USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1728
GLORIA GONZALEZ-GARCIA, ET AL.,
Plaintiffs, Appellees,
v.
WILLIAMSON DICKIE MANUFACTURING CO.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
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No. 96-1737
IN RE: WILLIAMSON DICKIE MANUFACTURING CO., ET AL.,
Petitioner.
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PETITION FOR WRIT OF MANDAMUS
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Before
Selya, Boudin and Lynch,
Circuit Judges.
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Radames A. Torruella, Ariadna Alvarez and McConnell Valdes on
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brief for appellant.
Luis Toro Goyco, Nora S. Rivera Carrasquillo and Arturo Luciano
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Delgado on brief for appellees.
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Rafael J. Vazquez Gonzalez and McConnell Valdes on Petition for
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Writ of Mandamus.
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November 8, 1996
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Per Curiam. Williamson Dickie Manufacturing Co.
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("Williamson Dickie") has filed both a notice of appeal and a
petition for writ of mandamus from a district court order
remanding a case to a Commonwealth of Puerto Rico court from
which it had been removed. We conclude that this court lacks
jurisdiction to review the order of remand, either by way of
appeal or mandamus, and therefore summarily dismiss the
appeal and deny the petition for mandamus. Because the issue
is a recurring one, a brief opinion explaining our result may
be useful for guidance in the future.
I.
In 1993, Williamson Dickie dismissed some employees when
it decided to close its plants in Puerto Rico and transfer
its operations outside of Puerto Rico. In November 1994, 117
dismissed employees filed suit in a Commonwealth Court,
claiming entitlement to severance pay in accordance with
Puerto Rico Severance Law Statute, Law 80 of May 30, 1976,
P.R. Laws Ann. tit. 29, 185 et seq. (1985) (hereinafter
"Law 80"). They also claimed that, in retaining only younger
employees until the operations were completely shut down,
Williamson Dickie violated the Commonwealth's law against age
discrimination.
Williamson Dickie removed the suit to the federal
district court on the ground that it was a civil action
arising under the laws of the United States, i.e., that it
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presented a federal question. Specifically, Williamson
Dickie alleged that, although the plaintiffs' complaint did
not mention the Employee Retirement Income Security Act of
1974 ("ERISA"), the suit, in fact, was a claim for benefits
under an ERISA plan, falling under ERISA's civil enforcement
provision, 29 U.S.C. 1132(a)(1)(B), and thus was removable
to federal court.
Plaintiffs responded with a motion to remand back to the
Commonwealth Court, contending that their complaint was not a
claim for benefits under an ERISA plan, but rather was a
claim for "indemnity for wrongful discharge" pursuant to Law
80. Williamson Dickie then moved to dismiss the plaintiffs'
severance pay claim, arguing that this claim was preempted by
ERISA. Plaintiffs filed an opposition to this motion to
dismiss, reiterating their contention that their claim for
severance pay was not ERISA-based.
In April 1996, the district court issued an opinion, in
which it concluded that Law 80 was not an employee benefit
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plan under ERISA. It opined that Law 80 more closely
resembled the "one-time, lump-sum payment triggered by a
single event requir[ing] no administrative scheme," found not
preempted by ERISA in Fort Halifax Packing Co. v. Coyne, 482
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U.S. 1, 12 (1987), rather than the more extensive and complex
administrative obligations imposed by the Massachusetts "tin
parachute" statute that this court found preempted by ERISA
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in Simas v. Quaker Fabric Corp. of Fall River, 6 F.3d 849
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(1st Cir. 1993). The district court concluded, therefore,
that the cause of action under Law 80 was not preempted by
ERISA. It determined that Williamson Dickie's motion to
dismiss the plaintiff's Law 80 claim as preempted by ERISA
was moot. And, it remanded the case to the Commonwealth
Court.
II.
Section 1447(d) of Title 28 provides, subject to an
exception for civil rights cases not relevant here, that
"[a]n order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise."
Section 1447(d) applies only if the case is remanded for the
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reasons stated in 28 U.S.C. 1447(c)--a timely raised defect
in removal procedure or lack of subject matter jurisdiction.
Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494, 497
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(1995). But where the district court order of remand rests
on lack of subject matter jurisdiction, that order is not
reviewable by appeal or mandamus, even if erroneous.
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Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343
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(1976); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723
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(1977) (per curiam).
Contrary to Williamson Dickie's contention, we interpret
the district court's order of remand as a determination that
it lacked subject matter jurisdiction over the removed case
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because no federal claim had been presented to invoke the
court's federal question jurisdiction. Rejection of
Williamson Dickie's preemption defense was a link in the
chain of reasoning. But the preemption ruling, "rather than
being apart from the question of subject matter jurisdiction,
[is] necessary to determine whether such jurisdiction
existed." Hansen v. Blue Cross of California, 891 F.2d 1384,
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1388 (9th Cir. 1989); Nutter v. Monongahela Power Co., 4 F.3d
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319, 321 (4th Cir. 1993) ("The preemption findings were
merely 'subsidiary legal step[s] on the way to its
determination that the case was not properly removed.'")
(citation omitted).
After remand, the district court's ruling that the
plaintiff's claim is not completely preempted by federal law
"has no preclusive effect on the state court's consideration
of the substantive preemption defense." Whitman v. Raley's
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Inc., 886 F.2d 1177, 1181 (9th Cir. 1989); Nutter v.
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Monongahela Power Co., 4 F.3d at 321-22 (same); Soley v.
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First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.
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1991) (same); Glasser v. Amalgamated Workers Union Local 88,
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806 F.2d 1539, 1540 (11th Cir. 1987) (per curiam) (same).
Because the district court's preemption finding is
unreviewable, principles of collateral estoppel would not
apply to preclude relitigation of the issue in state court.
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Nutter v. Monongahela Power Co., 4 F.3d at 321-22; Whitman v.
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Raley's Inc., 886 F.2d at 1181.
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The approach we take in declining to review the remand
order is supported by at least four circuits. See, e.g.,
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Nutter v. Monongahela Power Co., 4 F.3d at 320-23; Soley v.
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First Nat'l Bank of Commerce, 923 F.2d at 407-10; Hansen v.
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Blue Cross of California, 891 F.2d at 1387-90; Glasser v.
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Amalgamated Workers Union Local 88, 806 F.2d 1539 (11th Cir.
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1987) (per curiam). Section 1447(d) recites that "[a]n order
remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise." Thus, a number of
circuits have considered mandamus as a vehicle for review and
rejected it as well. See, e.g., Nutter v. Monongahela Power
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Co., 4 F.3d at 320-23; Soley v. First Nat'l Bank of Commerce,
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923 F.2d at 407-10; In re Business Men's Assurance Co. of
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Am., 992 F.2d 181, 182-83 (8th Cir. 1993) (per curiam).
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Two circuit court opinions point in the other direction.
In In re Life Ins. Co., 857 F.2d 1190 (8th Cir. 1988), the
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Eighth Circuit considered mandamus appropriate in somewhat
comparable circumstances and gave as its reason the otherwise
lack of appellate review and the preclusive effect of the
district court's ruling on the state court. Because the
district court's preemption finding is unreviewable,
principles of collateral estoppel would not apply to preclude
relitigation of the issue in state court. As for the lack of
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appellate review, this is just what Congress directed in
section 1447(d).
In Tingley v. Pixley-Richards West, Inc., 953 F.2d 1124
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(9th Cir. 1992), the Ninth Circuit regarded appellate review
of a remand order, substantially identical to the order at
issue in the case before us, as not barred by 1447(d).
This approach taken by the Tingley panel, however, appears
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inconsistent with the Ninth Circuit's own case law in Hansen
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v. Blue Cross of California, 891 F.2d at 1388-89, and Whitman
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v. Raley's Inc., 886 F.2d at 1178, neither of which was
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cited, nor appears to have been considered, by the Tingley
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panel. We agree with the Fourth Circuit, see Nutter v.
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Monongahela Power Co., 4 F.3d at 322-23, that the Tingley
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opinion therefore ought not be given weight.
The appeal in No. 96-1728 is summarily dismissed. Loc.
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R. 27.1. The petition for writ of mandamus in No. 96-1737 is
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denied.
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