450 U.S. 949 (1981)

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U.S. Supreme Court


450 U.S. 949

No. 80- 733

Supreme Court of the United States

February 23, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Justice REHNQUIST, dissenting.

The Court of Appeals for the Fifth Circuit held in this case that an order of the District Court for the Southern District of Georgia remanding a case to the state court from which it was removed was reviewable through a petition for a writ of mandamus. This conclusion is directly contrary to the plain language of 28 U.S.C. 1447(d), which provides that "[a]n order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise." Such manifest disregard of the language of Congress should in my opinion warrant at least review by this Court, if not summary reversal.

The complicated course of this litigation began in 1972, when respondent filed an action against petitioner International Union in state court. Petitioner did not answer the

Page 450 U.S. 949 , 950

complaint but instead moved to dismiss it for improper service. This motion was denied and a default judgment eventually entered against petitioner. A state trial was held for the sole purpose of calculating damages. The judgment entered for respondent, however, was ultimately reversed by the Georgia Supreme Court on the ground that the International had not been properly served. Sheet Metal Workers' International Assn. v. Carter, 241 Ga. 220, 244 S.E.2d 860 (1978). When the action was reinstituted and petitioner was properly served, it removed the action to federal court. As early as pretrial conference it clearly developed that respondent's only claim was a state-law claim for intentional infliction of emotional distress, App. to Pet. for Cert. 1a, but respondent never moved to remand the case and the court did not do so sua sponte. The case proceeded to trial and the jury awarded compensatory and punitive damages in favor of respondent. Petitioner then moved to have the judgment vacated and the case remanded for lack of subject-matter jurisdiction. The District Court concluded that jurisdiction was lacking, set aside the verdict and judgment, and remanded the action to state court. The court then stated: "Notwithstanding 28 U.S.C. 1447(d), this Court hopes this Order is appealable. Perhaps another exception may be carved out of the statute." Id., at 3a.

The Court of Appeals acceded to the wishes of the District Court. It granted respondent's petition for a writ of mandamus, vacated the remand order, and directed the District Court to consider if it had pendent jurisdiction of the state-law claim. It overcame to its satisfaction the seemingly clear prohibition of 1447(d) on the ground that 1447(c) required remand "[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction," while the District Court ordered remand after final judgment. Relying on our decision in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584 (1976), the [450 U.S. 949 , 951]

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