In Re: v. Williamson Dickie ( 1996 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT


    ____________________
    No. 96-1728

    GLORIA GONZALEZ-GARCIA, ET AL.,

    Plaintiffs, Appellees,

    v.

    WILLIAMSON DICKIE MANUFACTURING CO.,

    Defendant, Appellant.
    _____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Daniel R. Dominguez, U.S. District Judge] ___________________
    ____________________

    No. 96-1737

    IN RE: WILLIAMSON DICKIE MANUFACTURING CO., ET AL.,

    Petitioner.
    _____________________

    PETITION FOR WRIT OF MANDAMUS
    ____________________

    Before

    Selya, Boudin and Lynch,
    Circuit Judges. ______________
    ____________________

    Radames A. Torruella, Ariadna Alvarez and McConnell Valdes on _____________________ _______________ _________________
    brief for appellant.
    Luis Toro Goyco, Nora S. Rivera Carrasquillo and Arturo Luciano _______________ ____________________________ ______________
    Delgado on brief for appellees. _______
    Rafael J. Vazquez Gonzalez and McConnell Valdes on Petition for ____________________________ ________________
    Writ of Mandamus.
    ____________________

    November 8, 1996
    ____________________













    Per Curiam. Williamson Dickie Manufacturing Co. ___________

    ("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 ___

    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 ________________________ _____

    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 _____ ___________________________________

    (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 ____

    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 ________________________ ________

    (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. __ ____________________

    Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343 ________________________ _____________

    (1976); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723 _______ __________________________

    (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, ______ ________________________

    1388 (9th Cir. 1989); Nutter v. Monongahela Power Co., 4 F.3d ______ _____________________

    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 _______ _______

    Inc., 886 F.2d 1177, 1181 (9th Cir. 1989); Nutter v. ____ ______

    Monongahela Power Co., 4 F.3d at 321-22 (same); Soley v. ______________________ _____

    First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th Cir. _____________________________

    1991) (same); Glasser v. Amalgamated Workers Union Local 88, _______ __________________________________

    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. ______ _____________________ _______

    Raley's Inc., 886 F.2d at 1181. ____________

    The approach we take in declining to review the remand

    order is supported by at least four circuits. See, e.g., __________

    Nutter v. Monongahela Power Co., 4 F.3d at 320-23; Soley v. ______ ______________________ _____

    First Nat'l Bank of Commerce, 923 F.2d at 407-10; Hansen v. _____________________________ ______

    Blue Cross of California, 891 F.2d at 1387-90; Glasser v. _________________________ _______

    Amalgamated Workers Union Local 88, 806 F.2d 1539 (11th Cir. __________________________________

    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 _________ ______ _________________

    Co., 4 F.3d at 320-23; Soley v. First Nat'l Bank of Commerce, ___ _____ ____________________________

    923 F.2d at 407-10; In re Business Men's Assurance Co. of ________________________________________

    Am., 992 F.2d 181, 182-83 (8th Cir. 1993) (per curiam). ___

    Two circuit court opinions point in the other direction.

    In In re Life Ins. Co., 857 F.2d 1190 (8th Cir. 1988), the ____________________

    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 _______ ___________________________

    (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 _______

    inconsistent with the Ninth Circuit's own case law in Hansen ______

    v. Blue Cross of California, 891 F.2d at 1388-89, and Whitman ________________________ _______

    v. Raley's Inc., 886 F.2d at 1178, neither of which was _____________

    cited, nor appears to have been considered, by the Tingley _______

    panel. We agree with the Fourth Circuit, see Nutter v. ___ ______

    Monongahela Power Co., 4 F.3d at 322-23, that the Tingley ______________________ _______

    opinion therefore ought not be given weight.

    The appeal in No. 96-1728 is summarily dismissed. Loc. ________________________________________________________

    R. 27.1. The petition for writ of mandamus in No. 96-1737 is ________ ___________________________________________________

    denied. _______



















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