# Opposition Brief — Zurich American Insurance Co. v. Pioneer Natural Resources USA, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1910%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 829

## Text

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(0. 09-1805

IN THE
Supreme Court of the Gluited States

ALURICH AMERICAN INSURANCE COMPANY, ET Al

i Littoners

PIONEER NATURAL RESOURCES USA, INC. AND
PIONEER NATURAL RESOURCES COMPANY.
Le spond its

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit

BRIEF FOR THE RESPONDENTS
IN OPPOSITION

BARRETT? HL. REASONER
Counsel of Record
JEFFREY C. KUBIN
ANTHONY N. KAIM
GIBBS & BRUNS, LLP
1100 Louisiana, Suite 53800
HHouston, exas 77002
(713) G50 8805

June 28, 2OLO breasonen¢ribbsbruns.com

QUESTION PRESENTED

Whether ue OF ( 8144 7(d) pron boat appellal
review of a dustrict court order remandu lor tact
() ubjyect matter yur diction a Cast removes Liaise
the Convention on tlre hecorvnition and buy

of Koreien Arbitral Awards. 9 ULS.C. S805

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTTPHORUTT

TATEMEN'

REASONS FOR DENYING TH PETITION

NO CONFLICT EXISTS TO JUSTIFY
REVIEW BY THIS COUR]

\ The Fifth Cireunt Order 1) N
Conthet with Any Decision of thi
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\ Lit hitth Coireult Correctly Coon
cluded that It Lacked dur Lichlon
) The District Court Correctly ¢
cluded that lt | icked dur ay LO)
hI MHERE IS NO JUSTIFICATION FOR
\ GRANT, VACATI AND REMANTD
ORDER IN THIS CASI

CONCLUSION

iV

TABLE OF AUTHORITIES

Page
CASES
Amoco Petroleum Additives Co., In re, 964 F.2d
Ue ee ick vce cy cance cess ccbaceusssecucruseeoce 16, 19
Arthur Andersen LLP v. Carlisle, 129 S. Ct.
1896 (2009) o..ccccccccecccccececccecesseeseesseeeeeee.D, 6, 8, 9, 24
Behrens v. Pelletier, 516 U.S. 299 (1996)........0..0.0..... 8

Beiser v. Weyler, 284 F.3d 665 (5th Cir. 2002)............3
Briscoe v. Bell, 432 U.S. 404 (1977)

Certain Underwriters at Lloyd’s London. v.
Warrantech Corp., 461 F.3d 568 (5th Cir.
I oe secadacnce asnesdbonsconaeasavedeusaedaal oO, 6, 18, 19, 24

City of Waco v. United States Fid. & Guar. Co.,

re cs I ivan ccaeccenosansassacusaveseaseesntes o, 9
Dahiya v. Talmidge Intl, Ltd., 371 F.3d 207

(5th Cir. 2004)......... Po i decptieininscale ay he ee hae
First Opitons of Chicago, Inc. v. Kaplan,

BE ree, Re 0 ID no cic cce du cnnseaaesssokeuasiapbardaccsessss 21
Kircher v. Putnam Funds Trust, 547 U.S. 633

SNE etic ss cucueacersicsunuidh caviwcsguae dea tebe caeidees 7, 9,17, 19
Kontrick v. Ryan, 540 U.S. 443 (2004)... 22
Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d

Pe a kaa ick ces senate vecuncasaceikes 16
Lakarge Coppee v. Venezolana De Cementos,

S.A.C.A., 31 F.3d 70 (2d Cir. 1994) ....cccccccceccccee 16
Lawrence ex rel. Lawrence v. Chater, 516 U.S.

Lot) 5 Se sccguaiceudiniscasviiketivaions 24, 25

McLaughlin Gormley King Co. v. Terminix

Int? Co., 105 F.3d 1192 (8th Cir. 1997)............... 16
Moses H. Cone Mem Hosp. v. Mercury Constr.

Corp., 460 U.S. 1 (1983) .cccccccccssccscsceseccscecsececeeeees 99
Northcross v. Board of Educ., 412 U.S. 427

Se Sa gcse eve cu ten cs aauiowe noe ea sense eT a ea 25
Ocean Marine Mut. Protection & Indem. Ass'n,

Lid., In re, 3 F.3d 353 Ql ith Cir. 1993)............... 17
Osborn v. Haley, 549 U.S. 225 (2007) ........5, 6, 10, 11,

£2; 1a, 3m, 25

Powerex Corp. v. Reliant Energy Seruvs., Inc.,

ee Bee, ee ES xe ccc cnckcocncsssncnescacs 6, 47, &, 42. 32,
14, 16. 38, 393... 20. Zz
Price v. J & H Marsh & McLennan, Inc.,
PON ge Be aE Be ce 1 7 dr 14
Reddam v. KPMG LLP, 457 F.8d 1054
Fee ae. Er oss occasioned eater Es pee 6, 13, 14, 15

Sandvik AB v. Advent Int'l Corp., 220 F.3d 99

ee See | a een ee eee 2 Pete in ne: 6, 15,16
Sarhank Group v. Oracle Corp., 404 F.3d 657
UN IS I eo fe cca ncggans vase cau tsdvesvetel weeks 6, 15, 16

Severonickel v. Gaston Reymenants, 115 F.3d

ee I ook ve eee ose viovan sa vareevesk<daccatnces 16
Taylor v. McKeithen, 407 U.S. 191 (1972) ....000.... 25
Thermtron Prods., Inc. v. Hermansdorfer,

ee ee ogo cc csckavnecaocdessacscsceivesasasss 7,17
Things Remembered, Inc. v. Petrarca, 516 U.S.

Dee I coro ne Boeke ae Se. oe 12

v1

Transit Cas. Co. v. Certatn Underwiters at
Lloyd's of London, 119 F.8d 619 (8th Cir.

tf PAAR aE eS oS CRE Fray es Soe BO an ae 16, 19
Ultimate Creations, Inc. v. McMahon, 300 F.

PUREE Oe CTT, BOGE oo scsi vacscnckssecessescsesnenss 14
United States v. Rice, 327 U.S. 742 (1946) ......... 12,19

Youngblood v. West Virginia, 547 U.S. 867
ESS Dae a ane Ahn ei SR ane Sen ey PPO Aen Zo

TREATIES AND STATUTES

Convention on the Recognition and Enforce-
ment of Foreign Arbitral Awards, June 10,

1958. 21 U.S.7. 2517, 330 U.N.TS. 38........... 3, 20
Federal Arbitration Act, 9 U.S.C. §1 et seq. ........0..... 8
Pe gy occa o spiny vase Sasiddinsesenaiwaccxess 14
A aes capac ste ccovsvcnessvanesinesinass 8
BPR I ri vnnies cas cecivastavcsanisinsees 8, 16, 19
Federal Tort Claims Act, 28 U.S.C. §2671
SE SOA Se EO DOO ANDI ARS GS ast EID ns i Dee a aa RS ee 10
28 U.S.C. §2679(d) ...cccccccceccseeeeee. uA ert 10, 12
AEE ey | | Se 10
ee arson cenehvckncreenexcssssanernivas 10
Foreign Sovereign Immunities Act of 1976............... 1]
Dy PT, isc osc ces ences acca ecnnesne vsnencsayes 1}
SN erga vicxcesisecttscnpsascivsiavasedintvioss 1]
a eee ang sus candvceieveciésnevunanivacs 2

Se cs evauanieavvensnce 21, 23

STATEMENT

1. This case 1s a dispute about insurance cover-
age for the Kast Cameron 322 drilling platform (“HC
322”) in the Gulf of Mexico. Respondent Pioneer
Natural Resources USA, Inc. owned IC 322, and
respondent Pioneer Natural Resources Company
held insurance policies that provided coverage for
damage to KC 822 and resulting liability. One of
these policies was Package Insurance Policy No. CR-
5591 (the “Package Policy”). Petitioners are under-
writers that are responsible to pay claims under the
Package Pohey. See Pet. App. 24a-25a.

The Package Policy applies to the period from June
15, 2005, until dune 15, 2006. Section 1 of the Pack-
age Policy covers damage to IC 822 and related
property. Section 2 covers expenses for bringing re
lated wells under control. Section 3 covers hability
expenses to the extent they exceed respondents’ cov-
erage under a separate policy issued by Associated
Electric & Gas Insurance Services Limited (the
“AEGIS Policy”). See id. at 25a.

‘The Package Polhcy contains multiple dispute reso-
lution provisions. As a whole, the Package Policy is
subject to General Insuring Conditions, which by
their terms are “APPLICABLE TO ALL SECTIONS
OF THIS POLICY.” /d. at 31a. Paragraph 36(A)
of those general conditions provides a process to be
followed “[iJn the event it is mutually agreed by
[respondents] and [petitioners] to arbitrate any dis-
pute arising under this Policy.” /d. Paragraph 36(B)
provides that

liJf any dispute is not resolved through arbi-
tration in accordance with Paragraph [36(A)}],
it is agreed that in the event of the failure of
[petitioners] to pay any amount claimed to be

due hereunder, [petitioners], at the request of
[respondents], will submit to the jurisdiction of
a court of competent jurisdiction within the
United States of America.

Id. at 82a. Respondents have not agreed to arbitrate
their claims in this case under Paragraph 386(A).

Section 3 of the Package Policy also contains a
“following form” clause, which provides that, “[s]ub-
ject to the Limit and Excess specified in the Declara-
tions and any paramount exclusions contained in the
General Conditions, this Section Three shall follow
the terms and conditions” of the AEGIS Policy. Id.
at 33a. Among those terms and conditions is a
mandatory arbitration clause that applies to “[a]ny
controversy or dispute arising out of or relating to
[the AEGIS Polhecy], or the breach, termination or
validity thereof.” Td.

2. On September 23, 2005, Hurricane Rita de-
stroyed EC 322 and severely damaged other property
covered by the Package Policy. See Pet. App. 4a, 25a.
Respondents notified petitioners of their losses and
later filed a claim under the Package Policy.

Respondents have alleged that petitioners appoint-
ed a claims representative, and respondents agreed
with the representative about appropriate repairs
and remedial work that Pioneer would undertake.
See Notice of Removal, Exh. B 44] 15-19. Respon-
dents then undertook substantial and costly repairs
in reliance on the Package Policy and on that agree-
ment. See id. 44) 21-29. Petitioners later took the
position that no agreement had been reached and
that some of the repairs undertaken were outside the

-ackage Policy’s coverage. See id. {| 30, 35, 37.

3. On August 8, 2007, respondents brought an

action in Louisiana state court seeking to recover un-

oO

der state law, including (1) under the Package Policy,
(2) for breach of contract, (3) for reliance on petition-
ers’ representations, and (4) for breach of petitioners’
duties of good faith and fair dealing. See Pet. App.
25a-26a. On February 8, 2008, respondents filed an
amended petition for damages that stated a claim
under Section 3 of the Package Policy. See td. at 26a.

On April 18, 2008, petitioners removed the action
lo the Middle District of Louisiana. The sole basis
for federal subject matter jurisdiction stated in the
notice of removal was petitioners’ allegation that this
case involved an “arbitration agreement ... falling
under” the Convention on the Recognition and En-
forcement of Foreign Arbitral Awards, 9 U.S.C. §205.
See Notice of Removal 4] 10. In support of that alle-
gation, petitioners claimed that the “following form”
provision of Section 38 of the Package Policy incorpo-
rated the mandatory arbitration provision of the
AEGIS Policy. See Pet. App. 5a, 26a. Respondents
moved to remand, denying that the Package Policy
provided for mandatory arbitration. See id. at 5a.
The motion was referred to a magistrate judge.

4. On January 6, 2009, the magistrate judge rec-
ommended that the district court deny respondents’
motion to remand. She reasoned that the AKGIS
Policy’s mandatory arbitration provision was “an
arbitration agreement [that] could conceivably affect
the outcome of Ittigation” and that this sufficed to
confer subject matter jurisdiction on the district
court. Pet. App. 19a; see id. at 10a-lla (discussing
Beiser v. Weyler, 284 F.3d 665 (5th Cir. 2002)).

The magistrate judge declined to engage in any
“construction of the terms of the insurance con
tracts.” Jd. at 19a. The only question she considered
was whether petitioners had made “a reasonable

allegation that [the] arbitration agreement [from the
AKGIS Polcy] applies to Section Three of the Pack-
ave Policy through the following form provision.” Id.
at 15a. She cautioned that, because her inquiry was
only preliminary, petitioners “m[ight] not ultimately
prevail on a subsequent motion to compel arbitra-
tion, and they mlight] one day be returned to state
court.” /d. at 19a.

On February 10, 2009, the district court adopted
the magistrate judge’s report and recommendation.
Id. at 22a. Petitioners moved to compel arbitration
of the Section 3 claims.

5. On October 7, 2009, the district court remanded
the case to state court. The court first applied
“ordinary contract principles” under state law to
determine whether Section 3’s following-form clause
incorporated the mandatory arbitration provision
from the AEGJS Policy. Pet. App. 3la (internal quo-
tation marks omitted). It reasoned that “[t}he incor-
poration of a mandatory arbitration clause into the
Third Section of an insurance agreement that also
contains permissive arbitration and right to sue
clauses that are ‘APPLICABLE TO ALL SECTIONS
OF THIS POLICY, creates ambiguity” in the Pack-
age Policy. Jd. at 35a. Because the Package Policy is
an insurance policy, it then “construed [the policy|
in favor of the insured,” t.e., respondents, and as
a result concluded that “no valid agreement exists
between the parties to submit the disputes to arbi-
tration.” Id. at 36a.

The district court then considered the effect of this
conclusion on its jurisdiction. It noted that its pre-
vious ruling, in the form of the magistrate judge's
adopted report and recommendation, had not been
“based on an evaluation of the merits or contract

interpretation.” Jd. Its consideration of the motion
to compel, however, had “require|d] the court ... to
engage in contract interpretation.” Jd. Having done
and having concluded that “the Package Policy
does not present a valid agreement to arbitrate,” the
court concluded that “the Convention is not applica-

SO

,

ble to the dispute before the court and federal ques
tion jurisdiction is, therefore, absent.” /d. at 36a
37a.

Quoting 28 U.S.C. §1447(c)’s directive that “‘fijf at
any time before final judgment, it appears that the
district court lacks subject matter jurisdiction, the
case shall be remanded,” the district court then re
manded the case. /d. at 87a (alteration in original).
It did not rule on petitioners’ motion to compel.

6. On October 27, 2009, petitioners filed a notice
of appeal, which stated their intent to “appeal
from the |district court’s] Order ... remanding this
action” to state court. Notice of Appeal at 1. Respon-
dents moved to dismiss the appeal for lack of appel-
late jurisdiction. On December 17, 2009, the court
of appeals issued a one-sentence unpublished, per
curiam order dismissing the appeal for lack of juris-
diction. See Pet. App. la-2a. Petitioners then sought
rehearing en banc, which the court of appeals denied.
See id. at 39a-40a.

In their motion before the court of appeals, respon-
dents rehed on Dahiya v. Talmidge International,
Ltd., 371 F.3d 207 (5th Cir. 2004), and Certain
U/nderwriters at Lloyd’s London v. Warrantech Corp..,
461 F.3d 568 (Sth Cir. 2006). See Appellees’ Mot.
To Dismiss at 38-8. Petitioners did not suggest in
response that Dahiya or Warrantech was inconsis-
tent with Arthur Andersen LLP v, Carlisle, 129 S. Ct.
1896 (2009), or Osborn v. Haley, 549 U.S. 225 (2007).

6

Indeed, petitioners did not even cite those cases to
the court of appeals. Petitioners also never called the
attention of the court of appeals to Reddam v. KPMG
LLP, 457 F.3d 1054 (9th Cir. 2006), or any of the
other decisions they now claim conflict with Dahiya
and Warrantech.' They argued instead that Dahiya
and Warrantech were distinguishable, inconsistent
with the Fifth Circuit’s own precedent, or inconsis-
tent with City of Waco v. United States Fidelity &
Guaranty Co., 293 U.S. 140 (1934), which is not men
tioned in the petition. See Appellants’ Opp. to Mot.
To Dismiss at 5-8 & n.10; Appellants’ Pet. for Reh’g
Kn Bane at v-vi n.3, 1-2.

REASONS FOR DENYING THE PETITION

Petitioners have failed to show that this case war-
rants review by this Court. There is no conflict be-
tween the one-sentence unpublished, per curiam or-
der of the court of appeals and this Court’s decisions
in Arthur Andersen or Osborn. That is particularly
true in light of this Court’s decision in Powerex Corp.
v. Reliant Energy Services, Inc., 551 U.S. 224 (2007),
which rejected arguments very similar to those that
petitioners advance here. No conflict exists between
the court of appeals’ judgment and any decision of
any other circuit. The cases on which petitioners rely
are easily distinguishable and, in the case of the
Ninth Circuit’s decision in Reddam, no longer good
law in light of intervening Supreme Court precedent.

Petitioners also have failed to show that either the
court of appeals or the district court erred in this
case or that their decisions otherwise warrant review.

! See Pet. 20-22 (citing Sarhank Group v. Oracle Corp., 404
F.3d 657 (2d Cir. 2005), and Sandvik AB v. Advent Intl Corp.,
220 F.3d 99 (3d Cir. 2000))

"7
/

The Fifth Cireuit’s ruling that it lacked appellate
jurisdiction was correct in light of Powerex and this
Court’s cases holding that 28 U.S.C. §1447(d) bars
appellate review of a remand for lack of subject mat-
ter jurisdiction. The district court’s conclusion that if
lacked subject matter jurisdiction was also correct,
although this Court hkely would not reach that ques
tion even if it granted review.

Finally, a grant, vacate, and remand (“GVK”) order
is not warranted in this case. The summary disposi
tion of this matter by the Fifth Circuit was entirely
appropriate, especially given that petitioners them-
selves failed to cite to that court the cases they say it
should have followed, and no intervening develop-
ments warrant vacatur and remand.

I. NO CONFLICT EXISTS TO JUSTIFY REVIEW
BY THIS COURT

A. The Fifth Circuit’s Order Does Not Con-
flict with Any Decision of this Court

The Fifth Cireuit’s order dismissing petitioners’
appeal is consistent with (indeed, was compelled by)
this Court’s “relentlessly repeated” instruction that
““any remand order issued on the grounds specified
in §1447(c) [is immunized from all forms of appellate
review|, whether or not that order might be deemed
erroneous by an appellate court.” Kircher v. Putnam
Funds Trust, 547 U.S. 633, 640 (2006) (quoting
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.
336, 351 (1976)) (alteration in Kircher). Nothing in
the cases on which petitioners rely undermines the
application of that rule to this case.

re)

l. Petitioners’ claimed conflict with Arthur Ander-
sen has no merit.

The Fifth Cireuit’s judgment does not conflict with
Arthur Andersen. See Pet. 12-14. Arthur Andersen
involved 9 U.S.C. §16(a)(1)(A), which permits imme
diate appeal from “an order ... refusing a stay of any
action under [9 U.S.C. §] 3,” which is part of the Fed-
eral Arbitration Act. Section 16(a)(1)(A) is an excep-
tion to the rule that only final judgments of the dis-
trict courts are appealable under 28 U.S.C. §1291.
See 129 8S. Ct. at 1900. The question presented in
Arthur Andersen was whether this exception applied
to “denials of stays requested by litigants who were
not parties to the relevant arbitration agreement.”
Id. at 1899. The Court held that it did, criticizing
contrary appellate precedent for “conflating the juris-
dictional question with the merits of the appeal.” /d.
at 1900. It cautioned that “[j]urisdiction over the
appeal... ‘must be determined by focusing upon the
category of order appealed from, rather than upon
the strength of the grounds for reversing the order.”
Id. (quoting Behrens v. Pelletier, 516 U.S. 299, 31)
(1996)).

Arthur Andersen did not involve a remand order.
‘The Court had no occasion to, and did not, consider
whether §16(a)(1)(A) (or §16(a)(1)(C), on which peti-
tioners rely) affects the application of §1447(d) to a
remand in a case that involves an alleged arbitration
agreement. The Fifth Circuit’s order therefore does
not conflict with Arthur Andersen.

Arthur Andersen’s reasoning is also fully consistent
with (indeed, positively supports) the court of ap-
peals’ conclusion that §1447(d) bars appellate review
here. In this case, the “category of order appealed
from,” 129 S. Ct. at 1900, is a remand for lack of sub

0

ject matter jurisdiction. That kind of order may not
be appealed under §1447(d). Petitioners did not ap
peal an order denying their motion to compel because
the district court did not issue one. On the contrary,
their own notice of appeal referred only to the district
court's order “remanding this action.” See p. 5, supra

Petitioners repeatedly assert that the district court
did deny their motion to compel, relying on a state
ment in the Fifth Circuit’s Dahiya decision that “|a|ny
order remanding for lack of subject matter jurisdic-
tion necessarily denies all other pending motions.”
$71 F.8d at 210; see Pet. 11, 12, 14, 19, 24. It is true
that if the district court lacked subject matter juris
diction it could not compel arbitration. That is all
that the Fifth Circuit said in Dahiya. See 371 F.3d
at 210 (‘[U]nless a federal court possesses subject
matter jurisdiction over a dispute, any order it makes
(other than an order of dismissal or remand) is void.”)
(internal quotation marks and alterations omitted)
That truism does not make a remand order anything
but a remand order and does not make such an order
reviewable under §1447(d).?

2. The order below does not conflict with Osborn

Recognizing (as they must) that Arthur Andersen
did not involve a remand or §1447(d), petitioners also

soth Kircher and Powerex rejected arguments that §1447(d)
permits review of a merits-related determination that “cannot
be disapyrepated’ from a remand order. Aurcher, 547 U.S. at
645-46 n.18; see Powerex, 551 U.S. at 235-36 (following Aurcher)
In doing so, both cases also distinguished City of Waco, 293
U.S. 140, on which petivioners relied before the court of appeal:
but do not rely in their petition, See Powerex, 551 U.S. at 236
(“As we reiterated in Kircher, Waco does not permit an appeal

when there is no order separate from the unreviewable remand

order.) (citation omitted): see also p. 6, Supra

1Q

assert that the court of appeals order conflicts with
Osborn. See Pet. 14-19. That claim also fails

Osborn involved 28 U.S.C. §2679(d), the provision
of the Federal ‘Tort Claims Act (“F’PTCA”) that autho
rizes the Attorney Genera! to remove to federal court
a suit raising a tort claim against a federal employee
after certifying that the employee was “acting within
the scope of his office or employment at the time of
the incident out of which the claim arose.” 28 U.S.C
§2679(d)Q1). Such a “certification conclusively es
tablishles] SCOPE of office or employment lor purposes
of removal.” /d. §2679(d)(2)

In Osborn, this Court considered the interaction
between §1447(d) and §2679(d)(2) It determined
that §2679(d){2) was an “antishuttling provision| |" by
which “Congress hal[d] barred a district court from
passing the case back to the state court where it
originated’ and that because of that categorical bar
appellate review of a remand was appropriate despite
$1447(d). 549 U.S. at 243-44. The Court cautioned,
however, that it:

decision that §2679(d)(2) leave the district
court without authority to send a certified case
back to the state court scarcely means that
whenever the district court misconstrues a
irisdictional statute, appellate review of the
remand is in order. Such an exception would
of course, collide head on with §1447(d), and
with our precedent. Only in the extraordinary
case in Which Congress has ordered the inte
court huttle to travel just one way Irom
state to federal court does today’s decision

hold Way

Id. (citation omitted)

1]

Nothing in 9 U.S.C. §205, the removal statute that
petitioners have invoked, makes this a_ similarly
“extraordinary case in which Congress has ordered
the intercourt shuttle to travel just one way.” Jd. On
the contrary, §205 itself directs (with an exception
not relevant here) that “[t}he procedure for removal
of causes otherwise provided by law shall apply”
to cases removed under that section. Accordingly,
Osborn’s narrow holding based on the language of a
different statutory provision does not conflict with
the Fifth Cireuit’s order.

3. Powerex ts fatal to petitioners’ argument.

This Court confirmed the narrowness of Osborn’s
holding in Powerex, which was issued a few months
after Osborn. Petitioners cite Powerex only in a foot-
note and quote only the dissent. See Pet. 17 n.6. The
majority opinion, however, conclusively defeats peti-
tioners’ claim of a conflict with Osborn.

Powerex involved a removal by an entity that
claimed “foreign state” status under the Foreign
Sovereign Immunities Act of 1976 (““FSIA”), 28 U.S.C:
§$1441(d), 1608. The district court had held that
Powerex, a subsidiary of a state-owned hydropower
company, was not a foreign state; and, concluding
that this deprived it of subject matter jurisdiction,
had remanded the case to state court. See 551 U.S.
at 227-28, 232-33. Powerex sought appellate review
and argued (like petitioners here) that the impor-
tance of FSIA immunity to foreign relations was such
that “Congress could not have intended to grant dis-
trict judges irrevocable authority to decide questions
with such sensitive foreign-relations implications.”
Id. at 236 Gnternal quotation marks omitted).

The Powerex Court firmly rejected that argument.
Describing §1447(d) as a “clear jurisdictional stat-

12

ute,” the Court reasoned that an equally clear excep-
tion to §1447(d) would be required to make a particu-
lar class of remand orders reviewable on appeal. Jd.
at 237. ‘The Court therefore reaffirmed “longstand-
ing precedent” that a “‘clear statutory command’” is
required when Congress seeks to depart in a particu-
lar context from the “‘“universal|] ... practice” of
denying appellate review of remand orders.’” /d.
(quoting Things Remembered, Inc. v. Petrarca, 516
U.S. 124, 128 (1995), in turn quoting United States v.
Rice, 327 U.S. 742, 752 (1946)).

The Powerex Court discussed Osborn in two long
footnotes. One explained that Osborn “had nothing
to say about the scope of review that is permissible
under §1447(d), since it held that §1447(d) was dis-
placed in its entirety by 28 U.S.C. §2679(d)(2).” Td.
at 233 n.2. ‘The other, responding to an argument
made in the dissent, explained that the key to Osborn’s
holding was its “repeated[] emphas|is] that [§2679(d)]
certification is ‘““conclusiv[e] ... for purposes of
removal.”’” Id. at 238 n.5 (quoting Osborn, 549 U.S.
at 242, 248, in turn quoting 28 U.S.C. §2679(d);
fourth alteration, omission, and emphasis added in
Powerex). Powerex therefore rejected a reading of
Osborn that would “license ... courts to assume the
legislative role” by making exceptions to “§1447(d)’s
bar on appellate review” without a textual mandate.
ld. Notably, Justice Ginsburg, who wrote Osborn,
joined Powerex in full.

Petitioners’ studied avoidance of Powerex is telling:
Osborn on its face fails to support their claim of a
conflict with the court of appeals’ order, but the gloss
given to Osborn by Powerex disposes of that claim
completely. Petitioners cannot credibly contend that
the removal provision at issue here “displace[s]

13

({$1447(d)] in its entirety,” rd. at 233 n.2, in light of its
express incorporation of “[t]he procedure for removal
of causes otherwise provided by law,” 9 U.S.C. §205.
Their attempt to establish a conflict between the
Fifth Circuit’s order and a decision of this Court
therefore fails.

B. The Fifth Circuit’s Order Does Not Con-

flict with the Decisions of Other Circuits

1. There ts no conflict with the Ninth Circuit’s

Reddam decision.

Petitioners claim that the order below conflicts
with the Ninth Circuit’s decision in Reddam. Reddam
is distinguishable and inconsistent with this Court’s
intervening precedent. In any event, it does not pro-
vide a basis on which to grant certiorari.

In Reddam, the Ninth Circuit reviewed a district
court’s decision to remand a case removed under
§205 after the chosen arbitrator (the National Asso-
ciation of Securities Dealers) declined to arbitrate.
See 457 F.3d at 1057. The Reddam court heid that,
“[w|here [a] remand order is not based on defective
removal or Jack of subject matter jurisdiction at the
time of removal, §1447(c) does not apply and the
§1447(d) restriction fon appellate review] does not
apply either.” Jd. at 1058 (emphasis added, footnote
omitted). It relied on a line of cases holding that
events occurring after the time of removal “cannot be
the basis for a §1447(c) remand order.” /d. at 1059.

The district court’s remand order in this case did
not rely on events occurring after the time of removal.
Instead, the court relied exclusively on the contents
of insurance policies signed years before removal.
See Pet. App. 3la-37a. Reddam thus does not sug-
gest that the Ninth Circuit would have reached a dif-
ferent result on the present facts.

14

In addition, Powerex considered and rejected the
proposition that “a remand for lack of subject-matter
jurisdiction is not covered [by §1447(c)] so long as the
case was properly removed in the first instance,”
“hold[ing]” instead that, “when a district court re-
mands a properly removed case because it nonethe-
less lacks subject-matter jurisdiction, the remand 1s
covered by §1447(c) and thus shielded from review
by §1447(d).” 551 U.S. at 230, 232. That holding
is contrary to Reddam. See Price v. J & H Marsh &
McLennan, Inc., 493 F.3d 55, 60-61 (2d Cir. 2007)
(listing Reddam among cases applying the so-called
“post-removal-event” doctrine that was rejected by
this Court in Powerex). It is likely that, if and when
the Ninth Circuit again has occasion to consider
Reddam, it will revisit that case without further
guidance from this Court.*

Petitioners rely upon a footnote in Reddam that
reads, in its entirety: “Beyond that, we have jurisdic-
tion under 9 U.S.C. §16(a)(1)(A) & (B) to review the
district court’s conclusion that it could no longer
enforce the arbitration agreement.” 457 F.3d at 1059
n.8. That conclusory footnote is more dictum than
holding and does not even cite §1447(d). It does not
establish that the Ninth Cirewit has adopted a rule
that §16(a)(1) displaces §1447(d) in cases that do not
involve a district court’s reliance on post-removal
events. When the Ninth Circuit ultimately reconsid-
ers Reddam in light of Powerex, it hkely will not

* Since Powerex, the Ninth Circuit has applied Reddam once
in an unpublished memorandum affirmance that did not involve
an arbitration agreement. See Ultimate Creations, Inc. v.
McMahon, 300 F. App’x 528, 529 (9th Cir. 2008). Ultimate
Creations is nonprecedential and does not suggest that the

Ninth Circuit will not follow Powerex when better advised.

15
interpret AReddam’s footnote as an exception to
§1447(d), or it will reconsider that footnote along
with the rest of Reddam’s holding. It would be pre-
mature for this Court to grant review before seeing
whether the Ninth Circuit will appropriately apply
Powerex’s emphasis on the need for a “clear statu-
tory command” to bypass §1447(d). 551 U.S. at 237
(internal quotation marks omitted).

2. Petitioners cite other cases that are irrelevant.

The remaining cases that petitioners allege conflict
with the Fifth Circuit’s order below have nothing to
do with the question presented. None involved re-
view of a remand to state court, and thus none inter-
preted or apphed §1447(d).4

In Sarhank Group, cited in Pet. 20-21, the Second
Circuit reviewed a district court’s grant of a petition
to enforce an award by an Kgyptian arbitration tri-
bunal. See 404 F.3d at 658-59. The district court
had found that it had subject matter jurisdiction, and
the Second Circuit agreed. See id. at 659-60. ‘There
was no remand, and the Second Circuit never cited

§1447(d).

In Sandvik AB, cited in Pet. 21, the Third Circuit
reviewed a district court’s order denying a motion to
compel arbitration. See 220 F.3d at 102. In denying

4 See Pet. i (presenting the question whether “an order deny-
ing a motion to compel arbitration and remanding to state court
is appealable under the Federa) Arbitration Act’s express nght
of interlocutory appeal from such denials, 9 U.S.C. §16(a)(Q1)(C),
notwithstanding 28 U.S.C. §1447(d)”). Respondents do not
concede that this case actually involves “an order denying a
motion to compel arbitration,” because the district court entered
no such order. See p. 5, supra. Even as petitioners have formu-
lated the question, however, cases that do not involve an order

“remanding to state court” are not within its scope.

16

that motion, the district court had retained juris-
diction to conduct further proceedings in order to
“determin[e] ... whether there was an actual agree-
ment to arbitrate.” Jd. The Third Circuit held that
§16(a)(1)(C) gave it jurisdiction to review the district
court’s interlocutory denial of the motion to compel.
See id. at 102-04. There was no remand, and the
Third Circuit never cited §1447(d).6

The same is not true, however, of the Fourth and
Mighth Circuit cases that petitioners concede support
the Fifth Cireuit’s decision in this case. See Pet. 20
(citing Severonickel v. Gaston Reymenants, 115 F.3d
265, 267 (4th Cir. 1997), and Transit Casualty Co. v.
Certain Underwiters at Lloyd’s of London, 119 F.3d
619, 625 (8th Cir. 1997)). Those cases did involve
district court remand orders based on a lack of sub-
ject matter jurisdiction under 9 U.S.C. §205 and did
hold that appellate review was barred by §1447(d).
See Severonickel, 115 F.3d at 266-69; Transit Cas.,
119 F.3d at 623-25.

The Second, Seventh, and Eleventh Circuits have
reached similar results in cases removed under §205
but remanded based on procedural defects. See La-
karge Coppee v. Venezolana De Cementos, S.A.C.A.,
31 F.8d 70, 72 (2d Cir. 1994) (“[T]he remand was or-
dered on grounds covered by subsection 1447(c), and
appellate jurisdiction is therefore unavailable under
subsection 1447(d).”); In re Amoco Petroleum Addi-
tives Co., 964 F.2d 706, 712 (7th Cir. 1992) (holding
that §205 “incorporates” §1447(d)’s bar on appellate

© Petitioners also cite in a footnote Koveleskie v. SBC Capital
Markets, Inc., 167 F.3d 361 (7th Cir. 1999), and McLaughlin
Gormley King Co. v. Terminix International Co., 105 F.3d 1192
(8th Cir. 1997). As with Sarhank and Sandvik AB, neither of
those cases involved a remand to state court.

)7/

review); In re Ocean Marine Mut. Protection & Indem.
Ass'n, Ltd., 3 F.3d 353, 355 (11th Cir. 1993) ([A]
remand order based on a timely §1447(c) motion
to remand for defects in removal procedure is un-
reviewable pursuant to §1447(d).”). Although not
directly on point, those cases support the Fifth Cir-
cuit’s conclusion that §144’7(d) does apply in cases
removed under §205.

In sum, with regard to the question presented for
this Court’s review — whether, in a case removed
under §205, §1447(d) bars appellate review of a dis-
trict court’s remand order that is based on a lack of
subject matter jurisdiction — there 1s consensus, not
conflict, among the courts of appeals.

Il. THE DECISIONS BELOW ARE CORRECT
AND DO NOT WARRANT REVIEW
A. The Fifth Cireuit Correctly Concluded
that It Lacked Jurisdiction

The court of appeals nghtly determined that it
lacked jurisdiction over petitioners’ appeal. Section
1447(d) directs that “|aJn order remanding a case to
the State court from which it was removed is not re-
viewable on appeal or otherwise,” with the exception
of certain civil nights cases. This broad bar on review
has been narrowed by judicial interpretation, see
Thermtron Prods., 423 U.S. at 345-46, but neverthe-
less still apphes to remands based on lack of subject
matter jurisdiction. It is well-established that, where
§1447(d) applies, “‘review is unavailable no matter
how plain the legal error in ordering the remand.”
Kircher, 547 U.S. at 642 (quoting Briscoe v. Bell, 432
U.S. 404, 4138-14 n.138 (1977)).

The district court’s opinion shows (and petitioners
do not appear to dispute) that the court characterized
its order as a remand for lack of subject matter juris-

Ke)

diction. See Pet. App. 386a-37a.6 Under Powerex,
appellate “review of [a djistrict [c]ourt’s characteriza-
tion of its remand as resting upon lack of subject-
matter jurisdiction, to the extent 1t is permissible at
all, should be limited to confirming that that charac
terization was colorable.” 551 U.S. at 234. The ques-
tion whether the district court correctly determined
that it lacked subject matter jurisdiction was not
before the Fifth Circuit and would not be before this
Court even if certiorari was granted. In any event,
the district court’s conclusion was more than merely
colorable. See pp. 21-28, infra.

The court of appeals’ reasoning in reaching these
conclusions is well set forth in its earlier Dahiya and
Warrantech decisions, in terms that apply equally to
this case.’ Those decisions also correctly concluded
that the applicability of §1447(d)’s bar on appellate
review is reinforced in cases removed under 9 U.S.C.
§205 by Congress’s instruction that “|t}he procedure
for removal of causes otherwise provided by law shall

© Two sitting Justices have taken the position that a “conclu-
sion that the District Court purported to remand for lack of
subject-matter jurisdiction is alone enough to bar review under
§1447(d).” Powerex, 551 U.S. at 233 (citing Osborn, 549 U.S. at
264 (Scalia, J., joined by Thomas, J., dissenting)). That view
would make it even clearer that the Fifth Circuit lacked juris
diction here.

’ See Dahiya, 371 F.3d at 209 (“The district court appears to
have concluded that it lacked subject matter jurisdiction and to
have remanded on that basis. Thus, under §1447(d), we cannot
review the remand.”); Warrantech, 461 F.3d at 573 (“Section
1447(d) precludes examination of the merits of the district
court’s actions; we only must determine what the district court
perceived it was doing, as no matter how erroneous, a remand
order based on a §1447(c) ground precludes review on appeal.”)

(footnote and internal quotation marks omitted).

19

apply.” See Dahiya, 371 F.3d at 209; Warrantech,
461 F.3d at 576; accord Transtut Cas., 119 F.3d at 625
(likewise relying on this language); Amoco Petroleum,
964 F.2d at 712 (same).®

Petitioners object that, if the district court had
denied their motion to compel but not immediately
remanded, its denial would have been appealable
under 9 U.S.C. §16(a)Q1)(C) and that “there is no logi-
cal or jurisprudential rationale for allowing appeals
of such [denials] whenever they precede remand orders,
but denying appeals of the same rulings when the
District Court elects to issue a simultaneous remand.”
Pet. 24.9 On the contrary, there is the best possible
reason for treating the two kinds of orders differ-
ently: Congress has authorized (via §16(a)(1)(C)) an
appeal from the denial of a motion to compel, but has
prohibited (via §1447(d)) an appeal from the grant of
4 motion to remand.

Congress itself also had an exceilent reason for the
prohibition of §1447(d): that section embodies a
longstanding “policy ... opposfing] ‘interruption of
the litigation of the merits of a removed cause by
prolonged litigation of questions of jurisdiction of
the district court to which the cause is removed.”
Kircher, 547 U.S. at 640 (quoting Rice, 327 U.S. at
751); see also Powerex, 551 U.S. at 238-39. The policy

S Petitioners assert in a footnote that this language from 9
U.S.C. §205 refers only to 28 U.S.C. §1446, and not to §1447.
On the contrary, the phrase “procedure for removal of causes
otherwise provided by law” easily encompasses §1447(d), as
every court to consider the question has concluded.

% Petitioners are also wrong that this case involves the “same
ruling||” that would be appealable under §16(a)(1)(C). The
district court never denied petitioners’ motion to compel. See

p. 5, supra

20
question before Congress when it enacted §205 was
not whether arbitration agreements are important,
see Pet. 24-31, but whether those agreements are
important enough to justify an exception to §1447(d)’s
general prohibition against review of remands. If
Congress had thought they were, it would have
said so. See Powerex, 551 U.S. at 237 (Congress has
repeatedly demonstrated its readiness to exempt par
ticular classes of remand orders from §1447(d) when
it wishes.”}.

Petitioners’ arguments that the Convention on the
Recognition and Knforcement of Foreign Arbitral
Awards is itself so important that appellate review
should be available to enforce “the treaty obligation
of the United States,” Pet. 24, is very similar to
the arguments rejected in Powerex. As two Justices
observed in that case, Congress “no doubt considered
lthe FSIA] ... to be of importance for maintaining a
proper relationship with other nations,” and there
was some reason to believe that denying appellate
review of determinations under the FSIA “might well
frustrate a policy of importance to |the federal] Gov-
ernment.” 551 U.S. at 239 (Kennedy, J., concurring).
Those weighty policy considerations, however, could
not overcome “the structure and wording of §1447(d).”
Id. The structure and wording of §1447(d) remain
unchanged, notwithstanding Powerex, as does the
absence of any exception to §1447(d). The policy
considerations that favor enforcing arbitration
ayreements are no weightier (and no less committed
to Congress) than those that urge respect for foreign
sovereigns. Powerex thus forecloses petitioners’ argu-
ments and supports the Fifth Circuit’s conclusion

that it lacked jurisdiction.

2)

B. The District Court Correctly Concluded
that It Lacked Jurisdiction
Petitioners fall short of showing even that the dis-
trict court erred in its jurisdictional determination,
much less showing that it lacked a colorable basis for
that determination. Section 203 provides federal
subject matter jurisdiction only over an “action or
proceeding falling under the Convention,” 9 U.S.C
§203, and only an “arbitration agreement or arbitral
award” can “fallf{] under the Convention,” td. §202.
Similarly, §205 authorizes removal only of an “action
[that] relates to an arbitration agreement or
award falling under the Convention.” Accordingly,
when the district court had determined as a matter
of state contract law that the parties had not reached
any mandatory arbitration agreement at all,!? it
lacked jurisdiction to go further under the plain lan
guage of the statute.
The district court also correctly concluded that,
after construing the contract, 1t could revisit its pre
liminary ruling that it had jurisdiction — as, indeed,

,

10 That determination was itself correct under the language
of the parties’ agreement and under applicable principles of
state law. See Pet. App. 3la-37a. It is also a plainly insuffh
qent ground for review by this Court, and petitioners do not
seek review of that question. Further, although petitioners
suppvest in passing that the district court erred by applying
state rather than federal law to determine whether the parties
had agreed to arbitrate their dispute, see Pet. 2%-29, they do not
seck review of that question cither. The district court was in
any event correct. See First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944 (1995) (explaining with exceptions not rele
vant here that “|wjhen deciding whether the parties agreed
to arbitrate a certain matter ... courts generally ... should
apply ordinary state-law principles that govern the formation of

contracts”)

‘)*)

it had earlier signaled. See Pet. App. 17a, 19a, 27a
section 1447(c) expressly permits a remand for lack
of subject matter jurisdiction “at any time before
final judgment.” ‘That is consistent with the rule
that a lack of subject matter jurisdiction in the dis
trict court may be raised “at any time in the same
civil action, even initially at the highest appellate
instance.” Kontrick v. Ryan, 540 U.S. 4438, 455
(2004). It is also consistent with the rule that “every
order short of a final decree is subject to reopening at
the discretion of the district judge.” Moses H. Cone
Mem Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12
(1983). There is no sign that Congress intended to
depart from these settled procedural principles in
enacting §205.

Petitioners argue that, in enacting §205, “Congress
intended for the district courts to make a quick and
conclusive assessment of their jurisdiction on the
pleadings alone” and that “a district court’s determi
nation that a case relates to an arbitration agree-
ment under Section 205 is conclusive of the juris
dictional inquiry.” Pet. 16, 17. Although petitioners
describe this purported congressional intent with
vreat vigor, they identify no textual basis for that
theory and no persuasive inference drawn from any
other tool of statutory construction. They simply
assert that Congress meant a district court’s first
look at jurisdiction to be conclusive as though that
were enough to make it so. ‘This Court’s refusal in
Powerex to “ignore a clear jurisdictional statute in
reliance upon supposition of what Congress really
wanted,” 551 U.S. at 237, apphes with equal force to
petitioners’ arguments here.

Petitioners further argue that Congress showed its

intent to provide for “easy removal” in §205 cases by

describing the required relationship between an arbi
tration agreement and a case to be removed using
the broad phrase “relates to.” Pet. 16 (internal quo
tation marks omitted). However broad the phrase
“relates to” may be, it does not establish or imply
that Congress meant a district court’s first determi
nation about whether a case relates to an arbitration
agreement to bind that court for the rest of the case
l'urther, on the facts of this case, the breadth of the
phrase “relates to” is irrelevant. The key question
before the district court was whether the parties had
agreed to arbitrate by incorporating a mandatory
arbitration clause into their contract. When it con
cluded they had not, there was no agreement falling
under the Convention in the case and no basis for
jurisdiction under either §208 or §205
In sum, the district court’s conclusion that it lacked
subject matter jurisdiction was correct, and petition
ers have offered no persuasive reason to doubt it
They have certainly fallen short of showing that
it lacked a colorable basis. For that latter reason,
this case would be a poor vehicie for examining the
construction of §205. If after granting review the
Court determined (as it likely would) that the district
court's ruling was colorably characterized as a remand
for lack of subject matter jurisdiction, it would have
no occasion to interpret §205 itself,
lil. THERE IS NO JUSTIFICATION FOR A
GRANT, VACATE, AND REMAND ORDER
IN THIS CASE
Petitioners seek the alternative relief of an order
vranting certiorari, vacating the order of the court of
appeals, and remanding to “require the Fifth Circuit
to explain its actions.” Pet. 338. There is no reason

for such an order in this case

24
oe

In Lawrence ex rel. Lawrence v. Chater, 516 U.S.
163 (1996) (per curiam), this Court set forth the
standard to be applied when considering whether
to grant certiorari and then summarily vacate and
remand (“GVR”):

Where intervening developments, or recent
developments that we have reason to believe
the court below did not fully consider, reveal a
reasonable probability that the decision below
rests upon a premise that the lower court
would reject if given the opportunity for
further consideration, and where it appears
that such a redetermination may determine
the ultimate outcome of the litigation, a GVR
order is, we believe, potentially appropriate.
Id. at 167. Petitioners allege no intervening devel
opments that meet that standard and do not claim
that it is met. Nor could they. Osborn was decided
in 2007, and Arthur Andersen in May 2009, well in
advance of the Fifth Circuit’s order and of petition-
ers’ briefing to that court.

Petitioners fault the Fifth Circuit for not explain-
ing its reasoning when it dismissed their appeal.
That summary disposition, however, is easily explained.
In opposing respondents’ motion to dismiss for lack of
appellate jurisdiction, petitioners did not cite Osborn,
did not cite Arthur Andersen, and did not urge the
court of appeals to reconsider either Dahiya or War-
rantech as conflicting with any decision of this Court.
See pp. 5-6, supra. Instead, they claimed implausibly
that both Dahiya and Warrantech could be distin-
guished on their facts. See id. at 6. Faced with that
argument, the court of appeals no doubt reasonably
concluded that an opinion merely applying Dahiya
and Warrantech would have no precedential signific-

20

ance and that it was unnecessary to write one. The
“equities of the case,” Lawrence, 516 U.S. at 167-
68, do not favor this Court’s intervention to permit
petitioners to reargue this case before the court of
appeals with new arguments and authorities not
presented during tts first stop in that court.

The cases that petitioners cite in which this Court
has issued GVR orders to require a lower court to
clarify the basis for its reasoning, see Pet. 32-33, were
rare exceptions to the general priaciples set forth by
Lawrence.'' Nothing about this case should prompt
this Court to exercise its discretion similarly here.
Petitioners have failed to establish that this case
involves any issue that warrants this Court’s review
and indeed have failed even to cast doubt on the cor-
rectness of the Fifth Circuit’s order.

CONCLUSION

The petition for a writ of certiorari should be

denied.

1! See Youngblood v. West Virginia, 547 U.S. 867, 870 (2006)
(per curiam) (vacating and remanding for further consideration
of a Brady claim that had been “clearly presented” to the state
supreme court and that raised a “significan|t] ... issue” about
the validity of a criminal conviction for a serious offense);
Taylor v. McKeithen, 407 U.S. 191, 194 n.4 (1972) (per curiam)
(in a voting rights case, vacating and remanding for an explana-
tion of a court ot appeals decision “summarily revers|ing] with-
out any Opinion on a point that had been considered at length
by the District Judge”). Northcross v. Board of Education, 412
U.S. 427 (1973) (per curiam), the third case cited by petitioners,
Clarified the statutory standard to be applied on remand to a
request for attorneys’ fees before vacating the order of the court
of appeals and is therefore more accurately described as a
summary merits disposition than a GVK as the Court now uses
the term. See td. at 428-29 (construing 20 U.S.C. §1617 (1972)
(repealed 1978)).

June

28, ZO10

26

Respectfully submitted,

BARRETT H. REASONER
Counsel of Record
JEFFREY C. KUBIN
ANTHONY N. KAIM
GIBBS & BRUNS, L.L.P.
1100 Louisiana, Suite 5300
Hiouston, Texas 77002
(713) 650-8805
breasoner@gibbsbruns.com

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1910%3A2. Public record. Not legal advice.