Kunzi v. Pan American World Airways, Inc.
| Decision Date | 08 December 1987 |
| Docket Number | 86-7720,Nos. 86-2914,s. 86-2914 |
| Citation | 833 F.2d 1291 |
| Parties | 127 L.R.R.M. (BNA) 2001, 108 Lab.Cas. P 10,291, 2 Indiv.Empl.Rts.Cas. 1396 Beverly KUNZI, Steve Mattheaus, and Sandra Travis, individuals, Plaintiffs/Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., a corporation, Linda Kelly, an individual, Anna F. Kuhl, an individual, Anna F. Kuhl & Associates, a corporation, Defendants/Appellants. PAN AMERICAN WORLD AIRWAYS, INC., et al., Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent. Beverly Kunzi, et al., Real Party in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gilmore F. Diekmann, Jr., Bronson, Bronson & McKinnon, San Francisco, Cal., for petitioners-appellants Pan American World Airways, et al.
Victor C. Thuesen, Petaluma, Cal., for appellees Beverly Kunzi, et al.
Appeal from the United States District Court for the Northern District of California.
Before ANDERSON, FERGUSON and NOONAN, Jr., Circuit Judges.
Pan American World Airways, Inc., Linda Kelly, Anna F. Kuhl, & Anna F. Kuhl & Assoc., a corporation, ("PK&K") both petition for a writ of mandamus and appeal from the district court order remanding to state court a lawsuit removed to federal court by PK&K. PK&K argue a writ of mandamus should issue because the district court erroneously remanded the action to state court for reasons not permitted by 28 U.S.C. Sec. 1447(c). In addition, PK&K appeal on the grounds that the district court erroneously decided--on the merits--a substantive issue in the case, and that it issued the remand based on that decision. We do not reach the substantive issue in this case because we find that the remand order was based on the grounds set forth in section 1447(c). We are thus barred by 28 U.S.C. Sec. 1447(d) from reviewing the district court's decision.
Appellees Beverly Kunzi, Steve Mattheaus, and Sandra Travis ("KM&T") were formerly employed as flight attendants by Pan American World Airways, Inc. ("Pan Am"). Their employment was subject to the terms of a collective bargaining agreement between Pan Am and the Independent Union of Flight Attendants. The agreement was entered into pursuant to the provisions of the Railway Labor Act ("RLA"), 45 U.S.C. Sec. 151 et seq., 1 and included statutorily mandated grievance and arbitration procedures.
On April 9, 1985, after working on Pan Am flight No. 21 from San Francisco to Tokyo, KM&T were suspended for suspicion of sabotaging the airplane's oxygen supply. Between April 15-22, Pan Am's San Francisco flight attendant manager, Linda Kelly, conducted several investigatory interviews with KM&T and other Flight No. 21 personnel. Dr. Anna Kuhl, a psychologist hired by Pan Am to assist in the inquiry, also participated in the meetings.
Dr. Kuhl subsequently filed a report with Pan Am in which she inferred that Kunzi may have taken drugs before the interview, and recommended that KM&T be discharged. Shortly thereafter, KM&T were informed by Kelly that their employment was terminated. They subsequently challenged the firings through the grievance and arbitration provisions of the collective bargaining agreement. As a result of the adjustment board arbitration proceedings, a neutral referee ordered all three reinstated with full back pay.
On April 8, 1986, KM&T filed a lawsuit in the Superior Court of the State of California for San Mateo County against PK&K. KM&T stated claims against Pan Am and Kelly for slander, libel, defamation, and intentional infliction of emotional distress; and against Dr. Kuhl and her corporation for interference with contractual relations, and for libeling Kunzi. All of the claims alleged violations of state law; no federal claims appeared on the face of the complaint.
On May 9, 1986, PK&K timely removed the case, pursuant to 28 U.S.C. Sec. 1441(a). In their removal petition, PK&K alleged that KM&T's claims were matters arising under the RLA, and that the district court thus had federal question jurisdiction, pursuant to 28 U.S.C. Sec. 1337.
On July 25, 1986, PK&K filed a summary judgment motion for dismissal based on a lack of subject matter jurisdiction. PK&K alleged that all of the claims were preempted by the RLA, and that therefore KM&T's exclusive remedy was the grievance and arbitration proceedings set forth in the collective bargaining agreement. On September 26, 1986, a hearing was held on the motion, at which time the district judge expressed reservations as to whether he had subject matter jurisdiction over the entire case. The judge was particularly concerned with the claims against Dr. Kuhl and her corporation. After indicating that he might have to remand the case sua sponte, he ordered the parties to submit briefs on whether removal was proper and set another hearing date for October 17, 1986. On that date, he again expressed concern regarding the claims against "the Kuhl defendants," 2 and doubts about the propriety of removal. After hearing argument from both parties on the issue, the judge ordered the entire case remanded to state court.
On November 12, 1986, PK&K timely filed this appeal, alleging that the district court had made an erroneous decision of substantive law prior to issuing the remand. In addition, on December 10, 1986, PK&K filed a petition for writ of mandamus to require the district court to rescind the remand order. These actions were consolidated here. 3 We only address the reviewability of the district court's remand order.
Remand orders issued pursuant to 28 U.S.C. Sec. 1447(c) and based on the grounds specified therein, i.e. that removal was improvident and without jurisdiction, are immune from appellate review. Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 591, 46 L.Ed.2d 542 (1976). In such cases, 28 U.S.C. Sec. 1447(d) acts as an absolute bar to review by appeal or mandamus. 4 Thermtron, 423 U.S. at 346, 96 S.Ct. at 591. This prohibition applies even if the district court's jurisdictional decision was erroneous. See id. at 351, 96 S.Ct. at 593; see also Gravitt, 430 U.S. at 723-24, 97 S.Ct. at 1439-40. Thus, the remand order in PK&K's case can be reviewed only if it was based on nonjurisdictional grounds.
PK&K argue that the remand order in its case was not based on section 1447(c) because the district court did not make the required determination that removal was improvident and without jurisdiction. They liken their case to Thermtron, where the Supreme Court found that the remand order in question was reviewable because it was not issued pursuant to section 1447(c). PK&K's analogy to Thermtron, however, is misplaced. In Thermtron, the remand order under review did not even mention section 1447(c); jurisdictional concerns had not played any part in the district court's decision to remand. Rather, the court had ordered a remand because of concerns that its crowded docket would delay the trial and thus prejudice the petitioners in that case. 423 U.S. at 340-41, 96 S.Ct. at 587-88. In contrast, the record in PK&K's case shows that the district court relied on section 1447(c), and based its decision to remand on the grounds specified therein, i.e. on a determination that it lacked jurisdiction over the entire case.
As support for its position, PK&K state that section 1447(c) is not mentioned in the remand order "except to refer to the procedure for sending a certified copy of the order to the San Mateo County Clerk." This explicit citation to section 1447(c), however, indicates that the court was in fact remanding the case pursuant to that statute. The requirement that a copy of the remand be sent to the state court clerk directly follows the language in the statute which sets forth the permissible grounds for a remand. 5 It is unlikely that the court would be aware of the statute's mandate regarding mailing a copy of the order to the clerk yet be unaware of the remainder of the statute. In addition, the remand order speaks of doubts as to "whether removal of any of the action at bar was proper...." This reference indicates that the court was acting pursuant to the bar against "improvident" removal contained in section 1447(c). 6
The record from both of the hearings on the matter also demonstrates that, unlike in Thermtron, the district court in PK & K's case based the decision to remand on the grounds that it was without jurisdiction. The court first indicated at the September 26, 1986, hearing that it might have to remand the case--on its own motion--because of jurisdictional concerns. The court explicitly stated that it was "faced with the situation where we have apparently a lack of subject matter jurisdiction over the entire case" (emphasis added). The court then indicated that it did not have pendent jurisdiction over the claims against the Kuhl defendants, and that the claims were not separate and independent claims. Based on these concerns, the district court put the hearing over until October 17, 1986, at which time the first issue addressed would be whether removal was proper.
At the October 17th hearing, the court again stated that the claims against the Kuhls were not pendent, or separate and independent from the others. The court did not expressly state again, as it had at the earlier hearing, that it lacked jurisdiction over the entire case. A common-sense reading, however, would indicate that this was implicit in the court's references--in both of the transcripts and the remand order--regarding whether removal was proper. This is the only sensible reading since jurisdictional concerns were the sole basis for the court's initial questioning of the propriety of removal. Considering the entire record, therefore, it is apparent the district court concluded that, because it...
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