Petition for Writ of Certiorari — Survival Systems Division of the Whittaker Corp. v. United States District Court

3 Supreme Court, US.

| FILED

NOV 24 1987

JOSEPH F. SPANIOL, JR.

CLERK

7

87-898 /

No. 87-

In the Supreme Court

OF THE

United States

October Term, 1987

SURVIVAL SYSTEMS DIVISION OF THE

WHITTAKER CORPORATION, WHITTAKER CORPORATION,

and JOHN AGRELLA,

Petitioners,

¥.

MILLIE MAE RODRIGUEZ,

~ Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Roy E. Potts

Counsel of Record

ROBERT C. HAYDEN

OVERTON, LYMAN & PRINCE

550 South Flower Street

Sevcnth Floor

Los Angeles, California 90071

(213) 683-1100

Attorneys for Petitioners

November 24, 1987

Bowne of Los Angeles, Inc.. Law Printers (215) 742-6600

1

QUESTION PRESENTED

Whether a district court has authority to remand a

properly removed case to state court after plaintiff volun-

tarily dismisses all federal causes of action in response to

a motion for summary judgment —- a basis for remand not

authorized by 28 U.S.C. § 1447(¢)?

ll

PARTIES TO THE PROCEEDING

All of the Parties to the proceeding below are listed in

the ecaption.*

*Pursuant to Rule 28.1 of the Court, Petitioner Whittaker Corpora-

tion states that is has no parent company and that it has the following

subsidiaries or affiliates that are not wholly-owned: Elsin Corpora-

tion; Polychimie, S. A.; Whittaker Bioproducts France SARL; and

Yardney-Tungstone Special Batteries Limited.

ill

TABLE OF CONTENTS

ot gt | | sy 4 | Er

PARTIES TO THE PROCEEDING.............

OD hos cates ce veccensecwvces

I.

The Ninth Cireuit’s refusal to issue a writ of

mandamus (1) permits remand for a reason not

authorized by 28 U.S.C. § 1447(¢c); (2) ignores

this Court’s Thermtron decision; and (3) conflicts

with the decisions of other courts of appeals ....

Il.

The decisions of the courts of appeals in conflict

with the Ninth Cireuit are based upon this Court’s

Thermtron decision and a refusal to expand 28

a ae

Ill.

The Ninth Cireuit decisions allowing remand

under the circumstances of this case ignore

Thermtron decision and lack proper analytical

RS eae a ee ee eee

iv

IV

Like the Ninth Cireuit decisions, those of other

courts of appeals permitting remand to state court

either fail to consider this Court’s Thermtron

decision or erroneously conclude that it is not

OU ii vc cc idee ctr encbnne eh nae cidedes

NEE oi ova wake boas Koh eee se hne ewan

APPENDIX

Opinion of Court of Appeals for the Ninth Circuit...

Order of the Court of Appeals for the Ninth Circuit

oS Pe rer rrrerrer re Terie rer i Te

Order of the United States District Court for the

Southern District of California........... ee

Page

11

12

Vv

TABLE OF AUTHORITIES

Cases

Boelens v. Redman Homes, Inc., 759 F.2d 504 (5th

Salt SE chs ace bed sawn eee cae

Carnegie-Mellon University v. Cohill, cert. granted,

107 S. Ct. 1283 (1987) (No. 86-1021) ........

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

Fox v. Custis, 712 F.2d 84 (4th Cir. 1983) .....

Hofbauer v. Northwestern National Bank of Roches-

ter, 700 F.2d 1197 (8th Cir. 1983) ..........

IMFC Professional Services, Inc. v. Latin Ameri-

can Home Health, Inc., 676 F.2d 152 (5th Cir.

EE Mbenseiiset eee See an

In re Greyhound Lines, Inc., 598 F.2d 883 (5th

Ce ee rao eer eves CoE b eh ieee wees cas

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

See a I oo ong de 6 hoo vie wah ce bas

Moynahan v. Pari-Mutuel Employees Guild of Cal-

ifornia, Local 280, 317 F.2d 209 (9th Cir. 1963)

Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965) ..

Naylor v. Case and McGrath, Inc., 585 F.2d 557

ee Ewin ooo 4 oaks eben saee nia

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

SERRE FES te Ripe are ee arcs a een Mea tet Am

Sheet Metal Workers International Association v.

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

Sunbeam Lighting Co. v. Pacific Associated Light-

ing Inc., 328 F.2d 300 (9th Cir. 1964) .......

Swett v. Schenk, 792 F.2d 1447 (9th Cir. 1986)...

Page (s)

vi

TABLE OF AUTHORITIES

CASES

Page(s)

Thermtron Products, Inc. v. Hermansdorfer, 423

oe Fry re 7, 8,9, 11

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

CROGGS 6 sancdncdnsenaetahdeseeaeee 11

Watkins v. Grover, 508 F.2d 920 (9th Cir. 1974) .. 9,10

Wham-O-Mfg. Co. v. Paradise Manufacturing Co.,

327 F.2d 748 (9th Cir. 1964) ............... 10

Statutes

SO USAC G IMOOUE) 006s hb nscnckcnesntecnvans 2

28 U.S.C. § 1441 ...... nv0es +444 tear eeee 2

otk Fe 2 Peeeeeeere rrr er Try ery rT Te 2, 4, 6

BO UBL. S GRICE) 0c a cevncdesdescnsteuseas i, 8,9, 11

No. 87-

In the Supreme Court

OF THE

United States

October Term, 1987

SURVIVAL SYSTEMS DIVISION OF THE

WHITTAKER CORPORATION, WHITTAKER CORPORATION,

and JOHN AGRELLA,

Petitioners,

We

MILLIE MAE RODRIGUEZ,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Survival Systems Division of the Whittaker Corpora-

tion (“Survival Systems”), Whittaker Corporation, and

John Agrella, Petitioners, respectfully pray that a writ of

certiorari issue to review the decision of the United States

Court of Appeals for the Ninth Cireuit entered in the

above-entitled ease on August 27, 1987. In that decisivoui,

the Ninth Circuit denied a petition for a writ of manda-

mus concerning the December 4, 1984, Order of the

United States District Court for the Southern District of

California remanding this case to state court after dis-

missing respondent’s federal causes of action and ruling

2

that her remaining cause of action was non-federal in

nature.

OPINIONS BELOW

The August 27, 1987 opinion of the Court of Appeals for

the Ninth Cireuit (1a) is officially reported at 825 F.2d

1416 and unofficially reported at 126 L.R.R.M. 2229. The

decision of the district court is not reported and is

reprinted in the Appendix at 10a.

JURISDICTION

The Court of Appeals issued its decision on August 27,

1987. Petitioners invoke the jurisdiction of this Court

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

eourt of which the district courts of the United

States have original jurisdiction, may be removed by

the defendant 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 eivil action of which the district courts

have original jurisdiction founded on a claim or right

‘Citations to material printed in the annexed Appendix appear as

“__a.” Thus, the opinion of the Ninth Cireuit begins at page la of the

appendix.

3

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.

(ec) Whenever a separate and independent claim

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 deter-

mine 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 determining any

elaim in such civil action because the State court

fram which such civil action is removed did not have

jurisdiction over that claim.

i,

4

28 U.S.C. § 1447 provides:

§ 1447. Procedure after removal generally

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

district court may issue all necessary orders and

process 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.

(c) If at any time before final judgment it appears

that the case was removed improvidently and without 4

jurisdiction, the district court shall remand the ease,

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 ease.

(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

On February 17, 1983, Whittaker Corporation dis-

charged respondent, Millie Mae Rodriguez, as an em-

ployee of its Survival Systems Division. On February 17,

1984, respondent filed suit in the Superior Court for the

County of San Diego against Whittaker Corporation,

Survival Systems, John Agrella (hereinafter, “petition-

5)

ers’) and twenty Does. She listed six causes of action:

(1) wrongful discharge; (2) breach of contract; (3)

breach of implied in fact contract; (4) tortious breach of

implied covenant of good faith and fair dealing in the

employment contract; (5) intentional infliction of emo-

tional distress; and (6) negligent infliction of emotional

distress. The summons and complaint were served on

petitioners on or about August 9, 1984.

While an employee of Survival Systems, respondent

was represented for collective bargaining purposes by the

International Association of Machinists and Aerospace

Workers (hereinafter, the “Union’’). Her wages, hours,

and other terms and conditions of employment were

governed by a collective bargaining agreement between

the Union and Survival Systems. Respondent resorted to

the grievance procedure as a result of her discharge and

her grievance was prosecuted by the Union, but after

investigation the Union withdrew her grievance. Respon-

dent did not sue the Union for breach of the duty of fair

representation. Instead, she instituted the instant suit.

Petitioners answered and cross-complained.

The various causes of.action in respondent’s suit allege

violations of her collective bargaining agreement. Since

such suits are governed by federal law, petitioners re-

moved respondent’s suit to the United States District

Court for the Southern District of California on Septem-

ber 6, 1984.

Concurrently with the filing of their petition for re-

moval, petitioners filed a motion for summary judgment

with the district court. The primary ground for the motion

was that all of respondent’s causes of action were pre-

empted by federal labor law. In her opposition, respon-

dent conceded that all but the fifth cause of action were

preempted and were barred by the applicable statute of

bs)

limitations. She therefore requested that the district

court enter an order of dimissal as to those causes of

action. She argued, however, that the fifth cause of action

for intentional infliction of emotional distress is not

preempted by federal labor law. Respondent did not seek

remand.

On December 4, 1984, the district court, in accordance

with respondent’s request, granted petitioners’ motion for

summary judgment as to all but the fifth cause of action.

The district court denied the motion as to that cause of

action and remanded the case_to the State court “pursu-

ant to this court’s sound discretion under 28 U.S.C._

§ 1447.” (10a.)

On January 4, 1985, petitioners filed a petition for writ

of mandamus with the court of appeals. By an undated

Order filed on April 1, 1985, the court of appeals stated

that the petition presented two questions: (1) whether the

district court erred by refusing to treat the remanded

claims as artfully pleaded § 301 claims; and (2) whether

review is available under the collateral order doctrine,

thus precluding mandamus review. The court’s Order

directed respondent to file answers to these questions,

permitted petitioners to file a reply, and ordered that the

case be referred to a merits panel. (8a-9a.)

By Opinion dated August 27, 1987, the merits panel

denied the petition for writ of mandamus (7a). The court

first concluded that mandamus is the appropriate means

of review (6a). However, the court also concluded that

the district court’s remand order was correct as a matter

of law (6a-7a) because: (1) the allegations of the remain-

ing cause of action, “if proved, could sustain a finding

that the conduct was outrageous, and thus the claim was

not preempted” (7a); and (2) “once the federal claim

upon which removal was based is gone, it is within the

7

discretion of the district court to remand the state claim

to the state court from which it was removed.” (7a.) The

court, in a footnote, acknowledged that the circuits are

not in agreement as to the availability of remand for

pendent claims, and that the Supreme Court has granted

certiorari on this issue in Carnegie-Mellon University v.

Cohill, cert. granted, 107 S. Ct. 1283 (1987) (No. 86-

1021). (7a, at n.2.) However, the court stated in the same

footnote that the district court’s remand order was not

“clearly erroneous as a matter of law’ given current

Ninth Cireuit authority allowing remand under such

circumstances.

REASONS FOR GRANTING THE WRIT

I,

The Ninth Circuit’s refusal to issue a writ of mandamus

(1) permits remand for a reason not authorized by 28

U.S.C. § 1447(c); (2) ignores this Court’s Thermtron

decision; and (3) conflicts with the decisions of other

courts of appeals. a

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

336, 342 (1976), a decision authored by Justice White,

this Court held that: “Section 1446 provides the proce-

dure for removal; and a case removed under that section

may be remanded only in accordance with § 1447...”

(footnotes omitted). In Thermtron, a district court had

remanded a properly removed case because it determined

that, due to a congested docket, the case could be better

handled by the State court whence it had come. 423 U.S.

at 339. The Sixth Cireuit denied a petition for a writ of

mandamus, and this Court granted a petition for a writ of

certiorari and reversed the Sixth Cireuit. 423 U.S. at 341-

42.

8

The Ninth Cireuit decision in the instant case permit-

ted remand for a reason not provided in 28 U.S.C.

§ 1447(c) and ignores Thermtron. The courts of appeals

are divided over the interpretation of § 1447(c) and over

the applicability of Thermtron beyond its specific factual

circumstances. There should be a single answer, and only

this Court can resolve this conflict.

Il.

The decisions of the courts of appeals in conflict with

the Ninth Circuit are based upon this Court’s Therm-

tron decision and a refusal to expand 28 U.S.C.

§ 1447(c).

The Seventh, Fifth, and Tenth Circuits have expressly

held that remands are not proper if made for reasons

other than those permitted in 28 U.S.C. § 1447(e).

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

Seventh Circuit held that remand of state law claims is

not permitted, even though the federal claim was dis-

missed involuntarily. In reaching its holding, the Seventh

Cireuit stated, “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.

The Fifth Circuit, in In re Greyhound Lines, Inc., 598

F.2d 883, 884-85 (5th Cir. 1979), issued a writ of manda-

mus directing the district court to retain jurisdiction in a

ease in which the plaintiff had voluntarily dismissed the

federal claim and requested and obtained a remand of the

states claims.”

“Subsequently, a panel of the Fifth Cireuit, in JMFC Professional

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

sawy ee

9

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 remand could not be granted

for a reason not expressly specified in 28 U.S.C.

§ 1447(c¢).

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

mandamus in this ease, when remand by the district court

was not authorized by 28 U.S.C. § 1447(c), directly con-

flicts with the decisions of the Seventh, Fifth and Tenth

Circuits.

Il.

The Ninth Circuit decisions allowing remand under the

circumstances of this case ignore Thermtron decision

and lack proper analytical support.

In denying the petition for writ of mandamus, the

Ninth Cireuit cited its recent decision in Swett v. Schenk,

792 F.2d 1447 (9th Cir. 1986), for the proposition that

‘“‘onee the federal claim upon which removal was based is

gone, it is within the discretion of the district court to

remand the state claim to the state court from which it

was removed.” (7a.) The Swett decision contains a similar

statement, again without discussion of the controlling

statute or this Court’s Thermtron decision, merely citing

the Ninth Cireuit’s pre-Thermtron decision in Watkins v.

60 (5th Cir. 1982), held that there is diseretion to decline jurisdiction

over non-federal defendants once all claims against federal defend-

ants were dismsised, finding that the ease had thereby become one

“removed improvidently and without jurisdiction” and thus subject

to remand under 28 U.S.C. § 1447(¢). However, the Fifth Circuit

thereafter indicated that Jn re Greyhound Lines, Inc., is still good

law. Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 n.2 (5th Cir.

1985).

10

Grover, 508 F.2d 920 (9th Cir. 1974). The Watkins case

had been removed from state court because two defend-

ants were federal court officers. After removal, the case

was dismissed as to the federal defendants and the

district court then dismissed the remainder of the case

with prejudice on the erroneous assumption that it no

longer had jurisdiction to hear the state claims against

the remaining defendants. The Ninth Cireuit reversed the

dismissal and remanded to the district court with orders

to decide “whether to hear the suit on its merits or, in its

discretion, to remand the suit to the state court from

which it was removed.” 508 F.2d at 921. The question of

whether a district court has such discretion was not an

issue before the Ninth Cireuit in Watkins and the Ninth

Cireuit cited no authority for its direction that the dis-

trict court decide whether, “in its discretion,” to remand.

Older Ninth Circuit precedent likewise fails to provide

any analytical support for that court’s assertion that

district courts have discretion to remand properly re-

moved cases after dismissal of all federal claims. In

Murphy v. Kodz, 351 F.2d 163 (9th Cir. 1965), the Ninth

Circuit held that there is discretion to remand in such

circumstances when there has been no substantial com-

mitment of judicial resource, because to conclude other-

wise would be “making the tail wag the dog.” 351 F.2d at

168. However, all three cases cited in support of the

court’s conclusion were cases in which the court affirmed

district court dismissal of the remaining non-federal

claims. Moynahan v. Pari-Mutuel Employees Guild of Cali-

fornia, Local 280, 317 F.2d 209, 211-12 (9th Cir. 1963);

Wham-O-Mfg. Co. v. Paradise Manufacturing Co., 327 F.2d

748, 753 (9th Cir. 1964); Sunbeam Lighting Co. v. Pacific

Associated Lighting Inc., 328 F.2d 300, 303 (9th Cir.

1964).

i

x

%

\

Ratna CRA EO IIRL a he Wah a wor. me oe Cre

11

IV.

Like the Ninth Circuit decisions, those of other courts

of appeals permitting remand to state court either fail to

consider this Court’s Thermtron decision or errone-

ously conclude that it is not controlling.

In the ease of In re Romulus Community Schools, 729

F.2d 431 (6th Cir. 1984), the Court of Appeals for the

Sixth Circuit held that the district courts have the disere-

tion to remand state claims even if the statutory require-

ments of 28 U.S.C. § 1447(c) have not been met, after

noting that United Mine Workers v. Gibbs, 383 U.S. 715

(1966), permits dismissal of state claims in certain cir-

cumstances. The Sixth Cireuit 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. However, Gibbs did not involve a removed

ease, and removal jurisdiction is based entirely upon

statutes which are to be strictly construed. Cook, 698 F.2d

at 908, citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100, 108-09 (1941).

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(¢). In Fox v. Custis, 712 F.2d 84, 89-90 (4th

Cir. 1983), the Fourth Cireuit held that state claims

should be remanded after the federal claim was volunta-

rily dismissed. In Hofbauer v. Northwestern National Bank

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

Eighth Cireuit reached a similar conelusion, and in Nay-

lor v. Case and McGrath, Inc., 585 F.2d 557, 561-62 (2d

Cir. 1978), the Second Cireuit held that state claims

should be remanded after voluntary dismissal of the

federal claims. None of these decisions discuss this

Court’s Thermtron decision.

12

CONCLUSION

This Court’s review of the issue in the instant case will

resolve an important question of federal law concerning

the authority of the district courts to remand cases

properly removed from state courts after dismissal of all

federal claims, reconcile a conflict among the circuits, and

provide direction which will have a substantial impact on

federal court litigation. For these reasons, petitioners

respectfully request that their Petition for Writ of Certio-

rari to the United States Court of Appeals for the Ninth

Cireuit be granted.

November 24, 1987

Respectfully submitted,

Roy E. Potts

(Counsel of Record)

RoBERT C. HAYDEN

OVERTON, ' "MAN & PRINCE

550 South Flower Street

Seventh Floor

Los Angeles, California 90071

(213) 683-1100

Attorneys for Petitioners

APPENDIX

la

No. 85-7005

D.C. No.

CV-84-1982-JNK

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURVIVAL SYSTEMS OF THE WHITTAKER Corp, et al.,

Pet:*-oners,

Vv.

UNITED STATES District CouRT

FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

Respondent,

and

MILLIE MAE RODRIGUEZ,

Real Party in Interest.

Argued and Submitted

September 11, 1985 — San Francisco, California

Filed August 27, 1987

Before: Herbert Y. C. Choy, Proeter Hug, Jr. and

Mary M. Schroeder, Circuit Judges.

Opinion by Judge Hug

Appeal from the United States District Court

for the Southern District of California

Judith N. Keep, District Judge, Presiding

OPINION

SUMMARY

Appeals/Jurisdiction

Petition for a writ of mandamus. Denied.

2a

Real party in interest Rodriguez was terminated by

petitioner Whittaker Corporation. Her state court suit

alleged various causes of action. Petitioner removed and

received summary judgment on five of the actions. Sum-

mary Judgment was based on preemption by federal law.

The district court held that the statute of limitations had

run on these federal claims. Rodriguez argued that her

sixth claim was not preempted since it was based on state

law. Summary judgment was denied on this issue and

remanded to state court. Petitioner requests a writ of

mandamus to vacate the remand.

[1] If a remand order, ordinarily reviewable by manda-

mus, rests on grounds that removal was improvident and

without jurisdiction, it is not reviewable at all. [2] The

order of remand did not resolve the substantive issue of

preemption, [3] but only the jurisdictional issue that the

inartfully pled state claim failed to establish a federal

claim. Therefore, the remand is not reviewable by appeal.

[4] Once the federal claim upon which removal was based

is gone, it is within the discretion of the district court to

remand the state claim to the state court from which it

was removed.

COUNSEL

Robert C. Hayden, Los Angeles, California, for the

petitioner.

Virginia M. Ebert, San Diego, California, for the real

party in interest.

3a

OPINION

HUG, Cireuit Judge:

Rodriguez’s state court action, asserting various

wrongful discharge claims and claims for intentional and

negligent infliction of emotional distress, was removed on

the basis of preemption under federal labor laws. The

district judge granted summary judgment against Rodri-

guez on all claims except the claim for intentional inflic-

tion of emotional distress, which she remanded to state

court. The defendants petition for writ of mandamus to

compel the district court to retain jurisdiction of that

claim.

We first face the procedural issues of whether the

remand order is reviewable at all and, if so, whether the

review should be by appeal or mandamus. We hold that

the remand is not appealable, but can be reviewed as a

request for a writ of mandamus. The substantive issue in

the ease is whether the claim for intentional infliction of

emotional distress was properly remanded.

I.

FACTS

Rodriguez’s suit in state court against Whittaker al-

leged various wrongful discharge claims, intentional in-

fliction of emotional distress, and negligent infliction of

emotional distress. Whittaker removed the case to federal

court and moved for summary judgment, alleging that

each cause of action was preempted by the National

Labor Relations Act, and that the statute of limitations

had run on these federal claims.

Rodriguez conceded that five of her claims were pre-

empted, but argued that her claim for intentional inflic-

4a

tion of emotional distress was rot preempted, as it was

based on state law. Given Rodriguez's stipulation, the

district court granted summary judgment as to the other

five claims.

The district court then denied the motion for summary

judgment on the claim of intentional infliction of emo-

tional distress. An emotional distress claim asserted

under state law is not preempted if it is “unrelated to

employment discrimination or a function of the particu-

larly abusive manner in which the discrimination is ae-

complished or threatened rather than a function of the

actual or threatened discrimination itself.” Farmer v.

United Bhd. of Carpenters and Joiners of America, 430 U.S.

290, 305 (1977). The district court found that several of

the facts alleged in Rodriguez’s claim would support this

type of state cause of action for outrageous conduct,

which is not preempted, including claims that Rodriguez

was held in a work area against her will by threat of

physical force and was requested to commit lewd sexual

acts.

The district court than remanded this emotional dis-

tress claim to state court. Whittaker requests a writ of

mandamus to vacate this remand.

Il.

REVIEW OF A REMAND ORDER

[1] An order remanding an action, if reviewable at all,

is ordinarily reviewed by mandamus. Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336, 352-53 (1976). How-

ever, if a case is remanded on the ground that removal

was improvident and without jurisdiction, 28 U.S.C.

§ 1447(c) (1982), the remand order “is not reviewable on

A A tO Gy > eats —

ae

5a

appeal or otherwise.” 28 U.S.C. § 1447(d) (1982); Therm-

tron, 423 U.S. at 346.

Here, remand could not possibly have been based on

section 1447(c); removal had not been “without jurisdic-

tion,” since five of Rodriguez’s claims were held to be

preempted by federal law. The statutory preclusion of

review under section 1447(d) is therefore not applicable.

A question exists as to whether the order is reviewable

by direct appeal, because the requested extraordinary

review by mandamus is not available if review can be

obtained by appeal. Moses H. Cone Memorial Hosp. v.

Mercury Constr. Corp., 406 U.S. 1, 8 n.6 (1983). We have

held that a remand order may be reviewed on appeal as a

final collateral order under 28 U.S.C. § 1291 if the order

resolves the merits of a matter of substantive law apart

from any jurisdictional decision. Clorox Co. v. U.S. Dis-

trict Court, 779 F.2d 517, 520 (9th Cir. 1985); Pelleport

Investors, Inc. v. Budco Quality Theatres, Inc. 741 F.2d

273, 276-78 (9th Cir. 1984).

[2] In this ease, the order of remand did not resolve a

matter of substantive law, as in Pelleport or Clorox. The

ruling of the district court was that the state cause of

action alleged in Rodriguez’s complaint was not an art-

fully pled federal claim that was preempted by federal

labor law. This did not finally resolve the issue of preemp-

tion, which could still be raised as a defense to the state

claim in the state court. Thus, if the proof in state court

were such as to justifv the conelusion that the cause of

action was completely preempted by federal labor law, the

defense of preemption could be sustained. The ruling of

the district court was simply that the allegations of the

complaint did not justify such a result.

6a

[3] Thus, the only issue decided by the remand order is

the jurisdictional issue, that the claim of intentional

infliction of emotional distress was a state claim and not

an artfully pled federal claim. This district judge then

exercised her discretion in remanding that state claim.

Therefore, the remand is not reviewable on appeal as a

substantive decision under the doctrine of Pelleport and

Clorox. The only avenue of review available is by manda-

mus under the authority of Thermtron.

Il.

ISSUANCE OF A WRIT OF MANDAMUS

The issuance of a writ of mandamus is an extraordinary

remedy available to the courts of appeal under 28 U.S.C.

§ 1651 (1982). Will v. United States, 389 U.S. 90, 95

(1967). In Bawman v. U.S. District Court, 557 F.2d 650,

654-55 (9th Cir. 1977), we set forth guidelines for when

the issuance of a writ of mandamus is appropriate. Al-

though several indicators are specified for consideration

in Bauman, one factor is determinative in this ease. When

the district court’s order is correct as a matter of law, it is

obvious that the writ of mandamus should not be issued. '

'The guidelines enumerated in Bauman are (1) the party seeking

the writ has no other adequate means to obtain the desired relief,

such as a direct appeal; (2) The petitioner will be prejudiced or

damaged in a manner not correctable on appeal; (3) The district

court’s order is clearly erroneous as a matter of law; (4) The district

court’s order represents an error often made, or is indicative of a

persistent disregard of the federal rules; and (5) The district court’s

order involves new and important issues, generally of first impres-

sion. All of these guidelines need not be met and they may not all be

applicable in any one case. Bauman, 557 F.2d at 655. With regard to

the first two factors, we have noted that Rodriguez [sic] has no other

avenue of review in federal court; however, the issue of preemption

remains open for determination and review in state court. The third

Ta

The Supreme court’ holding in Farmer v. Carpenters,

430 U.S. at 305, that a state claim for infliction of

emotional distress is not preempted if it was the result of

particularly abusive conduct, provides a sound basis for

the district court’s conclusion that the complaint alleged

a non-preempted state claim. The allegations of the com-

plaint, if proved, could sustain a finding that the conduct

was outrageous, and thus the claim was not preempted.

The district judge’s holding was correct that a non-

preempted state claim was alleged.

[4] While a federal court has jurisdiction to retain and

decide a state claim that is not independently removable,

once the federal claim upon which removal was based is

gone, it is within the discretion of the district court to

remand the state claim to the state court from which it

was removed. Swett v. Schenk, 792 F.2d 1447, 1450 (9th

Cir. 1986).”

The petition for a writ of mandamus is denied.

factor is determinative. It is apparent that if the district court’s legal

conclusion is correct, the fourth and fifth enumerated factors become

irrelevant.

“We recognize that the circuits are not in agreement as to the

availability of remand for pendent claims, and that the Supreme

Court has granted certiorari on this issue. Carnegie-Mellon Univ., et

al. v. Cohill, 107 S. Ct. 1283 (1987). The relevant test, however, is :

whether the district court court’s [sic] order was clearly erroneous

as a matter of law. Given the Ninth Circuit authority allowing remand

under the circumstances of this case, the remand order was obviously

not clearly erroneous.

8a

No. 85-7005

DC# CV-84-1982 JNK

Southern California

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURVIVAL SYSTEMS DIVISION OF THE

WHITTAKER CORPORATION, et al.,

Petitioners,

vs.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

Respondent,

and

MILLIE MAE RODRIGUEZ,

Real Party in Interest.

ORDER

Filed April 1, 1985

Before: WALLACE, FLETCHER, and WIGGINS, Cir-

cuit Judges

The petition » »sents the question whether the district

court erred by refusing to treat the remanded claims as

artfully pleaded § 301 claims. See Hunter v. United Van

Lines, 746 F.2d 635, 642-43 (9th Cir. 1984). See also

Aragon v. Federated Department Stores, Inc., 750 F.2d

1447 (9th Cir. 1985). Another question is whether review

is available under the collateral order doctrine, thus

precluding mandamus review. See Pelleport Investors, Inc.

v. Budco Quality Theatres, Inc., 741 F.2d 273, 276 (9th

Cir. 1984).

Answers to these two questions shall be filed, according

to the provisions of Fed. R. App. P. 21(b), within 28 days

of the entry of this order. Petitioners may file a reply

9a

within 14 days of service of any answers. Upon receipt of

the answers and reply, this case will be submitted to a

merits panel with Paige v. Henry J. Kaiser Co., No. 84-

2246, and Henry J. Kaiser Co. v. United States District

Court, No. 84-7866, which present a similar issue.

10a

Civil No. 84-1982-K

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

MILLIE MAE RODRIGUEZ,

Plaintiff,

VS.

WHITTAKER CORPORATION, et al.,

Defendants.

ORDER

Filed date illegible

The motion of Defendants WHITTAKER CORPORA-

TION (Petitioners herein) for Summary Judgment hav-

ing come before this court on October 9, 1984, and the

issues having been heard and considered,

IT IS ORDERED,

1. The motion for Summary judgment as to the First,

Second, Third, Fourth and Sixth Causes of Action in the

Plaintiff's complaint are granted.

2. The motion for Summary Judgment as to the Fifth

Cause of Action is denied.

3. The Fifth Cause of Action and the Cross-Complaint

are remanded to the State Court, pursuant to this court’s

sound discretion under 28 U.S.C. § 1447. See, Libhart v.

Santa Monica Dairy Co., 592 F.2d 1062 (9th Cir. 1979);

Winn

lla

Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112,

114 (4th Cir. 1979), cert. denied, 445 U.S. 911 (1980).

Dated: 12/4/84

JUDITH N. KEEP

Judith N. Keep, Judge

United States District Court

Copies to:

VIRGINIA M. EBERT, Esq.

2800 El Cajon Boulevard

San Diego, CA 92104 ~

Roy E. Potts, Esa.

OVERTON, LYMAN & PRINCE

Seventh Floor

550 South Flower Street

Los Angeles, CA 90071

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On November 24, 1987, I served the within Petition for a

Writ of Certiorari in re: “Survival Systems vs. Millie Mae

Rodriguez” in the United States Supreme Court, October

Term 1987, No. ........ :

On the Parties in said action, by placing Three copies

thereof enclosed in a sealed envelope with postage fully

prepaid, in the United States post office mail box at Los

Angeles, California, addressed as follows:

Law Offices of Virginia M. Ebert

Virginia M. Ebert, Esq.

3991 Ohio Street

San Diego, California 92104

All Parties required to be served have been served.

I certify (or declare), under penalty of perjury, that the

foregoing is true and correct.

Executed on November 24, 1987, at Los Angeles,

California

13)

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BEST AVAILAE

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