Opposition Brief — Syngenta Crop Protection, Inc. v. Henson

‘No. 01-757 DEC 27 200

In The

Supreme Court of the United States

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SYNGENTA CROP PROTECTION, INC.,

ROBERT RABB, EDEE TEMPLET, and

KENNETH A. DEVUN,

Petitioners,

HURLEY HENSON,

Respondent.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

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BRIEF IN SUPPORT

ON BEHALF OF RESPONDENT

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Daviv J. BEDERMAN

Counsel of Record

Gambrell Hall

Atlanta, Georgia 30322-2770

(404) 727-6822

Hany A. ZOHDyY

Of Counsel

Suite J

12090 South Harrell’s Ferry Road

Baton Rouge, Louisiana 70816

(225) 293-5300

Attorneys for Respondent

(1)

QUESTION PRESENTED FOR REVIEW

Does the All Writs Act, 28 U.S.C. 1651(a), grant federal district

courts the original jurisdiction required under 28 U.S.C. 1441 to

permit removal of cases that would otherwise be ineligible for

removal?

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BRIEF IN SUPPORT

ON BEHALF OF RESPONDENT

Respondent, Hurley Henson, respectfully submits this

brief in support of the Petition in the above-captioned case.

There is a manifest division in authority on whether federal

district courts may employ the All Writs Act, 18 U.S.C. §

1651(a), as a basis for removal jurisdiction, in the absence of

any other grounds for original jurisdiction. The split in the

circuits is well-documented and notorious, and the underlying

issue is of great importance to the operation of the federal

courts. Respondent is prepared to fully defend the decision of

the Eleventh Circuit, in alignment with three other Circuits, that

such a use of the All Writs Act is manifestly improper.

COUNTER STATEMENT OF THE CASE

Petitioners provide an accurate account of the prior

proceedings in this case, at least as relevant to the All Writs Act

ruling of the Eleventh Circuit. Respondent would, however,

dispute Petitioners’ characterization of the events giving rise to

the district court's award of sanctions against Attorney Hany

Zohdy in this case. Despite the district court’s ruling that Zohdy

attempted to “thwart” the settlement agreement reached earlier

in federal court by initiating an unrelated state proceeding, see

Pet. App. 16a, it is by no means clear that that was, in fact,

either his intention or purpose. Indeed, given that class counsel

made no efforts to dismiss the Henson action and that

Petitioners sought removal of the proceeding only four years

after the ostensible settlement, is highly suggestive that neither

side initially regarded the Henson proceeding as being wholly

barred by the settlement.

More significantly, it is doubtful that the district court,

as affirmed by the Eleventh Circuit, had the jurisdiction to

sanction Zohdy in this proceeding for violating an earlier

settlement. This is especially so since Zohdy was not class

counsel in the earlier proceeding and was not charged in the

settlement stipulation with the duty of effectuating the

agreement. See Pet. App. 5a-6a. Respondent intends to seek

review, by way of a conditional Cross-Petition, of this aspect of

the Eleventh Circuit's ruling. But, otherwise, Respondent

concurs that the All Writs Act issue decided by the Eleventh

Circuit merits this Court’s plenary review.

REASONS FOR GRANTING THE PETITION

1. Respondent takes the exceptional step of supporting

this Petition because it is manifest that there is a clear schism in

circuit authority on the use of the All Writs Act, 28 U.S.C. §

1651(a), as a means to grant the federal courts removal

jurisdiction where it otherwise would not exist. The specific

context of this case is, of course, the propriety of district courts

asserting jurisdiction in state-filed proceedings, in order to

enforce settlement agreements previously entered into by federal

courts. This appears to be the most common scenario in which

federal courts are attempting to boot-strap their removal

jurisdiction, but it is by no means the only one. See Joan

Steinman, The Newest Frontier of Judicial Activism: Removal

Under the All Writs Act, 80 B.U. L. REV. 773, 794-812 (2000);

Lonny Sheinkopf Hoffman, Removal Jurisdiction and the All

Writs Act, 148 U. Pa. L. REV. 401, 408-32 (1999) (both

collecting cases).

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As the Eleventh Circuit acknowledged in the decision

below, see Pet. App. 8a-10a, there is a cavernous split in the

circuits on this question. Even after eliminating certain cases

where the rulings are doubtful or are dicta,' that leaves a clear

division in precedent, with four Circuits ruling that the All Writs

Act provides the original jurisdiction needed for removal,’ and

three Circuits rejecting such a theory.’ Indeed, since the Second

Circuit initiated this “unconventional use” of the All Writs Act,

see Hoffman, supra, at 415, with Yonkers Racing Corp. v. City

of Yonkers, 858 F.2d 855 (2d Cir. 1988); this divergence in

practice among the federal courts of appeals has been widening,

not closing.

2. Respondent certainly concurs with Petitioners that the

' In this category would be included a decision from the Third

Circuit (Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997), cert. denied,

522 U.S. 859 (1997) (holding that use of the All Writs Act in providing

removal jurisdiction was permissible, although circumstances of the case did

not justify it)); and the Fifth Circuit (Texas v. Real Parties in Interest, 259

F.3d 387, 395 (5* Cir. 2001) (same holding)).

* Second (In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425,

1431 (2d Cir. 1993)); Sixth (Bylinski v. City of Allen Park, 169 F.3d 1001,

1003 (6" Cir 1999)); Sable v. Gen. Motors Corp., 90 F.3d 171, 175 (6" Cir.

1996)); Seventh (/n re VMS Secs. Litig., 103 F.3d 1317, 1324 (7" Cir.

1996)); Eighth (Xiong v. State of Minnesota, 195 F.3d 424, 426 (8" Cir.

1999)).

* Ninth (Westinghouse Elec. Corp. v. Newman & Holtzinger, P.C.,

992 F.2d 932, 937 (9" Cir. 1993)); Tenth (Hillman y. Webley, 115 F.3d

1461, 1469 (10" Cir. 1997)); Eleventh (the underlying case in this Petition).

It should be noted that an earlier decision of the Seventh Circuit, In re

County Collector, 96 F.3d 890, 902-03 (7* Cir. 1996), appears to reject this

use of the All Writs Act, although its vitality is questionable after the In re

VMS Secs. Litig. decision.

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issue raised here is important, within the meaning of this

Court’s considerations for the grant of certiorari in S.Ct. R.

10(a). See Pet. 14-15. Respondent would, however, submit that

the Eleventh Circuit's decision — and those of the other courts

of appeals that have rejected the extended application of the All

Wnits Act to inappropriately broaden removal jurisdiction —

properly reflects this Court’s jurisprudence and strikes the right

balance between respecting the integrity of federal judgments,

while, at the same time, preserving state-court jurisdiction from

unauthorized removals.

This Court has consistently reiterated that removal under

28 U.S.C. § 1441 is only possible where a case “originally could

have been filed in federal court.” Caterpillar, Inc. v. Williams,

482 U.S. 386, 392 (1987). Moreover, the All Writs Act’s grant

of authority “necessary or appropriate in aid [of federal court]

jurisdiction[],” 28 U.S.C. § 1651(a), has never been regarded as

an independent basis for federal subject-matter jurisdiction. The

All Wnits Act thus cannot, by itself, supply original jurisdiction

where it does not otherwise exist. See Clinton v. Goldsmith,

526 U.S. 529, 534-35 (1999); Pennsylvania Bureau of Corr. v.

United States Marshals Serv., 474 U.S. 34, 40 (1985).

These conclusions are all consistent with the history and

purpose of the All Writs Act. No recourse to plumbing

metaphors of the Act as “jurisdictional caulk . . . plug[ging] the

cracks in federal jurisdiction,” Pet. App. lla (citing United

States v. New York Tel. Co., 434 U.S. 159, 172-73 (1977), for

this “broad view” of the Act), will sanction what is otherwise an

impermissibly wide expansion of federal jurisdiction at the

expense of state courts. As the Eleventh Circuit observed, Pet.

App. 1 la, such a “re-equilibrating [of the] federal-state balance”

is Congress’s to make. Respondent looks forward to joining

issue on these questions should the Court, in its wise exercise of

jurisdiction, grant review here.

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CONCLUSION

The Petition for Writ of Certiorari should be granted.

December 2001

Respectfully submitted,

DAVID J. BEDERMAN

Counsel of Record

Gambrel! Hall

Atlanta, Georgia 30322-2770

(404) 727-6822

HANY A. ZOHDY

Of Counsel

Suite J

12090 South Harrell’s Ferry Road

Baton Rouge, Louisiana 70816

(225) 293-5300

Attorneys for Respondent