Paragraphs | through 24 above are hereby incor-

porated by reference.

26. Boyle was discharged by the University in viola-

tion of both express and implied contracts of employment

which prohibited said termination.

27. An express contract between Boyle and the Uni-

versity was formed through certain provisions of the “Staff

Handbook” distributed by the University to all employees.

More specifically, the following contractual terms were

breached by the University:

(a) The failure to terminate for one of the specified

grounds that are the sole reason for a “cause”

termination. These grounds are

(1) chronic absenteeism;

(2) theft;

(3) unauthorized use or removal of property;

(4) neglect of duty;

(5) unlawful use of dangerous drugs or alcohol

on the job;

(6) intoxication on the job;

(7) immoral conduct;

(8) absence without notice;

(9) insubordination;

(10) destruction of CMU property;

(b) Failure to adhere to the grievance procedure as

outlined in the “Staff Handbook”;

provisions as outlined by the “Staff Handbook”.

The applicable provisions of the “Staff Handbook” are

attached hereto, labelled Exhibit | and are incorporated by

reference.

28. An implied contract existed between Boyle and the

University which was breached by the University. More

specifically, this implied contract arose out of Boyle’s long

service with the University and was reaffirmed when Boyle

took a position as acting Maintenance Manager until a

ARTES GOS US SN, SHS CD SEES EP Se as

job as Electrical Foreman.

29. Boyle relied on the implied contractual relation-

ship that he would continue his employment as long as he

would perform his work properly. Boyle did so through

and including the date he was fired.

30. Because of the abovementioned contractual

breaches by the University, Boyle has sustained the follow-

ing items of damage:

(a) Separation from employment:

(b) Loss of income from employment, both wages

and benefits;

and improvements in benefits;

(d) The expenditure of funds to renew Boyle's electri-

cian’s license, necessary for his employment. _

WHEREFORE Boyle respectfully requests that judgment

be entered in his favor and against Defendant University

in an amount exceeding twenty thousand dollars

($20,000.00).

A JURY TRIAL IS DEMANDED.

Count II1I—William S. Boyle vs John Kordesich—

In Trespass

31. Paragraphs | through 30 above are hereby incor-

porated by reference.

32. Defendant Kordesich (hereinafter referred to as

“Kordesich”) was, by nature of his position as Boyle's

immediate supervisor, in a position to affect Boyle's

employment relationship with the University.

_ 33. Kordesich did fabricate grounds to implement the

discharge of Boyle and in doing so, acted in a negligent,

willful, wanton and reckless fashion. More specifically,

Kordesich acted so as to commit the following torts:

(a) Tortious interference with a contractual and/or

business relationship;

(b) Misrepresentations;

(d) Defamation.

34. Kordesich acted in a fashion so as to ruin Boyle’s

longstanding contractual and/or business and employment

relationship with the University and to cause Boyle to be

discharged from his employment with the University. This

was done by Kordesich’s falsifying grounds for Boyle to be

discharged and by harassing Boyle as he worked.

35. Kordesich has engaged in misrepresentation to

both Boyle and others inside and outside of the University

community, in that the grounds allegedly the basis for

Boyle’s discharge were communicated to other people and

said persons have relied on these misrepresentations.

36. Kordesich’s conduct in developing a negative aiti-

tude toward Boyle and by fabricating grounds which led to

the wrongful discharge of Boyle by the University, which

conduct was, at least in part, to cover up Kordesich’s fail-

ure to detect certain thefts of services and funds by a mem-

ber of the University’s Locksmith Department, constitutes

outrageous conduct which led to intentional infliction of

emotional distress upon Boyle.

37. Said conduct has caused Boyle severe emotional

distress, more specifically, anxiety and other nervous dis-

orders; high biood pressure and nervousness; and interfer-

ence with his heretofore well balanced relationship with his

wife and family.

38. Boyle has been defamed by Kordesich in that false

statements regarding Boyle that constituted the basis for

his discharge have been communicated to other members

of the University, former fellow employees of Boyle and

prospective employers.

39. These defamatory statements impugn Boyle's

character generally, and his ability to work as an electrician

and deal with others on the job, more specifically.

40. The publication of defamatory comments has

caused Boyle damage through humiliation and embarrass-

ment in the community and the inability to obtain

employment since his wrongful discharge.

41. The abovementioned tortious conduct by

Kordesich is the direct and proximate cause of serious

injury and damage to Boyle.

42. Boyle has suffered injury and damage as follows:

(a) Severe emotional distress;

(b) Anxiety;

(d) High blood pressure;

(e) Interference with heretofore well balanced rela-

tionship with wife and family;

(f) Embarrassment and humiliation;

(g) Ruination of reputation:

(h) Loss of income from employment, both wages

and benefits;

(i) Expenditures of monies on medical services,

(j) Loss of expected income in promotions, raises

and improvement in benefits;

(k) Pain, suffering and inconvenience.

43. Boyle also demands punitive damages and counsel

fees.

Wuererore, Boyle asks for judgment against John

Kordesich in an amount in excess of twenty thousand dol-

lars ($20,000.00).

A JURY TRIAL IS DEMANDED.

Count ['V—Carrie Boyle vs Carnegie-Mellon University

and John Kordesich In Trespass

44. Paragraphs | through 43 above are hereby incor-

porated by reference.

45. Plaintiff, Carrie Boyle, has continuously resided

with Plaintiff, William S. Boyle, during his period of

employment at the University, and ever since his termina-

tion in September, 1983.

46. Plaintiff, Carrie Boyle, has witnessed the effect of

the wrongful, vicious actions of the University and

Kordesich upon the physical and emotional state of her

husband and, in turn, has suffered the following items of

injury and damage:

(a) Loss of consortium;

(b) Loss of companionship;

(d) Loss of household services furnished by Plaintiff,

William S. Boyle;

(e) Loss of income expectancy through her husband's

employment.

47. The actions of the University and Kordesich are

the direct and proximate cause to the injury and damage to

Plaintiff, Carrie Boyle, and the University and Kordesich

are jointly and severally liable therefore.

48. Plaintiff, Carrie Boyle, also demands punitive

damages and counsel fees against both Defendants.

Wuererore, Plaintiff, Carrie Boyle, requests judgment

in her favor against Defendants Carnegie-Mellon Univer-

sity and John Kordesich in an amount in excess of twenty

thousand dollars ($20,000.00).

A JURY TRIAL IS DEMANDED.

Respectfully submitted,

Allan J. Opsitnick, Esq.

HICKTON &

OPSITNICK

527 Second Avenue

Pittsburgh, PA 15219

Attorneys for the Plaintiffs

Termination of Employment

All employees are expected to give at least two weeks’

notice of resignation. Exempt personnel should give at

least one month's notice.

Employees submitting resignations will be paid

through the last day worked and will receive their checks

the first payday following the resignation. If advance notice

of resignation has been received by CMU, the employee

with at least one year of continuous service will be eligible

for payment for all vacation time earned but not taken at

the time of separation. Other benefits may be available.

Therefore, all terminating employees should contact Per-

sonnel Advisory Services to arrange for an exit interview.

Immediate dismissal will normally be given for the

following behavior: chronic absenteeism, theft, unautho-

rized use or removal of property, neglect of duty, unlawful

use of dangerous drugs (dangerous drugs defined to include

amphetamines and barbiturates) or alcohol on the job,

intoxication on the job, immoral conduct, absence without

notice in excess of three consecutive days, insubordina-

tion, destruction of CMU property.

Discharge due to unfavorable conduct does not pro-

vide for pay in lieu of notice. In addition, when employees

are terminated during their probationary period for rea-

sons other than those cited above, there is no provision for

pay in lieu of notice.

EXHIBIT |

GRIEVANCE PROCEDURE

Purpose and Scope

At Carnegie-Mellon University every effort is being

extended to continue to make this University a pleasant

and rewarding place to work. In any organization, how-

ever, problems and differences of opinion do arise. This

policy establishes the rules and procedures to solve these

on-the-job problems of employees.

Policy

Most on-the-job problems can be settled if you are

willing to take your problem to your immediate supervisor

where the problem can be discussed. There may be times,

however, when you feel that your problem has not been

solved by your immediate supervisor, or that you have

been treated unfairly. The following procedure ensures all

employees due consideration of any problem concerning

wages, hours of work, benefits, status, other terms and

conditions of employment, and affirmative action. (Note:

In certain departments the organizational structure is such

that a greater or fewer number of steps may be appropriate.

The Personnel Director will interpret the procedure in this

regard.)

You will suffer a loss of earnings if you lose time from

your regular day’s work as a result of the presentation and

discussion of an on-the-job problem.

Procedure

a. First Step

The employee should talk over the problem with

his or her immediate supervisor (the person the

employee reports to). It is the responsibility of

each member of supervision to consider and

attempt to settle problems as quickly as possible.

Second Step

If the employee has spoken to the immediate

supervisor and feels that the problem has not

been considered fairly, or if no action is taken, he

or she should tell the immediate supervisor that

the answer is not satisfactory and that he or she

would like to discuss the problem with the depart-

ment head. The supervisor should set up a meet-

ing with the employee’s department head as soon

as possible after hearing of the employee's

dissatisfaction.

Third Step

If the employee is not satisfied with the solution

after completing the first and second steps, he or

she should present the problem in writing (with a

copy to the department head) to the Dean or

equivalent person responsible for the administra-

tion of the department to which he or she is

assigned. The Dean will promptly set a date for a

discussion of the problem with the employee.

Within two days after the discussion, excluding

Saturdays, Sundays and holidays, the Dean will

give the decision to the employee in writing. In

unusual cases additional time may be necessary

to obtain essential data or information.

Fourth Step

If the first three steps fail to solve the problem,

the employee should then explain the problem in

writing (with a copy to the Dean) to the appropri-

ate person one level below the President (Provost,

Vice President, Chief Officer, Treasurer, etc.). A

meeting will be promptly scheduled with the

employee; and the solution to the problem will be

given to the employee in writing within two days,

excluding Saturdays, Sundays and holidays,

unless additional time is necessary to obtain data

or essential information.

e. Fifth Step

If the Fourth Step fails to solve the problem, the

employee should contact Personnel Advisory Ser-

vices to assist in preparing a written presentation

of the problem to the President.

The President will promptly set a date for a dis-

cussion of the problem with the employee. Within

two days after the discussion, excluding Satur-

days, Sundays and holidays, the President will

give the decision to the employee in writing. In

unusual cases additional time may be necessary

to obtain essential data or information.

Function of Personnel Advisory Services

Personnel Advisory Services is available to help both

supervisors and employees come to practical and workabie

solutions to all problems. The Personnel Director may be

consulted at any time by a supervisor or an employee with

a personal problem he or she wishes to discuss in confi-

dence. The Personnel Director will answer questions at

any time in the procedure and will assist any employee in

the preparation of a written presentation.

Conclusion

This procedure is Carnegie-Mellon University’s way

of handling on-the-job problems and assuring every

employee of fair treatment at all times. It means that every

employee may personally take his problems right to the

top for a hearing without fear of being penalized for doing

so, and every employee is assured that in no way will the

use of this procedure jeopardize his or her position. The

free and prompt use of this procedure will benefit the Uni-

versity and all its employees.

Certain colleges/divisions have made minor revisions

in the procedure to satisfy needs within their departments

and to facilitate its use by an employee who feels that it is

necessary.

CODE OF CONDUCT

Discipline

Rules and regulations are necessary in every organiza-

tion. The best working conditions prevail where employees

conduct themselves with respect and consideration for

their fellow employees and their employer. Rules and regu-

lations are needed to provide safety, happiness and

productivity.

Carnegie-Mellon University has developed a disci-

pline plan which indicates those offenses that normally

warrant disciplinary action. Action may include repri-

mand, suspension and/or dismissal:

a. Reprimand: Either verbal or written reprimand

may be made by supervisors for sub-standard per-

formance, poor attendance and other types of

offenses. Reprimands should be preceded by

counseling; written reprimands are a part of the

employee’s permanent record.

b. Imposed probation: Employees who fail to

respond to counseling concerning attendance or

performance problems may be placed on imposed

probation for from one to three months on

authority of their immediate supervisor with the

approval of the appropriate department head.

This action must be reported to Personnel Advi-

sory Services in writing where it will be filed in

the employee’s record. Employees who fail to

respond to guidance during their period of

imposed probation will normally be terminated.

Merit wage increases will not be given to an

employee during this period.

AFFIDAVIT

c. Downgrading: It may be necessary to downgrade

an employee into a lower classification with a

resultant decrease in salary. All downgrading COMMONWEALTH OF PENNSYLVANIA

action must be documented in writing and filed in COUNTY OF ALLEGHENY =

the employee’s record and approved by the

appropriate department head. Before me, the undersigned authority, personally

appeared Carrie Boyle who being duly sworn according to

. law depose(s) and say(s) that the facts set forth in the

serious attendance, performance or other

problems may be suspended from duty by their foregoing ~~ are true arty to the best of his/

supervisor and/or department head for from one her knowledge, information a

to ten working days without pay. Suspension is

normally imposed to permit am investigation 2 ERR ASIII III ow www

prior to taking final action, when the offense

which caused suspension would normally require

d. Suspension: Employees who become involved in

dismissal. All suspension actions must be given to SWORN TO AND SUBSCRIBED

employees in writing and must be reported to before me this Sth

Personnel Advisory Services in writing by the day of September, 1984.

department head or supervisor. This information

will be entered on the employee’s permanent

record. No employee benefits will be paid or ee edi aming

accrued to an employee while on suspension. MY COMMISSION EXPIRES APRIL 21, 1968

Member Pennsytvama Association of Notanes

e. Dismissal: A careful review of every case recom- /s/ Mary M. BEDNER

mended for dismissal for cause will be made by a ‘Notary Public

the appropriate department head before any dis-

missal notice is given. Such action will be taken

as a last resort after reasonable attempts to

improve the employee have been made.

These subjects have been discussed in previous sec-

tions of the Handbook including the section on Termina-

tion of Employment. All disciplinary actions are subject to

appeal by the grievance procedure.

AFFIDAVIT

COMMONWEALTH OF PENNSYLVANIA -

COUNTY OF ALLEGHENY

Before me, the undersigned authority, personally

appeared William S. Boyle who being duly sworn accord-

ing to law depose(s) and say(s) that the facts set forth in the

foregoing Complaint are true and correct to the best of his/

her knowledge, information and belief.

“eee @eweeoeneneneneneneeneneneneeeeeeeee®

SWORN TO AND SUBSCRIBED

before me this Sth

day of September, 1984.

United States District Court

For THE WESTERN District Or PENNSYLVANIA

WILLIAM BOYLE and ,

CARRIE BOYLE,

Plaintiffs,

vs. , CIVIL ACTION

CARNEGIE-MELLON No. -

UNIVERSITY

and JOHN KORDESICH,

Defendants. |

AFFIDAVIT

COMMONWEALTH OF PENNSYLVANIA -

COUNTY OF ALLEGHENY

Berore Me, the undersigned authority, in and for the

said State and County, personally appeared Linda Bin-

stock, who being duly sworn according to law, deposes and

States that as Manager, Federal Compliance and Safety for

Petitioner, Carnegie-Mellon University, she has authority

to make this Affidavit and that the averments of fact set

forth in the foregoing Petition for Removal are true and

correct to the best of her knowledge, information and

belief.

Sworn to and subscribed

before me this 21st

day of September, 1984.

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and cor-

rect copy of the foregoing Petition for Removal was served

by United States mail, first class, postage prepaid, to:

Allan J. Opsitnick, Esquire

527 Second Avenue

Pittsburgh, Pennsylvania 15219

Dated: September 21, 1984

In THe United States District Court

For THe Western District Or PeNNsyLVANiA

WILLIAM BOYLE and :

CARRIE BOYLE, |

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY

and JOHN KORDESICH,

Defendants. |

NOTICE OF PRETRIAL PROCEDURE

Notice is hereby given that Rule SII is invoked and All

counsel will be governed according to the pretrial proce-

dure set forth therein as it applies to the parties of this

case. No variance from the procedure set forth in the rule

will be permitted without a Petition or Motion specially

directed to and approved by the Judge assigned to this

case.

/s/ Richarp Witas

** Ft we *e ewe eeeeneeeneneer ere eer ermhmUcr mhUmr hm he

Ricard Witas, Courtroom Deputy Clerk

to the Honorable Maurice B. Cohill, Jr.

Dated: November 14, 1984

DISCOVERY ENDS: March 15, 1985

Pitfs Pretrial Due: April 5, 1985

Defts Pretrial Due: April 26, 1985

Sup of Counsel: May 15, 1985

Copies to:

(COUNSEL OF RECORD)

United States District Court

For THe WESTERN District Or PENNSYLVANIA

WILLIAM BOYLE and :

CARRIE BOYLE,

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY

and JOHN KORDESICH,

Defendants. ,

ORDER OF COURT

AND Now, to-wit, this 8th day of March, 1985, upon

consideration of the aforegoing Motion for Enlargement of

Discovery Period, it is hereby Orperep and Decreep that

the parties are permitted to conduct discovery in this case

for an additional 60 days from March 15, 1985. Discovery

shall end on May 14, 1985.

The dates of the pre-trial submissions of the parties

and the stipulations of the parties shall be adjusted

accordingly.

By the Court,

Unitep States District Court For

THe Wesrern District OF PENNSYLVANIA

WILLIAM S. BOYLE and

CARRIE BOYLE, his wife,

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY,

and JOHN KORDESICH,

Defendants. ,

MOTION TO REMAND FROM THE UNITED

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA TO THE COURT

OF COMMON PLEAS OF ALLEGHENY COUNTY*

AND Now, come the Plaintiffs, William S$. Boyle and

Carrie Boyle, by and through their attorneys, Allan J.

Opsitnick, Esquire, and Hickton and Opsitnick and, upon

the basis of the facts herein and supported by the Memo-

randum, attached hereto and made a part hereof, respect-

fully requests this Honorable Court to remand this action

to the Court of Common Pleas of Allegheny County, Penn-

sylvania from which court it was removed to this Honor-

able Court, for the following reasons:

1. This Motion for Remand is made pursuant to the

provisions of 28 U.S.C. §1447 (c), which provides for

remand of any case improvidently removed from a state

court, after which said remand the state may then proceed

upon the case.

*Notice of Motion and Certificate of Service omitted in printing.

2. This action stems from the allegedly improper

discharge of plaintiff, William Boyle by defendant,

Carnegie-Mellon Uaiversity and John Kordesich on or

about September 9, 1983.

3. The complaint as has been filed by plaintiffs con-

tains allegations of the following causes of actions:

Wrongful discharge, in tort,

Wrongful discharge, as breach of contract,

Intentional inflection of emotional distress,

Defamation,

Misrepresentation,

Victstion of federal age discrimination tows:

Violation of Pennsylvania age discrimination

laws,

h. Tortious interference with a contractual and/or

4. All causes of actions have been denied by

defendants.

5. Pursuant to preparation with ple‘ntiffs for their

depositions, taken on February 22, 1985, and a review of

certain documents possessed by defendants at said deposi-

tions, plaintiffs believe that certain causes of actions

against defendants are without merit.

6. More specifically, plaintiffs feel that it is extremely

unlikely that, at trial, they would prevail on the following

causes of action:

a. Violation of federal age discrimination laws.

b. Violation of state age discrimination laws,

emerpanrs pe

c. Defamation.

7. In addition, plaintiffs feel that certain elements of

damage alleged cannot be substantiated. More specifically,

the allegations of a loss of consortium and an interference

with family relationship in so far as it relates to interfer-

ence with sexual relations between the plaintiffs.

8. Plaintiffs intend to request this Honorable Court for

leave to amend their complaint to delete the above causes

of action and above damage allegations. Contemporaneous

with the filing and presentation of this Motion and its

supporting Memorandum, plaintiffs have filed a Motion

for Leave to File an Amended Complaint.

9. Defendants had filed a Petition for Removal in this

case, the sole grounds for removal being that a federal

question was involved, more specifically an allegation

under the Federal Age Discrimination Employment Act,

29 U.S.C. §621.

10. With the deletion of the federal question as well as

the other causes of action as mentioned above, it is clear

that the only remaining causes of action are commonlaw

torts and a commonlaw assumpsit action under the laws of

the Commonwealth of Pennsylvania.

11. Should the amended complaint be permitted to be

filed, no federal question would be remaining and a

remand of this case to the Common Pleas Court of Alle-

gheny County would be required under the provisions of

applicable laws and in the interest of state sovereignty,

comity and judicial respect for the jurisdiction for other

courts.

12. A remand of this action to state court is required

and would not prejudice defendants in this action. More

specifically, defendants have taken three depositions and

have requested and received certain documents and have

done nothing that they would not do or be required to do if

this action were pursued in state court.

13. There has been a 60 day extention by this Honor-

able Court for the completion of discovery, that is until

May 14, 1985. There has been no pre-trial conference, pre-

trial statement of the parties, or stipulation of the parties

conducted or prepared in this case.

WHEREFORE, in consideration of the aforegoing facts,

plaintiffs, William Boyle and Carrie Boyle, respectfully

request this Honorable Court to enter an Order Remand-

ing this Action from the United States District Court for

the Western District of Pennsylvania to the Court of Com-

mon Pleas of Allegheny County, Pennsylvania.

Respectfully submitted,

Attorney for Plaintiffs

HICKTON & OPSITNICK

527 Second Avenue

Pittsburgh, PA 15219

(412) 471-1511

IN THE UNITED States District CouRT FOR

THE WESTERN DistrRICT OF PENNSYLVANIA

WILLIAM S. BOYLE, and

CARRIE BOYLE, his wife,

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY,

and JOHN KORDESICH,

Defendants. |

ORDER OF COURT REMANDING CASE

TO STATE COURT

The Motion of plaintiffs, William S. Boyle and Carrie

Boyle, to remand the abovecaptioned matter to the Com-

mon Pleas Court of Allegheny County, Pennsylvania hav-

ing been duly and carefully considered, it is

ORDERED AND DECREED that the motion be, and is,

granted, and that this cause be, as remanded to the Com-

mon Pleas Court of Allegheny County, Pennsylvania, for

further proceedings.

—PPPTT UT TTT UT TTT TTT TTT 1985.

Maurice B. Cohill, Jr.

United States District Court

IN THE UNITED States District COURT FOR

THE WESTERN DisTRICT OF PENNSYLVANIA

WILLIAM S. BOYLE, and __i)

CARRIE BOYLE, his wife,

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY,

and JOHN KORDESICH,

Defendants. |

MOTION FOR LEAVE TO AMEND COMPLAINT*

AND Now, come plaintiffs, William Boyle and Carrie

Boyle, by their attorneys, Allan J. Opsitnick, Esquire, and

Hickton and Opsitnick and, respectfully requests this

Honorable Court to permit Leave to Amend the Com-

plaint in the within captioned case, and in support thereof

states the following facts:

1. This action is an action for wrongful discharge, age

discrimination, and certain torts, including defamation, by

plaintiffs against defendants.

2. Plaintiffs’ complaint has been served on defendants

and defendants have responded.

3. Because of the federal question involved, this mat-

ter was removed by defendants to this Honorable Court

from the Court of Common Pleas of Allegheny County,

Pennsylvania.

*Notice of Motion and Certificate of Service omitted in printing.

4. Plaintiffs, pursuant to preparation for depositions

and other discovery in this case, and pursuant to a review

of certain documents presented to them at the deposition

of plaintiffs, have consulted with their counsel and feel that

certain causes of actions alleged in their complaint and

certain items of damage alleged in their complaint are not

tetable and feel that it would be highly unlikely that they

would succeed, at trial.

5. More Specifically plaintiffs desire to amend their

complaint and to delete the following causes of action:

a. Defamation by both defendants;

b. Violation of federal age discrimination laws;

c. Violation of Commonwealth of Pennsylvania age

discrimination laws.

6. Plaintiffs desire to amend from their allegation of

damages a claim for damages because of interference with

a well balanced relationship with wife in so far as it effects

the sexual relations between the plaintiffs. In addition.

plaintiffs desire to delete that element of damage by plain-

tiff, Carrie Boyle, for loss of consortium.

7. By permitting plaintiffs to amend their complaint,

the matters in controversy would be narrowed and defend-

ants would not be at all prejudiced.

8. Federal Rule of Civil Procedure | 5 (a) dictates that

leave to amend pleadings shall be freely given when justice

so requires. Leave should be given in this case to avoid

unnecessary litigation and preparation by both sides in this

matter.

WHEREFORE, plaintiffs respectfully requests this Honor-

able Court to grant leave to plaintiffs to amend their com-

plaint as abovernentioned. The amended complaint would

be required to be filed in 20 days of said order.

Respectfully submitted,

HICKTON AND OPSITNICK

527 Second Avenue

Pittsburgh, PA 15219

(412) 471-1511

IN THE UNitep States District Court For

THE WESTERN District OF PENNSYLVANIA

WILLIAM S. BOYLE, and

CARRIE BOYLE,

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY

and, JOHN KORDESICH,

Defendants. |

ORDER OF COURT

The Motion of plaintiffs for Leave to Amend their

Complaint so as w delete certain causes of action and

certain elements of damage, having been duly and care-

fully considered, it is

ORDERED AND Decreep that the motion be, and is,

granted, and that leave be granted for plaintiffs to file an

amended complaint within 20 days of the date of this

order.

It is further ordered by this Court that plaintiffs’

amended complaint shall delete allegations of violation of

federal age discrimination laws, Commonwealth of Penn-

sylvania age discrimination laws, and defamation. In addi-

tion, plaintiffs’ amended complaint shal! delete allegations

of damage of interference with well balanced family life

with wife in so far as it relates to sexual relationship and

wife/plaintiff’s loss of consortium.

ES nie ieee , 1985.

_ . ee ‘ rer

United States District Court

Unitep States District Court

For THe Western District OF PENNSYLVANIA

WILLIAM BOYLE and ;

CARRIE BOYLE,

Plaintiffs,

vs. Civil Action

CARNEGIE-MELLON No. 84-2285

UNIVERSITY

and JOHN KORDESICH,

Defendants. , .

ORDER OF COURT

AND Now, to-wit, this 8th day of May 1985, upon

consideration of the aforegoing Motion for Enlargement of

Time, it is hereby Orperep and Decreep that the parties

shall complete Discovery by forty-five (45) days from the

date of disposition of Plaintiffs’ Motions for 2emand and

Motion for Leave to Amend Complaint. Plaintiffs’ Pretrial

shall be filed by twenty-one (21) days from date discovery

shall end. Defendants Pretrial shall be filed by twenty-one

(21) days from the date Plaintiffs’ Pretrial is due, and Stip-

ulation of Counsel shall be filed twenty-one (21) days from

the date Defendants’ Pretrial is due.

By the Court,

PETITIONER’S

BRIEF

No. 86-1021 | —- spamiot, JR.

In the

Supreme Court of the United States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

HONORABLE MAURICE B. COHILL, JR..

United States District Judge.

Nominal Respondent.

and

WILLIAM BOYLE and CARRIE BOYLE.

Respondents

On Wait of CerTioRARi TO THE

Unirep Stares Court oF Appeacs ror tHe Treo Crecon

BRIEF FOR PETITIONERS

*Warrer P. DeForest Ill

Mark A. Fontana

REED SMITH SHAW & Met l \\

Mellon Square

435 Sixth Avenue

Pittsburgh. PA 15219

(412) 288-3383

*C ounsel of Record Counsel for Petitioners

for Petitioners Carnegie-Melion Universit)

and John Kordesich

QUESTION PRESENTED

Whether a district court has authority to remand a

properly removed case to state court for a reason not set

forth in 28 U.S.C. § 1447(c)—-¢., elimination, by amend-

ment of the complaint, of the federal claim that had

formed the basis for removal.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ... ..... «<<. 05sccnuss i

FABRE GP AATTTISOEED 0 cc ccccccccccccccscses m

Ge GD cccccccececcecscesecessuuent 1

STATEMENT OF JURISDICTION ............... 2

ory.) } .. . 2

ory jf 2 (eo Fee 5

SUMMARY OF ARGUMENT ................4.. 9

REE « .0000000668666bssescesseeseneene 13

lL 28 U.S.C. § 1447c) Sets Forth The

Exclusive Grounds For Remand

Il. This Court's Decision In United Mine

Workers v. Gibbs Does Not Provide

An Independent Basis For Remand ........ 21

| xe 24

TABLE OF AUTHORITIES

CASES

Page

Aldinger v. Howard, 427 U.S. 1 (1976) ........-+.-. 13

Armstrong Co. v. Nu-Enamel Corp.,

i ccs ces edbcecoecccccces 17

Austwick v. Bd. of Educ., 555 F. Supp. 840

Deck csceeeccsccccccsceccccces 19

Barrett v. McDonald's of Oklahoma City,

419 F. Supp. 792 (W.D. Okla. 1976) ........... 19

Boelens v. Redman Homes, Inc., 759 F.2d 504

DTT Chee nbdgecceceeoceccccccce 16, 18

Cook v. Weber, 698 F.2d 907

DT cdbcGhbedescccccocce 10, 13, 16, 23

Espino v. Volkswagen de Puerto Rico, Inc.,

289 F. Supp. 979 (D.C.P.R. 1968).............. 19

Fox v. Custis, 712 F.2d 84 (4th Cir. 1983) .......... 16

In re Grevhound Lines, Inc., 598 F.2d 883

i ccc ccc eben sceeccccces 16, 19, 20

Hofbauer v. Northwestern Nat. Bank,

700 F.2d 1197 (8th Cir. 1983).............66.. 16

IMFC Professional Services, Inc. v. Latin Americar

Home Health, Inc., 676 F.2d 1°?

i ce eee ee gebeeececcocacys 16

Jacks v. Torrington Co., 256 F. Supp. 282

CT cevdsvaceeseesccccecetcccsess 19

Link vy. Wabash R.R., 370 U.S. 626 (1962).......... 23

Page

Naylor v. Case & McGrath, Inc., 585 F.2d 557

DG, ST <65 co been es nedannbuneesneeeet 16

Phelps v. Oaks, 117 U.S. 236 (1886). ............... 14

Pullman Co. v. Jenkins, 305 U.S. 534 (1939) ........ 14

In re Romulus Community Schools, 729 F.2d 431

Pa CE contcnnssadbedheedsedeonss 16, 21

Ryan v. State Bd. of Election, 661 F.2d 1130

Tt) te -pcedencecdacebaonedweetaoee 16

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

Ne eee eke passim

Shamrock Oil & Gas Corp. v. Sheets,

SP ek SE coddccanecseusennkens 10, 13

Sheet Metal Workers v. Seay, 693 F.2d 1000

(10th Cir. 1982), modified on other grounds

on reh'g, 696 F.2d 780 (10th Cir. 1983) ......... 16

In re Shell Oil Co., 631 F.2d 1156 (Sth Cir. 1980)... . 16

Stewart v. Dunham, 115 U.S. 61 (1885)............. 14

Thermtron Products, Inc. v. Hermansdorfer,

ee es SOE cou dbandenseedeosaca passim

United Mine Workers v. Gibbs, 383 U.S.

PT ocd0n0ebnedbnsnsenneeusunees passim

Westmoreland Hosp. Ass'n v. Blue Cross of Western

Pennsylvania, 605 F.2d 119 (3d Cir. 1979),

cert. denied, 444 U.S. 1077 (1980) .......... 18, 19

CONSTITUTIONAL PROVISIONS

es Gea, Ce OE ob eve cdesicccesencuccesaes 13

Page

FepeRAL STATUTES

Judiciary and Judicial Procedure

Be We OF CEs cb cceccccscecvecees 2

BP ee FO I coc bvenecceccccsceses 6

Be is OF ED SL oo bcvscedccccness passim

y Pi a SO PTT e ree 10, 15

Be Gs OF ORT GS cccdecssersieceds passim

28 U.S.C. § 2101(c) (1982 & Supp. 1985)........ 2

Age Discrimination In Employment Act

yt ll | APTS PETTITT TTT Tee 5

State STATUTES

42 Pa. Cons. Stat. Ann. § 5524

(Purdon 1981 & Supp. 1986).................. 21

42 Pa. Cons. Stat. Ann. § 5535

Les cou gueeadieeadeseess eee s 21

OTHER AUTHORITIES

re, ee 2 ccc aceueusoerseseneest 23

I oe le ede eseven pees 23

No. 86-1021

In the

Supreme Court of the United States

October Term, 1986

CARNEGIE-MELLON UNIVERSITY

and JOHN KORDESICH,

Petitioners,

Vv.

HONORABLE MAURICE B. COHILL, JR.,

United States District Judge,

Nominal Respondent,

and

WILLIAM BOYLE and CARRIE BOYLE,

Respondents.

On Writ oF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONERS

OPINIONS BELOW

The November 24, 1986 Order of the Third Circuit,

sitting in banc, which denied the petition for the writ of

mandamus because the Third Circuit was equally divided,

| is not officially reported and appears as Appendix A to the

| Petition for Writ of Certiorari.' The August 29, 1986

‘Carnegie-Mellon University has no parent company. affiliates or

subsidiaries. other than wholly-owned subsidiaries.

Opinion of a panel of the Third Circuit, which had granted

the petition for the writ of mandamus, is not officially

reported but is unofficially reported at 41 FEP 1046 and

appears as Appendix B to the Petition for Writ of Certio-

rari. The accompanying August 29, 1986 Order granting

the petition for writ of mandamus and the August 29, 1986

writ of mandamus, itself, are not officially reported and

appear, respectively, as Appendices C and D to the Peti-

tion for Writ of Certiorari. The September 24, 1986 Order

of the Third Circuit, granting Respondents’ petition for

rehearing in banc and vacating the panel opinion and the

writ of mandamus, is not officially reported but 1s unofh-

cially reported at 41 FEP 1888 and appears as Appendix E

to the Petition for Writ of Certiorari. The October 10, 1985

Opinion and Order of the district court is not officially

reported and appears as Appendix F to the Petition for

Writ of Certioran.

STATEMENT OF JURISDICTION

The Order of the Third Circuit, sitting in banc, upon

rehearing, was entered on November 24, 1986. The Peti-

tion for Writ of Certiorari was timely filed on December

23, 1986, and granted on February 23, 1987. See 28 U.S.C.

§ 2101(c) (1982 & Supp. 1985). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1) (1982).

STATUTES INVOLVED

The statutes involved are the Act of June 25, 1948, ch.

646. 62 Stat. 937, 939, codified as amended at 28 U.S.C.

§ 1441 and 28 U.S.C. § 1447 (1982).

28 U.S.C. § 1441 provides:

§ 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court

of which the district courts of the United States have

original jurisdiction, may be removed by the defen-

dant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending.

(b) Any civil action of which the distnct courts

have original jurisdiction founded on a claim or nght

arising under the Constitution, treaties or laws of the

United States shall be removable without regard to the

citizenship or residence of the parties. Any other such

action shall be removable only if none of the parties in

interest properly joined and served as defendants 1s a

citizen of the State in which such action is brought.

or cause of action, which would be removable if sued

upon alone, is joined with one or more otherwise non-

removable claims or causes of action, the entire case

may be removed and the district court may determine

all issues therein, or, in its discretion, may remand all

matters not otherwise within its onginal jurisdiction.

(d) Any civil action brought in a State court

against a foreign state as defined in section 160XMa) of

this tithe may be removed by the foreign state to the

district court of the United States for the distnct and

division embracing the place where such action ts

pending. Upon removal the action shall be tned by

the court without jury. Where removal is based upon

this subsection, the ume limitations of section |446(b)

of this chapter may be enlarged at any ume for cause

shown.

(e) The court to which such civil -action is

removed is not precluded from hearing and determin-

ing any claim in such civil action because the State

court from which such civil action is removed did not

have jurisdiction over that claim.’

28 U.S.C. § 1447 provides:

§ 1447. Procedure after removal generally

(a) In ary case removed from a State court, the

district court may issue all necessary orders and pro-

cess to bring before it all proper parties whether served

by process issued by the State court or otherwise.

(b) It may require the petitioner to file with its

clerk copies of all records and proceedings in such

State court or may cause the same to be brought

before it by writ of certiorari issued to such State

court.

that the case was removed improvidently and without

jurisdiction, the district court shall remand the case,

and may order the payment of just costs. A certified

copy of the-order of remand shall be mailed by its

clerk to the clerk of the State court. The State court

may thereupon proceed with such case.

(d) An order remanding a case to the State court

from which it was removed is not reviewable on

appeal or o.nerwise, except that an order remanding a

case to the State court from which it was removed

pursuant to sec

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