Opposition Brief — Grand River Dam Authority v. Dalrymple

Supreme Court, U.S

b ) FILED

No. 98-700 NOV 25 1996

CLERK

In The

Supreme Court of the United States

+

October Term, 1998

GRAND RIVER DAM AUTHORITY and RONALD COKER,

in his official capacity as General Manager and Chief

Executive Officer of the Grand River Dam Authority,

Petitioners,

VS.

JACK DALRYMPLE, et ai.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

L.K. SMITH N. LARRY BORK

SCOTT R. ROWLAND Counsel of Record

BOONE, SMITH, DAVIS, WAYNE T. STRATTON

HURST & DICKMAN GOODELL, STRATTON,

500 Oneok Plaza EDMONDS & PALMER, L.L.P.

100 West Fifth Street 515 South Kansas Avenue

Tulsa, Oklahoma 74103 Topeka, Kansas 66603

(918) 587-0000 (785) 233-0593

Attorneys for Respondents

149880 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859 ih

i

QUESTION PRESENTED

Whether the district court’s decision that it lacks subject

matter jurisdiction, and therefore remand was necessary, is

nonreviewable pursuant to 28 U.S.C. § 1447(d)?

TABLE OF CONTENTS

8 | PR re cy ee ee ee

Tee EC 555 BRR EE eck tare

Table of Ci

De De i eee ae

Stabenant at Tae Ce soos i ee oe cena es

Argument

Conclusion

Page

TABLE OF CITED AUTHORITIES

Cases:

Federal Deposit Ins. Corp. vy. Santiago Plaza, 598 F.2d

NTE Bio cine ie edn ea ons Céag a.

i eee Boe Be ee eee ee eee ye ee ee ee

In re LaProvidencia Dev. Corp., 406 F.2d 251 (ist Cir.

ites eile Mati Pi irs a

Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994) .......

Krangel v. General Dynamics Corp., 968 F.2d 914 (9th

IE PURE ae cacedeccccecc th ktiched,

Mangold v. Analytic Services, Inc. 77 F.3d 1442 (4th Cir.

Ee OO Te paid

Midland Mortgage Co. v. Winner, 532 F.2d 1342 (10th

I ra dee £64 Oeiasthe 6s 5 bs saieiaieoeectos:

Quakenbush vy. Allstate Ins. Co., 517 U.S. 706, 116 S. Ct.

Vids boo be. BG, 26 1 (1996) ...................

Things Remembered, Inc. vy. Petrarca, 516 U.S. 124, 116

S. Ct. 494, 133 L. Ed. 2d 461 RE eee

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

(4th Cir.), cert. denied, 445 U.S. 91 1, 100 S. Ct. 1090,

8 a a en ee

Page

iv

Cited Authorities

ee. Page

Statutes:

See OE iis nnn in genie ee ne 1,2

Se I Rnibae 0.45 ons ckvedds tun xearke 2

gt Fa er Serr rrr a |

SBIR, § SAGES 6.0 4.. 0:0 00 os wuss cknninbnetn 2,3

i MIT iin 6 ondkk vec babies dana sasnes 2

Be i RT: 854 wi does pdbaysua tae 2, 3, 4,10, 11

Be ee UE is cncaccadaeneaaue i, 2, 3, 4, 6, 8, 10, 11

Other Authorities:

1A J. Moore, W. Taggart & J. Wicker, Moore’s Federal

Practice, Removal § 0.169 [2.1] (2d ed. 1996) .... 6

14A Wright, Miller and Cooper, Federal Practice and

Pragadune © 3799 (A908) «on ss cee cdevide cs binds 6

Plaintiffs filed a motion to remand on November 9, 1994,

wherein they requested

that the Court enter an order pursuant to 28 U.S.C.

§ 1447(c) remanding this case to the District Court for

Ottawa County, Oklahoma, for the reason that subject

(Doc. 4 at 1).

2

court for Ottawa County, Oklahoma on April 3, 1996. The order

was received and filed on April 8, 1996.

In the order remanding plaintiffs’ case to state court, the

district court addressed both 28 U.S.C. §§ 1441 and 1442. While

not specifically citing 28 U.S.C. § 1447, the court specifically

held: (1) “The Court does not have jurisdiction pursuant to 28

U.S.C. § 1442(a)(1)”; and (2) “There is no basis for removal under

§ 1441(b).” (Petitioner’s App. 23-24). The district court then

granted plaintiffs’ motion to remand, which did specifically request

relief under 28 U.S.C. § 1447(c). (Id. 24).

On May 2, 1996, GRDA filed the Tenth Circuit notice of

appeal from the order “remanding the case back to state court

entered on April 2, 1996; and the Orders denying reconsideration

entered on April 11, 1996.” (Doc. 121).

In an order dated May 28, 1998, the Tenth Circuit stated:

“Accordingly, we cannot see how the district court’s remand order

could be characterized as based on anything but a lack of subject

matter jurisdiction as contemplated by § 1447”. (Petitioner’s App.

10-11).

Therefore, the issue is simply whether Judge Holmes

remanded the action to state court based on lack of jurisdiction,

thus making the order nonreviewable pursuant to 28 U.S.C.

§ 1447(d).

Plaintiffs must also address a blatant misstatement of the

record. Plaintiffs have never attempted “to enjoin the continued

operation of the dam for flood control purposes”. (Petitioner’s

Brief, 2). The injunction claim goes to the possible effect of the

Oklahoma Governmental Tort Claims Act and seeks an affirmative

injunction requiring GRDA to purchase additional easements if

plaintiffs’ would be continually barred from a complete recovery

3

by the damage caps established by the Oklahoma Governmental

Tort Claims Act.

Despite the efforts of GRDA to complicate this matter, the

question presented is simple and straight forward: Is a matter

§ 1441(b).” (Petitioner’s App. 23-24).

Pursuant to 28 U.S.C. § 1447(c): “If at anytime before final

judgment it appears that the district court iacks subject matter

jurisdiction, the case shall be remanded.” /d.

Pursuant to 28 U.S.C. § 1447(d):

4

section 1443 [civil rights] of this title shall be

reviewable by appeal or otherwise.

Id.

The order of remand was entered by the federal clerk, and

then mailed and received by the clerk of the state court, thus

concluding the federal courts’ jurisdiction.

In Quakenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S. Ct.

1712, 135 L. Ed. 2d 1 (1996), this Court most recently summarized

the exceptions to the nonappealability of a remand order. Therein,

this Court stated:

As we held in Thermtron Products, Inc. v.

Hermansdorfer, supra, at 345-346, 96 S. Ct., at 590,

and reiterated this Term in Things Remembered, Inc.

v. Petrarca, 516 U.S. [124], _, 116 S. Ct. 494, 495,

133 L. Ed. 2d 461 (1995), Ҥ 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).” This gloss renders

§ 1447(d) inapplicable here: The District Court’s

abstention-based remand order does not fall into either

category of remand order described in § 1447(c), as it

is not based on lack of subject matter jurisdiction or

defects in removal procedures.

116 S. Ct. at 1718.

In Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116

S. Ct. 494, 133 L. Ed. 2d 461 (1995), this Court expanded on one

of the two grounds established in § 1447(c). That case involved

an untimely notice of removal, which was a defect in removal

procedures. This Court explained:

eS enn mF

5

As long as a district court’s remand is based on a timely

raised defect in removal Procedure or on lack of

subject-matter jurisdiction — the grounds for remand

recognized by § 1447(c) — a court of appeals lacks

jurisdiction to entertain an appeal of the remand order

under § 1447(d).

Section 1447(d) bars appellate review of the

remand order in this case. As noted, § 1447(d)

precludes appellate review of any order “remanding a

case to the State court from which it was removed.”

The parties do not dispute that the District Court’s order

remanded this case to the Ohio State court from which

it came. There is also no dispute that the District Court

remanded this case on grounds of untimely removal,

precisely the type of removal defect contemplated by

§ 1447(c)...

* * &*

Ifan order remands a bankruptcy case to state court

because of a timely raised defect in removal procedure

of lack or subject-matter jurisdiction, then a court of

appeals lacks jurisdiction to review that order under

§ 1447(d), regardless of whether the case was removed

under §§ 1441(a) or 1452(a). The remand at issue falls

Squarely within § 1447(d), and the order is not

reviewable on appeal.

116 S. Ct. at 497, -

6

Courts and legal commentators have recognized the impact

of § 1447(d) for years. As stated in 14A Wright, Miller and Cooper,

Federal Practice and Procedure § 3739 (1985):

An order of remand ends the jurisdiction of the federal

court. The court is required to mail a certified copy of

the order to the clerk of the state court, and upon the

state courts receipt of this copy, the federal court is

without power to vacate the order to remand, even if it

is persuaded the order was erroneous.

Id. at 588-89. See Krangel v. General Dynamics Corp., 968 F.2d

914, 915-16 (9th Cir. 1992); Hunt v. Acromed Corp., 961 F.2d

1079, 1081 (3rd Cir. 1992); Three J Farms, Inc. v. Alton Box Bad.

Co., 609 F.2d 112, 115-16 (4th Cir.), cert. denied, 445 U.S. 911,

100 S. Ct. 1090, 63 L. Ed. 2d 327 (1979); Federal Deposit Ins.

Corp. v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir. 1979); In re

LaProvidencia Dev. Corp., 406 F.2d 251, 252 (ist Cir. 1969); 1A

J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice,

Removal § 0.169 [2.1], pp. 688-70 (2d ed. 1996).

Sometime ago, in Midland Mortgage Co. v. Winner, 532 F.2d

1342 (10th Cir. 1976), the Tenth Circuit discussed the general

principles of appellate review:

We are convinced that the Court was clearly

remanding the suit on grounds specified in 28 U.S.C.

§ 1447(c), namely that under the removal statues the

case “was removed improvidently and without

jurisdiction,” as the removal statute says. This being

so, the order of remand “is not reviewable on appeal

or otherwise. . . .” 28 U.S.C. § 1447(d). While a narrow

exception for review on mandamus was recently

recognized in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46

There is no doubt that in order to prevent

delay in the tria of remanded cases by

from all forms of appellate review any

remanc order issued on the grounds

specified in § 1447(c), whether or not that

order might be deemed erroneous by an

appellate court. But we are not convinced

that Congress ever intended to extend carte

blanche authority to district courts to review

the federal statutes governing removal by

remanding cases on grounds that seem

justifiable to them but which are not

recognized by the controlling statute.

8

The case against GRDA is not a situation where there was an

undisputed statutory basis for federal jurisdiction but there was a

contractual forum selection clause at issue, a crowded docket or

an abstention based remand. The federal district court did not have

subject matter jurisdiction, and Judge Holmes so stated.

GRDA cites two cases for support that there is a conflict

among the circuits regarding whether a determination that a

defendant has not alleged a colorable immunity defense is

reviewable on appeal. It first cites Jamison v. Wiley, 14 F.3d 222

(4th Cir. 1994). There is a key difference in that case from the

present case. The Fourth Circuit summarized the law surrounding

§ 1447(d) as follows:

Section 1447(c) mentions only two grounds for

remand: a defect in removal procedure and a lack of

subject matter jurisdiction in the federal court. The

order of remand in question here cannot fairly be

characterized as one that was based on either of these

grounds.

Neither the order of remand itself nor the

accompanying memorandum opinion ever mentions

§ 1447(c) or its critical terms. Such a failure to

specifically invoke the “magic words” of § 1447(c) is,

of course, not fatal to application of § !447(d) [citation

omitted] ...

There is no evidence in the record to suggest that

the district court based its decision to remand on a

perceived defect in removal procedure, and Jamison

does not contend that there is. What she does contend

is that the district court based its order of remand on a

perceived lack of subject matter jurisdiction, but we

find no evidence of that either. Neither the April 30,

9

1992 order or the accompanying memorandum

opinions ever mention either “jurisdiction” — or lack

thereof — at all.

14 F.3d at 231-32 (emphasis added),

GRDA also cites Mangold v. Analytic Services, Inc., 77 F.3d

1442 (4th Cir. 1996) in support of its Position that the order of

remand in this case is subject to appellate review. The Fourth

thought it was ¢mpowered to remand was neither of

these [§ 1447(c)], § 1447(d) does not bar review. In

the instant case, the only question is whether the basis

actually invoked was lack of jurisdiction.

My reading of the record here satisfies me that,

despite evident confusion and some backing and filling

during the process, the district court remanded in the

end not on the assumption that there was a ‘lack of

jurisdiction’ so that remand was compelled, but that

77 F.3d at 1450-5] (emphasis original).

10

The Fourth Circuit summarized its conclusion as follows:

[T]he court opined that with the case now involving

only state law issues of claim and defense, these were

“better left to a State tribunal”, not that they must be

remanded because of the court’s lack of jurisdiction

to determine them. In the face of this compelling

evidence, the final citation to § 1447(c) can only be

understood as simple inadvertence, and we certainly

may do so.

On this basis, I conclude the review of the remand

order, because not actually based on either of the

grounds specified in § 1447(c), is not barred by

§ 1447(d).

Id. at 1452-53 (emphasis original).

Therefore, for the issues in Dalrymple, there is no conflict

among the circuits. When it is clear that the court is basing the

remand on one of the elements in § 1447(c), such as lack of subject

matter jurisdiction, § 1447(d) controls and there cannot be appellate

review. It is unmistakable that Judge Holmes made a ruling that

the federal district court did not have subject matter jurisdiction

and that was the basis for the remand.

This Court has addressed the issue of review of a remand

order from many different angles and consistently held there is no

jurisdiction to do so under the circumstances in this case.

1]

CONCLUSION

Judge Holmes remanded this case to state court for lack of

subject matter jurisdiction. The Tenth Circuit properly held:

Accordingly, we cannot see how the district court’s

(Petitioner’s App. 11).

GRDA has not cited a single case which supports its position

that a case remanded for a reason set out in 28 U.S.C. § 1447(c) is

reviewable in spite of 28 U.S.C. § 1447(d).

This is a simple straight forward matter upon which this Court

has already given clear direction.

The petition for a writ of certiorari is totally without merit

and should be denied.

12

Respectfully submitted,

N. LARRY BORK

Counsel of Record

WAYNE T. STRATTON

GOODELL, STRATTON,

EDMONDS & PALMER, L.L.P.

515 South Kansas Avenue

Topeka, Kansas 66603

(785) 233-0593

L.K. SMITH

SCOTT R. ROWLAND

BOONE, SMITH, DAVIS,

HURST & DICKMAN

500 Oneok Plaza

100 West Fifth Street

Tulsa, Oklahoma 74103

(918) 587-0000

Attorneys for Respondents