The Clorox Company v. The United States District Court for the Northern District of California

756 F.2d 699, 6 Employee Benefits Cas. (BNA) 1508, 1985 U.S. App. LEXIS 29827

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 1985
• Docket: 83-7815
• Status: Published

Opinions

SKOPIL, Circuit Judge:

Clorox Company (“Clorox”) petitions for a writ of mandamus requiring the district court to vacate its order remanding this action to the state court from which it was removed. We conclude that the petition must be denied.

FACTS AND PROCEEDINGS BELOW

Carol Stower, a participant in Clorox’s employee welfare benefit plan, filed the underlying action against Clorox in Alame-da County (California) Superior Court. Stower’s complaint asserted several claims: loss of salary and benefits due to wrongful termination, misrepresentation of intent to pay disability benefits, negligent administration of Clorox's employee benefit plan, and malicious conduct in terminating her employment and benefits. Clorox removed the action to federal court under 28 U.S.C. §§ 1331 and 1441(a). Clorox predicated its removal on the existence of a federal question under the Employee Retirement Income Security (“ERISA”) Act, 29 U.S.C. §§ 1001-1381.

Thereafter, Stower moved the district court to remand the action to state court. The district court granted Stower’s motion to remand, finding that statements made in an employee handbook estopped Clorox from asserting its right to removal.

Clorox seeks mandamus relief in this court to prevent the district court from remanding this case to state court. Stower opposes the grant of mandamus relief. We conclude that because the district court’s order is appealable under 28 U.S.C. § 1291, extraordinary review by mandamus is not available.

DISCUSSION

Mandamus is an extraordinary remedy and one that will be employed only in extreme situations. Kerr v. United States District Court, 426 U.S. 394, 402, 96 5. Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Sacramento Bee v. United States District Court, 656 F.2d 477, 480-81 (9th Cir.1981), cert. denied, 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982). Extraordinary review by mandamus is not available where the same review may be obtained through contemporaneous ordinary appeal. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983); Silberkleit v. Kantrowitz, 713 F.2d 433, 434-35 n. 1 (9th Cir.1983). We must determine, therefore, whether the district court’s remand order in this ease is reviewable by direct appeal.

28 U.S.C. § 1447(c) provides in 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.

The following section, § 1447(d), generally forbids review of a remand order:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, ...

This court has recently redefined the scope of the non-reviewability rule of section 1447(d) to bar review of only those remand orders which are based on a lack of jurisdiction. Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276 (9th Cir.1984). (Section 1447(d) does not bar a direct appeal where remand is based upon application of a forum selection clause.) Where 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. Id.

The remand order in this case provides little guidance as to the reason for remand. While the remand order does describe Stower’s motion as being “pursuant to 28 U.S.C. § 1447(c),” it does not purport to remand the ease on any of the grounds specified in section 1447(c). In fact, the order gives no reason for the remand.

Looking beyond the language of the remand order to all the surrounding circumstances, it appears that the remand of this case was based on “a substantive decision on the merits apart from any jurisdictional decision.” Pelleport, 741 F.2d at 276. A review of the transcripts indicates the district court’s decision to remand was based on its belief that Clorox had waived the right to remove by informing employees in its employee handbook that suits to recover benefits under its plan could be filed in state or federal court.

Remand for waiver of a right to remove is not within the ambit of section 1447(c) which allows remand if removal was “improvidently granted” or if the district court is “without jurisdiction.” Rather, here, as in Pelleport, remand was based on a substantive decision on the merits apart from any jurisdictional decision. As in Pelle-port, the remand order in this case is ap-pealable under 28 U.S.C. § 1291. Pelle-port, 741 F.2d at 276-78.

We are mindful that denying Clorox’s petition for a writ of mandamus when Clorox could have filed a direct appeal on the authority of Pelleport, is somewhat of a harsh result since the time for filing a notice of appeal has long since expired. Nonetheless, we are disinclined to avoid this result by the simple expedient of treating the petition for a writ of mandamus as a notice of appeal. There is no authority authorizing us to construe a petition for a writ of mandamus as a notice of appeal. But see Diamond v. United States District Court, 661 F.2d 1198, 1199 (9th Cir. 1981) (dicta suggesting that considerations of fairness would allow a court to construe a mandamus petition as a notice of appeal). Moreover, it would be unwise to further blur the distinction between mandamus and appeal procedures by allowing one to substitute for the other.

Clorox’s petition for a writ of mandamus is DENIED.