Amicus Curiae Brief — Powerex Corp. v. Reliant Energy Services, Inc.

No. O5-8§

IN Tur

Supreme Court of the United States

POWELREX CORP..

Petitioner,

We

RELIANT ENERGY SERVICES, INC... etal.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF LAW PROFESSORS ARTHUR

R. MILLER, ERWIN CHEMERINSRKY, MICHAEL

Ek. SOLIMINE, ADAM N. STEINMAN, E. FARIESH

PERCY. AND RHONDA WASSERMAN AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

Ar tHUuR R. MULeR GREGORY A. BECK

1545 Massachusetts Ave. BRIN WoLEMAN

Cambridge. MA (2138 (Counsel of Record)

(617) 495-4111 PUBLIC CITIZEN LITIGATION

GROUP

1600 20° St.. N-W.

Washington. DC 20009

(202) 588-1000

March 2007 Counsel for Amici Curtae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........----00ee008: iii

INTERESTS OF AMICI CURIAE .........-...00005: 1

SUMMARY OF THE ARGUMENT ..........---+ +: 3

ARGUMENT .........-.-0--- bee 5

I. The Plain Language of § 1447 Does Not

Support the Thermtron Exception. ........-.--+- 5

A. Thermtron Incorrectly Interpreted the

Statutory Language as It Then Existed. .... 5

B. Congress’s Subsequent Amendment of

§ 1447 Has Eliminated Any Textual

Basis for the Thermtron Exception. ....... 7

c. Congress Has _ Created Specific

Exceptions to § 1447(d)’s Bar on

Appeals When It Has Deemed Them

POOCRIOETF. occ cece ccccccesscccescoss 10

I]. Thermtron’s Holding Undermines the Purpose

of § 1477(d) by Encouraging Appeal as a

Delaying Tactic. ..........ccccccccccccecees 12

ii

Ill. Appellate Review of the District Court’s

Remand Order in This Case Should Be

ee ee ae eee ee 18

A. This Court Should Overrule

Thermtron Or Limit It to Its Specific

OO a ee und aaee 18

B. At a Minimum, this Court Should

Prohibit Second-Guessing of a District

Court’s Basis for Remand. ............. 19

CREME oc cccncnecencecceveseceseessecces 22

ill

TABLE OF AUTHORITIES

CASES

Adkins v. Illinois Central Railroad Co.,

326 F.3d 828 (7th Cir. 2003) ........... 12, 20, 22

Air-Shields, Inc. v. Fullam,

891 F.2d 63 (3d Cir. 1989)... ........ ccc eee 14

In re Amoco Petroleum Additives Co..,

964 F.2d 706 (7th Cir. 1992) ............ 6, 16, 21

Archuleta v. Lacuesta,

131 F.3d 1359 (10th Cir. 1997) ............... 20

Autoridad de Energia Electrica de Puerto Rico v.

Ericsson Inc.,

og ee I ee re 9

Balazik v. County of Dauphin,

44 F.36 200 CO Coe. BGGS) . nc ccccccsssccscccs 20

Carnegie-Mellon University v. Cohill,

Py PED ocd cenqeneccceus veenes 9,15

Carr v. American Red Cross,

yiS | f+ & rs 14

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949)

Coopers & Lybrand v. Livesay,

a 0) errr y 19

BBAaRA RE SE »

iV

Exxon Mobil Corp. v. Allapattah Services, Inc.,

Pe EE ce coucevectvescseceas onus 9

Foster v. Chesapeake Insurance Co.,

oe fr og os B | ere 14

Gillespie v. United States Steel Corp.,

Pe HE Sk ccsénsesinevesosess 18, 19

Heaton v. Monogram Credit Card Bank,

231 F.3d 994 (Sth Cir. 2000) ................. 20

Hudson United Bank vy. LiTenda Mortgage Corp.,

Pe ae Be a SOR scan venscccccscnes 9

Karl Koch Erecting Co. v. New York Convention Ctr.

Development Corp.,

838 F.2d 656 (2d Cir. 1988)... 2.2... cee eenees 14

Kircher v. Putnam Funds Trust,

Ea Be Ge BO OED occ cccccvccccces 12, 17, 21

Linton v. Airbus Industrie,

30 F.3d 592 (Sth Cir. 1994) ............ 11, 14, 16

Mangold v. Analytic Services, Inc.,

77 F.3d 1442 (4th Cir. 1996) ..............06. 20

McDermott International, Inc. v. Lloyds

Underwriters of London,

944 F.2d 1199 (Sth Cir. 1991) ................ 14

Vv

Milk ‘N’ More, Inc. v. Beavert,

963 F.2d 1342 (10th Cir. 1992) ............... 14

Mobil Corp. v. Abeille Gen. Ins. Co.,

984 F.2d 664 (Sth Cir. 1993) .............. 11, 16

Osborn v. Haley,

oop fs GF: Peerrerrrrr re 10,11, 14

Pelleport Investors, Inc. v. Budco Quality Theatres, Inc.,

741 F.2d 273 (9th Cir. 1984) ....... cc eccccees 13

Quackenbush y. Allstate Insurance Co.,

SEF WN PREUTOE + co.ccessncsauwissecseeees 9

Reddam v. KPMG LLP,

457 F.3d 1054 (9th Cir. 2006) ................ 14

Regis Associates v. Rank Hotels Mgt. Ltd.,

894 F.2d 193 (6th Cir. 1990) ........ccccceees 14

Rothner vy. City of Chicago,

879 F.2d 1402 (7th Cir. 1989) ................ 14

Snapper, Inc. v. Redan,

171 F.3d 1249 (1 lth Cir. 1999) .......... 0c ecee 9

Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

In re TMI Litigation Cases Consolidated II,

Pe Fe Se GG SUMED sv ve cnescccesteunt 14

vi

Thermtron Products, Inc. v. Hermansdorfer,

Ce «hc cckecceseuccecves passim

Things Remembered, Inc. v. Petrarca,

PPE SPU cee dcdcvccccccesenes passim

Thomas v. LTV Corp.,

39 F.3d 611 (Sth Cir. 1994) .............000. 15

United States v. Rice,

PPP TTTTTTITe 3, 5, 6, 12

United States v. Rodgers,

PUREED vc cccccccecccoccccesesens 6

Van Cauwenberghe v. Biard,

ee oe lead ee telewes 18

Waco v. United States Fidelity & Guaranty Co.,

eas wees gunn ses ones 14

STATUTES

A re cddéCedueeckuees 18

rb h be ec avede de éeueenwneeetes 15

i to ode i veh cbdbneeedseuceedee 10

ee 66s CLUE Sevens conan neceesins 7,8

rT ee 3, 5, 10

28 U.S.C. § 1453(cK1) ... 0... cece eee ee Sah oe ONE 10

vii

SU A a os ivacivouneeaives 10

MISCELLANEOUS

Administrative Office of the United States Courts,

2006 Annual Report of the Director, Table B-

4, available at http://www.uscourts.gov/

judbus2006/appendices/b4.pdf ............... 16

Thomas R. Hrdlick, Appellate Review of Remand

Orders in Removed Cases: Are They

Losing a Certain Appeal?, 82 Marq. L. Rev.

PP GIOOE vdccnesedsenenesecicadcecnces 6, 8,9

Thomas F. Lamprecht, Note, How Can It Be

Wrong When It Feels So Right? Appellate

Review of Remand Orders Under the

Securities Litigation Uniform Standards Act,

Fe Vee Gs SOU. DEW GHOED c cv cccvecsccscves 6, 13

Michael E. Solimine, Removal, Remands, and

Reforming Federal Appellate Review, 58 Mo.

Rp ST OED cocteesessesen 6, 13, 15, 16, 17

Rhonda Wasserman, Rethinking Review of

Remands: Proposed Amendments to the

Federal Removal Statute, 43 Emory L.J. 83

Py eckutdeacvenesacvesesn< 6, 10, 13, 15,17

Charles Aian Wright & Arthur R. Miller, ef al.,

Federal Practice and Procedure (3d ed.

Dl sndcssanudeasngeueeesssnaale 4,6, 13,14

l

INTERESTS OF AMICI CURIAE'

Professor Arthur R. Miller is the Bruce Bromley

Professor of Law at Harvard Law School. He has devoted his

teaching and writing career to an understanding of federal

courts, civil procedure, and federal practice. Among his

numerous publications are the leading treatise in federal

practice and the leading casebook in civil procedure. Charles

Alan Wright & Arthur R. Miller, et al., Federal Practice and

Procedure (West 2006); Jack H. Friedenthal, Arthur R. Miller,

John E. Sexton & Helen Hershkoff, Civil Procedure: Cases and

Materials (West 9th ed. 2005). In addition, he has written

numerous articles and consulted on numerous cases raising

novel issues of federal practice and procedure.

Professor Erwin Chemerinsky is the Alston & Bird

Professor of Law and Political Science at Duke University. He

is the author of Federal Jurisdiction (Aspen Law & Business

4th ed. 2003), a one-volume treatise on the jurisdiction of the

federal courts, as well as three books on constitutional law. He

is the author of numerous law review articles on constitutional

law and federal procedure, and frequently argues appellate cases

in the United States Supreme Court and the United States

Courts of Appeals.

Professor Michael E. Solimine is the Donald P.

Klekamp Professor of Law at the University of Cincinnati

College of Law, where he has been a member of the faculty

' Letters of consent to the filing of this brief are being filed

in conjunction with this brief. Pursuant to this Court’s Rule 37.6,

counsel states that this brief was not authored in whole or in part by

counsel for a party and that no one other than amici and their counsel

made a monetary contribution to the preparation or submission of

this brief. 7

2

since 1987. He teaches and has written numerous articles on

civil procedure and federal courts. He also has written

extensively on federal appellate practice, and is the co-author of

the new edition of a leading appellate practice casebook.

Robert J. Martineau, Kent Sinclair, Michael E. Solimine &

Randy J. Holland, Appellate Practice and Procedure: Cases

and Materials (West 2d ed. 2005).

Professor Adam N. Steinman is an Assistant Professor

of Law at the University of Cincinnati College of Law. His

areas of expertise include civil procedure, federal practice and

procedure, and appellate practice and procedure. Professor

Steinman has published numerous articles in the areas of civil

procedure, federal jurisdiction, removal, appellate procedure,

and statutory interpretation. He has also briefed and argued

numerous cases in the United States Courts of Appeals.

Professor E. Farish Percy is an Assistant Professor of

Law at the University of Mississippi School of Law and teaches

Civil Procedure. Her recent research and publications have

focused on civil procedure and federal court jurisdiction. She

has repeatedly argued that federal courts should not exceed their

limited statutory jurisdiction.

Professor Rhonda Wasserman is a Professor of Law at

the University of Pittsburgh School of Law, where she has been

a member of the faculty since 1986. She teaches and has

written numerous articles on civil procedure and federal

practice. She serves as the Reporter to the Local Rules

Committee of the United States District Court for the Western

District of Pennsylvania. Professor Wasserman is the author of

Procedural Due Process (Praeger 2004), a one-volume treatise

on due process.

Having devoted their careers to teaching and wniting

about the federal courts and working for their improved

3

administration, amici have a keen interest in seeing that those

courts function efficiently. It is equally important that the lower

federal courts function only as Congress has authorized. Unless

the court below is reversed, appellate panels will continue to

entertain appeals that Congress has specifically prohibited.

SUMMARY OF THE ARGUMENT

Prior to Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976), this Court had consistently held that 28

U.S.C. § 1447(d) and its predecessor statutes forbade appeal of

a district court’s remand order under any circumstances. See

United States v. Rice, 327 U.S. 742, 749 (1946). This time-

honored bar to appellate review of remand orders rested on

Congress’s legislative “policy of not permitting interrupt[ion]

of the litigation of the merits of a removed cause by prolonged

litigation of questions of jurisdiction of the district court to

which the cause is removed.” Jd. at 751. In an apparent effort

to address an injustice in a particular case, Thermtron for the

first time created an exception to § 1447(d)’s categorical rule,

holding despite the statute’s plain language that when a district

court’s decision to remand is based on “grounds not provided

by [] statute,” the court’s order is subject to appellate review.

Thermtron, 423 U.S. at 350.

Thermtron’s exception to § 1447(d)’s explicit bar to

appeals was without support in the language of the statute as it

then existed. Moreover, since Thermtron was decided,

Congress has amended the removal statute in a way that

eliminated the textual basis on which the 7hermtron exception

is based. Therefore, even if the removal statute as it stood in

1976 supported appeals of a limited class of remand orders, it

no longer does so. In those cases where Congress has sought to

create appellate jurisdiction over remand orders in spite of

§ 1447(d), it specifically provided for such review. Federal

courts should not supplement these express statutory exceptions

4

with additional, judicially created exceptions to Congress’s no-

appeal rule.

Chief Justice Rehnquist, then Associate Justice, in his

dissent in Thermtron called the Court’s new exception “both

unworkable and portentous of the significant impairment of

Congress’ carefully worked out scheme.” /d. at 357 (Rehnquist,

J., dissenting). Chief Justice Rehnquist’s words have proved

prophetic. In the years since Thermtron, the lower courts have

struggled with the limits of the exception, creating several

circuit splits and eviscerating Congress’s clear statutory rule.

See 14C Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3740 (3d ed. 2006).

In practice, Thermtron has allowed defendants to undermine the

purpose of § 1447(d) by subjecting plaintiffs in state court

actions to unjustified delays during the appeal of a district

court’s remand order.

Because it is difficult or impossible to distinguish a

remand order that is not authorized by statute and is thus subject

to appeal under Thermtron from a remand order that is merely

erroneous and thus unappealable under § 1447(d), the Court

should take this opportunity to end the confusion in the lower

courts by overruling 7hermtron or limiting it to its particular

facts. In any case, the district court’s decision below purported

to be based on a lack of subject matter jurisdiction and therefore

is barred from appellate review by § 1447(d).

5

ARGUMENT

I. The Plain Language of § 1447 Does Not Support the

Thermtron Exception.

A. Thermtron Incorrectly Interpreted the

Statutory Language as It Then Existed.

It is difficult to imagine how Congress could more

clearly have expressed an intent to bar all appellate review of

remand orders than it did in 28 U.S.C. § 1447(d): “An order

remanding a case to the State court from which it was removed

is not reviewable on appeal or otherwise... .” Prior to

Thermtron, the Court faithfully enforced Congress’s explicit

statutory bar regardless of the reasons underlying the district

court’s decision to remand. See Rice , 327 U.S. at 748-50.

Indeed, since the first predecessor to § 1447(d) was enacted in

1887, the Court had consistently held that no appeal of remand

orders was permissible under the statute. Jd. at 749.

Thermtron for the first time created an exception to this

categorical rule, holding that the basis of the district court’s

decision to remand in that case—its crowded dockets—was one

that the court “had no authority to consider.” Thermtron, 423

U.S. at 351. The Court held that § 1447(d) “must be read in

pari materia with § 1447(c), so that only remands based on

grounds specified in § 1447(c) are immune from review under

§ 1447(d).” Things Remembered, Inc. v. Petrarca, 516 U.S.

124, 127 (1995). Thus, courts of appeals had jurisdiction over

a remand order as long as the remand was not based on either

a defect in removal procedure or a lack of subject matter

jurisdiction—the two grounds for remand recognized by

§ 1447(c). Id. at 127-28.

Given the unambiguous statutory language of § 1447(d),

however, the Court’s resort in Thermtron to a canon of statutory

construction for its interpretation of the statute was, with all

6

respect, unconvincing. Section 1447(d) states simply and

plainly that any order remanding a case is unreviewable. As the

Court noted in Rice when construing § 1447(d)’s predecessor,

“{s]tatutory language and objective, thus appearing with

reasonable clarity, are not to be overcome by resort to a

mechanical rule of construction, whose function is not to create

doubts, but to resolve them when the real issue or statutory

purpose is otherwise obscure.” Rice, 327 U.S. at 752-53. The

plain meaning of § 1447(d) does not lead to results that are

“absurd or glaringly unjust,” United States v. Rodgers, 466 U.S.

475, 484 (1984) (quotation omitted), and is therefore

controlling. Yet, the Court’s decision inJhermtron discounted

the clear statutory language, holding in effect “that § 1447(d)

does not mean what it says.” Jn re Amoco Petroleum Additives

Co., 964 F.2d 706, 708 (7th Cir. 1992).

Since Thermtron was decided, it has faced substantial

academic criticism on the ground that it ignored Congress’s

expressed intent to bar appellate review of remand orders.’ The

Court should take this opportunity to recognize that Thermtron

was wrongly decided and that its implicit exception to the

appellate bar contravenes the statute’s plain language.

See, e.g., 14C Wright, Miller & Cooper, supra, § 3740, at

525-27; Thomas F. Lamprecht, Note, How Can It Be Wrong When It

Feels So Right? Appellate Review of Remand Orders Under- the

Securities Litigation Uniform Standards Act , 50 Vill. L. Rev. 305,

313-15 (2005); Thomas R. Hrdlick, Appellate Review of Remand

Orders in Removed Cases: Are They Losing a Certain Appeal?, 82

Mara. L. Rev. 535, 548-55 (1999); Rhonda Wasserman, Rethinking

Review of Remands: Proposed Amendments to the Federal Removal

Statute, 43 Emory L.J. 83, 115-19 (1994); Michael E. Solimine,

Removal, Remands, and Reforming Federal Appellate Review, 58

Mo. L. Rev. 287, 297-306 (1993).

7

B. Congress’s Subsequent Amendment of § 1447

Has Eliminated Any Textual Basis for the

Thermtron Exception.

Regardless of the correctness of Thermtron’s

interpretation of § 1447 as it stood in 1976, that interpretation

is no longer tenable in light of Congress’s subsequent

amendment to the statute. In 1996, Congress amended

§ 1447(c) to read:

A motion to remand the case on the basis of any

defect other than lack of subject matter

jurisdiction must be made within 30 days after

the filing of the notice of removal under section

1446(a). If at any time before final judgment it

appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c). The amended statuiory language

undermines Thermtron’s interpretation of the statute in two

distinct but interrelated ways.

First, Thermtron predicated its holding that some

remand orders are appealable on the majority’s conclusion that

Congress did not intend to permit remands unauthorized by

§ 1447(c), which prior to the 1996 amendment provided for

remands only for lack of subject matter jurisdiction or for

defects in removal procedure. Things Remembered, 516 U.S.

at 127.2 Because § 1447(c) covered only these two grounds for

> At the time Thermtron was decided,§ 1447(c) covered cases

that were “removed improvidently” or “without jurisdiction.” See

Thermtron, 423 U.S. at 432. The Court interpreted “removed

improvidently” to mean cases that were removed “improperly,” in

that there was some defectan removal procedure. /d. at 350 n.15; see

(continued...)

8

remands, the Court held remands for any other ground to be

without legal basis and therefore outside § 1447(d)’s appellate

bar. Thermtron, 423 U.S. at 351. The new version of

§ 1447(c), however, provides for remands based both on defects

of subject matter jurisdiction and defects “ other than lack of

subject matter jurisdiction.” 28 U.S.C. § 1447(c) (emphasis

added). Because a remand is necessarily based either on lack of

subject matter jurisdiction or on some other ground, the plain

language of § 1447(c) now covers al/ remands, and Thermtron’s

distinction between those remands that are “issued under

§ 1447(c)” and those that are not no longer finds any support in

the statutory language. On the contrary, to read § 1447(d) “in

pari materia” with § 1447(c), as Thermtron commands, 423

U.S. at 345-46, now compels the opposite conclusion as the one

reached by the Court in Thermtron.

Second, the language of § 1447(c) can no longer be

read, as the Court read it in Thermtron, as an enabling statute

granting district courts the authority to remand. The statute’s

plain language does not purport to either grant or limit a district

court’s remand authority, but only to provide a thirty-day time

limit for certain remand motions to be made. Thus, a key

premise of Thermtron—that § 1447(c) set forth the sole basis

for a district court’s authority to remand —no longer has any

basis in the statute. Indeed, this Court has recognized that

Thermtron’s reading of § 1447(c) was incorrect, noting that,

despite 7hermtron’ s “admittedly far-reaching” language, district

courts have the power to remand cases in circumstances not

*(...continued)

Hrdlick, supra note 2, at 549 & n.67. Congress later replaced the

“removed improvidently” language with “defects in removal

procedure,” which is how the statute stood when Things

Remembered was decided. 516 U.S. at 127-28.

9

included in the statute. Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 355-56 (1988) (recognizing that a district court’s

discretionary remand of pendent state-law claims does not fall

within § 1447(c)’s language); see also Quackenbush v. Allstate

Ins. Co., 517 U.S. 706, 711-12 (1996) (recognizing that a

district court remand for reasons of abstention is outside

§ 1447(c)’s authority); Things Remembered, 516 U.S. at 128-29

(applying the § 1447(d) appellate bar to a remand of a

bankruptcy case under § 1452(b)).

To be sure, the legislative history of this amendment to

§ 1447(c) does not indicate that Congress intended to modify

the scope of § 1447(d)’s appellate bar. See Hrdlick, supra note

2, at 561-69 (examining the legislative history). “ Resort to

legislative history, however, is unnecessary given that the plain

language of the statute no longer supports the implicit exception

to § 1447(d) that 7hermtron read into the statute. See Exxon

Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 568

(2005) (holding that legislative history may be consulted only

when the statute is ambiguous). Congress’s removal of the

statutory basis for the Thermtron exception is particularly

telling given the lack of evidence in the text or legislative

history demonstrating Congress’s intent to create such an

exception in the first place.

* Courts of appeals examining the question have relied on

this legislative history to hold that the 1996 amendment did not alter

the scope of the Thermtron exception. Autoridad de Energia

Electrica de Puerto Rico v. Ericsson Inc., 201 F.3d 15, 17 (1st Cir.

2000); Snapper, Inc. v. Redan, 171 F.3d 1249, 1258-59 (11th Cir.

1999); Hudson United Bank v. LiTenda Mortgage Corp., 142 F.3d

151, 156 n.8 (3d Cir. 1998).

10

C. Congress Has Created Specific Exceptions

to § 1447(d)’s Bar on Appeals When It Has

Deemed Them Necessary.

Absent a “clear statutory command to the contrary,”

Congress is presumed to have intended § 1447(d)’s bar to apply

to a district court’s remand order, “regardless of whether

removal was effected pursuant to § 1441(a)” (which is the

general removal statute) or “under any other statutes, as well.”

Things Remembered, 516 U.S. at 128 (quotation omitted).

When Congress has intended to create an exception to the

general rule of non-appealability, it has not hesitated to provide

the necessary statutory language. For example, § 1447(d) itself

provides that civil rights cases “removed pursuant to section

1443 of this title shall be reviewable by appeal or otherwise.”

28 U.S.C. § 1447(d) (emphasis added). Similarly, Congress in

the Class Action Faimess Act of 2005 specifically provided for

permissive appellate review “notwithstanding section 1447(d)”

Id. § 1453(c)(1) (emphasis added).’

In Osborn v. Haley, 127 S. Ct. 881 (2007), this Court

examined a provision of the Westfall Act mandating that the

Attorney General’s certification that a federal employee

defendant was acting within the scope of his employment be

considered “conclusiv[e] . . . for purposes of removal.” 28

5 Other exceptions permit the United States to appeal

remands in cases involving Native American tribes, and the Federal

Deposit Insurance Corporation or Resolution Trust Corporation to

appeal remands in cases where they are parties. Wasserman,

supra note 2, at 104-08. Congress has also expressly allowed limited

appeals in cases covered by the Multidistrict, Multiparty, Multiforum

Trial Jurisdiction Act. 28 U.S.C. § 1441(e)(3). In those cases,

Congress provided that “the remand shal] not be effective until the

appeal has been finally disposed of.” Jd.

1]

U.S.C. § 2679(d)(2). The Court held that the certification rule

acts as an “antishuttling provision” that prohibits a district court

from remanding a case to state court after the case has been

removed pursuant to the Attorney General’s certification.

Osborn, 127 S. Ct. at 886. Prohibiting appellate review of

remand orders despite the Attorney General’s certification, the

Court held, would render the certification provision

“weightless.” Jd. at 895. Thus, the Court concluded that the

Westfall Act’s antishuttling provision directly conflicts with

§ 1447(d)’s own antishuttling provision, and that, “of the two

antishuttling commands, . . . only one can prevail.” Jd. at 896.

The Court emphasized, however, that “only in the extraordinary

case in which Congress has ordered the intercourt shuttle to

travel just one way—from state to federal court—does [the]

decision hold sway.” Jd. It also stressed that its decision

“scarcely means that whenever the district court misconstrues

a jurisdictional statute, appellate review of the remand is in

order,” noting that such an exception would “collide head on

with § 1447(d), and with our precedent.” /d. at 895-96.

Congress has thus demonstrated its ability to create

exceptions to its categorical rule against appeals of remand

orders when it feels such an exception is necessary, either in the

form of an explicit authorization of appeals or of an express

antishuttling provision of the kind at issue in Osborn that is

directly inconsistent with § 1447(d)’s categorical rule. The

Thermtron exception, however, is not supported by a similar

“clear statutory command.” Things Remembered, 516 U.S. at

128. Nor does the Foreign Sovereign Immunities Act

(FSIA)}—the statute at issue in this case—contain such an

exception. See Linton v. Airbus Industrie, 30 F.3d 592, 595-96

(Sth Cir. 1994); Mobil Corp. v. Abeille Gen. Ins. Co., 984 F.2d

664, 666 (5th Cir. 1993). This Court should use this case to

make clear that, in the absence of express legislative authority,

the federal courts may not entertain appeals of remand orders or

12

create new exceptions to Congress’s clearly expressed policy.

Il. Thermtron’s Holding Undermines the Purpose of

§ 1447(d) by Encouraging Appeal as a Delaying

Tactic.

The bar to appellate review of remand orders arises from

Congress’s “policy of not permitting interrupt[ion] of the

litigation of the merits of a removed cause by prolonged

litigation of questions of jurisdiction of the district court to

which the cause is removed.” Rice, 327 U.S. at 751. Congress

understood that district courts are not infallible and that some

remand orders—presumably a small minority—would be

erroneously granted. Adkins v. Ill. Cent. R.R. Co., 326 F.3d

828, 834 (7th Cir. 2003). Nevertheless, a defendant whose case

is mistakenly remanded to state court can still obtain a fair trial

in that forum, and, in Congress’s judgment, any degree of

prejudice resulting from denying defendants their forum of

choice is outweighed by the importance of avoiding delays

caused by prolonged federal court proceedings. See Thermtron,

423 U.S. at 355 (Rehnquist, J., dissenting); see also Kircher v.

Putnam Funds Trust, 126 S. Ct. 2145, 2156 (2006 recognizing

that a state court is “an equally competent body” to decide a

case). By providing for removal to the district court but

disallowing appeals, Congress struck a balance between the

desirability of allowing access to a federal forum and the

significant costs of delay on appeal. Thermtron, 423 U.S. at

354-55 (Rehnquist, J., dissenting).

The Court in Thermtron apparently expected the

exception it created to § 1447(d)’s previously firm rule to bea

narrow one. After Thermtron, the particular basis for the

district court’s remand in that case—its clogged

dockets—cannot be expected to be invoked explicitly as a

ground for remand by district courts. Thermtron, however, has

not been limited to that ground. Courts of appeals have often

13

been reluctant to let pass a district court’s perceived mistakes

and, as in this case, have stretched to find the authority to

correct them. Indeed, commentators have noted that “[aJt

virtually every opportunity, many of the lower courts chose to

expand Thermtron and create additional exceptions to Section

1447(d).” Solimine,supra note 2, at 332; see also 14C Wright,

Miller & Cooper, supra, § 3740 (documenting the long line of

lower court cases struggling with the application of Thermtron

and expanding its scope); Lamprecht, supra note 2, at 312

(noting that courts have “whittled away at [§ 1447(d)’s]

seemingly decisive language”), Wasserman, supra note 2, at

119. The result has been a “gradual evisceration” of the

§ 1447(d) bar. Lamprecht, supra_note 2, at 311; see also

Solimine, supra note 2, at 288 (noting that post-7hermtron

cases in the lower courts “permit federal appellate review of

district court remand orders in a wide variety of

circumstances”).°

The Ninth Circuit decision below represents just one

way in which the courts of appeals have adopted rules to avoid

the appellate bar. Relying on a line of cases originating with its

decision in Pelleport Investors, Inc. v. Budco Quality Theatres,

Inc., 741 F.2d 273 (9th Cir. 1984), the court held that it had the

authority to review “substantive” decisions that “preceded the

remand order.” Pet. App. 10a. Other circuits have relied on

*A 2005 Westlaw search identified 250 cases in the previous

ten years in which courts of appeals had to construe and apply

§ 1447(d). Out of 148 reported decisions addressing the propriety of

hearing an appeal from a remand order (not including cases removed

under § 1443), the majority of cases (83) allowed review. Of the 102

unreported decisions, 19 cases were found to be within the court of

appeals’ jurisdiction. Thus, even counting the unreported cases,

more than 40 percent of the appealed remands were found to be

within the court’s appellate jurisdiction.

14

Pelleport for authority to review substantive decisions of

district courts.’ Courts of appeals have also adopted various

other judicially created exceptions to the statutory no-appeal

rule, holding, for example, that the appellate bar excludes

jurisdictional issues that arise after the time of removal, :

appeals of constitutional issues,’ and a variety of other

categories of cases.'°

’ See, e.g., Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342,

1344-45 (10th Cir. 1992); McDermott Int'l, Inc. v. Lloyds

Underwriters of London, 944 F.2d 1199, 1204 (Sth Cir. 1991);

Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211 (3d Cir. 1991);

Regis Assocs. v. Rank Hotels Mgt. Ltd., 894 F.2d 193, 194-95 (6th

Cir. 1990); Karl Koch Erecting Co. v. N.Y. Convention Ctr. Dev.

Corp., 838 F.2d 656, 658-59 (2d Cir. 1988). The Ninth Circuit’s

decision in Pelleport was based on this Court’s decision in Waco v.

United States Fidelity & Guaranty Co., 293 U.S. 140, 143 (1934),

which allowed appeal of a district court decision that “in logic and

in fact” preceded a remand order. Waco, however, was decided

before Congress adopted § 1447(d)’s appellate bar. See Osborn, 127

S. Ct. at 909 (Scalia, J., dissenting) (noting that “the continued

vitality of Waco is dubious in light of more recent precedents”).

* See, e.g., Reddam v. KPMG LLP, 457 F.3d 1054, 1058-59

(9th Cir. 2006). But see Linton, 30 F.3d at 599-600.

° In re TMI Litig. Cases Consol. ll, 940 F.2d 832, 843 (3d

Cir. 1991).

© See, e.g., Carry. Am. Red Cross, 17 F.3d 671, 680 (3d Cir.

1994) (allowing appellate review of dispositive district court orders

that are separable from the merits, even if the order is jurisdictional

in nature and triggers an order of remand); Air-Shields, Inc. v.

Fullam, 891 F.2d 63, 66 (3d Cir. 1989) (allowing review where the

district court remanded a case for procedural defects after expiration

of the thirty-day time limit in § 1447(c)); Rothner v. City of Chicago,

879 F.2d 1402, 1408 (7th Cir. 1989) (allowing appellate review of a

remand based on waiver of the right to remove); see also 14C

(continued...)

15

Moreover, lower courts have generally held that a

district court’s remand order based on its discretionary power

to remand supplemental state law claims pursuant to 28 U.S.C.

§ 1367 are appealable because they do not fall within the

bounds of § 1447(c).'' As previously mentioned, however,

Thermtron’s holding of reviewability was predicated on the

majority’s conclusion that Congress did not intend to permit

remands unauthorized by statute. Thermtron, 423 U.S. at 350.

Now that this Court has recognized the district courts’ authority

to remand supplemental claims, see Carnegie-Mellon Univ.,

484 U.S. at 355-56, these remands should not be appealable

even under the logic of Thermtron. See Solimine, supra note 2,

at 307-08; see also Things Remembered, 516 U.S. 124, 129-30

(1995) (Kennedy, J., concurring) (noting that the Court has not

decided whether remands pursuant to a district court’s

supplemental jurisdiction are appealable).

Unfortunately, the courts of appeals’ allowance of

appellate review in some remand cases effectively allows

appellate review in a//] remand cases. Defendants in state court

actions can always argue that appellate review of the district

court’s remand decision should be available under an exception

to § 1447(d). These appeals do not need to be meritorious to

achieve the purpose of delay; it was, after all, primarily a

concern with the possibility of the delay resulting from

unmeritorious removals that caused Congress to enact the

appeals bar in the first place, and there is no reason to think that

'°(._ continued)

Wright, Miller & Cooper, supra, § 3740, at n.30 (listing cases);

Wasserman, supra note 2, at 126-27 (listing a variety of other

exceptions).

"' See, e.g., Thomas v. LTV Corp., 39 F.3d 611, 616 (Sth Cir.

1994).

16

litigants who engage in such removals will not press their

positions on appeal. The median length of an appeal in the

federal courts of appeals is 12.2 months, which includes many

appeals that are dismissed promptly because of procedural flaws

or failure to meet deadlines.'? By appealing a district court’s

remand order and arguing that an exception to the no-appeal

rule applies, state court defendants compound the initial delay

caused by removal by achieving an additional delay on appeal.

Amoco, 964 F.2d at 708 (“Complex proceedings just to

determine whether a remand is reviewable by the court of

appeals defeat the speed and simplicity that one would have

thougni to he the principal justification for § 1447(d).”), see

Solimine, supra note 2, 2¢ 304-05 (“The bar to review does little

good if the putative reviewing author ity #s forced to ask in every

case if the remand order is without the bounds of

‘correctness.””’).

In this case, Petitioner argues for yet another implicit

exception to § 1447(d)’s appellate bar for cases remanded

pursuant to the FSIA, an exception that has never been adopted

by any lower court. See Linton, 30 F.3d at 595-96, Mobil

Corp., 984 F.2d at 666. In support of this proposed exception,

Petitioner stresses the potential for an erroneous decision by the

district court and asserts that “Congress could not have intended

§ 1447(d) to confer on a single federal district judge

unreviewable authority to deny a foreign sovereign its right

2 Administrative Office of the United States Courts, 2006

Annual Report of the Director, Table B-4, available at

http://www.uscourts.gov/judbus2006/appendices/b4.pdf. In the

Ninth Circuit, the median length of an appeal is even longer—15.9

months. /d. Of course, if the defendant petitions for a writ of

certiorari, the delay is further increased. The Ninth Circuit decided

this case, for example, in December 2004.

17

under the FSIA to a bench trial in federal court.” Pet. Br. 48.

But the potential that a district court will make an erroneous

determination is always a cost of denying appellate review in

removal cases. Moreover, Petitioner’s view of what Congress

must have intended runs headlong into Congress’s contrary and

clearly expressed policy against “interruption of the litigation of

the merits of a removed cause by prolonged litigation of

questions of jurisdiction.” | Kircher, 126 S. Ct. at 2152

(quotation omitted).

There is no reason to believe that Congress viewed

appeals of remands under the FSIA as any more important than

appeals in the variety of other contexts in which defendants are

entitled to a federal forum. This Court rejected a similar

argument—that Congress must have intended for appellate

review of remand orders in cases removed pursuant to the

Securities Litigation Uniform Standards Act—last term in

Kircher, noting that Congress had not specifically provided for

such appeals. /d. at 2154 n.8. When Congress believes that

policy interests make appellate review necessary, it has created

specific statutory exceptions. See Wasserman, supra note 2, at

105-07. Section 1447(d)’s exception for appeals of remand

orders in civil rights cases, for example, was based on

Congress’s “perception that remands of civil rights cases were

particularly injurious to defendants in those cases, and that

appellate exposition of Section 1443 was necessary.” Solimine,

supra note 2, at 293. In other circumstances, however, courts

must respect Congress’s judgment that the desirability of

granting access to a federal court of appeals does not justify the

resulting cost of delay. See Kircher, 126 S. Ct. at 2154 n.8

(holding that,-in the absence of a “clear statutory command,”

Congress’s “silence tells us we must look to 28 U.S.C. §

1447(d) to determine the reviewability of remand orders’’).

18

III. Appellate Review of the District Court’s Remand

Order in This Case Should Be Prohibited.

A. This Court Should Overrule Thermtron Or

Limit It to Its Specific Facts.

Because Thermtron has led to widespread uncertainty

and disregard of the statute’s plain meaning in the lower courts,

amici urge the Court to take this opportunity to overrule

Thermtron and eliminate the judicially created exception to

Congress’s express policy against appeals of remand orders.

Alternatively, this Court should prevent any additional erosion

of § 1447(d)’s rule by limiting 7hermtron to the particular facts

of that case, leaving any further modifications of § 1447(d) to

Congress. See Spielman y. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 332 F.3d 116, 127 (2d Cir. 2003) (“It is not our

place as jurists to supply that which is omitted by the

legislature.”).

Developments before this Court in another area of

appellate jurisdiction parallel the approach that amici suggest

here with respect to Thermtron. The principal basis for federal

appellate jurisdiction is 28 U.S.C. § 1291, under which litigants

may appeal only from “final decisions” of the district courts. In

general, § 1291 means what it says: A final decision is one that

“ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.” Van Cauwenberghe v.

Biard, 486 U.S. 517, 521-22 (1988) (quotation omitted). Under

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949), § 1291 also includes a narrow category of orders that do

not end the entire litigation, but finally decide an important

issue that is wholly collateral to the merits of the litigation,

review of which is necessary to prevent irreparable harm. Some

fifteen years after Cohen, however, in Gillespie v. United States

Steel Corp., 379 U.S. 148 (1964), the Court took Cohen well

beyond its original narrow purpose and allowed an interlocutory

19

appeal simply where the district court had dismissed one set of

claims on their merits but not another. The Court

acknowledged that appellate review in that case “could be

called ‘piecemeal,’” but justified erosion of the “final decision”

rule based on the Court’s own view of “the inconvenience and

cost” of trying the case prior to appeal, and its concern that

delay in resolving the claims could work “a great injustice” to

the plaintiffs. /d. at 153. In dissent, Justice Harlan noted that

these reasons “furnishe[d] no excuse for avoidance of the

finality rule,” and sounded an alarm, not unlike the alarm

sounded by Chief Justice Rehnquist in Zhermtron, that such

arguments could support review in many interlocutory appeals.

Id. at 167-70 (Harlan, J., dissenting).

In Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), .

the Court put on the brakes. After holding that a district court

order denying class certification is not an appealable collateral

order under Cohen, as properly and narrowly construed, the

Court rejected the plaintiffs’ reliance on Gillespie, effectively

ending its relevance as a § 1291 precedent. “If Gillespie were

extended beyond the unique facts of that case,” Justice Stevens

explained, “§ 1291 would be stripped of all significance.” /d.

at 477 n.30. So, too, here, if Thermtron were allowed to expand

beyond its highly unusual circumstances, the strict no-appeal

policy expressed by Congress in § 1447(d) would be seriously

eroded, if not destroyed entirely.

B. At a Minimum, this Court Should Prohibit

Second-Guessing of a District Court’s Basis

for Remand.

As Chief Justice Rehnquist pointed out in his

Thermtron dissent, a district court can be said to be acting

outside its statutory authority, and therefore outside of

§ 1447(d)’s appellate bar, any time its grant of remand is

erroneous. See Thermtron, 423 U.S. at 356 (Rehnquist, J.,

20

dissenting). Moreover, district courts sometimes remand on

purportedly jurisdictional grounds, but either do not explain

the basis for their lack of jurisdiction or provide an explanation

that is not jurisdictional in nature. See id. at 357. These

problems have led to a circuit split on the question whether the

district court’s mere use of the word “jurisdiction” is sufficient

to deny appellate review, even when it is apparent that the

court’s ruling was erroneous or was based on a non-

jurisdictional and impermissible ground."

The district court’s remand order in Thermtron was

granted solely on the ground that the court’s docket was too

crowded to permit a speedy resolution of the case, a

justification that was without legal basis and “plainly irrelevant

to whether the District Court would have had jurisdiction of

the case had it been filed initially in that court, to the

removability of a case from the state court under § 1441, and

hence to the question whether [the] cause was removed

improvidently and without jurisdiction within the meaning of

the statute.” /d. Because the district court in Thermtron did

'’ Compare Heaton v. Monogram Credit Card Bank, 231

F.3d 994, 997 (Sth Cir. 2000) (holding that a court of appeals may

review a remand order “only if the district court clearly and

affirmatively relies on a non-section 1447(c) basis”) (quotation

omitted) and Adkins, 326 F.3d 828, with Mangold v. Analytic Servs.,

Inc., 77 F.3d 1442, 1450 (4th Cir. 1996) (holding that if there is any

ambiguity about whether the district judge felt that a remand was

compelled, the court of appeals must “determine by independent

review of the record” what the real basis for remand was). The

former approach has also been adopted in slightly modified form by

the Third and Tenth Circuits. See Balazik v. County of Dauphin, 44

F.3d 209, 213 (3d Cir. 1995); Archuleta v. Lacuesta, 131 F.3d 1359,

1362 (10th Cir. 1997) (barring review as long as the district court’s

finding of no subject matter jurisdiction was made in good faith).

21

not even purport to dismiss the case based on subject matter

jurisdiction or a defect in removal procedure, this Court had no

reed to second-guess the claimed basis of the district court’s

decision. On the contrary, the Court stressed that a district

court’s decision to remand for lack of subject matter

jurisdiction was unreviewable on appeal “whether erroneous

or not.” Id. at 343 (emphasis added); see also Amoco, 964

F.2d at 708 (“[E]ven an obviously erroneous invocation of

§ 1447(c) is untouchable.”). In Kircher, this Court reaffirmed

the principle that “review is unavailable no matter how plain

the legal error in ordering the remand,” 126 S. Ct. at 2154

(quotation omitted), but explicitly declined to decide whether

a district court’s characterization of its own remand is

reviewable on appeal, id. at 2154 n.9; but see id. at 2157

(Scalia, J., dissenting) (arguing that appellate

recharacterization of a district court’s remand order is a

prohibited form of review).

In contrast to the district courtin Thermtron, the

district court in this case specifically purported to remand on

jurisdictional grounds, stating that “the issue hinges . . . on the

Court’s jurisdictional authority to hear the removed claims.”

Pet. App. 20a. Moreover, the district court in a later order

explicitly invoked § 1447(c) and clarified that its remand order

was based on lack of subject matter jurisdiction. See JA 283,

287. Petitioner nevertheless urges that the district court’s

remand order, properly recharacterized, was actually a

discretionary remand of state causes of action within its

supplemental jurisdiction. Pet. Br. 45-48. Amici take no

position on whether Petitioner’s view of the district court’s

jurisdiction is correct, but, regardless, it was not the basis of

the court’s decision. The district court’s remand order never

mentions § 1367 or indicates that the court believed the

remand was discretionary.

22

Even if this Court declines to overrule Thermtron or

limit it to its facts, amici urge it to clear up the uncertainty in

the lower courts by deciding that appellate review is barred

when a district court purports to rely on jurisdictional grounds

in remanding a case. If a court of appeals can second-guess a

district court’s purported jurisdictional dismissal, § 1447(d)’s

bar would “mean[] nothing at all, because appeals will be

taken and sustained in those cases where the district court

made a mistake, and rejected in cases where the district court

was correct.” Adkins, 326 F.3d 828. As Chief Justice

Rehnquist feared, the purportedly narrow exception created in

Thermtron would have begun to swallow § 1447(d)’s no-

appeal rule. The Court should restore the statute to its textual

foundation, leaving to Congress the decision to chart a new

course on the appealability of remand orders.

CONCLUSION

For the reasons stated above, the decision of the court

of appeals should be vacated and remanded with instructions

that the case be further remanded to the state court in which it

was filed.

23

Respectfully submitted,

Gregory A. Beck

Bnan Wolfman

(Counsel of Record)

Public Citizen Litigation Group

1600 20th St., N.W.

Washington, DC 20009

(202) 588-1000

Arthur R. Miller

1545 Massachusetts Ave.

Cambridge, MA 02138

(617) 495-4111

March 2007 Counsel for Amici Curiae