In Re: v. Williamson Dickie

• Court: Court of Appeals for the First Circuit
• Decided: November 8, 1996
• Docket: 96-1728
• Status: Published

Opinion

USCA1 Opinion

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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