Opposition Brief — Dow Chemical Co. v. Brown

~~

NO. 92-438

In The Supreme Court of the United States

OCTOBER TERM, 1992

THE DOW CHEMICAL COMPANY, et al.,

Petitioners,

against,

CHARLES BROWN and JAMES WHITE,

INDIVIDUALLY, AND AS REPRESENTATIVE OF THE

ESTATE OF CLARENCE WHITE, DECEASED

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

BENTON MUSSLEWHITE

1250 LYRIC CENTRE

440 Louisiana

Houston, Texas 77002

(713) 222-2288

Telecopier: (713) 222-0319

ATTORNEY FOR RESPONDENT

JAMES WHITE, INDIVIDUALLY AND AS

RESPRESENTATIVE OF THE ESTATE OF

CLARENCE WHITE, DECEASED

~s- 2

QUESTIONS PRESENTED

(Respondent White’s Version)

he Whether, since the district

court expressly stated that it was

remanding the civilian cases because of

absence of subject matter jurisdiction,

thus remanding pursuant to 28 U.S.C.

1447(c), appellate review in any form - by

mandamus, as a Cohen collateral order, or

by way of interlocutory appeal under 28

U.S.C. 1292(b) - is absolutely precluded

by 28 U.S.C 1447(d).

y Whether, even if remand had not

been made pursuant’ to 1447(c) and

appellate review was potentially possible,

the only potential means of review would

be by way of mandamus.

. Whether, even if remand had not

been made pursuant to 1447(Cc) and

appellate review was potentially possible

by way of mandamus, such review would be

PT a Pe

wholly inappropriate because the presence

of subject matter jurisdiction under 28

G.BsGe 1442(a)(1) 1s not “clear and

indisputable" and, on the contrary, in the

most favorable light for Petitioners is,

at best, as the District Court noted, a

“close question".

4. Whether, even if remand had not

been made pursuant to 1447(c), mandamus

was not the only means of review, and

appellate review by way of a 1292(b)

interlocutory appeal would be potentially

possible, such review of any kind in this

Court would be appropriate in light of the

fact that the Court of Appeals exercised

its unassailable discretion to decline

such appeal.

5. Whether, even if remand had not

been made pursuant to 1447(c) and even if

mandamus was not the only means of review,

and appellate review was potentially

possible as a Cohen collateral order, the

dismissal by the Court of Appeals of the

Petitioners’ attempted Cohen appeal was

correct because the question of

jurisdiction in this case involves

"considerations that are enmeshed in the

factual and legal issues comprising the

Plaintiffs’ cause of action" and

Petitioners will be able to have a fair

hearing on the military contractor defense

and the Defense Production Act (50 U.S.C.

App. 206 (et seq. (1988), and other issues

related to their asserted application of

28 U.S.C. 1442(a)(1), in the Texas state

court.

6. Whether, in view of the fact

that there are no conflicts in the

decisions of the courts of appeal with

regard to the real issues pertaining to

the availability of appellate review; the

underlying merits of this case (whether

the district court had removal

jurisdiction under 28 U.S.C. (1442(a)(1));

and the erroneous granting of leave to the

Petitioners to amend their removal

petition to include 1442(a)(1) as a ground

for removal, the decision of the Court of

Appeals in this case departed "from the

accepted and usual course of judicial

proceedings", Or sanctioned "such a

departure by a lower court", that this

case iS an appropriate one "for an

exercise of this Court's power of

Supervision".

TABLE OF CONTENTS

PRELIMINARY STATEMENT ....--cceeeecevccces 1

STATEMENT OF THE CASE ....cccccccccccveves 2

I. THE LAW IS PLAIN AND CLEAR AND

THERE IS NO DISPUTE AMONG THE

COURTS OF APPEALS THAT 1447(d)

ABSOLUTELY PRECLUDES ANY FORM OF

APPELLATE REVIEW BY DEFENDANTS

WHEN PLAINTIFFS’ MOTION TO

REMAND HAS BEEN GRANTED FOR

ABSENCE OF SUBJECT MATTER

JURISDICTION, AS DESCRIBED IN -

L447(C) «dsm eee eee er eseeseeneeeeseses 6

II. EVEN IF APPELLATE REVIEW WAS

PERMISSABLE IN THIS CASE, THE

PETITION STILL SHOULD BE DENIED

BECAUSE - WHETHER APPELLATE

REVIEW IS SOUGHT BY WAY OF

MANDAMUS, 1292(b) APPEAL, OR

COHEN COLLATERAL APPEAL - THIS

CASE DOES NOT QUALIFY UNDER ANY

OF THESE THREE METHODS’ OF

RPUCLIANE DI se 66k kk Wh ee ease 27

A. MANDAMUS Is ONLY

VEHICLE FOR APPELLATE

REVIEW OF NON-1447(C)

REMAND GRADERS «ies nsccsndces 28

B Cn ERR GER UR A Set gb 31

Cc. 1292(B) INTERLOCUTORY

BUOE. i l ee eee 39

D. COHEN COLLATERAL ORDER

DEEUE, 606 b's ei wks ow oes sacs 41

TABLE OF AUTHORITIES

CASES

Aetna Casualty & Surety Co.

v. Hillman,

796 F.2d 770, 774 (5th Cir. eee) 36

In re "Agent Orange" Prod. Liab. batig.,

781 F.Supp. 902, (E.D.N.Y. 2! Pee

In Re Adm’rs of the Tulane Educational]

Fund,

954 F.2d 266 (Stn Cir. i ) tre F

Bakalis v. Crossland Sav. Bank,

781 F. Supp. 140, 142-43

(S.D. 8.7. W982). e's 6 oR ee

Ballard’s Service Center, Inc. v. Transue,

863 F.2d 449 (lst Cir. Pea? a's Ue Solo ae

Barnhill v. Insurance Co. of N. America,

130 F.R.D. 46 (D.C. S.Car. 1990) . . 36

In Re Bear River Drainage District,

267 F.2d 849 (10th Cir. byonr) «.« 128,40

Bellone v. Roxbury Homes, Inc.,

748 F.Supp. 4344 (D.C. Va. Saee)- « +s 37

In Re Bendectin Litigation,

857 F.2d 290, 300, 301

(6th Cir. 1988). ....,..,,,.. 16

ii

Black & Decker (U.S.), Inc. v. Brown,

817 F.2d 13 (3rd Cir. 1987) .... 18,

Boyle v. United Technologies Corp.,

487 U.S. 500, 108 S.Ct. 2510,

101 L.Ed.2d 442 (1988..

Bregman v. Alderman,

955 F.2d 660

(llth Cir. 1992) ....... 10,40,

Calderon v. Aerovias Nacionales de

Colombia,

929 F.2d 599 (llth Cir. 1991). . 12,42,

Carnegie-Mellon University v. Cohill,

108 S.Ct. 614, 621, 622

(1988) nee

C.H. v. American Red Cross,

684 F. Supp. 1018, 1023-24,

In Re Chicago, R.I. & P. Ry. Co.,

255 U.S. 278, 41 S.Ct.

288, 289 (1920).

Chick Kam Choo v. Exxon Corporation,

108 S.Ct. 1684 (1988)

Connecticut Nat. Bank v. Germain,

112 $.Ct. 1146 (1992)

iii

19,20,25,28,

45

45

44

39

38

43

26

Coopers & Lybrand v. Livesay,

437 U.S. 469, 98 S.Ct. 2454 (1978)

9 ge er ON ae A Sg te ey 23,41,42

Corcoran v. Ardra Insurance Co., Ltd,

642 F.2d 31, 32, 35 (2nd Cir.,

1988) : + 6.8 4 eoeee 12,29

In Re Convertible Rowing Exerciser Litig.,

903 F.2d 822 (F.Circ. 1990) .... 23

Denton v. Wal-Mart Stores, Inc.,

733 F.Supp. 340 (D.C. Fla. 1990) .. 36

Division of Archives v. Austin,

729 F.2d 1292 (llth Cir. 1984) ... 15

Federal Deposit Ins. Corp. v. Alley,

820 F.2d 1121 (10th

Cak« SOS) 6 2 6 se oa ae 6 3G 56S, 46

First National Bank of Salem v. Wright,

775 F.2d 245, 246-7 (8th Cir. 1985) 15

Forsythe v. Hammond,

166 U.S. 506, 17 S.Ct. 665, 668, 669

(operas 6 we & bus mS S BOR @ & 47

In Re Frumenti Development Corp,

S57 F.2d 665 (9th Cir. 1968) .... 19

Garza v. Midland Nat. Ins. Co.,

256 F.Supp. 12 (D.C. Fla. 1966) .. 37

Gensplit Fin. Corp. v. Foreign Credit Ins.

Assn. ,616 F.Supp. 1504, 1508-10

(E.D.Wisc. 1985). i eee 38

Gravitt v. Southwestern Bell Telephone,

430 U.S. 723, 97 S.Ct. 1439 (1977)passim

iv

Group Health Inc. v. Blue Cross Ass‘n,

587 F.Supp. 887 (S.D.N.Y. 1984). . . 38

Hansen v. Blue Cross of California,

891 F.2d 1384, 1387 (9th Cir. 1989) 19

Helstoski v. Meanor,

442 U.S. 500, 505-08, 99 S.Ct. 2445,

2447-49, 61 L.Ed.2d 30 (1979)... . . 29

Hernandez v. Brakegate, Ltd.,

942 F.2d 1223 (7th Cir. 1991) 16,20,26

In Re Iowa Mfg. Co. of Cedar Rapids,

Iowa 747 F.2d 462 (8th Cir. 1984)... . 40

International Primate Protection League

v. Administrators of Tulane Educ. Fund,

__ *'§.5.__, 111 &.Ct. 1700,

14 L.Bd.2€@ 134 (1991) . ~ « « © «© « 3B

Jacobs v. Director of Internal Revenue

Service,

217 F.Supp. 104 (D.C. N.Y. 1963) an 37

Karl Koch Erecting Co. v. N.Y.

Convention Ctr. Dev.,

838 F.2d 656 (2nd Cir. 1988) ... 13,45

Kelly v. Carr,

691 F.2d 800, 805 (6th Cir. 1980). . .35

Klinghoffer v. S.N.C. Achille Lauro,

921 F.2d 21, 24 (2nd Cir. 1990) .. = 23

Kolibash v. Committee on Legal

Ethics of W. VA. Bar,

S72 F.2d S71 (4th Cir. 1989). .... .10

Krangel v. General Dynamics Corporation,

968 F.2d 914 (9th Cir. 1992) . .. .10,20

Kunzi v. Pan American World Airways,Inc

833 F.2d 1291 (5th Cir. 1987). . . .17,40

London v. United States Fire

Insurance Co.,

S31 F.2d 257 (Sth Cir. 1976) . .. 28,29

Matter of Amoco Petroleum

Additives Co.,

964 F.2d 706 (7th Cir. 1992) ...., 11

McDermott International vs. Lloyds

Underwriters of London,

944 F.2d 1199, 1204 (5th Cir. 1991) 12,30

Melahn v. Pennock Ins., Inc.,

965 F.2d 1497 (8th Cir. 1992) .. 12,40

Mercantile Nat. Bank v. Langdeau,

371 U.S. 555, 83 S.Ct. 520,

> emma Sees 5 6 6s we et ll tl we SI

In Re Merricmack Mutual Fire

Insurance Company,

587 F.2d 642 (5th Cir. A979) « « « 218,30

vi

Mignogna v. Sair Aviation, Inc.,

937 F.2d 37, 40-41 (2nd Cir. 1991) . 38

Mitchell v. Carlson,

896 F.2d 128 (5th Cir. 1990). .... 26

Moses H. Cone Memorial Hospital

v. Mercury Const.,

460 U.S. 1, 74 L.Ed.2d 765,

oe 8.6b. GOP C20GR kok kw tw el

Myers v. Connell,

651 F.Supp. 273 (D.C. La. 1986) .. 36

Nasuti v. Scannell,

792 F.2d 264 (lst Cir. 1986) ... 14,25

National Audubon Society v. Dept. of

Water, 865 F.2d 1196 (9th Cir. 1988) 20

National City Bank v. Coopers and Lybrand,

802 F.2d 990 (8th Cir. 1986) .... 45

New Orleans Public Service, Inc.,

v. Majoue,

802 F.2d 166 (5th Cir. 1986) ... 18,30

Nuclear Energy Co. v. Scott,

660 F.2d 241, 245-247 (7th Cir. 1981)

Cert. den. 102 S.Ct. 1622. . 24

Ochoa Realty Corp. v. Faria,

815 F.2d 812, 815 (lst Cir. 1987) 15,45

In Re Oximetrix, Inc.,

748 F.2d 637 (F.Cir. 1984) ..... 40

Parcel Tankers, Inc. v. Formosa Plastics

Corp.,

764 F.2d 1153, 1156 (5th Cir. 1985) . 24

vil

Pelleport Investors v. Budco Quality

Theatres,

741 F.2d 273 (9th Cir. 1984). ... 17,44

Peterson v. Blue Cross/Blue Shield,

$00 F.3€ 55 (Sth Cir.) . s « « 2 « « x5

Rockwell International v. U.S. Aircraft

Ins. Group,

823 F.2d 302 (9th Cir. 1987). ... .35

Roche v. American Red Cross,

680 F.Supp. 449 (D.Mass. 1988). ... 38

In Re Rowland,

104 U.S. (14 Otto) 604, 26 L.Ed. 861

CA eee ee ae A ee eee eee

Royal v. State Farm Fire and Casualty Co.

685 F.2d 124 (5th Cir. 1982) (per

ee ee ea a eee

Senter v. Sears, Roebuck & Co.,

712 F.Supp 179 (D.C. 1989) ....., 36

In Re Shell Oil Co.,

966 F.2d 1130, 1133 (7th Cir. 1992). 18

Soley v. First Nat. Bank of Commerce,

923 F.2d 406 (5th Cir. 1991) ... . .16

Survival Systems Division of the Whittaker

Corporation, et al. v. U.S. Dist. Court

for the Southern District of

California, 825 F.2d 1416, 1418 (9th Cir.

AOG7) «3 a —« » « s 2

Texaco, Inc. v. Pennzoil,

eur Bates ZOD CI dae 4K we %8 43

viii

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 96 8.Ct. 584

ey) 5 Ree a ee ee 9,16,29

Tillman v. CSX Transport, Inc.,

929 F.2d 1023, 1026, 1027 (5th Cir

1991) a’ 5) 5 o 13,14

In Re TMI Litigation Cases Consol. II,

940 F.2d 832 (3rd Cir. 1991) . . . passim

United Airlines, Inc. v. McDonald,

432 U.S. 385, 97 S.Ct. 2464,

54 L.Ed.2d 423. 42

United Gas Pipe Line Co. v. Brown,

207 F.Supp. 139, 140, 141

(D.C. La. 1962) .. +. +++ + + -- 37

Vatican Shrimp Co., Inc. v. Solis,

820 F.2d 674 (5th Cir.1987) ... . 40

In Re Weaver,

610 F.2d 335 (5th Cir. 1980). ... . 30

Will v. Calvert Fire Ins. Co.,

437 U.S. 655, 98 S.Ct. 2552 (1978) . 31

Woodlands II v. City Savings

& Loan Ass‘n,

703 F.Supp. 604, 607, 608 (D.C. Tex.

ee ee ee 36

STATUTES

26 U.8.€. 1292(D). . oe «8

ee et a a ee passim

28 U.S.C. 1442. ee 2 6

passim

ix

28 U.S.C. 1447(c). ae

es ces” passim

28 U.S.C. 1447(d). . ce © «

Se oe eer eee, passim

OTHER AUTHORITIES

Wright &, Miller and Cooper, Federal

Practice & Procedure,

S S42s, Ds SST, SIB.s « ws so ws 6 wv ee OS

APPENDIX

Appendix A - Section 144l(c) of Title 28

of the United States Code .......Al

NO. 92-438

In The Supreme Court of the United States

OCTOBER TERM, 1992

THE DOW CHEMICAL COMPANY, et al.,

Petitioners,

against,

CHARLES BROWN and JAMES WHITE,

INDIVIDUALLY, AND AS REPRESENTATIVE OF THE

ESTATE OF CLARENCE WHITE, DECEASED

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

PRELIMINARY STATEMENT

In accordance with Rules 15 and 24.2

of the Supreme Court Rules, Respondent

James White, Individually and as

Representative of the Estate of Clarence

White (hereinafter, “Respondent White"),

hereby adopts Petitioners’ list of all

parties, as required by Rule 24.1(b);

citation of opinions and judgments

delivered in the courts below, as required

by Rule 24.1(d); statement of grounds on

which the jurisdiction of the Supreme

Court is attempted to be invoked by

Petitioners, as required by Rule 24.1(e);

and the list of relevant statutes and

rules, as required by Rule 24.1(£), except

that Respondents would add 28 U.S.C.

1441(c) which is quoted in Appendix A,

attached hereto.

STATEMENT OF THE CASE

Respondents adopt Petitioners’

Statement of the case, except for the

hereinafter stated additions and

modifications.

The Petitioners’ statement at

p- 4 of their Petition - that “all but two

of the thirty-four original Plaintiffs in

the present litigation were veterans and

their family members (the ‘veteran

plaintiffs’) and thus were not part of the

2

Agent Orange class" - is simply not

correct. M.D.L. 381 included only those

veterans who had manifested their injuries

at the time of the class settlement. The

thirty-two veterans and their family

members in the present "litigation" did

not manifest any injuries from exposure to

Agent Orange until long after the class

settlement in M.D.L. 381.

The essence of the appeal filed

by the thirty-two veteran plaintiffs,

complaining of the District Court’s

erroneous failure to remand their actions

to state court and the erroneous dismissal

of their claims, is that they were not a

part of the class whose claims were

settled in M.D.L. 381.

In any event, the most glaring

omission in Petitioners’ statement of the

case is their failure to mention that they

did not attempt to amend their removal

——

papers to assert 28 U.S.C 1441(a)(1) as a

ground for removal until several months

after suit had been filed in the state

court of Texas. The District Court

explained the situation this way:

"After the civilian actions were

commenced as part of the Ivy action in

Texas state court, defendants removed to

federal court. Section 1442(a)(1) of

Title 28 was not mentioned in the

initial notice of removal. Instead, the

removal notices in both the Hartman and

Ivy cases mentioned only "artful

pleading, " "federal question" and

“federal preemption" grounds for

removal. See In re "Agent Orange" Prod.

Liab. Litig., 781 F.Supp. 902,

(E.D.N.Y. 1991). The removal notice did

cite Boyle v. United Technologies

Corp, 487 U.S. 500, 108 S.Ct. 2510, 101

L.Ed.2d 442 (1988), - a case outlining

the federal common law military

contractor defense - but only te support

the “federal preemption" basis ‘or

removal. The issue of Seo <n

1442(a)(1)‘s applicability was not

explicitly raised until 1991, when

defendants filed their motion for leave

to amend their notice of removal under

28 U.S.C. § 1653."

pp. A20, A21 of Petition.

The District Court went on to

conclude that the year-late amendment

should be permitted. See A23 -A27. §

erroneously based its decision upon the

fact that Petitioners had, in the

unrelated M.D.L. 381, raised the Defense

Production Act issue, strangely somehow

extrapolating the M.D.L. 381 proceeding

into adequate notice to those civilian

plaintiféis, whom the District Court

admitted were not a part of that

proceeding, of what went on in that

proceeding. Id.

Finally, the Petitioners did not make it

clear in their Petition what the basis of

the District Court’s grant of the civilian

plaintiffs’ motion to remand was. The

District Court unquestionably based its

decision to remand upon the absence of

subject matter jurisdiction. The Court

stated:

“The defendants have not met their

|

burden of establishing that they were

‘person([s] acting under’ federal

officers within the meaning of section

1442(a)(1). No other basis for federal

subject matter jurisdiction having been

shown, the actions of Charles Brown and

Clarence White are remanded to Texas

State court."

A57 of Petition; emphasis added.

I.

THE LAW IS PLAIN AND CLEAR AND THERE IS

NO DISPUTE AMONG THE COURTS OF APPEALS

THAT 1447(d) ABSOLUTELY PRECLUDES ANY FORM

OF APPELLATE REVIEW BY DEFENDANTS WHEN

PLAINTIFFS’ MOTION TO REMAND HAS’ BEEN

GRANTED FOR ABSENCE OF SUBJECT MATTER

JURISDICTION, AS DESCRIBED IN 1447(c).

The Petition for Writ of Certiorari

filed by the Petitioners is frivolous and

Clearly sanctionable. As noted in the

Statement of Case above, it cannot be

disputed that the civilian plaintiffs’

case was remanded because of the absence

of subject matter jurisdiction. § 28

U.S.C. 1447(c) states:

"If at any time before {final judgment

it appears that the district court lacks

subject matter jurisdiction, the case

shall be remanded."

A149.

28 U.S.C. 1447(d) provides:

"An order remanding a case to the

State court from which it was removed is

not reviewable on appeal or otherwise."

A150.

In Gravitt Vv. Southwestern Bell

Telephone, 430 U.S. 723, 97 S.Ct. 1439

(1977), a tort action was removed from the

Texas state court to federal district

court and the district court remanded the

case because of what it perceived as

absence of federal subject matter

jurisdiction. The court of appeals, by

mandamus, “ordered the District Court to

vacate its remand order because the latter

had employed erroneous principles in

concluding that 2% was without

jurisdiction".

This Court reversed and forcefully

stated in its per curiam opinion:

"The Court of Appeals erred. Title

28 U.S.C. §1447(c) provides for

remanding a removed action when the

district court determines that ‘the case

was removed improvidently and without

jurisdiction’; and when remand has been

ordered on these grounds, 28 U.S.C.

1447(d) unmistakably commands that the

order ‘remanding a case to the State

court from which it was removed is not

reviewable on appeal or otherwise

-' _The District Court’s remand order

was plainly within the bounds § of §

1447(c) and hence was unreviewable by

the Court of Appeals, by mandamus or

otherwise."

97 S.Ct. at 1440; emphasis ours. See also

Thermtron Products, Inc. Vv.

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

(1976) (holding that if a removal is made

pursuant to 1447(c)), appellate review by

any means is absolutely prohibited by

1447(d) ' and Carnegie-Mellon University

1 After quoting 1447(d), this Court

stated:

"It is unquestioned in this case and

conceded by petitioners that this

section prohibits review of all remand

orders issued pursuant to § 1447(c)

whether sought by appeal or by

extraordinary writ. This has been the

established rule under § 1447(d) and its

8

vy. Cohill, 108 S.Ct. 614, 621, 622 (1988)

(holding that, despite some language in

Thermtron possibly to the contrary,

federal district courts have the power to

remand on grounds other than those stated

in 1447(c) and that the federal district

court in that case had the power to remand

pendent, state-law claims).

The holdings in Thermtron and

Gravitt, to the effect that no appeal, in

any form, is permitted when the dismissal

is based upon the absence of subject

matter jurisdiction as provided for in

1447(c), have been accepted and fully

applied without exception or modification,

by every court of appeals decision dealing

with the subject. Krangel Vv. General

Dynamics Corporation, 968 F.2d 914 (9th

predecessors stretching back to 1887."

96 S.Ct. at 589.

Cir. 1992) (rejecting an interlocutory

appeal in a case where removal had been

attempted, as in this case, under ?R

U.S.C. 1447(a(1) and the district court

had remanded to state court); Kolibash

Vv. Committee on Legal Ethics of wW. VA.

Bar, 872 F.2d 571 (4th Cir. 1989) (after

recognizing that 1447(c) remands are not

reviewable, ellowed review of remand order

which “represented a discretionary

decision by the district court not to hear

a certain case [over which it had subject

matter jurisdiction] on grounds of public

policy", because the remand was outside

the parameters of 1447(c); Bregman Vv.

Alderman, 955 F.2d 660 (lith Cir. 1992)

(holding that remand order which did not

contain an express finding that diversity

of citizenship did not exist would still

be presumed to be a remand for absence of

subject matter jurisdiction and appellate

10

review of same by way of mandamus was

absolutely prohibited);* Matter of Amoco

Petroleum Additives Co., 964 F.2d 706,

709, 708-710 (7th Cir. 1992) (rejecting

review of remand order by way of mandamus;

the court held that remands on grounds

other than under 1447(c) are reviewable by

way of mandamus, but 1447(c) remands are

“untouchable"); Calderon Vv. Aerovias

The Court of Appeals stated:

"While the court did not make an

actual finding regarding whether

diversity, in fact, existed, it is clear

from the remand order that the court

believed that this failure of the

pleadings to allege the citizenship of

the parties translated into a lack of

subject matter jurisdiction. . . .As in

Gravitt, the district court’s conclusion

may well have been mistaken and clearly

was made without a finding as_ to

diversity of citizenship in fact.

However, the Supreme Court in Gravitt

made it clear that §1447(d) bars review

of such remand order even though the

district court may have ‘employed

erroneous principles in concluding that

it was without jurisdiction’."

430 U.S. at 723, 97 S.Ct. at 1440.

11

Nacionales de Colombia, 929 F.2d 599, 601-

603 (llth Cir. 1991); Melahn v. Pennock,

Ins., Inc., 965 F.2d 1497, (8th Cir. 1992)

(acknowledged rule that 1447(c) remands

are not subject to appellate review and

then held that a remand based on

abstention is not a 1447(c) remand and

thus such remand was reviewable by way of

mandamus); Corcoran vy. Ardra Insurance

Co., Ltd, 842 F.2d 31, 33-35 (2nd Cir.

1988) (after noting that 1447(c) remands

are not reviewable by any means, held that

remands based on abstention are not within

the scope of 1447(c) and could be

considered by the appellate court only by

way of mandamus); McDermott International

vs. Lloyds Underwriters of London, 944

F.2d 1199, 1204 (5th Cir. 1991) (holding

that “Congress prohibits us from reviewing

remand orders based on §1447(c)"); Karl

Koch Erecting Co. v. NY Convention Ctr.

12

Dev., 838 F.2d 656, 658, 659 (2nd Cir.

1988) (after concluding that 1447(c)

prohibits appellate review where a remand

is based upon 1447(c), the Court held that

a remand based on a forum-selection clause

does not constitute a 1447(c) remand and

therefore was reviewable by way of direct

appeal); Tillman _v. CSX Transportation,

Inc., 929 F.2d 1023, 1026, 1027 (5th Cir.

1991) (holding that district court’s

Oremand order, based on mistaken

assumption that it had lost subject matter

jurisdiction after adding state agency as

a party, was not reviewable by mandamus or

otherwise, even if clearly erroneous); ;

The Court in Tillman stated:

"Through the prohibitory effect of 28

U.S.C. §1447(d), remand orders under

§1447(c) are not reviewable on appeal,

by mandamus, or otherwise, except in

civil rights cases. . .. In its remand

order, the trial court never mentioned

§1447(c) . . . . the appellants argue

that the failure to cite to § 1447(c)

i

Survival Systems Division of the Whittaker

Corp., et al Vv. U.S. Dist. Ct. for

Southern District of California, 825 F.2d

1416, 1418 (9th Cir. 1987); Nasuti v.

Scannell, 792 F.2d 264, (lst Cir. 1986)

(Suit under the Federal Drivers Act, 28

U.S.C. § 2679(b)-(e) (1982), removed to

federal court; federal district court

remanded to state court; Court of Appeals

rejected appellate review, holding that

1447(d) applied to the Statutory removal

under the Federal Drivers Act); Ochoa

places this remand within the small

class of cases that fall under the

Thermtron exception to § 1447(c). ;

Although the trial court neither quoted

the actual language of § 1447(c) nor

cited to the Statute, the remand order

provided that appellee's ‘amendment

would destroy subject matter

jurisdiction in this court.’ This

ground comes literally within §1447(c).

Thus we are precluded from reviewing the

remand order on appeal, by mandamus, or

otherwise. See _Merrimack, 587 F.2d

at 647, 648."

928 F.2d at pp. 1026, 1027.

14

Realty Corp. v. Faria, 815 F.2d 812, 815

(lst Cir. 1987) (held that 1447(d) applies

to federal question removals); First

National Bank of Salem _v. Wright, 775

F.2d 245, 246-7 (8th Cir. 1985); Division

of Archives Vv. Austin, 729 F.2d 1292

(llth Cir. 1984)‘; National City Bank v.

Coopers and Lybrand, 802 F.2d 990, 993

(8th Cir. 1986) (remand of federal

question removal not subject to appellate

review); Federal Deposit Insurance Corp.

v. Alley, 820 F.2d 1121 (10th Cir. 1987)

(even though remand order did not contain

4 In rejecting appellate review, the

Court noted:

"Here, the district court judge did

not expressly state that he was

remanding because of §1447(c); nor,

however, did he "“state[] openly” that he

was remanding on non-1447(c) ground for

remand. In Re Merrimack Mutual Fire

Insurance Company, 587 F.2d 642 (5th

Cir. 1978).

729 F.2d at p. 1293.

15

magic words “without jurisdiction", case

nevertheless still not subject to

appellate review); Hernandez Vv.

Brakegate, Ltd., 942 F.2d 1223 (Fee Cir.

1991) (holding that 1447(d) applies to

remand of removals “under § 1442

(federal officers), § 1442(a) (members of

armed forces), or other statutes

authorizing removal."); In Re Adm’rs of

the Tulane Educational Fund, 954 F.2d 266

(Sth Cir. 1992) (will not permit any kind

of appellate review with regard to remand

orders “predicated on a perceived lack of

jurisdiction"); Soley v. First Nat. Bank

of Commerce, 923 F.2d 406 (Sta Cir.

1991)?; In Re Bendectin Litigation, 857

> The Court explained the

Congressional rationale for 1447(d):

"Although 1447(d) seems fairly harsh,

its purpose is to prevent delay through

protracted litigation of jurisdictional

issues. Thermtron, 423 U.S. at 351, 96

S.Ct. at 593. As recently explained by

16

F.2d 290, 300, 301 (6th Cir. 1988);

Ballard’s Service Center, Inc. Vv.

Transue, 863 F.2d 447 (lst Cir. 1989);

Kunzi Vv. Pan American World Airways,

Inc., 833 F.2d 1291 (9th Cir. 1987);

Vatican Shrimp Co., Inc. Vv. Solis, 820

F.2d 674 (5th Cir. 1987) cert. den. 108

the Ninth Circuit:

‘Congress’ concern that parties might

use the appeal process to protract

litigation over jurisdictional issues

and thereby further delay litigation

over the merits of the case reflects

a balancing of competitive interests

resolved in favor of judicial

economy. The availability of a

federal forum through the removal

procedure had to be weighed against

the interest of expeditious

resolution of a dispute initiated in

state court. Congress decided that

in cases begun in state court,

lengthy delays over jurisdictional

issues are unacceptable.

Consequently, the district court is

the final arbiter of whether it has

jurisdiction to hear the case.’

Pellport Investors Vv. Budco Quality

Theatres, 741 F.2d 273 (9th Cir. 1984)."

923 F.2d at p. 408.

17

S.Ct. 345; Black & Decker (U.S), Inc. v.

Brown, 817 F.2d 13 (3rd Cir. 1987) (remand

for absence of jurisdiction not reviewable

by mandamus or any other form of appellate

review); New Orleans Public Service, Inc.

v. Majoue, 802 F.2d 166 (5th Cir. 1986)

and In Re Shell Oil Co., 966 F.2d 1130,

1133 (7th Cir. 1992).

All of these cases make it clear that

Gravitt has been consistently read by the

courts of appeals to apply a total 1447(d)

bar of appellate review of any kind -

whether by mandamus, 1292(b) interlocutory

appeal or by a Cohen collateral order

appeal - with respect to 1447(c) remands

for absence of subject matter

jurisdiction. The Petitioners read all

sorts of slants and nuances into the

cases, in their desperate effort to

portray a conflict among the circuit

courts. But, in the final analysis, they

18

cannot get around the unimpeachable

holding by the District Court in this case

that the removal was based upon absence of

subject matter jurisdiction.

Indeed, Krangle is right on point.

Removal was effectuated on the basis of 28

U.S.C. 1442(a)(1); the district court

remanded after determining that subject

matter jurisdiction could not be

maintained under that provision; the Court

of Appeals stated:

"Similarly, the district court’s

concern for the soundness of its

decision does not justify creating an

exception to section 1447(d). We have

recognized that the strong congressional

policies behind section 1447(d)’s bar of

appellate review preclude review even of

patently erroneous district court

decisions. See Hansen v. Blue Cross

of California, 891 F.2d 1384, 1387 (9th

Cir. 1989); Frumenti Development Corp,

857 F.2d at 671 (petition to appeal

remand order under section 1292(b)

denied). Accordingly, the petition for

permission to appeal pursuant to 28

U.S.C. § 1292(b) is DENIED."

968 F.2d at p. 916. The Petitioners have

19

cited no case which conflicts with

Krangel. Indeed, Hernandez Vv.

Brakegate, supra, expressly supports it.

The closest the Petitioners come to

creating any kind of conflict is with

National Audubon Society Vv. Dept. of

Water, 869 F.2d 1196 (9th Cir. 1988) and

In Re TMI Litigation Cases Consol. II, 940

F.2d 832 (3rd Cir. 1991). In National

Audubon the Court of Appeals held that it

had "jurisdiction to review the remand

order" as a 1292(b) appeal. However, the

remand involved pendent state law claims.

We have already discussed how, under

Cohill, pendent state law claims may, in

the discretion of the district court be

remanded, but that such remands, because

they are not within the purview of

1447(c), may be subject to appellate

review. See 940 F.2d at 1205, 1206.

TMI litigation is a case that really

20

stands by itself. It proclaims the narrow

holding that "1447(d) was not intended to

preclude appellate consideration of a

section 1292(b) certified question

concerning the constitutionality of an Act

of Congress" (in that case, the Price-

Anderson Amendment Act of 1982), which had

been used as the basis for removal. 940

F.2d at 838-848. The Court of Appeals

traveled through a tangled web of

rationalizations to reach its very

strained conclusion.

But In Re TMI, aside from reaching a

wholly incorrect conclusion, is totally

inapplicable to this case for two very

important reasons:

(A) The Court concluded that

Congress did not intend to include

questions of unconstitutionality of

removal statutes within the purview of

1447(c) or, alternatively, did not intend,

21

through 1447(d), to preclude appellate

review of such constitutional questions.

940 F.2d at pp. 845-847. Even if the

Court were correct in that holding, it is

clear that the District Court in this case

did not remand because it believed that

1442(a)(1) was unconstitutional. It

remanded because it believed that the

cases of the civilian plaintiffs and their

family members did not come within the

purview of 1442(a)(1).

5. TMI Litigation expressly

pretermitted the question of whether

mandamus and/or Cohen appeal would be an

appropriate vehicle for appeal, 940 F.2d

at 848, nte.1l, and simply exercised its

discretion to accept a 1292(b) appeal. 940

F.2d at p. 848. In this case the Court of

Appeals expressly exercised its discretion

to reject the 1292(b) appeal certified by

the District Court. A1-A3 of Petition.

22

The cases are legion that, if a court of

appeals exercises its discretion to reject

a 1292(b) appeal certified by the district

court, that is the end of the matter and

the appeal is over. Coopers & Lybrand v.

Livesay, 437 U.S. 463, 98 S.Ct. 2454, 2461

(1978). ("The appellate court may deny

the appeal [1292(b) appeal] for any

reason, including docket congestion"); In

Re Convertible Rowing Exerciser

Litigation, 903 F.2d 822 (F.Circ. 1990)

(holding that the petition for rehearing

of an order denying permission to appeal

under 1292(b) [entered by the court of

appeals] was frivolous; the court of

appeals has discretion that is similar to

the certiorari discretion of the Supreme

Court); Klinghoffer v. S.N.C. Achille

Lauro, 921 F.2d 21, 24 (2nd Cir. 1990)

("The legislative history of section

1292(b) clearly shows this discretion [of

a3

ee

the court of appeals] encompasses denial

of a properly certified appeal . . .for

any reason, including docket congestion");

Parcel Tankers, Inc. v. Formosa Plastics

Corp., 764 F.2d 1153, 1156 (5th Cir. 1985)

(the discretion of the court of appeals in

determining whether tc accept an appeal

under § 1292(b) is like the discretion of

the Supreme Court in passing on a petition

| for certiorari; this discretion extends to

vacating an earlier grant of leave to

appeal when it appears to have been

improvidently granted"); and Nuclear

Energy Co. v. Scott, 660 F.2d 241, 245-

| 247 (7th Cir. 1981) cert. den. 102 S.Ct.

1622.

| Therefore, it is clear that, even if

TMI Litigation was correct in its lonely

view that 1292(b) overrides the

: prohibition of an appeal found in 1447(d)

24

(which it is not)®, writ of certiorari

6 The early case of In Re Bear River

Drainage District, 267 F.2d 849 (10th

Cir., 1959) provides an excellent

discussion of why the Court in MIMI

Litigation was clearly wrong in concluding

that 1292(b) appeals are available with

regard to removal orders based upon

1447(c), despite the absolute prohibition

contained in 1447(d):

"An order remanding a case to the

state court from which it was removed is

not reviewable on appeal or otherwise.

While the generality of § 1292(b) might

seem sufficient to encompass a remand

order, it does not expressly either

amend or repeal § 1447(d). Repeals by

implication are not favored. The

intention of Congress to repeal, modify

or supersede must be clear and manifest.

The earlier statute, § 1292(b), applies

generally to ‘a civil action’ in which

‘an order not otherwise appealable under

this section’ is made. As there is no

express repeal or absolute

incompatibility, the presumption is that

the special statute is intended to

remain in force. We are convinced that

by the enactment of § 1292(b) Congress

did not intend to abandon the long

established policy expressed in §

1447(d)."

267 F.2d. at 851. See also Nasuti_v.

Scannel, 792 F.2d at 267, 268 (holding

subsequently passed Federal Drivers Act

did not create an exception to 1447(d)’s

absolute prohibition against appellate

25

would still be improper in this case

because the discretion exercised by the

‘aie of Appeals below, in denying the

1292(b) appeal sought by the Petitioners,

is immune from review and unimpeachable.

The Petitioners also argue that,

Since the District Court ruled that the

cases of the military plaintiffs had been

properly removed, the terms of 1447(c) and

review; Carnegie - Mellon Vv. Cohill,

(for its discussion of statutory

constrvction, see 108 S.Ct. at 621, 622);

Hernandez v. Brakegate (holding 1447(d)

precludes appellate review of cases

removed under 28 U.S.C. 1452; 942 F.2d at

1225, 1226); and Mitchell Vv. Carlson

(holding that removals under the Westfall

Act, 28 US.C. 2671, et seq. does not

create an exception to the 1447(d) bar of

appellate review; 896 F.2d at 131-134),

Connecticut Nat. Bank vy. Germain, 112

$.0t. 1146 (1992) is, contrary to

Petitioners’ contentions, inapposite

because it did not involve 1447(d), only

1292(b); § 158 of U.S.C., dealing with

Bankruptcy Appeals, did not mention

interlocutory appeals (1447(d) is about

nothing but interlocutory appeals); and

§ 158(d) did not contain Sweeping words

found in 1447(d) such as "on appeal or

otherwise."

26

1447(d) referring to "the case" and "a

case" are somehow not applicable to

remand of only a portion of "a case". But

this argument overlooks the express terms

of 28 U.S.C. 1441(c) which expressly

permits remaids of only a portion of "a

case". There is no doubt that the remand

order with respect to civilian plaintiffs

is subject to the terms of 1447(c) and

1447(d).

Thus, we point out again, there is no

real conflict in the courts of appeal

cases construing or applying 1447(d) to

cases remanded on the ground of absence of

subject matter jurisdiction. Again we

say, the Petition filed by the Petitioners

is frivolous and the Petitioners should be

sanctioned for filing it.

II.

EVEN IF APPELLATE REVIEW WAS

PERMISSIBLE IN THIS CASE, THE PETITION

STILL SHOULD BE DENIED BECAUSE - WHETHER

27

APPELLATE REVIEW IS SOUGHT BY WAY OF

MANDAMUS, 1292(b) APPEAL, OR COHEN

COLLATERAL ORDER APPEAL - THIS CASE DOES

NOT QUALIFY UNDER ANY OF THESE THREE

METHODS OF APPELLATE REVIEW.

A. MANDAMUS IS ONLY VEHICLE FOR

APPELLATE REVIEW OF NON-1447(C) REMAND

ORDERS.

At the outset, we note that many

courts have expressed or implied the view

that "mandamus", not Cohen appeal or

1292(b) interlocutory appeal, is the only

appropriate vehicle for seeking appellate

review of a non-1447(c) remand order.

Thermtron seems to make this rule clear,

96.S.Ct at 594’, and many courts agree.

London v. United States Fire Insurance

’ The Court stated:

"...this Court has declared that because

an order remanding a removed action does

not represent a final judgment,

reviewable by appeal, ‘(t)he remedy in

Such a@ case is by mandamus to compel

action, and not by writ of error to

review what has been done’."

96 S.Ct. at 594.

Co., 531 F.2d 257 (5th Cir. 1976);°

Corcoran vv. Ardra Insurance Co. Ltd.,

842 F.2d 31, 33-35 (2nd Cir.1988);’ and

8 The Court noted:

"First, as mentioned above the

appellant in this case has taken an

improper avenue of review, for the

Supreme Court in Thermtron specifically

held that mandamus rather than direct

appeal is the only remedy to require the

District Court to entertain the remanded

action."

531 F.2d at p. 259.

9 The Court observed:

“Nonetheless, Thermtron’s explicit

ruling that review must be by mandamus

rather than appeal has recently been

reinforced by Cohill, in which the Third

Circuit’s review by means of mandamus

rather than appeal drew no criticism

from the Supreme Court, see 108 S.Ct. at

617 & n. 4, in the face of the long

established principle that mandamus is

not appropriate where a direct appeal

would lie, see, e.g. Helstoski Vv.

Meanor, 442 U.S. 500, 505-08, 99 S.Ct.

2445, 2447-49, 61 L.Ed.2d 30 (1979); Ex

parte Rowland, 104 U.S. (14 Otto) 604,

617, 2L.Ed. 861 (1882). Accordingly, we

conclude that the remand order at issue

in the present case is not appealable

and may be reviewed only by petition for

mandamus."

29

New Orleans Public Service, Inc. Vv.

Majoue, 802 F.2d. 166 (5th Cir. 1986).

However, a later panel decision of the

Fifth Circuit argued that, while mandamus

may be the exclusive vehicle for review

of non-1447(c) remand order based upon a

statute or the discretion of the Court,

when the basis is contractual the vehicle

for review must be via a Cohen collateral

order appeal, not by way of mandamus.

McDermott International Vv. Lloyds

Underwriters of London, 944 F.2d 1199,

1201-1204 (5th Cir. 1991).

842 F.2d at p. 35.

™ "The only vehicle for relief

from a remand order is the writ of

mandamus. A writ of mandamus lies only

if the district court has affirmatively

stated and relied upon a non-1447(c)

ground for remand. Royal, 685 F.2d at

126; see also Gravitt, 97 S.Ct. at 1439;

In _ Re Weaver, 610 F.2d 335, 337 (5th

Cir. 1980)’ In Re Merrimack Mutual Fire

Ins. Co., 587 F.2d 642 (5th Cir. 1978)."

802 F.2d at p. 167.

30

In any event, since this case does

not involve a contractual basis’ for

remand, the authorities are consistent in

holding that mandamus would be the only

basis for reviewing the District Court’s

remand order, if by some remote stretch of

the imagination the order could be deemed

a non-1447(c) order.

B. MANDAMUS.

This Court has outlined the criteria for

issuing mandamuses in a number of

decisions. See, e.g., Moses H. Cone

Memorial Hospital v. Mercury Const., 460

U.8. i, i103 §.Ct. 74 L.B.2a 765, 927

(1983) and Will _v. C@lvert Fire Ins.

Ge.,437 U.S. 655, 96 S.Ct. 2552 (1978).

Simply stated, the petition- ing party has

the burden to “show that his right to the

writ (of mandamus ) is clear and

indisputable." 103 S.Ct. at 938 and 98

S.Ct. at 2557. And this Court has held

31

that the “clear and indisputable" burden

applies to mandamuses sought with regard

to jurisdiction. In Re Chicago R.I. & P.

Ry. €Co., 255 U.S. 273, 41 S.Ct. 288, 289

(1920) ("If the jurisdiction of the lower

court is doubtful = or if the

jurisdiction depends upon a finding of

fact made upon evidence which is not in

the record “” or if the complaining party

has an adequate remedy by appeal or

otherwise ~~ the writ will Ordinarily be

denied").

The District Court in this case has

made it patently clear that Petitioners

cannot possibly meet their heavy burden to

Show that their right to a mandamus "is

clear and indisputable". The Court

explained its holding in the following

language:

“Although the case presents a close

question, the defendants have not met

the requirements of section 1442(a)(1).

32

They are being sued for formulating and

producing a product all of whose

components were developed without direct

government control and all of whose

methods of manufacture were determined

by the defendants. Although the

defendants later produced and delivered

Agent Orange under the control of

federal officers, these subsequent acts

are distinct from the earlier acts of

product and manufacturing design being

sued upon. The government sought only

to buy ready-to-order herbicides, not to

cause, control, or prevent the

production of the unwanted byproduct,

dioxin, which is the alleged cause of

plaintiffs’ injuries. The necessary

direct and detailed official control

over the acts for which the defendants

are now being sued is_7~ therefore

lacking."

A50 of Petitioners’ Petition.

The Court then certified the case for

interlocutory appeal and in so doing,

stated that "there is a..... substantial

ground for difference of opinion as to the

appropriateness of defendants’ attempt to

remove under § 1442(a)(1)". See p. A56 of

Petition.

Indeed, it is obvious that where

there is a substantial ground for

33

difference of opinion about the

controlling legal issues, no party can

possibly arque that their right to

mandamus is "clear and indisputable".

Those two concepts are mutually exclusive.

Moreover, there are other aspects of

the issues before the District Court which

preclude a finding that Petitioners’ right

to mandamus is “clear and indisputable”.

First, is the District Courts’ ruling

that the 1447(a)(1) ground for removal was

properly before the Court. As we pointed

Out above, the Petitioners did not assert

1442(a)(1) as a ground for removal in the

removal papers they filed within the time

requirement for removal and sought to

“amend" their removal papers to include

1442(a)(1) over a year after the state

court suit was filed. The District

Court’s decision to permit such

"amendment" is highly questionable.

34

The general rule relative to

amendments of "removal petitions" has been

well stated by Professor Wright:

"The petition (for removal) may be

amended freely prior to the

expiration of the 30-day period for

seeking removal. Thereafter,

however, the cases indicate that

the petition may be amended only to

set out more specifically grounds

for removal that already have been

stated, albeit imperfectly, in the

original petition; new grounds may

not be added ....”"

Wright, Miller and Cooper, Federal

Practice & Procedure, § 3733, p. 537, 538;

emphasis ours. This statement of law has

been quoted and consistently applied by

numerous cases from many federal districts

and circuits. See Kelly _v. Carr, 691

F.2d 800, 805 (6th Cir. 1980) (holding

that removal petition could not be amended

“after the action had been removed" to

assert a federal question ground for

removal); Rockwell International v. U.S.

Aircraft Ins. Group, 823 F.2d 302 (9th

35

Cir. 1987) (the court refused to allow

amendment of removal petition after

removal in order to add defendant that

would have created diversity, the court

stating:

"Second, the proposed amendment is not

merely technical like the dismissal of

a nonessential nondiverse party. The

proposed amendment seeks more than the

correction of ‘defective allegations

of jurisdiction, ’ a correction

permissible under 28 U.S.C. 1653. The

proposed amendment is not acceptable."

823 F.2d at 304); Aetna Casualty & Surety

Co. v. Hillman, 796 F.2d 770, 774 (5th

Cir. 1986); Denton’ y. Wal-Mart Stores,

Inc, 733 F.Supp. 340 (D.C. Fla. 1990);

Senter 7. Sears, Roebuck & So., 712

F.Supp 179 (D.C. 1989); Barnhill v.

Insurance Co. of N. America, 130 F.R.D. 46

(D.C. S.Car. 1990); Myers sv. Connell,

651 F.Supp. 273 (D.C. La. 1986); Woodlands

II Vv. City Savings & Loan Ass'n, 703

F.Supp. 604, 607, 608 (D.C. Tex. 1989);

36

Bellone Vv. Roxbury Homes, Inc, 748

F.Supp 4344 (D.C. Va. 1990); Garza _v.

Midland Nat’l. Ins. Co., 256 F.Supp. 12

(D.C. Fla. 1966); Jacobs v. Director of

Internal Revenue Service, 217 F.Supp. 104

(D.C. N.Y. 1963) (may not amend "to claim

different ground for removal"); and United

Gas Pipe Line Co. v. Brown, 207 F.Supp.

139, 140, 141 (D.C. La. 1962) (new ground

for removal not allowed by amendment).

Thus, at bottom the 1442(a)(1) issue

should not have been addressed or decided

by the District Court and, most certainly,

for that reason writ of certiorari in this

case is not appropriate.

Second, the District Court’s

determination that a corporation is a

"person" within the meaning of 1442(a)(1)

is also highly questionable. The District

Court admitted that the federal Courts are

heavily divided on the issue:

a7

“The Supreme Court has held that

section 1442(a)(1)'s use of the phrase

‘person acting under’ was not meant to

include government agencies.

International Primate Protection League

v. Administrators of Tulane Educ.

Fund, U.S. _, 111 §.Ct. 1700, 114

L.Ed.2d 134 (1991); see also Mignogna

Vv. Sair Aviation, Inc., 937 F.2d 37,

40-41 (2nd Cir. 1991) applying Primate

Protection League). The Court did not

decide, however, whether a corporation

could be a ‘person acting under [an

officer]’ Bakalis vv. Crossland Sav.

Bank, 781 F.Supp. 140, 142-43

(E.D.N.¥.1991). Federal courts are

divided on the question. Compare C.H.

v. American Red Cross, 684 F.Supp.

1018, 1023-24 (E.D. Mvo.1987) ('person’

in 1442(a)(1) refers to natural person")

and Roche v. American Red Cross, 680

F.Supp. 449, 455 (D. Mass. 1988) (same)

and Gensplit Fin. Corp. Vv. Foreign

Credit Ins. Ass'n, 616 F.Supp. 1504,

1508-10(E.D. Wis. 1985) (same) with

Peterson v. Blue Cross/Blue Shield,

508 F.2d 55, 58 (5th Cir.) (‘person’ not

limited to natural person), cert.

denied, 422 U.S. 1043, 95 S.Ct. 2657, 45

L.Ed.2d 694 (1975); Bakalis, 781

F.Supp. at 143-33 (same); Group Health

Inc. v. Blue Cross Ass’n, 587 F.Supp.

887, 890 (S.D.N.Y. 1984) (same)."

A39 of Petitioners’ Petition.

Thus, on that issue once again it cannot

said that Petitioners’ position is

“clear and indisputable".

38

Finally, the District Court concluded

that the issue of whether the Petitioners

were “acting under“ a federal officer

within the meaning of 1442(a)(1) is also a

very close one. See A41-A48.

In sum, it is obvious that the

contention by Petitioners that they can

meet their burden of showing that their

right to a mandamus is “clear and

indisputable" is a frivolous contention.

C. 1292(B) INTERLOCUTORY APPEAL.

We have discussed above, in

connection with our review of I.M.I1

Litigation, supra, how a grant of writ of

certiorari cannot be based upon a 1292(b)

appeal, because the Court of Appeals in

this case exercised its unassailable

discretion to reject such appeal.

39

Moreover, the Court of Appeals’

action on the request for certification of

a 1292(b) appeal is consistent with the

rulings of almost all other courts who

have passed upon the question of 1292(b)

appeal in connection with remand orders.

Cohill; In Re Bear River Drainage

District; Wright & Miller; Federal

Practice Procedure Sect. 3929, p. 135

(1292(b) appeals should be utilized "only

in exceptional cases"); Melahn; In _ Re

Oximetrix, Inc., 748 F.2d 637 (F.Cir.

1984); In Re Iowa Mfg. Co. of Cedar

Rapids, Iowa, 747 F.2d 462 (8th Cir.

1984); Vatican Shrimp Co., Inc. v. Solis,

820 F.2d 674 (5th Cir. 1987); Bregman v.

Alderman and Kunzi vv. Pan American World

Airways, Inc.

Finally, we have discussed above how

1292(b) is not even a possible vehicle for

appellate review of a remand order,

40

mandamus being the only possible one. In

sum, it is clear that grant of certiorari

on the basis of 1292(b) would be entirely

inappropriate.

D. COHEN COLLATERAL ORDER APPEAL.

The criteria for a “Cohen collateral

order appeal" have been set forth in

Coopers & Lybrand v. Livesay, 437 U.S.

469, 98 S.Ct. 2454 (1978):

"To come within the ‘small class’ of

decisions excepted from the final-

judgment rule by Cohen, the order must

conclusively determine the disputed

question, resolve an important issue

completely separate from the merits of

the action, and be effectively

unreviewable on appeal from a final

judgment...An order passing on a request

for class certification does not fall in

that category. First, such an order is

subject to revision in the District

Court. Fed. Rule Civ.Proc. 23(c)(1)

Second, the class determination

generally involves considerations that

are ‘enmeshed in the factual and legal

issues comprising the plaintiff's cause

of action.’ Mercantile Nat’l Bank v.

Langdeau, 371 U.S. 555, 558, 83 S.Ct.

520, 522, 9 L.Ed.2d 523. Finally, an

order denying class certification is

subject to effective review after final

judgment at the behest of the named

41

plaintiff or intervening class members.

United Airlines, Inc. v. McDonald, 432

U.S. 385, 97 §.Ct. 2464, 54 L.Ed.2d

423. For these reasons, as the Courts

of Appeals have consistently recognized,

the collateral-order doctrine is not

applicable to the kind of order involved

in this case."

The remand order in this case igs

somewhat analogous to the class action

order in Coopers & Lybrand and the

Situation is very much the same. The

remand order is also a collateral order

and not a final judgment. There is no

question that the issues on the merits of

this case's remand/removal matter -

involving the Defense Production Act,

military contractors’ defense, whether

the products were purchased off-the-shelf,

the nexus between the state cause of

action anc the role of the federal

defenses and the federal officers involved

in the contract for, and the use of, the

Agent Orange, and a multitude of other

factual and legal issues - “are enmeshed

in the factual and legal issues comprising

the plaintiffs’ cause of action." And

finally, while the remand issue becomes

somewhat moot after disposition in the

state courts, this Court has gone out of

its way to reaffirm principles of comity

and federalism with regard to state court

legal proceedings. Texaco v. Pennzoil,

107 S.Ct. 1519 (1987) and Chick Kam Choo

Vv. Exxon 108 S.Ct. 1684, 1690, 1691

(1987) (in both of these cases this Court

stated that the Texas courts are presumed

competent to resolve trials on the merits

in cases such as this one, even where

federal defenses are involved).

Thus, aside from the absolute

prohibition in 1447(d), the Court of

Appeals was eminently correct in this case

in dismissing the Petitioners’ direct

appeal and in rejecting their effort to

43

bring about appellate review of the remand

order on the basis of the Cohen collateral

order doctrine. See also, Calderon vv.

Aerovias Nacionales de Colombia, 929 F.2d

599 (llth Cir. 1991) (dealing with the

"matter of substantive law" exception, as

it relates to a remand order); Pelleport

Investors v. Budco Quality Theatres, 741

F.2d 273 (9th Cir. 1984) (discussing how

the collateral order doctrine can

potentially apply only in non-1447(c)

cases and seemingly limiting the Pelleport

doctrine to contractual cases); Survival

Systems Div. of the Whittaker Corp., et al

v. U.S. Dist Ct. For Southern District of

California, 820 F.2d 1416 (9th Cir. 1987)

(discussing how pendent claims or claims

not independently removable, may, in the

discretion of the district court, be

remanded, once the federal claim upon

which removal is based is gone, and such

44

discretionary remand is not subject to

attack on appeal, either by way of

mandamus or of the collateral order rule);

Bregman iv. Alderman (rejecting direct

appeal of remand order); Karl Koch

Erecting Co. Vv. N.Y. Convention Ctr.

Dev., 838 F.2d 656 (2nd Cir. 1988)

impliedly limiting collateral order direct

appeals vis-a-vis remand orders to those

outside 1447(c) and to orders such as

those based upon a forum” selection

clause); National City Bank v. Coopers

and Lybrand, 802 F.2d 990 (8th Cir. 1986)

(again limiting the collateral order

doctrine to non-1447(c) matters); Ochoa

Realty Corp. v. Faria, 815 F.2d 812 (1st

Cir. 1987) (rejecting collateral order

appeal with respect to remand order);

Black & Decker (U.S.) Inc. v. Brown, 819

F.2d 13 (3rd Cir. 1987) (rejecting direct

appeal) and Fed. Deposit Ins. Corp. Vv.

45

Alley, 82U F.2d 1121 (10th Cir. 1987)

(rejecting direct appeal).

CONCLUSION AND PRAYER

Since the District Court remanded on

the basis of absence of subject matter

jurisdiction, this is a frivolous appeal.

The Petitioners have not, and cannot,

avoid the fatal judicial impact of §

1447(d) and Gravitt v. Southwestern Bell

Telephone.

But even if there were no such thing

as 1447(d), for the reasons we have

discussed above, appellate review cannot

be obtained in this case, whether by way

of mandamus, 1292(b) or pursuant to the

Cohen collateral order doctrine.

In 1897, this Court affirmed the

policy, now incorporated into its rules,

of limited discretionary review of

petitions for writ of certiorari, stating

that the “power (to grant certiorari).

46

will be sparingly exercised, and only

when the circumstances of the case satisfy

us that the importance of the question

involved, the necessity of avoiding

conflict between two or more Courts of

Appeal, or between Courts of Appeal and

the courts of a State, or some matter

affecting the interests of this nation in

its internal or external relations,

demands such exercise." Forsythe Vv.

Hammond, 166 U.S. 506, 17 S.Ct. 665, 668,

669 (1897).

There is no real conflict among the

courts of appeal on the essential issues

in this case. In fact, the law is “clear

and indisputable" that Petitioners are not

entitled to any relief in the appellate

courts and that the civilian plaintiffs

must be allowed to proceed with their

cases in the state court of Texas, without

any further frivolous hindrances by the

47

Petitioners.

Respondent White hereby respectfully

prays this Court to deny the Petition for

Writ of Certiorari.

BENTON MUSSLEWHITE

BY:

Texas Bar Assn. No.: 14752000

1250 Lyric Centre

440 Louisiana

Houston, Texas 77002

(713) 222-2288

(713) 222-0319/FAX

ATTORNEY FOR RESPONDENT

JAMES WHITE, INDIVIDUALLY AND

AS RESPRESENTATIVE OF THE

ESTATE OF CLARENCE WHITE,

DECEASED

48

APPENDIX A

SECTION 1441(c) OF TITLE 28

OF THE UNITED STATES CODE

Section 1441(c) provides:

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 determine all issues therein,

or, in its discretion, may remand all

matters not otherwise within its

original jurisdiction.