Bethesda Memorial Hospital, In Re: ( 1997 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-5034.
In re: BETHESDA MEMORIAL HOSPITAL, INC., Petitioner.
Sept. 26, 1997.
Petition for Writ of Mandamus to the United States District Court for the Southern District of
Florida. (No. 96-8335-CIV-JAG), Jose Gonzalez, Judge.
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.
BARKETT, Circuit Judge:
Upon reconsideration, this court, sua sponte, VACATES its prior order in this matter and
substitutes the following in its place:
We are asked to review a sua sponte order of the district court remanding this proceeding
to state court. The central issues presented are whether this Court's review is barred by the operation
of 28 U.S.C. § 1447(d) and, if not, whether the untimely remand was proper. We conclude that we
may review the remand order and, because the federal removal statute, 28 U.S.C. § 1441 et seq.,
does not permit a district court to enter an untimely order to remand a case based on a procedural
defect, we reverse and remand.
PROCEDURAL POSTURE
This case came to us as a petition for a writ of mandamus. However, the parties did not
address the Supreme Court's opinion in Quackenbush v. Allstate Ins. Co., --- U.S. ----, 116 S.Ct.
1712, 135 L.Ed.2d 1 (1996). That case holds that a district court's order to remand a case to state
court is a final judgment that can be reviewed on direct appeal. Id. at ----, 116 S.Ct. at 1720. A writ
of mandamus is unavailable where there is another means to obtain adequate review. See Helstoski
v. Meanor, 442 U.S. 500, 505, 99 S.Ct. 2445, 2447, 61 L.Ed.2d 30 ("The general principle which
governs proceedings by mandamus is, that whatever can be done without the employment of that
extraordinary writ, may not be done with it.")(1979) quoting Ex parte Rowland, 104 U.S. 604, 26
L.Ed. 861 (1881). Therefore, the correct means for the petitioner to obtain review in the case at
hand is by direct appeal. See Ariail Drug. Co., Inc. v. Recomm International Display, Ltd., --- F.3d
----, ----(96-6570) *2, 1997 WL 538884 (11th Cir. No. 96-6570 1997).1 As Ariail Drug Co. notes,
Quackenbush thus overrules this circuit's cases holding that mandamus is the proper vehicle to
review remand orders. However, precedent permits us to treat the petition for the writ of mandamus
as a direct appeal, and we do so here. See Helstoski, 442 U.S. at 507 n. 4, 99 S.Ct. at 2449 n. 4;
Russell v. Knight, 488 F.2d 96, 97 (5th Cir.1973); Clorox Company v. United States District Court
for the Northern District of California, 779 F.2d 517, 520 (9th Cir.1985). See also Suarez-Valdez
v. Shearson Lehman/ American Express, Inc., 858 F.2d 648, 649 (11th Cir.1988); Piambino v.
Bailey, 757 F.2d 1112, 1115 n. 2 (11th Cir.1985), cert. denied sub. nom. Hoffman v. Sylva, 476 U.S.
1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Dobard v. Johnson, 749 F.2d 1503, 1508 (11th
Cir.1985); Fernandez-Roque v. Smith, 671 F.2d 426, 430-31 (11th Cir.1982); Huckeby v. Frozen
Food Exp., 555 F.2d 542, 549 n. 14 (5th Cir.1977); Kaplan v. Missouri Pacific Railroad Co., 629
F.2d 337 (5th Cir.1980).
BACKGROUND
On April 29, 1996 the plaintiff, Virginia Edwards, filed an employment discrimination suit
against Bethesda Hospital, Anesthesia Associates and Dr. James Fraser in the Circuit Court of the
Fifteenth Judicial Circuit In and For Palm Beach County. She alleges a violation 42 U.S.C. § 1981,
a violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991,
located at 42 U.S.C. §§ 2000e et seq. as well as a violation of 42 U.S.C. § 1981a.
As a result of the existence of the two questions of federal law raised on the face of the
complaint, Bethesda filed for removal in the United States District Court for the Southern District
1
Other circuits interpreting Quackenbush have reached the same result. See Gaming Corp. of
America v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir.1996) (allowing direct appeal, rather
than petition for writ of mandamus, where district court remanded pursuant to 28 U.S.C. §
1367(c) for lack of supplemental jurisdiction); Pennsylvania Nurses Association v. Pennsylvania
State Education Association, 90 F.3d 797, 800 (3rd Cir.1996) cert. denied --- U.S. ----, 117 S.Ct.
947, 136 L.Ed.2d 835 (1997) (same). But cf. In re Excel Corporation, 106 F.3d 1197 (5th
Cir.1997) cert. filed 66 USLW 3085 (1997) (granting writ of mandamus to reverse district court's
non-abstention based remand to state court).
2
of Florida on May 16, 1996. The petition for removal resulted in Case No. 96-8335-CIV and was
assigned to Judge Gonzalez.
Subsequently, on May 17, 1996, defendant Fraser filed and served his own petition for
removal with the United States District Court for the Southern District of Florida. That petition
resulted in Case No. 96-8342-CIV and was assigned to Judge Ferguson. Fraser also filed a notice
of appearance in Case No. 96-8335 CIV on May 23, 1996.
Thereafter, on May 20, 1996, defendant Anesthesia Associates, Inc., improperly filed a
Notice of Adoption And Joinder In Petition For Removal in the Circuit Court of the Fifteenth
Judicial Circuit In and For Palm Beach County (where the complaint was initially filed). The notice
should have been filed in the United States District Court.
On June 19, 1996, thirty-four days after removal to federal court, Judge Gonzalez sua sponte
entered a final order remanding Case No. 96-8335 to the state court, citing the failure of all
defendants to either join in Bethesda's petition for removal or manifest their consent thereto. Based
on the same grounds contained in Judge Gonzalez's order, Edwards moved the Court in Case No.
96-8342 to remand the case to state court. The motion was granted by Judge Ferguson. This
petition asks us to review only the propriety of the order entered by Judge Gonzalez in Case No. 96-
8335.
DISCUSSION
We first must determine if we have jurisdiction to review the district court's remand order.
Under 28 U.S.C. § 1447(d), "an order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise." The broad sweep of this language was limited
by the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct.
584, 590-91, 46 L.Ed.2d 542 (1976), which held that "only remand orders issued under § 1447(c)
and invoking the grounds specified therein ... are immune from review under § 1447(d)."
In turn, 28 U.S.C. § 1447(c)(1994) reads in relevant part:
A motion to remand the case on the basis of any defect in the removal procedure must be
made within 30 days after the filing of the notice of removal under section 1446(a). If at any
3
time before final judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.
28 U.S.C. § 1447(c)(1994). As this circuit has interpreted this language, a remand order is
reviewable if and only if it is openly based on grounds other than (1) lack of district court subject
matter jurisdiction; or (2) a motion to remand the case filed within 30 days of the notice of removal
which is based upon a defect in the removal procedure. See New v. Sports and Recreation, Inc., 114
F.3d 1092, 1096 (11th Cir.1997) (stating that "a district court does not have to expressly state its
reliance on section 1447(c) to preclude appellate review.... Rather, a district court must openly state
its reliance on grounds other than those contained in section 1447(c) to permit review of the remand
order.") Our review is therefore barred only if the appeal addresses one of these grounds for
remand. We are persuaded that the district court in this case clearly relied on grounds other than
those contained in § 1447(c).
In In re Ocean Marine Mut. Protection and Indem. Ass'n., Ltd, 3 F.3d 353 (11th Cir.1993),
this court held that § 1447(d) precluded our review of a remand order based on a timely motion to
remand for procedural defects (i.e. a motion filed within thirty days of the notice of removal). We
specifically reserved the question of whether we could review a remand order based on an untimely
motion to remand for defects in the removal procedure. Id. at 355, n. 3. Until today, we have not
ruled on this question. However, the Third, Fifth and Ninth Circuits have held that such remand
orders are reviewable. See Maniar v. F.D.I.C., 979 F.2d 782 (9th Cir.1992); F.D.I.C. v. Loyd, 955
F.2d 316 (5th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3rd Cir.1989). We likewise
conclude that because that the district court exceeded the grounds for remand contained in § 1447(c),
§ 1447(d) poses no bar to our review.
4
Although the remand order in this case is clearly based on a defect in the removal process,2
the order is not within the bounds of § 1447(c) because it was issued after the expiration of the
thirty-day period to remand provided in the statute. Reading §§ 1447(c) and (d) together, we
conclude that an order remanding on procedural grounds either upon an untimely motion or untimely
sua sponte order is not authorized by § 1447(c) and is thus reviewable by this court. In short, we
have jurisdiction to review this remand order.
We now turn to the propriety of remanding for procedural defects after thirty days of the
notice of removal. This presents an issue of first impression in this circuit. However, three other
circuits have already addressed the issue and reached similar conclusions. In FDIC v. Loyd, 955
F.2d 316 (5th Cir.1992), the Fifth Circuit held that the thirty-day time limit for filing a motion to
remand imposed by 28 U.S.C. § 1447(c) applies to the court as well as to the parties. After a
thorough review of the history of § 1447(c), the court reasoned that the congressional intent of §
1447(c) was to prevent "the shuffling [of] cases between state and federal courts after the first thirty
2
The district court remanded the case to state court for failure of all defendants to timely join
in or consent to a petition for removal:
Section 1446(c), Title 28 of the United States Code requires a party seeking
removal to file a notice of removal listing all grounds which support the federal
court's jurisdiction. The removal procedures are strictly construed because of this
Court's limited removal jurisdiction ... All defendants must join in the petition for
removal, or a statement explaining their absence must be included with the
petition for removal ... All defendants must join the petition even if the basis for
removal is a federal question ... [In this case] there is simply no explanation for
[defendants] absence from the notice of removal ... [I]t is hereby ORDERED
AND ADJUDGED that this cause be remanded to Circuit Court, Palm Beach
County, Florida, and DISMISSED from this Court's Federal docket. It is further
hereby ORDERED AND ADJUDGED that because this Court did not have
jurisdiction over this cause, any and all previously filed Orders of this Court are
VACATED.
The failure to join all defendants in the petition is a defect in the removal procedure. See
Ocean Marine, 3 F.3d at 356 (failure to comply with rules requiring all defendants to join
in removal constitutes a defect in removal procedure); Balazik v. County of Dauphin, 44
F.3d 209, 213 (3rd Cir.1994) ("[f]ailure of all defendants to join is a "defect in the
removal procedure' within the meaning of 1447(c), but is not deemed to be
jurisdictional."); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir.1990)
("the failure to join all the defendants in a removal petition is not a jurisdictional defect");
In re Amoco Petroleum Additives Co., 964 F.2d 706, 713 (7th Cir.1992).
5
days" based on purely procedural defects when each court has subject matter jurisdiction. Loyd, 955
F.2d at 322 (citing H.R.Rep. No. 889, 100th Cong., 2d Sess. 72 (1988).) This reasoning is supported
by the plain language of 28 U.S.C. § 1447(c), which states that "[a] motion to remand the case on
the basis of any defect in removal procedure must be made within 30 days after the filing of the
notice of removal under section 1446(a)." 28 U.S.C. § 1447(c) (1994).
We are persuaded that the reasoning in Loyd and adopted by the Third and Ninth Circuits
is correct.3 We find that the term "motion to remand" in § 1447(c) includes a district court's sua
sponte remand. Assuming without deciding that a district court may remand sua sponte for defects
in the removal process, we hold that it is bound by the thirty-day limit. The district court filed its
remand order on June 19, 1996, thirty-four days after the filing of the removal petition. The court
acted outside of its statutory authority by remanding for a procedural defect after thirty days of the
notice of removal. Accordingly, we REVERSE the district court's order and REMAND this case
for proceedings consistent with this opinion.
HATCHETT, Chief Judge, dissenting:
Without the benefit of briefing or clear guidance from the Supreme Court, a majority of this
panel sua sponte abandons a firmly rooted line of circuit authority holding that a district court's
statutory-based remand order must be challenged by Petition for Writ of Mandamus. In so doing,
the majority (1) contravenes the well-established rule that only the en banc court or the Supreme
Court may reverse prior panel decisions; (2) alters the standard of review applicable in this case;
and (3) compounds the error of a decision that is otherwise wrong on the merits. For these reasons,
I respectfully dissent.
If the majority followed Congress's clear command in 28 U.S.C. § 1447, we might save for
another day our dispute regarding circuit precedent, the proper method of appeal and the standard
3
See Air-Shields and Maniar, in which the courts held that a district judge cannot sua sponte
remand a case for procedural defects after thirty days have expired from the filing of the petition
for removal. These courts reserved the question of whether the district court had the authority to
sua sponte remand within the thirty-day period.
6
of review. That is because section 1447(d) provides that an "order remanding a case to the State
court from which it was removed is not reviewable on appeal or otherwise ...." 28 U.S.C. §
1447(d)(1994) (emphasis added). In other words, where section 1447 is appropriately invoked,
appellate review is unavailable through mandamus or direct appeal.
Unfortunately, the majority refuses to acknowledge that section 1447 operates to bar any
form of appellate review in this case. The majority refuses to do so because it believes that the
district court's remand order was not based on (1) a lack of subject matter jurisdiction, or (2) a timely
motion to remand for a defect in the removal procedure. I respectfully suggest that this belief is
untenable on the record before us and rooted in a flawed reading of section 1447.
With respect to subject matter jurisdiction, the majority says that "the remand order in this
case is clearly based on a defect in the removal process." Majority Op. at 100. To buttress its claim,
the majority cites portions of the record strung together with ellipses. See Majority Op. at 99-100
n. 2.
The first two substantive sentences of the district court's order read as follows: "Section
1446(a), Title 28 of the United States Code requires a party seeking removal to file a notice of
removal listing all grounds which support the federal court's jurisdiction. The removal procedures
are strictly construed because of this Court's limited removal jurisdiction." (Emphasis added.)
These two sentences alone raise the strong inference that the district court's concern in its remand
order is ultimately jurisdictional and not procedural in nature. Cf. Ariail Drug Co., Inc. v. Recomm
Int'l Display, Ltd., --- F.3d ----, ----, No. 96-6570, slip op. at 3562-63 (11th Cir. Sept. 3, 1997)
(indicating that removal jurisdiction is a species of subject matter jurisdiction); see also BJT, Inc.
v. Molson Breweries USA, Inc., 848 F.Supp. 54, 56 (E.D.N.C.1994) ("a federal court's removal
jurisdiction is a form of subject matter jurisdiction"); Emrich v. Touche Ross & Co., 846 F.2d 1190,
7
1194-95 (9th Cir.1988) (removal of a case from state court to federal court pursuant to section 1441
is a question of federal subject matter jurisdiction).1
The district court's order follows the above-quoted sentences with a citation reference to two
prior cases that this particular district court judge authored. The first case is Senter v. Sears,
1
The Ariail Drug panel characterizes removal jurisdiction as a hybrid form of subject matter
jurisdiction, because a lack of removal jurisdiction is considered in some contexts a procedural
defect. --- F.3d at ---- n. 5, slip op. at 3563 n. 5. Compare In re Ocean Marine Mut. Protection
& Indem. Ass'n, Ltd., 3 F.3d 353, 356 (11th Cir.1993) ("Failure to comply with § 1446(a) and (b)
constitutes a defect in removal procedure within the meaning of § 1447(c)."), and In re Fed. Sav.
& Loan Ins. Co., 837 F.2d 432, 434-35 (11th Cir.1988) (stating that the "authority" of the
Federal Deposit Insurance Corporation to bring a case to federal court was, like a private
litigant's authority, once subject to limitations of 28 U.S.C. §§ 1331 and 1441, and stating that
the express consent of all defendants is a "condition precedent to removal" pursuant to 28 U.S.C.
§ 1441(a)).
I am willing to accept, given our case law, that violations of 28 U.S.C. § 1446 fall
in the category of procedural defects for purposes of determining reviewability under 28
U.S.C. § 1447(c). Indeed, from a purely textual point it makes perfect sense to think that
section 1447(c)'s use of the phrase "defect in removal procedure" refers to the
requirements of section 1446, which is entitled "procedure for removal."
It does not follow, however, that failures to comply with the requirements of 28
U.S.C. § 1441, which is entitled "actions removable generally," are also defects in
removal procedure for purposes of section 1447(c). Section 1441 is more properly
viewed as a specialized subject matter jurisdiction statute for defendants, akin to 28
U.S.C. § 1331, which allows a plaintiff to bring a suit in federal court if the claims
therein arise under federal law. This is so because section 1441 confers a limited
statutory right on defendants to remove certain cases to federal court, provided specific
preconditions are met—conditions such as consent among all defendants under section
1441(a), and diversity of citizenship under section 1441(b). Given the jurisdictional
nature of section 1441, I believe Congress probably intended for removal that is defective
under section 1441 to be cognizable under section 1447(c)'s provision relating to subject
matter jurisdiction. See Charles Everingham IV, Removal, Waiver, and the Myth of
Unreviewable Remand in the Fifth Circuit, 45 Baylor L.Rev. 723, 753 (1993) ("Based on
the text of the removal statutes, the legislative history, and the Congressional policies
behind removal jurisdiction, Congress probably meant for a defect in removal jurisdiction
to deprive the court of subject matter jurisdiction."); cf. In re Fed. Sav. & Loan Ins. Co.,
837 F.2d at 435; Emrich, 846 F.2d at 1194 n. 2.
Even if the view I express is wrong, the critical issue in this case remains whether
the district court viewed removal jurisdiction as a form of subject matter jurisdiction
when it ordered a remand. If it did, the remand order in this case is unreviewable, even if
also incorrect. See In re Decorator Indus., Inc., 980 F.2d 1371, 1374 (11th Cir.1992)
("We are prohibited from reviewing a remand order for lack of jurisdiction even when the
district court's determination is clearly erroneous."). For the reasons discussed in the
main text, I am firmly convinced that the district court viewed its remand order as a
subject matter-based jurisdictional order.
8
Roebuck & Co., 712 F.Supp. 179 (S.D.Fla.1989). In Senter, Sears & Roebuck filed a motion for
reconsideration after the district court remanded a case that Sears & Roebuck had removed to federal
court. Sears & Roebuck's initial petition for removal was technically defective in some respects and
the district court indicated that these defects constituted "one of the reasons why this court found
in its previous order that it lacked jurisdiction over this matter." 712 F.Supp. at 179. The Senter
court went on to state:
When a defendant moves a federal district court to grant a removal petition, the court must
make an initial inquiry whether it has subject matter jurisdiction over the cause. In making
this determination, the court must consider the procedural posture of the case at that time
including the status of all parties and the action of the state court in disposing of the matter.
For example, in this case, the defendant's act of including a third-party complaint with the
notice of removal gave the appearance that there was an additional party to this suit, but it
was unclear if this party had been joined in the action by the state court.
In granting the petition for removal, the federal court must make this important initial
decision with certainty so as not to unduly interfere with the jurisdiction of the state courts....
712 F.Supp. at 179-80 (emphasis added). The second case cited in the district court's order, Cury
v. Royal Palm Savings Ass'n, 713 F.Supp. 388, 389 (S.D.Fla.1989), contains language to the same
effect.
In essence, these cases reflect a view that the district court's ability to make a proper
determination of subject matter jurisdiction is often inextricably linked to the formal contents of the
removing party's petition for removal. The cited cases also appear to endorse a categorical view that
a district court cannot determine subject matter jurisdiction with certainty where a petition for
removal is defective. Whether these views are correct or not in every case is of no real moment for
present purposes, because reviewability under section 1447 turns on the district court's intent when
making a remand determination, not on the actual accuracy or wisdom of the determination. See In
re Decorator Indus., Inc., 980 F.2d at 1374; In re Amoco Petroleum, 964 F.2d at 713 ("A search for
error is precisely what § 1447(d) forbids."). If the district court decided that it could not ascertain
subject matter jurisdiction in this case with certainty because of a defective petition for removal, our
tribunal has no authority to review or second-guess that decision. 28 U.S.C. § 1447(d) (1994).
9
If any doubt remains that the district court intended to make a jurisdictional-based remand
order, the remaining paragraphs of the district court order dispel that doubt. In the paragraph
immediately following the sentence regarding the "[c]ourt's limited removal jurisdiction," the district
court's order states that "all defendants must join the petition [for removal] even if the basis for
removal is a federal question." The district court then cites Darras v. Trans World Airlines, 617
F.Supp. 1068 (N.D.Ill.1985), an opinion where the district court sua sponte remanded a Warsaw
Convention Treaty-based case to a state court because one of the defendants did not join in the
removal petition, rendering the case "removed improvidently and without jurisdiction." 617 F.Supp.
at 1069 (emphasis added).
After then proceeding to describe several defects in the instant petition for
removal—including the lack of an allegation that all the defendants even consented to removal (as
required in section 1441(a))—the district court concluded its order as follows:
Accordingly, having reviewed the amended notice of removal, the record, and being
otherwise duly advised, it is hereby:
ORDERED AND ADJUDGED that this cause be REMANDED to Circuit Court,
Palm Beach County, Florida, and DISMISSED from this Court's Federal docket. It is further
hereby:
ORDERED AND ADJUDGED that because this Court did not have jurisdiction over
this cause, any and all previously filed Orders of this Court are VACATED.
(Emphasis added.) The majority attributes no significance to this language. Instead, the majority
focuses on the district court's preceding discussion of various defects in the petition for removal and
confidently concludes that "the district court remanded the case to state court for the failure of all
defendants to timely join in or consent to a petition for removal." See Majority Op. at 101 n. 3.
If the district court intended to remand this case because of the failure of all the defendants
to timely join in a petition for removal, one would expect the conclusion of the district court's order
to say as much. We know, however, that the district court said no such thing. Indeed, some of the
words the majority uses to describe the district court's order never even appear in the order's text:
10
not in the conclusion, and not in the preceding discussion. The district court simply ends its order
with the statement that "this Court did not have jurisdiction over this cause." (Emphasis added.)
I would take this unambiguous statement for what it is—an unreviewable decision to remand
for lack of subject matter jurisdiction. That decision may have been predicated in part on the
deficient nature of the petition for removal in this case, but that fact alone does not alter the
jurisdictional nature of the district court's ultimate conclusion, especially in light of the repeated
references to jurisdictional concerns throughout the entire district court order.
The majority also errs in establishing a hard and fast rule that section 1447 does not bar
appellate review and relief whenever a district court remands a case sua sponte shortly after the
expiration of the thirty-day period within which the parties must file motions for remands based on
procedural defects. The policy behind section 1447's thirty-day motions period, as explained in the
Fifth Circuit's Loyd opinion, is to avoid shuttling cases between state and federal courts based on
purely procedural defects when both state and federal courts have jurisdiction over the relevant
claims. FDIC v. Loyd, 955 F.2d 316, 322 (5th Cir.1992). Section 1447's thirty-day motions period
also operates to prevent the parties from engaging in forum shopping once the litigation process has
commenced in earnest. See generally Charles Everingham IV, Removal, Waiver, and the Myth of
Unreviewable Remand in the Fifth Circuit, 45 Baylor L.Rev. 723 (1993) (discussing, inter alia,
policy goals Congress sought to advance in section 1447).
The rule section 1447(c) establishes is not a rigid and absolute rule. The plain language of
section 1447(c) only requires the parties to file a motion noting a defect in the removal process
within thirty days. It does not require the district court to rule on the motion within thirty days; nor
does it explicitly restrict the supervisory authority and discretion of a district court to act sua sponte
or grant equitable relief in connection with section 1447(c); nor does it unequivocally guarantee a
federal forum to the parties once thirty days have elapsed. Section 1447(c) is thus not a
comprehensive measure covering all contingencies, but a mechanism designed to prod the parties
11
to inform each other in a prompt way—before litigation commences in earnest—if any of them has
an objection to litigation within the extant forum.
In this case, Edwards clearly placed Bethesda Hospital and the other petitioners on notice
that she objected to the forum(s) of the litigation. She did so with motions for consolidation and
extension of time, which she filed on Friday, June 13, 1996—the twenty-seventh day following
Bethesda's notice of removal. At that time, the parties had not commenced any litigation on the
merits of the claims at issue. The district court's ruling a week later (and only four days after the
thirty-day time limit expired) thus does not appear to have upset any truly settled expectations the
petitioners had of being in a particular forum—after all, the petitioners were not even all properly
before the same federal judge at the time. Indeed, if the district court had granted Edwards's motion
for consolidation and invoked the doctrine of equitable tolling to extend the thirty-day motions
period, cf. Roe v. O'Donohue, 38 F.3d 298, 302 (7th Cir.1994) (assuming that the "30-day period
[of section 1447(c) ] is subject to equitable tolling and estoppel"), the petitioners might have quickly
found themselves faced with a proper motion from Edwards to remand the case to state court on
procedural and/or jurisdictional grounds. Given these facts, and the fact that shuttling—the principal
evil section 1447 seeks to eliminate—will again occur here if review is permitted and relief granted,
I cannot agree that the district court's decision in this case is of a type we should find cognizable for
review and relief.
I believe that controlling Eleventh Circuit precedent indicates that the proper standard of
review for relief in a case such as this is the standard applicable to petitions for a writ of mandamus.
See, e.g., New v. Sports & Recreation Inc., 114 F.3d 1092, 1094 n. 3 (11th Cir.1997) ("A writ of
mandamus is the proper means by which a party may challenge a remand order."); Loftin v. Rush,
767 F.2d 800, 802 n. 3 (11th Cir.1985) ("The proper way to challenge a remand is by way of writ
of mandamus, not appeal.").
Under this standard, an applicant for a writ of mandamus must establish a "clear abuse of
discretion or [conduct amounting to an] usurpation of power" in order to establish a right to relief.
12
In re Lopez-Lukis, 113 F.3d 1187, 1187 (11th Cir.1997); In re Amoco Petroleum Additives Co., 964
F.2d 706, 713 (7th Cir.1992). As we recently observed in In re Lopez-Lukis, 113 F.3d at 1187-88,
"mandamus is an extraordinary remedy ... [and] the petitioners have the burden of showing that their
right to issuance of the writ is "clear and indisputable.' " Moreover, as our colleagues in the Seventh
Circuit have noted, "mandamus is not the appropriate means to resolve doubtful issues of procedure
or statutory construction." In re Amoco Petroleum, 964 F.2d at 713. Since, in my view, the
majority's statutory interpretation of section 1447(c)'s purview is not indisputably correct based on
the plain language of that statute, it is imprudent for us to find a right of review and relief for the
petitioners in this case.
The majority avoids this issue altogether, claiming that the Supreme Court overruled Loftin
and its progeny in Quackenbush v. Allstate Ins. Co., --- U.S. ----, 116 S.Ct. 1712, 135 L.Ed.2d 1(1996). According to the majority, Quackenbush holds "that a district court's order to remand a case
to state court is a final judgment that can be reviewed on direct appeal." Majority Op. at 98 (citing
Quackenbush, --- U.S. at ----, 116 S.Ct. at 1720.). I respectfully suggest that this interpretation of
Quackenbush overstates that opinion's holding. The Supreme Court's opinion does not consider the
question of whether all remand orders can be reviewed on direct appeal. To the contrary, the
Supreme Court's opinion determined only that an abstention-based remand order is appealable under
28 U.S.C. § 1291. See Quackenbush, --- U.S. at ----, 116 S.Ct. at 1717 ("In this case, we consider
whether an abstention-based remand order is appealable as a final order under 28 U.S.C. § 1291");
see also In re United States Brass Corp., 110 F.3d 1261, 1267 (7th Cir.1997) (following
Quackenbush, "[a]n order of abstention that takes the form of a dismissal or a remand, rather than
merely of a stay of the proceedings before the district court is an appealable final decision"). While
it is true that some circuits have allowed statutory-based remand order challenges to proceed through
direct appeal in the wake of Quackenbush, other circuits have continued to adhere to their prior
practice of reviewing statutory-based remand orders through mandamus. Compare Gaming Corp.
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of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir.1996) (direct appeal), with In re Excel Corp.,
106 F.3d 1197, 1200-01 (5th Cir.1997) (mandamus).
Given the well-established rule in this circuit that only the Supreme Court or the court of
appeals sitting en banc may overrule prior panel decisions—as well as the fact that neither party
briefed or raised the issue—I respectfully believe the majority oversteps its bounds when it expands
Quackenbush beyond its abstention-based context to hold that Loftin and its progeny are no longer
good law. But see Ariail Drug --- F.3d at ----, slip op. at 3562 (mandate pending) (similarly
suggesting in obiter dictum that Quackenbush overrules Loftin). Loftin is precisely on point and
represents well-established law, followed in this circuit as recently as this year. See New v. Sports
& Recreation, Inc., 114 F.3d at 1094 n. 3. Quackenbush, while controlling on the issue of
abstention-based remand orders, has been read narrowly in at least one other circuit, and no party
to this case even cites it in its brief. It is thus neither necessary nor prudent for the majority to
disregard established precedent in this case to convert petitioners's writ of mandamus application
into a direct appeal.
Because the majority makes an unwarranted break with controlling circuit precedent,
employs an erroneous standard of review and reaches a result that appears wrong to me in every
regard, I respectfully dissent.
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