# Opposition Brief — Dow Chemical Co. v. Brown

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 999

## Text

~~

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 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1278%3A3. Public record. Not legal advice.