UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: August 29, 1986.
CARNEGIE-MELLON UNIVERSITY AND JOHN KORDESICH, PETITIONERS
HONORABLE MAURICE B. COHILL, JR., UNITED STATES DISTRICT JUDGE, NOMINAL RESPONDENT AND WILLIAM BOYLE AND CARRIE BOYLE, RESPONDENTS
On Petition for Writ of Mandamus, Original Proceeding, Related to W.D. Civil No. 84-2285.
Before: SLOVITER and STAPLETON, Circuit Judges, and LONGOBARDI, District Judge*fn*
Opinion OF THE COURT
SLOVITER, Circuit Judge.
This petition for mandamus requires us to decide whether the district court has the power to remand to state court a properly removed action after the complaint has been amended to delete all federal claims.
Facts and Procedural History
The facts in this case are briefly stated. William and Carrie Boyle initiated this action in the Court of Common Pleas of Allegheny County, Pennsylvania, against Carnegie-Mellon University and John Kordesich, an employee of Carnegie-Mellon, complaining of the termination of William Boyle's employment. The complaint alleges William Boyle was discharged because he refused to accept blame or guilt in connection with improper billings and certain thefts at the University.
In the complaint, William Boyle alleged causes of action against Carnegie-Mellon for wrongful discharge in tort, intentional infliction of emotional distress, defamation, misrepresentation, and breach of express and implied contracts. The complaint also alleges many of these same causes of action against Kordesich, who was William Boyle's supervisor at Carnegie-Mellon. Carrie Boyle brought suit against Carnegie-Mellon and Kordesich for loss of consortium, loss of companionship, loss of her husband's household services and "income expectancy", and "loss of life's pleasures."
In addition to the Boyles' state law claims, Court I of the complaint, titled "William S. Boyle vs. Carnegie Mellon University -- In Trespass," contains the following language:
Said termination [of Boyle's employment] was also based upon Boyle's age, 56, and was therefore illegal and improper in violation of the laws of the United States of America and the Commonwealth of Pennsylvania.
App. at 7a. No other portion of the complaint elaborates on this claim or makes any further reference to federal law, and it appears the parties are not diverse.
Based on the reference to age discrimination, Carnegie-Mellon and Kordesich (thereafter referred to collectively as Carnegie-Mellon) removed the case on September 21, 1984 to the federal District Court for the Western District of Pennsylvania. The Boyles did not contest removal or move to remand.
On April 15, 1985, after a period of discovery, which was extended by the district court at the Boyles' request, the Boyles moved to amend their complaint to delete the causes of action for age discrimination and defamation and the request for damages for loss of consortium. The Boyles gave as the reason for the proposed amendment that "certain causes of action alleged . . . are not tenable and [they] feel that it would be highly unlikely that they would succeed." App. at 70a-71a. In discovery, it was disclosed that William Boyle had never filed any age discrimination charge with a federal or state agency, a prerequisite for suit under the Age Discrimination in Employment Act. See 29 U.S.C. §§ 626(d), 633(b).
At the same time as the motion to amend, the Boyles filed a motion to remand the case to state court because it would no longer contain any federal causes of action. The district court granted the motion to amend the complaint without discussion, and Carnegie-Mellon has not challenged this ruling. The court then ordered remand to the Pennsylvania state court. The court recognized that neither 28 U.S.C. § 1447(c) nor 28 U.S.C. § 1441(c), the two statutory provisions authorizing remand, were applicable in this case. It nonetheless held that because it had the discretion to dismiss an action from which all federal claims had been deleted, it also had the discretion to remand a case under like circumstances.
Carnegie-Mellon appealed this decision and also filed a petition for mandamus against the district judge, Chief Judge Cohill, who is the nominal respondent here. Appeals from remand orders are barred with an exception not applicable here, 28 U.S.C. § 1447(d), and the appeal was accordingly dismissed. The issue of mandamus is now before us.
We consider first whether mandamus is an available vehicle to challenge the remand. The Boyles argue that even if the district court committed error, it is not of the "magnitude" to justify issuance of a Writ of Mandamus.
Mandamus is, of course, not to be used as a substitute for appeal, or to thwart the strong congressional policy against piecemeal appeals. Parr v. United States, 351 U.S. 513, 520-21 (1956). The writ, however, is "appropriately issued . . . when there is 'usurpation of judicial power' or a clear abuse of discretion." Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)). One of its principal uses is, as in this case, to confine federal courts to the proper exercise of their limited statutory jurisdiction. See, e.g., Hoffman v. Blaski, 363 U.S. 335 (1960).
The Supreme Court has made clear that "[a]bsent statutory prohibitions, when a remand order is challenged by a petition for mandamus in an appellate court, 'the power of the court to issue the mandamus would be undoubted,'" Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 353 (1976) (quoting In re Pennsylvania Co., 137 U.S. 451, 453 (1890)). The Thermtron Court further stated that mandamus is available "where the district court . . . has remanded [a case] on grounds not authorized by the removal statutes." Thermtron, 423 U.S. at 353; accord Levy v. Weissman, 671 F.2d 766, 768-69 (3d Cir. 1982). This is precisely the situation presented in this case, and, therefore, mandamus is available to Carnegie-Mellon to challenge the remand order.
The District Court's Jurisdiction
In deciding whether the district court had authority to remand this case to state court, we must first determine whether the district court had subject matter jurisdiction over the action at all in the first instance. All parties have treated the assertion in the Boyles' complaint that William Boyle's discharge violated federal age discrimination laws as an attempt to state a claim under the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1982) (ADEA). Thus, removal here was pursuant to 28 U.S.C. § 1441(b), which allows for removal of civil actions over which "the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States."
It has been an idiosyncrasy of federal jurisdiction that even if an action could have been filed originally in a federal court, that court does not have jurisdiction over a removed case if the state court from which it was removed did not also have jurisdiction. See Lambert Run Coal Co. v. Baltimore & Ohio Railroad Co., 258 U.S. 377, 382 (1922); 1A J. Moore & B. Ringle, Moore's Federal Practice § 0.157[3.-1] at 55-56 (2d ed. 1986). This rule stems from the derivative nature of removal jurisdiction.
Recently, Congress has sensibly changed this anomalous situation by providing the following addition to 28 U.S.C. § 1441:
(e) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.
Judicial Improvements Act of 1985, Pub. L. No. 99-336 § 3, 100 Stat. 633 (1986). This amendment applies only to actions filed in state court after the date of its enactment, and thus in this case we must still determine if jurisdiction under the ADEA is exclusive to federal courts. If so, the Pennsylvania court did not have jurisdiction over this claim, and the district court could not have derived jurisdiction on removal.
The district court analogized jurisdiction under the ADEA to jurisdiction under Title VII of the Civil Rights Act of 1964, and concluded that although the courts are divided over whether jurisdiction under Title VII was exclusive to federal courts, the better view was that Title VII jurisdiction was concurrent in state and federal courts. We need not decide if the Title VII analysis is correct because the question is more easily resolved by reference to the language of the ADEA. The ADEA provides that any person may bring an action for legal or equitable relief "in any court of competent jurisdiction." 29 U.S.C. § 626(c)(1). In addition, the provision of the Fair Labor Standards Act, 29 U.S.C. § 216(b), which provides that an action may be maintained "in any Federal or State court of competent jurisdiction"*fn1 is incorporated into the ADEA, 29 U.S.C. § 626(b).
These provisions signify that Congress intended both state and federal courts to have jurisdiction over suits brought under the ADEA. The statutory language is clear and nothing in the legislative history is to the contrary. This conclusion is in accord with the few federal cases we have found that have considered this question. See Baldwin v. Sears, Roebuck & Co., 667 F.2d 458, 460-61 (5th Cir. 1982); Jacobi v. High Point Label, Inc., 442 F. Supp. 518, 519-20 (M.D.N.C. 1977). We hold, therefore, that because the Pennsylvania court had jurisdiction over the ADEA claim, the Boyles' action was properly removed from state to federal court.
Propriety of Remand
Once the district court granted the Boyles' motion to amend their complaint to remove the ADEA claim, only state law claims remained. The district court decided that although these claims arose out of "the same nucleas of operative facts" as the federal claim, this was not an appropriate case to exercise pendent jurisdiction pursuant to United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-27 (1966). This would ordinarily have entailed dismissal of the action without prejudice to the Boyles' right to refile their claim in state court. Id.
Here, because the case originally had been removed from state court, the district court decided to remand. The court acknowledged that no statute authorized the remand and that the Supreme Court's decision in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), seemed, in fact, to foreclose it, but it concluded that Thermtron was distinguishable. Carnegie-Mellon argues that Thermtron and this court's decision in Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982), preclude a district court from remanding on the basis of grounds not specified in the controlling statute.
There are two statutory provisions authorizing remand after removal. The district court held that neither authorized remand in this case, and we agree. The first, 28 U.S.C. § 1441(c), gives the district courts discretion to remand "separate and independent" nonremovable claims or causes of action when those claims are joined with a removable claim.*fn2 The district court correctly found that Boyles' claims all arose out of a common nucleas of operative fact and thus that the claims in this case were not "separate and independent" for purposes of 28 U.S.C. § 1441(c). This conclusion follows from the leading Supreme court decision interpreting this provision, American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951). The Court held that,
where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).
Id. at 14. Thus, § 1441(c), as interpreted in Finn, is intended to apply to situations where the various claims in a single complaint arise from different factual bases.
The application of the Finn rule has caused some difficulty, see 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3724 at 366 (2d ed. 1985), but a straightforward application of the rule demonstrates that § 1441(c) does not provide a basis for remand in this case. All the Boyles' claims arise from William Boyle's termination by Carnegie-Mellon. This is indisputably a "single wrong", and, therefore, § 1441(c) does not provide a basis to remand.
The second provision, 28 U.S.C. § 1447(c), requires remand if the district court finds "that the case was removed improvidently and without jurisdiction."*fn3 Although the terms "improvidently" and "without jurisdiction" are joined conjunctively, many decisions treat them as independent grounds for remand. See, e.g., Ryan v. State Board of Elections of State of Illinois, 661 F.2d 1130, 1133 (7th Cir. 1981). "Improvidently" generally refers to failure of the removing party to satisfy a statutory, nonjurisdictional requirement for removal, such as posting of a bond or removing within 30 days of the service of the initial pleading. See, e.g., In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642, 645-47 & nn. 3 & 8 (5th Cir. 1978). This term in the statute does not vest the district court with discretion to remand a properly removed case. See IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 159 n.14 (5th Cir. 1982). Similarly, the term "without jurisdiction" clearly refers to situations in which the district court is lacking jurisdiction over the removed case.
Neither of these provisions is applicable in this case. The removal of the Boyles' action was not legally defective in any way that the parties have identified or that we have been able to discern, and there are no discernible jurisdictional defects. Thus, we are squarely confronted with the issues whether the district court has discretion to remand a properly removed case.
In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), the Court held that a district judge erred as a matter of law in remanding a properly removed case to state court because his docket was overcrowded. Id. at 344-45. The Court criticized the district court's action in strong terms, stating that,
an otherwise properly removed action may no more be remanded because the district court considers itself too busy to try it than an action properly filed in the federal court in the first instance may be dismissed or referred to state courts for such reason.
Id. at 344. In reaching this conclusion, the Court stated: "The District Court exceeded its authority in remanding on grounds not permitted by the controlling statute." Id. at 345. In a footnote, the Court added:
Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court's jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute.
Id. at 345 n.9 (citations omitted). Finally, in holding that mandamus was available to redress the district court's action, the Court stated:
we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute.
Id. at 351.
Interpretation of Thermtron has divided the Courts of Appeals. The Seventh Circuit has held that Thermtron imposes a rigid rule limiting remand to those grounds specified in the statutes. See Ryan v. State Board of Elections, 661 F.2d 1130, 1133-34 (7th Cir. 1981); see also Cook v. Weber, 698 F.2d 907, 909-10 (7th Cir. 1983). In a slightly different context, the Tenth Circuit has come to the same conclusion. See Sheet Metal Workers International Association v. Seay, 693 F.2d 1000 (10th Cir. 1982). Early post- Thermtron cases in the Fifth Circuit suggested that the court viewed Thermtron as laying down a hard and fast rule against non-statutory remand. See In re Greyhound Lines, Inc., 598 F.2d 883, 885 (5th Cir. 1979); In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642 (5th Cir. 1978). But see IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 159-60 (5th Cir. 1982).
On the other hand, the Sixth Circuit has squarely held, on facts analogous to those presented here, that the district courts have discretion to remand a properly removed action when the federal causes of action have been removed from the complaint. See In re Romulus Community Schools, 729 F.2d 431 (6th Cir. 1984). Other circuits have come to similar results, but without discussing or even citing to Thermtron. See Fox v. Custis, 712 F.2d 84, 89-90 & n.4 (4th Cir. 1983); Hofbauer v. Northwestern National Bank of Rochester, 700 F.2d 1197, 1201 (8th Cir. 1983); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561-63 (2d Cir. 1978).
This court followed Thermtron in Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982). Defendant in a properly removed action failed to comply with a local district court rule that required pro se litigants to file an address within the district where documents could be served. Defendant's motion challenging the constitutionality of this rule was denied, and after defendant failed to comply with the court's order, the court remanded the case to state court as a sanction. We granted defendant's petition for mandamus and, relying on Thermtron, stated the applicable law as follows:
Where a case has not been removed improvidently or where subject matter jurisdiction exists, remand is inappropriate and a federal trial court has no jurisdiction to enter a remand order.
Id. at 768 (footnote omitted).
The holdings in Thermtron and Levy that remand may not be ordered on grounds not authorized by statute control our decision today. The district court was instead persuaded by the Sixth Circuit view that the Supreme Court's "forceful pronouncement in Thermtron against remands unauthorized by statute were prompted by the extreme circumstances of that case." In re Romulus Community Schools, 729 F.2d at 436. No language in Thermtron limits the Court's holding to the particular circumstances of that case.
With respect, we reject the reasoning of the Romulus court and Judge Stapleton that because pendent jurisdiction as construed in Gibbs affords clear authority for dismissal of a case in which all federal claims have been dropped, the district court may instead remand the remaining state claims to state court. Id. at 436-40. We are not as "confident" as Judge Stapleton in predicting how the Supreme Court would have decided Gibbs had the case arisen in a removal context. Instead of depending on such prescience, we rely on what that Court stated in Thermtron ten years after Gibbs. What is stated is directly applicable here.
Moreover, the Thermtron Court's holding is merely an application of the fundamental constitutional principle that the jurisdiction of the inferior federal courts is dependent upon specific statutory authorization. Although the Romulus court and Judge Stapleton base their position on plausible policy reasons, primarily to insure a state forum for state claims, we believe those reasons are best addressed to Congress.
If we were to hold that federal courts may remand cases to state courts for reasons not specified in federal statutes, we would nullify Congress' effort to delineate the narrow circumstances in which remand is to be permitted. We would also frustrate Congress' purpose in providing a right of removal, since a defendant who exercises that right might thereafter be subject to duplicative and costly subsequent state proceedings. See Cook v. Weber, 698 F.2d at 909. Furthermore, allowing plaintiffs to obtain remands by dropping their federal claims could encourage manipulative and strategic remands. Indeed, in this case, Carnegie-Mellon suggests that the amendment and remand was sought because, after much effort and expense to it, the case was now ripe for summary judgment or trial.
Finally, if the district court can remand solely as a matter of its discretion, as distinguished from pursuant to narrowly drawn statutory authority, there will be no effective boundaries to the exercise of its discretion. "The writ of mandamus is not to be used when 'the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.'" See Schlagenhauf v. Holder, 379 U.S. 104, 112 (1964), (quoting Parr v. United States, 351 U.S. 513, 520 (1956)).
We recognize that a most compelling case for a remand is presented when the state claims of an innocent plaintiff will be barred by the running of the statute of limitations. The Seventh Circuit has suggested that the district courts will not be without recourse if they cannot remand since they may, in appropriate cases, retain the case or dismiss with or without prejudice. Cook v. Weber, 698 F.2d at 909. But see Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-96 (3d Cir. 1976) (when only pendent claims remain pretrial, "court should ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances"). Moreover, as Judge Stapleton acknowledges, there is no limitations problem where a state has a savings clause that would cover this situation. The serious limitations problem that he gives for encouraging us to act where Congress has not yet chosen to can be readily ameliorated by enactment of such clauses by the remaining states. In any event, even if we were convinced that the policies supporting discretion in the district court to remand outweigh those militating against it, we would still not be free to deviate from the rule of law laid down in Thermtron and Levy v. Weissman.
We will therefore grant Carnegie-Mellon's petition for mandamus and direct the district court to vacate its remand order.*fn4
STAPLETON, Circuit Judge, Dissenting:
The court today holds that a federal district judge is powerless to remand a case to the state court from which it came even though he or she has properly determined that the case should not continue in a federal forum because only state claims between non-diverse parties remain to be litigated. This result is said to be mandated by the Supreme Court's Thermtron decision and our Levy decision and by the fact that there is no specific statutory authority for such a remand. Because I conclude that specific statutory authority is not necessary and that this matter is governed by United Mine Workers v. Gibbs, 383 U.S. 715 (1966) rather than Thermtron and Levy. I respectfully dissent.
When a federal judge in a suit between citizens of the same state entertains a state law claim related to a federal one, he exercises what we have come to call pendent jurisdiction. When and how pendent jurisdiction will be exercised is a matter of trial court discretion. Gibbs, 383 U.S. at 725. That discretion is to be exercised based upon such considerations as "judicial economy, convenience, and fairness to the litigants" as well as upon comity and the desirability of avoiding unnecessary federal adjudication of state law issues. 383 U.S. at 725-26.
These principles governing the exercise of pendent jurisdiction have been developed by the Supreme Court and Congress has seen fit to entrust the development of this area of the law to the courts. The judge who looks for statutory guidance on when and how to exercise pendent jurisdiction will thus look in vain.
In Gibbs, the Supreme Court instructed federal trial judges to monitor cases involving pendent claims throughout the life of those cases to ensure that a federal court remains the appropriate forum for resolving these claims. It specifically advised that, absent unusual circumstances, "if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well . . . and left for resolution to state tribunals." 383 U.S. at 726-27. The Supreme Court cited no statute or rule of court as authority for the proposition that dismissal of the state claims was appropriate. Indeed, there is no statute or rule of court specifically authorizing dismissal of a case in which the Court has jurisdiction over the parties and the subject matter, the plaintiff is not in default, and the plaintiff's claim has not been shown to be deficiently pleaded or without merit.
When the Supreme Court in Gibbs turned down the issue of when the exercise of federal pendent jurisdiction should cease to the issue of how a decision to cease should be implemented, it instructed that the dismissal of the state-law claims be without, rather than with, prejudice. This choice was informed, not by a statutory provision or rule, but by the same considerations which the Court had previously spelled out as governing the exercise of pendent jurisdiction. Based on considerations of comity and the desirability of preserving the state law issues for resolution by a state tribunal, the Court's choice of dismissal without prejudice was obvious.
The Gibbs case had not been removed from a state court; accordingly, a remand was not an option for the Court in that case. If Gibbs had involved a removed case, however, I am confident that the Supreme Court would have done exactly what the district court did in this case. It would have considered the three available options -- dismissal with prejudice, dismissal without prejudice, and remand -- in light of the principles which govern the exercise of pendent jurisdiction. I believe it would have concluded, as the district court did here, that where the justification for refusing to decide a pendent claim in a removed case is that the issues involved are better resolved by a state tribunal, a remand more efficiently serves the desired objective than does either of the other alternatives.
Given the absence of statutory law relating to the exercise of pendent jurisdiction generally, it is not surprising that Congress has not expressly addressed the subject of remand in the context of a case in which an exercise of pendent jurisdiction has been found to be no longer appropriate. However, one can infer from what Congress has declared that it would prefer the common sense result of a remand in this case. In Section 1441(c) of Title 28, Congress addresses the situation in which a removable claim over which a federal district court would have original jurisdiction is joined with one or more unrelated state claims which would not otherwise be removable. It provides:
(c) 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.
28 U.S.C. § 1441(c).
Section 1441(c) is not applicable to this case because the Boyles' state and federal claims arose from the same nucleas of operative facts and therefore are not "separate and independent." See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14 (1951). Nevertheless, it reflects a Congressional policy similar to the one identified in Gibbs : If removed state claims ought not to go forward in a federal forum, the status quo should be restored so that these claims may be resolved by the state tribunal.
As earlier noted, the majority concludes that a dismissal rather than a remand is mandated not only by the absence of express statutory authority but also by Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1975) and Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982). Thermtron and Levy both involve a principle that is fundamental to our jurisprudence, but which does not apply to the case at bar.
When Congress has established a right to have a claim adjudicated by a federal court, a federal court may not deny a party that right. In both Thermtron and Levy the plaintiff had a right to a federal adjudication of their claims before the court. The question presented was whether a federal court, in the exercise of its discretion, could nevertheless refuse to adjudicate those claims. There could, of course, be only one answer to this question. Denial of discretion to remand was necessary in order to vindicate the plaintiff's statutory right to have his claim heard in a federal forum.
As Gibbs makes clear, the parties to this action currently have no right to a federal forum. 383 U.S. at 725. Congress has not provided the plaintiff or the defendant with a right to have plaintiff's state claims heard in a federal court divorced from the federal claim. The district court, applying the principles laid down in Gibbs, found that it should not retain jurisdiction over these state claims. This crucial difference between the case at bar and Thermtron and Levy justifies a different approach in this case.
As the majority notes, a number of other circuit courts have not considered the issue before us to be controlled by Thermtron and have recognized that remand is the more direct, economical and otherwise desirable alternative. See In re Romulus Community Schools, 729 F.2d 431, 435-40 (6th Cir. 1984); Fox v. Custis, 712 F.2d 84, 89 n.4 (4th Cir. 1983); Hofbauer v. Northwestern National Bank of Rochester, 700 F.2d 1197, 1201 (8th Cir. 1983); IMFC Professional Services of Florida v. Latin American Home Health, 676 F.2d 152, 160 (5th Cir. 1982); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 561-62 (2d Cir. 1978); Ondis v. Barrows, 538 F.2d 904, 908 (1st Cir. 1976). Several of these cases have recognized that in some circumstances a remand will be the only way to preserve claims that otherwise would be barred by limitations. Removed cases frequently remain pending in the federal court well past the limitations deadline. If for any reason a plaintiff's federal claim is found wanting after that deadline has passed, the majority's approach, in states without savings statutes, will cause the plaintiff to forfeit the right to have his state claims heard in any forum. The majority's suggestion that this unfortunate potential for forfeiture may be ameliorated by district courts' choosing to retain and decide state claims which would be forfeited on dismissal is hardly a satisfying answer to the problem. Why, one may ask, should federal courts be compelled to litigate claims which have been initiated by the plaintiff in a state court and which, under Gibbs, belong in a state court?
For me, the limitations problem is a far more serious one than those which the majority foresees resulting from permitting remands in cases of this kind. Fairness to litigants is one of the Gibbs factors and there is no reason to believe that district courts will be unable to protect against the manipulations which the majority fears. Moreover, while it is true that remand orders are less frequently subject to appellate review than dismissals without prejudice, this is not a cause for alarm. The lessons of Gibbs and Thermtron are clear enough to minimize the risk that a district court will erroneously remand to state courts despite the presence of a significant federal interest. For this reason, I regard the risk of meritorious claims being forfeited upon dismissal as too high a price to pay for automatic review of all cases of this kind.
I would hold that the district court committed no error and that mandamus is, accordingly, inappropriate.