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Watson v. Paul Sims Rare Coin & Precious Metals Brokers

argued: February 7, 1991.

IN RE TMI LITIGATION CASES CONSOLIDATED II; BRANNON, JAMES T., ET AL,
v.
BABCOCK & WILCOX COMPANY, INC., ET AL.; GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, U.E. & C.- CATALYTIC, AND BURNS & ROE ENTERPRISES, INC., DRESSER INDUSTRIES, APPELLANTS IN NOS. 90-5312 AND 90-5672; ANDREA LEWINTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARK LEWINTER; V. GENERAL PUBLIC UTILITIES CORP.; METROPOLITAN EDISON COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; PENNSYLVANIA ELECTRIC COMPANY; BABCOCK & WILCOX COMPANY; J. RAY MCDERMOTT & COMPANY; CATALYTIC, INC.; AND BURNS & ROE, INC.; GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, BURNS & ROE ENTERPRISES, INC., AND U.E. & C.- CATALYTIC, APPELLANTS IN NO. 90-5313; PERRI C. KIICK; AND EDWARD KIICK, HUSBAND AND WIFE V. METROPOLITAN EDISON CO.; GENERAL PUBLIC UTILITIES CORP.; AND BABCOCK AND WILCOX COMPANY; GENERAL PUBLIC UTILITIES CORP., METROPOLITAN EDISON COMPANY, AND BABCOCK & WILCOX COMPANY, APPELLANTS IN NO. 90-5314; JOHN W. GUMBY, SR. V. GENERAL PUBLIC UTILITIES CORP.; METROPOLITAN EDISON COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; PENNSYLVANIA ELECTRIC COMPANY; BABCOCK & WILCOX COMPANY; J. RAY MCDERMOTT & COMPANY; CATALYTIC, INC., BURNS & ROE ENTERPRISES, INC.; GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, BURNS & ROE ENTERPRISES, INC., AND U.E. & C.-CATALYTIC, APPELLANTS IN NO. 90-5315; HARRY MONTVILLE; VIRGINIA MONTVILLE, IN THEIR OWN RIGHT AND AS PARENTS AND NATURAL GUARDIANS OF PLAINTIFF; DANIEL ALLEN MONTVILLE V. GENERAL PUBLIC UTILITIES CORP.; METROPOLITAN EDISON COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; PENNSYLVANIA ELECTRIC COMPANY; BABCOCK & WILCOX COMPANY; J. RAY MCDERMOTT & COMPANY; CATALYTIC, INC., BURNS & ROE ENTERPRISES, INC.; GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, BURNS & ROE ENTERPRISES, INC., AND U.E. & C.-CATALYTIC, APPELLANTS IN NO. 90-5316; JOHN B. ROCHE, III; NANCY ELAINE ROCHE; ERIN KATHLEEN MILLER; TIMOTHY MILLER; CATHY DAUGHERTY; KIM DAUGHERTY; RACHEL L. STAUFFER; NED E. GROVE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SYLVIA K. GROVE, DECEASED; ROBERT L. CASSELL, SR.; PATRICIA A. CASSELL; PAUL D. WALTERICK; LINDA D. WALTERICK, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, PAUL D. WALTERICK, JR., PAUL M. WALTERICK; HELEN G. WALTERICK; JENNIFER M. WALTERICK V. GENERAL PUBLIC UTILITIES CORP.; U.E. & C. CATALYTIC CORPORATION; METROPOLITAN EDISON COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; PENNSYLVANIA ELECTRIC COMPANY; BABCOCK & WILCOX COMPANY; J. RAY MCDERMOTT & COMPANY; BURNS & ROE, INC.; GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, BURNS & ROE ENTERPRISES, INC., AND U.E. & C.-CATALYTIC, APPELLANTS IN NO. 90-5317; MARGARET KRAFFT V. GENERAL PUBLIC UTILITIES CORP.; METROPOLITAN EDISON COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; PENNSYLVANIA ELECTRIC COMPANY; BABCOCK & WILCOX CO.; J. RAY MCDERMOTT & COMPANY; CATALYTIC, INC., BURNS & ROE ENTERPRISES, INC.; GENERAL PUBLIC UTILITIES CORPORATION, METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, BURNS & ROE ENTERPRISES, INC., AND U.E. & C.-CATALYTIC, APPELLANTS IN NO. 90-5318; IN RE TMI LITIGATION CASES CONSOLIDATED II; BRANNON, JAMES T., ET AL, V. BABCOCK & WILCOX COMPANY, INC., ET AL.; GENERAL PUBLIC UTILITIES CORP., METROPOLITAN EDISON COMPANY, NEW JERSEY CENTRAL POWER & LIGHT COMPANY, PENNSYLVANIA ELECTRIC COMPANY, BABCOCK & WILCOX COMPANY, MCDERMOTT INCORPORATED, U.E. & C.- CATALYTIC, AND BURNS & ROE ENTERPRISES, INC., DRESSER INDUSTRIES, APPELLANTS IN NOS. 90-5562; IN RE TMI LITIGATION CASES CONSOLIDATED II; BRANNON, JAMES T., ET AL., V. BABCOCK & WILCOX COMPANY, INC., ET AL.; UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR APPELLANT IN NOS. 90-5671 AND 90-5673



Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civ. Nos. 426 S 1985, 771/72/73/74 S 1985, 861 S 1985, 1052 S 1985, 1147/48 S 1985, 1175 S 1985, 1220/21/22 S 1985, 1224 S 1985, 1402/03 S 1985, 1465 S 1985, 1565/66 S 1985, 1649 S 1985, 1674 S 1985, 1677/78 S 1985, 1681 S 1985, 1694 S 1985, 1742 S 1985, 1748/49/50 S 1985, 1793 S 1985, 3890 S 1985, 3892 S 1985, 3929 S 1985, 4179 S 1985, 4188 S 1985, 4314 S 1985, 194 S 1986, 327/28 S 1986, 1827 S 1985, 1929 S 1985, 2016 S 1985, 2087 S 1985, 2096 S 1985, 2239 S 1985, 2294 S 1985, 2364 S 1985, 2481 S 1985, 2507/08 S 1985, 2536 S 1985, 2679 S 1985, 2796 S 1985, 2837/38 S 1985, 2873 S 1985, 2994 S 1985, 3004 S 1985, 3056 S 1985, 3117 S 1985, 3337 S 1985, 543 S 1986, 739 S 1986, 853 S 1986, 976/77 S 1986, 1149 S 1986, 1531 S 1986, 1768 S 1986, 1780 S 1986, 2012 S 1986, 2110 S 1986, 2967/68 S 1986, 3764 S 1986, 359 S 1987, 368 S 1987, 421 S 1987, 728 S 1987, 995 S 1987, 1080 S 1987, 1874 S 1987, 0009 S 1988, 481 S 1988, 88-1452/53/54/55/ 56/57/58/59/60/61, 88-1466/67/68/69/70/71/72/73/74/75/76/77/78/ 79/80/81/82/83/84/85/86/87/88/89/90/91/92/93/94, 88-1496/97/98/ 99/1500/01/02/03/04/05/06/07/08/09/10/11/12/13/14/15/16/17/18/1 9/ 20/21/22/23/24/25/26, 88-1540, 88-1546/47/48/49, 88-1551, 88-1553/54/55/56/57/58, 88-1570, 88-1670, 88-1706, 88-1807, 89-0049, 89-0105, 89-0271, 89-0332, 89-0660, 89-1208, 89-1204, 89-1503, 88-01538. D.C. Civil Nos. 88-01550, 88-01552, 90-00098, 90-00370, 90-00530, 90-00531. D.C. Civ. Nos. 426 S 1985, 771/72/73/74 S 1985, 861 S 1985, 1052 S 1985, 1147/48 S 1985, 1175 S 1985, 1220/21/22 S 1985, 1224 S 1985, 1402/03 S 1985, 1465 S 1985, 1565/66 S 1985, 1649 S 1985, 1674 S 1985, 1677/78 S 1985, 1681 S 1985, 1694 S 1985, 1742 S 1985, 1748/49/50 S 1985, 1793 S 1985, 3890 S 1985, 3892 S 1985, 3929 S 1985, 4179 S 1985, 4188 S 1985, 4314 S 1985, 194 S 1986, 327/28 S 1986, 1827 S 1985, 1929 S 1985, 2016 S 1985, 2087 S 1985, 2096 S 1985, 2239 S 1985, 2294 S 1985, 2364 S 1985, 2481 S 1985, 2507/08 S 1985, 2536 S 1985, 2679 S 1985, 2796 S 1985, 2837/38 S 1985, 2873 S 1985, 2994 S 1985, 3004 S 1985, 3056 S 1985, 3117 S 1985, 3337 S 1985, 543 S 1986, 739 S 1986, 853 S 1986, 976/77 S 1986, 1149 S 1986, 1531 S 1986, 1768 S 1986, 1780 S 1986, 2012 S 1986, 2110 S 1986, 2618 S 1986, 2967/68 S 1986, 3764 S 1986, 359 S 1987, 368 S 1987, 421 S 1987, 728 S 1987, 995 S 1987, 1080 S 1987, 1874 S 1987, 0009 S 1988, 481 S 1988 88-1452/53/54/55/ 56/57/58/59/60/61, 88-1466/67/68/69/70/71/72/ 73/74/75/76/77/78/79/80/81/82/83/84/85/86/87/88/89/90/91/92/93/ 94, 88-1496/97/98/99/1500/01/02/03/04/05/06/07/08/09/10/11/12/13/ 14/15/16/17/18/19/ 20/21/22/23/24/25/26, 88-1540, 88-1546/47/48/ 49/50/51/52/53/54/55/56/57/58, 88-1570, 88-1670, 88-1706, 88-1807, 89-0049, 89-0105, 89-0271, 89-0332, 89-0660, 89-1028, 89-1204, 89-1503, 90-98, 90-370, 90-530/31, 88-01538. D.C. Civ. Nos. 426 S 1985, 771/72/73/74 S 1985, 861 S 1985, 1052 S 1985, 1147/48 S 1985, 1175 S 1985, 1220/21/22 S 1985, 1224 S 1985, 1402/03 S 1985, 1465 S 1985, 1565/66 S 1985, 1649 S 1985, 1674 S 1985, 1677/78 S 1985, 1681 S 1985, 1694 S 1985, 1742 S 1985, 1748/49/50 S 1985, 1793 S 1985, 3890 S 1985, 3902 S 1095, 3929 S 1985, 4179 S 1985, 4188 S 1985, 4314 S 1985, 194 S 1986, 327/28 S 1986, 1793 S 1985, 1827 S 1985, 1929 S 1985, 2016 S 1985, 2087 S 1985, 2096 S 1985, 2239 S 1985, 2294 S 1985, 2364 S 1985, 2481 S 1985, 2507/08 S 1985, 2536 S 1985, 2679 S 1985, 2796 S 1985, 2837/38 S 1985, 2873 S 1985, 2994 S 1985, 3004 S 1985, 3056 S 1985, 3117 S 1985, 3337 S 1985, 543 S 1986, 739 S 1986, 853 S 1986, 976/77 S 1986, 1149 S 1986, 1531 S 1986, 1768 S 1986, 1780 S 1986, 2012 S 1986, 2110 S 1986, 2618 S 1986, 2967/68 S 1986, 3764 S 1986, 359 S 1987, 368 S 1987, 421 S 1987, 728 S 1987, 1874 S 1987, 0009 S 1988, 481 S 1988, 88-1452/53/54/55/56/57/58/59/60/61, 88-1466/67/68/69/70/71/72/73/74/75/76/77/ 78/79/80/81/82/83/84/85/86/87/88/89/90/91/92/93/94, 88-1496/97/98/99/1500/01/02/03/ 04/05/06/07/08/09/10/11/12/13/14/15/16/17/ 18/19/20/21/22/23/24/25/26, 88-1540, 88-1546/47/48/49, 88-1551, 88-1553/54/55/56/57/58, 88-1570, 88-1670, 88-1706, 88-1807, 89-0049, 89-0105, 89-0271, 89-0332, 89-0660, 89-1028, 89-1204, 89-1503, 88-1550, 88-1552, 90-98, 90-370, 90-530/31, 995 S 1987, 1080 S 1987, 88-01538.

Mansmann, Scirica and Higginbotham, Circuit Judges. Scirica, Circuit Judge, concurring.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge

In this matter growing out of the 1979 incident at the Three Mile Island nuclear facility near Harrisburg, Pennsylvania, we are asked once again to resolve a confrontation between an assertion of federal jurisdiction over public liability actions by defendants and a challenge to that jurisdiction by plaintiffs who wish to be in the state court system. We previously visited a similar issue in Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir. 1986), and Stibitz v. General Pub. Util. Corp., 746 F.2d 993 (3d Cir. 1984), cert. denied, 469 U.S. 1214, 84 L. Ed. 2d 334, 105 S. Ct. 1187 (1985), and concluded there that Congress did not intend that there be a federal cause of action arising under the terms of the Price-Anderson Act (codified in scattered sections of 42 U.S.C.).

Our focus here is on the constitutionality of the Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2100 et seq. In the Amendments Act, Congress expressly created a federal cause of action for nuclear accident claims and is alleged to have worked major changes in the landscape of public liability law.

Specifically, our review centers upon a district court order remanding certain public liability actions to the state courts in which they were originally filed or in which they might have been filed. The district court concluded that it lacked federal subject matter jurisdiction over these claims and that remand was appropriate under the terms of 28 U.S.C. § 1447(c).*fn1 The district court reached this decision despite the fact that the Price-Anderson Amendments Act of 1988, which created the federal public liability action, specifies that the federal courts have original jurisdiction over these actions and that public liability actions filed in state courts, which have concurrent jurisdiction, are subject to removal upon the motion of a defendant, the Nuclear Regulatory Commission, or the Secretary of Health and Human Services, 42 U.S.C. § 2210(n)(2).

The district court's determination with respect to subject matter jurisdiction rested not on any failure to satisfy the jurisdictional requirements of the Amendments Act but upon the court's conclusion that the Amendments Act itself was unconstitutional. Underlying the remand order was the district court's holding that Congress, in purporting to create a federal forum for public liability actions through the Amendments Act, exceeded the authority granted to it by Article III, Section 2 of the United States Constitution.

Because it believed that its order granting the plaintiffs' motion to remand involved a "controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of the litigation," the district court stayed execution of the remand and certified for immediate appeal, pursuant to 28 U.S.C. § 1292(b), the following question:

Whether Congress exceeded the scope of Article III, Section 2 of the United States Constitution by granting federal courts subject matter jurisdiction over public liability actions through the Price-Anderson Amendments Act of 1988.

The defendants, in an abundance of caution, filed petitions for permission to appeal, notices of appeal pursuant to 28 U.S.C. § 1291 and petitions for a writ of mandamus pursuant to 28 U.S.C. § 1651. The petitions for permission to appeal were granted and the appeals arising from these petitions were then consolidated with the direct appeals. (We refer to these consolidated matters as "the appeal.")

The procedural posture of this case raises a serious threshold question concerning our jurisdiction, under any of the three bases asserted, to hear this appeal. The district court's remand order, although it was stayed pending the outcome of this appeal, arguably implicates a statutory bar to our consideration of any aspect of the remand order, including the constitutional determination upon which it was based. 28 U.S.C. § 1447(d) provides that except for civil rights cases removed pursuant to 28 U.S.C. § 1443, "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . ."

Because we are convinced that the bar of section 1447(d) was not intended to preclude appellate consideration of a section 1292(b) certified question concerning the constitutionality of an Act of Congress, (here, the Price-Anderson Amendments Act of 1988), we will address the merits of the question certified. We find that the grant of federal jurisdiction set forth in the Amendments Act does not transgress the limits of Article III, Section 2 of the United States Constitution, and thus we will vacate the order of the district court.

I.

The procedural history of many of the public liability actions before us in this appeal has followed the course of a pendulum as statutory and constitutional interpretation has operated to move these actions back and forth between the state and the federal courts. We recount this history in detail since it bears directly on the jurisdictional issues to be resolved.

These eleven consolidated appeals have their origin in suits filed in the Pennsylvania state courts and in the Mississippi state and federal courts as a result of radiation leaks alleged to have occurred on March 28, 1979 at the Three Mile Island nuclear energy electric generating plant in Dauphin County, Pennsylvania. In these suits, approximately two thousand plaintiffs who resided near the Three Mile Island facility at the time of the incident allege clinical and subclinical conditions resulting from exposure to radiation released from the facility; numerous plaintiffs assert claims based on fear of the effects of radiation. Other claims, based upon loss of trade, were filed by seventy-two tourist-related businesses operating in nearby counties.

The defendants in these suits were, at the time of the Three Mile Island incident, the owners and operators of the nuclear facility, companies which had provided design, engineering or maintenance services, and those vendors of equipment or systems installed in the facility. The defendants deny that the March 28, 1979 release of radiation caused any harm.

Some of the cases now pending were originally filed in the early 1980's in several Pennsylvania Courts of Common Pleas and state courts in Bergen County, New Jersey and Jackson County, Mississippi, and were removed by the defendants to the United States District Courts in Pennsylvania and in Mississippi. The defendants asserted as grounds for removal that the plaintiffs' claims arose under the Price-Anderson Act, Pub. L. No. 85-256, 71 Stat. 576 (1957) (codified as amended in various sections of 42 U.S.C.).*fn2 Following our rulings in Stibitz v. General Pub. Util. Corp., 746 F.2d 993, 997 (3d Cir. 1984), cert. denied, 469 U.S. 1214, 84 L. Ed. 2d 334, 105 S. Ct. 1187 (1985); and Kiick v. Metropolitan Edison Co., 784 F.2d 490, 493 (3d Cir. 1986), that the Price-Anderson Act created no federal tort cause of action and was not intended to confer jurisdiction upon the federal courts, the actions originally filed in the state courts were remanded and those few which had been brought originally in the federal court were transferred to the state courts via state law procedure. New claims arising out of the same incident continued to be filed in the state courts.

In August of 1988, Congress enacted the Price-Anderson Amendments Act of 1988, Pub. L. No. 100-408, 102 Stat. 1066 (1988). By this Act, Congress expressly created a federal cause of action for "public liability actions" which were defined as "any suit asserting public liability." 42 U.S.C. § 2014(hh).*fn3 The Amendments also provided, in 42 U.S.C. § 2014(hh), that public liability actions shall be deemed to arise under the Price-Anderson Act. Thus the federal courts were granted original jurisdiction over these actions; any public liability actions pending or filed in the state courts were subject to removal. 28 U.S.C. § 2210(n)(2).

Following enactment of the Amendments Act on August 20, 1988, the defendants removed the actions underlying these appeals to the United States District Court for the Middle District of Pennsylvania. On October 7, 1988, the plaintiffs filed a petition seeking to have the removed actions remanded to the state courts on the ground that Congress lacked authority to create a federal forum for public liability actions inasmuch as these actions, despite Congress' explicit statement to the contrary, did not "arise under" federal law. The defendants opposed this petition; the United States government intervened in the proceedings pursuant to 28 U.S.C. § 2403 and also opposed the petition.

On March 16, 1990, the district court granted the petition for remand. Holding that Congress' grant of federal jurisdiction over public liability actions would require that the federal courts apply the same law which a state court would have applied in an action under state common law, the district court concluded that the Amendments Act accomplished only the creation of a federal forum for the public liability actions. In the district court's view, the Amendments Act did not change the fact that the plaintiffs' rights arose under state law rather than under the federal statute. Because it did not believe that the Amendments Act's grant of federal jurisdiction over public liability actions could withstand constitutional attack, the district court concluded that it lacked subject matter jurisdiction over the plaintiffs' claims and was required to remand the actions to the state courts pursuant to 28 U.S.C. § 1447(c). In so holding, the district court recognized that there was a substantial ground for difference of opinion regarding the constitutionality of the Amendments. The district court, therefore, certified the constitutional question for immediate appeal pursuant to 28 U.S.C. § 1292(b).

The United States and the defendants filed timely petitions for permission to appeal. The plaintiffs and the United States filed motions for partial reconsideration and for reconsideration, respectively. The defendants also filed a notice and an amended notice of appeal.

By order entered June 14, 1990, the district court denied the plaintiffs' motion for partial reconsideration and the motion filed by the United States for reconsideration. All of the defendants filed timely notices of appeal from the district court orders filed June 14, 1990 and March 16, 1990. Petitions for a Writ of Mandamus were also filed. On July 12, 1990, we granted the petitions for permission to appeal, consolidating the permissive appeals with the direct appeals.

II.

A.

The threshold question before us is whether we have jurisdiction to consider any aspect of the district court order in view of the bar to appellate review of remand orders set forth in 28 U.S.C. § 1447(d). The jurisdictional issue is substantial and has been ably briefed and argued. Our task is to determine whether Congress intended to insulate from review those remand orders which rest on the district court's finding that it lacks subject matter jurisdiction because the statute containing the grant of federal jurisdiction is, itself, unconstitutional.

The defendants argue that there are three separate bases upon which we might rely in order to review the district court order. The first involves the permissive appeal provisions of 28 U.S.C. § 1292(b). The defendants also assert that the district court order is final within the meaning of the collateral order exception to 28 U.S.C. § 1291 and contend that the district court order is properly reviewable pursuant to a writ of mandamus authorized by 28 U.S.C. § 1651.

The plaintiffs respond with a number of conclusions respecting our jurisdiction, all centering on 28 U.S.C. § 1447(d): 28 U.S.C. § 1447(d) bars this court from hearing an appeal by permission under 28 U.S.C. § 1292(b) from a district court decision holding the Price-Anderson Act Amendments of 1988 to be unconstitutional; 28 U.S.C. § 1447(d) prohibits this court's review of a direct appeal; and issuance of a writ of mandamus, pursuant to 28 U.S.C. § 1651, is also barred by 28 U.S.C. § 1447(d).

Although we have been invited to bypass direct consideration of the reach of the section 1447(d) bar,*fn4 we are convinced that this case requires head-on confrontation. We turn, therefore, to the language and history of section 1447(d).

B.

Section 1447(d) states clearly that, except for civil rights cases removed pursuant to 28 U.S.C. § 1443, "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . . ." This statutory bar to appellate review of remand orders was first codified in Section 2 of the Judiciary Act of March 3, 1887 (24 Stat. 552, reenacted to correct errors in enrollment, August 13, 1988, 25 Stat. 443):*fn5

Whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court remanding such cause shall be allowed.

Section 2 was reenacted in the Judicial Code of 1911, 36 Stat. 1094 as 28 U.S.C. § 71. "These provisions for the disposition of removed cases where jurisdiction was lacking or removal was otherwise improper, together with the prohibition of appellate review . . . endured until 1948 when 28 U.S.C. § 1447 was enacted -- minus, however, the prohibition against appellate review. The omission was corrected in 1949 when the predecessor of the present subsection (d) came into being." Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 347-48, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976) (footnotes omitted). As adopted in 1948, and amended in 1964, section 1447(c) provided, in pertinent part, that:

If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.*fn6

As amended in 1949, 28 U.S.C. § 1447(d) read, "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . . ." "This subsection took its present form in 1964, when Congress amended the subsection to provide for review of cases removed pursuant to 28 U.S.C. § 1443." Thermtron, 423 U.S. at 348 n.13.

With the brief exception, then, of the period between 1875 and 1887, Congress, by adopting section 1447(d) and its statutory predecessors, "established the policy of not permitting 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. This was accomplished by denying any form of review of an order of remand, and, before final judgment, of an order denying remand." United States v. Rice, 327 U.S. at 751. One commentator describes the policy underlying section 1447(d) as "[Congress'] . . . explicit legislative choice . . . that avoiding delay in court proceedings caused by lengthy appellate review of remand decisions merits sacrificing appellate review to correct occasional errors in remand orders." Herrmann, Thermtron Revisited: When and How Federal Trial Court Remand Orders are Reviewable, 19 Arizona St. L. J. 395, 413 (1987-88) (footnote omitted) (hereinafter "Herrmann").*fn7 In furtherance of this policy, section 1447(a) was interpreted, until 1976, to preclude review of all remand orders, regardless of the reasons underlying the decision to remand.

C.

In 1976, the Supreme Court decided Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. at 336. There, Kentucky residents filed a personal injury action against Indiana residents in a Kentucky state court. The action was removed to the United States District Court pursuant to 28 U.S.C. §§ 1441 and 1446. The district court reviewed the crowded state of its docket and held that although the plaintiffs had the statutory right to litigate their claims in the federal court, that right had to be "balanced against the plaintiffs' right to a forum of their choice and their right to a speedy decision on the merits of their cause of action." Id. at 340. Because it concluded that the matter could be brought to more efficient resolution in the state courts and that the petitioners had failed to demonstrate that they would be prejudiced by having their case heard in that forum, the district court ordered the matter remanded. The plaintiffs sought a writ of mandamus or prohibition compelling the district court to exercise jurisdiction over the properly-removed action. The Court of Appeals for the Sixth Circuit denied the petition, relying on the statutory bar to review set forth in section 1447(d).

Reversing, the Supreme Court clarified that the section 1447(d) bar operates to preclude review of only those remand orders issued pursuant to section 1447(c). The Court held that these sections must be construed together and that "only remand orders issued under § 1447(c) and invoking the grounds specified therein . . . are immune from review under § 1447(d)." Thermtron, 423 U.S. at 346. The district court in Thermtron had questioned neither the propriety of the removal nor the jurisdiction of the federal court; the terms of section 1447(c) were not mentioned in the remand order and could not have been applicable. Recognizing that it was creating an exception to what had been interpreted as an absolute bar to review, the Court wrote:

There is no doubt that in order to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, . . . Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court. But 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 . . . . Because the District Judge remanded a properly removed case on grounds that he had no authority to consider, he exceeded his statutorily defined power; and issuance of the writ of mandamus was not barred by § 1447(d).

Id. at 351. Mandamus was held to be "an appropriate remedy to require the District Court to entertain the remanded action." Id. at 352.

Although the rule that most remand orders are not subject to review remains, Thermtron made clear that the seemingly unequivocal language of section 1447(d), may, in extraordinary circumstances, give way to permit appellate consideration of certain categories of remand orders. Mandamus has been invoked in a number of cases since Thermtron to require federal courts to adjudicate claims not remanded on jurisdictional grounds. See, e.g., Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir. 1989) (petition for writ of mandamus was granted directing directing the court to vacate a remand order based upon procedural defects not contemplated by section 1447(c)); and Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990) (review by mandamus was appropriate where the district court's remand order lacked statutory basis and was clearly contrary to congressional policy as expressed in the Westfall Act).

Another detour around the absolute bar of section 1447(d) has been fashioned by the Court of Appeals for the Ninth Circuit in Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th Cir. 1984), and The Clorox Co. v. United States District Court, 756 F.2d 699 (9th Cir.), rev'd on reh'g, 779 F.2d 517 (9th Cir. 1985).

In Pelleport the plaintiff sued in a California state court for the recovery of rental fees. The case was removed to the federal court on diversity grounds. The defendant filed a motion to remand the case to the state court, relying on a contractual forum selection clause. Although it found that diversity existed and that the federal court, therefore, had subject matter jurisdiction over the actions, the district court granted the motion for remand on the ground that the forum selection clause was valid and enforceable. The plaintiff appealed from the remand order and filed a petition for mandamus. The court of appeals addressed the applicability of section 1447(d), concluding that it did not operate to bar review of the remand order. Recognizing that the case did not fall within the narrow exception to section 1447(d) carved out by Thermtron, the court of appeals nonetheless determined that review was appropriate. Because the remand order at issue was mandated by a substantive decision on the merits apart from the jurisdictional determination, the court concluded that section 1447(d) did not apply. In reaching this result, the court relied on the Supreme Court's decision in Waco v. United States Fidelity & Guar. Co., 293 U.S. 140, 79 L. Ed. 244, 55 S. Ct. 6 (1934).

Waco involved a Texas state court action which was removed to the federal court on diversity grounds by a third party defendant. When the district court dismissed the third party action, diversity was destroyed and the case was remanded to the state court. Holding that the dismissal of the third party action was not immune from review, the Supreme Court wrote:

True, no appeal lies from the order of remand; but in logic and in fact the decree of dismissal preceded that of remand and was made by the District Court while it had control of the cause. Indisputably this order is the subject of an appeal; and, if not reversed or set aside, is conclusive upon the petitioner.

Waco, 293 U.S. at 143.

The court of appeals in Pelleport read Waco as "standing for the proposition that although the final determination that diversity is lacking is not reviewable, the earlier determination that a third party defendant must be dismissed from the action is." Pelleport, 741 F.2d at 277. Reasoning that the case before it also involved a substantive issue of contract law which preceded and formed the basis of the remand order, the court concluded that:

Like the dismissal in Waco, the court's decision that the contract clause is enforceable, if not reversed or set aside, is conclusive upon [the defendant], and, therefore, must be reviewed. To hold otherwise would deprive [the defendant] of its right to appeal a substantive determination of contract law. We cannot believe that Congress intended to immunize such decisions from review.

Id.

The court also reviewed the strong policy underlying section 1447(d) but found that

Any delay caused by an appeal of the contract issue is a delay that must be countenanced. To apply section 1447(d) to the district court's decision on the enforceability of the forum selection clause would extend the scope of section 1447(d) far beyond its intended parameters and would leave matters of substantive contract law unreviewable. We refuse to impute such an intent to Congress.

Id. Thus the district court's order was held to be reviewable as a collaterally final order within the meaning of 28 U.S.C. § 1291. Following review on the merits of the district court's forum selection ruling, the order remanding the case to the California state court was affirmed.

Again, in The Clorox Co. v. United States District Court, 779 F.2d at 517, the Court of Appeals for the Ninth Circuit held that an appeal would lie from a remand order which had been preceded by a substantive decision on the merits. In Clorox, the defendant employer had granted to its employees, via an employee benefits handbook, the right to file suit to recover benefits in either a state or federal court. When claims were filed in the state court, however, Clorox removed the actions to the federal court. The plaintiffs filed a motion for remand arguing that the handbook provision constituted a waiver of Clorox's removal rights. The district court accepted this argument and remanded the case pursuant to section 1447(c). While the court of appeals originally declined jurisdiction, holding that review of the remand order could be secured only through appeal rather than mandamus, on rehearing the court construed the petition for writ of mandamus as a notice of appeal and granted Clorox's request for relief. The court again addressed the reach of section 1447(d):

When a district court's remand order is based on a resolution of the merits of some matter of substantive law "apart from any jurisdictional decision," section 1447(d) does not foreclose appellate review of that decision.

Clorox, 779 F.2d at 520 (quoting Pelleport, 741 F.2d at 276-77). Concluding that the district court had remanded on the basis of Clorox's waiver of the right to remove and that a remand on this basis did not fall within the purview of section 1447(c), the court held that the remand order was appealable as a collateral final order pursuant to 28 U.S.C. § 1291.

What has come to be known as the Clorox/Pelleport doctrine has been invoked in other cases to support the reviewability of remand orders in cases where the decision to remand was based on a prior determination of substantive law. See Foster v. Chesapeake Insurance Co., 933 F.2d 1207 (3d Cir. 1991) (order of remand based on contractual forum selection clause is not rendered unappealable by section 1447(d)); Regis Assoc. v. Rank Hotels (Management) Ltd., 894 F.2d 193, 194 (6th Cir. 1990) (remand order based on forum selection clause is reviewable on appeal because it is based upon a substantive decision on the merits of a collateral issue); In re Delta America Re Ins. Co., 900 F.2d 890, 892 (6th Cir. 1990) (same); and Karl Koch Erecting Co., Inc. v. New York Convention Center Dev. Corp., 838 F.2d 656, 658 (2d Cir. 1988) (same).

D.

With the historical background of section 1447(d) and the caselaw interpreting and limiting the reach of that section in mind, we turn to the appeal now before us. This case, presenting as it does the question of whether section 1447(d) bars all review of a district court's determination that it lacks federal subject matter jurisdiction because the Price-Anderson Amendments Act of 1988 which explicitly authorize removal is unconstitutional, is unique. No case interpreting the reach of section 1447(d) has addressed the particular constitutional dilemma presented here.

The plaintiffs argue that the section 1447(d) bar absolutely prevents our reviewing the district court's conclusion that the Amendments Act is unconstitutional because, as a result of that ruling, the district court concluded that it lacked subject matter jurisdiction and ordered that the cases at issue be remanded to the state court. We cannot agree. We are convinced that in enacting section 1447(d), Congress did not intend to vest the district courts with the authority to make final determinations regarding the constitutionality of federal statutes. In thus contracting the reach of the section 1447(d) bar, we are acutely aware that we are charting virgin territory in that this case does not fall neatly into either of the previously recognized exceptions to the bar of section 1447(d).

The exception created in Thermtron permits review of those remand orders which do not rest upon the grounds specified in section 1447(c). Here the district court relied specifically on section 1447(c) in reaching the determination to remand and it would be impossible for us to deny the fact that the district court's conclusions of constitutional law ultimately implicated subject matter jurisdiction.

The Pelleport/Clorox exception to the section 1447(d) bar developed by the Ninth Circuit also fails to address directly the issue posed here. The Pelleport/Clorox line of cases have allowed appeal from an order of remand where that order was preceded by a substantive decision on the merits apart from any jurisdictional issue. This doctrine is superficially attractive but we do not believe that we can analyze this case solely by reference to it. In each of the cases applying the Pelleport/Clorox doctrine, there was an undisputed statutory basis for federal jurisdiction; there was no question that the federal courts had jurisdiction to hear the types of case presented. One of the parties in each of these cases, however, argued that provisions of a contractual nature, e.g., a forum selection clause or a statement in an employment benefits plan, operated to place the litigation properly in the state courts. It was the resolution of these underlying substantive issues, rather than of basic jurisdictional issues, which supported remand in Pelleport and Clorox. The basis for subject matter jurisdiction was unaffected.

While the district court's decision in this case that the Amendments Act was unconstitutional was a substantive decision preceding the remand order, the heart of this decision was jurisdictional; unless the statute were found to be constitutional, there could be no federal subject matter jurisdiction. Despite its magnitude, we cannot say that the district court's constitutionality ruling was a "substantive decision on the merits apart from any jurisdictional decision" within the meaning of Pelleport and its progeny. Pelleport, 741 F.2d at 276 (emphasis added). We conclude nonetheless that the seeds for appropriate resolution of this matter were sown in Thermtron and in the reasoning underlying the Pelleport/Clorox doctrine.

We reiterate Thermtron's admonition that section 1447(d), in and of itself, is not dispositive of all remand issues and should be interpreted to bar review of only those remand orders which are jurisdictional in nature. Under the terms of section 1447(c), a removal which is made without jurisdiction has been consistently interpreted to mean one not authorized by Congress. Congress "made the district courts the final arbiters of whether Congress intended that specific actions were to be tried in a federal court." Thermtron, 423 U.S. at 355 (Rehnquist, J., dissenting) (latter emphasis added). The Court of Appeals for the Seventh Circuit in Rothner v. City of Chicago, 879 F.2d 1402, 1408 (7th Cir. 1989), clarified the scope of the jurisdictional determination when it wrote: "The Thermtron Court strongly indicated that it viewed the phrase 'improvidently and without jurisdiction' to mean noncompliance with the procedural and jurisdictional requirements stated by Congress." (Emphasis in original.)

The jurisdictional issues most often resolved by decisions to remand thus involve "the presence or absence of diversity of citizenship or a 'case arising' [and] are threshold questions that can generally be readily resolved by reference to a well-established body of law." Herrmann, supra, at 414. See also Hansen v. Blue Cross of California, 891 F.2d 1384, 1388 (9th Cir. 1989) (in deciding whether subject matter jurisdiction exists, district court reaches conclusions concerning the presence of diversity or a federal question). While not every federal subject matter jurisdictional issue is easily resolved, the fact that the same types of issue arise repeatedly results in a fairly well-developed body of governing law. Herrmann, supra at 414-15 n.110.

The Thermtron holding that section 1447(d) bars review only of remand orders issued pursuant to 1447(c) thus has beneficial consequences. It respects Congress' decision to avoid the delay that would be caused by the bulk of remand orders, but restricts that limitation to the category of cases where review is least necessary.

Id. at 415.

The district court's ruling holding the Amendments Act to be unconstitutional, despite its jurisdictional component, is not the type of determination routinely and regularly made pursuant to section 1447(c). The district court's decision that it lacked subject matter jurisdiction did not in any way involve a determination that Congress did not intend to confer federal jurisdiction over public liability actions nor did it result from the conclusion that there had been a failure to satisfy the procedural requirements of the Amendments Act or any of the general removal provisions. It could not be clearer that Congress intended that there be federal jurisdiction over claims removed pursuant to the Amendments Act; the statutory language is explicit.*fn8 Furthermore, it is undisputed that the actions at issue fall within the statutory terms of the Amendments Act and were properly removed. The district court's conclusion that it lacked subject matter jurisdiction over the removed claims rested solely on its determination that Congress exceeded its constitutional authority in enacting the Amendments Act.

The plaintiffs characterize this constitutional ruling and the resulting remand as purely jurisdictional in nature and argue that the bar of section 1447(d) absolutely prevents our review of the district court's ruling with respect to the constitutionality of the Amendments Act. "No merits issues . . . occurred below. In fact, the lower court only made a jurisdictional determination and found it lacks subject matter jurisdiction." We do not believe that the section 1447(d) question is as easily resolved as the plaintiffs -- indeed, all of the parties -- might wish.

While we recognize that the district court's ruling on the constitutionality of the Amendments Act has obvious consequences for federal jurisdiction and, unlike the rulings prior to remand in the Pelleport/Clorox cases, may be said to have a truly jurisdictional component, we cannot conclude that, in the situation presented here, Congress intended that section 1447(d) operate to prevent appellate review of the district court order. We are confident that the jurisdictional determination of the district court, resting as it did upon the conclusion that the entire statutory scheme authorizing removal is unconstitutional, was not the type of federal subject matter jurisdictional decision intended to be governed by the terms of or the policy underlying section 1147(c). Section 1447(d), therefore, has no application. In order to fall within sections 1447(c) and 1447(d), a remand order must be based upon a finding that removal was not authorized by Congress.

In analyzing the scope of the determinations to be made under section 1447(c) and the resultant applicability of the section 1447(d) bar to review, we begin with the Supreme Court's axiom reiterated in Webster v. Doe, 486 U.S. 592, 603, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988), that congressional intent to bar judicial review of a constitutional claim must be clearly expressed, and with our own holding in Pacor, Inc. v. Higgins, 743 F.2d at 992, that courts will not impose restrictions on access to appellate review unless Congress has expressed that intent by clear and convincing evidence. We do not find clearly expressed congressional intent which would preclude review in the circumstances presented here. To hold otherwise would require that we reach a result wholly at odds with the policy underlying section 1447(d) and with the established general principles applicable to appellate review of constitutional questions.

Reading the finding of subject matter jurisdiction required under section 1447(c) so broadly as to encompass a district court's determination that a statute authorizing removal is itself unconstitutional would produce an unacceptable and unintended shift in the allocation of judicial power between federal and state courts. Because remand orders premised upon section 1447(c) are absolutely unreviewable, on appeal or otherwise, a district court's constitutional determination, if couched in terms of section 1447(c) and followed by a remand order, could never be reviewed. Remand orders which are unreviewable under section 1447(d) remain unreviewable even on appeal from the final judgment of a state court. In Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 568-69, 85 L. Ed. 1044, 61 S. Ct. 715 (1941), the Supreme Court wrote that

The issue of removability is closed if the federal district court refuses to assume jurisdiction and remands the cause. Section 28 of the Judicial Code [now section 1447] precludes review of the remand order directly or indirectly after final judgment in the highest court of the state in which decision could be had. . . .

(Citations omitted.) In United States v. Rice, 327 U.S. at 751, the Supreme Court reiterated the nonreviewability of orders of remand falling within section 1447(c):

Congress . . . established the policy of not permitting 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. This was accomplished by denying any form of review of an order of remand, and, before final judgment, of an order denying remand.

(Emphasis added.) Those state cases addressing the reviewability of remand orders have reached a similar conclusion. See Ramahi v. Hobart Corp., 47 Ore. App. 607, 614, 615 P.2d 348, 352 n.7 (1980) (citing absolute bar of section 1447(d)); Johnson Publishing Co. v. Davis, 271 Ala. 474, 493, 124 So. 2d 441, 456 (1960) ("appellant now seeks to have this court do what a federal appellate court, including the Supreme Court of the United States, is powerless to do, namely, review the order of remandment"); Wewoka Petroleum Corp. v. Gilmore, 319 P.2d 285 (Okla. 1957) (order of remand for lack of diversity is not reviewable on appeal).

To read sections 1447(c) and 1447(d) as applying to jurisdictional determinations based upon the constitutionality of a statute authorizing removal would vastly expand the holding in Thermtron. While the Court in Thermtron made it clear that "the district courts [are] the final arbiters of whether Congress intended that specific actions were to be tried in a federal court," the reading which the plaintiffs give to the sections in question would make district courts the final arbiters of the constitutionality of federal statutes. Thermtron, 423 U.S. at 355. (Emphasis in original).

If we interpret constitutionality rulings as falling within the subject matter jurisdictional determination to be made pursuant to section 1447(c), a district court order refusing remand and sustaining the constitutionality of the statute authorizing removal could be reviewed under 28 U.S.C. § 1291 or under the permissive appeal provisions of 28 U.S.C. § 1292(b). If, however, a district court were to find the statute authorizing removal to be unconstitutional and would enter an order of remand based upon lack of subject matter jurisdiction, its decision with regard to the constitutionality of a statute could never be reviewed. Each district court would thus be free to reach its own conclusions regarding the constitutionality of statutes authorizing removal. Thus inconsistent results would be completely insulated ...


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