964 F.2d 706 (7th Cir. 1992), 92-1649, Matter of Amoco Petroleum Additives Co.

Docket Nº:92-1649, 92-1676.
Citation:964 F.2d 706
Party Name:In the Matter of AMOCO PETROLEUM ADDITIVES COMPANY and Buck Isbell, Petitioners. In the Matter of Robin A.G. JACKSON, an Underwriter at Lloyd's, London, et al., Petitioners.
Case Date:May 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 706

964 F.2d 706 (7th Cir. 1992)


Isbell, Petitioners.

In the Matter of Robin A.G. JACKSON, an Underwriter at

Lloyd's, London, et al., Petitioners.

Nos. 92-1649, 92-1676.

United States Court of Appeals, Seventh Circuit

May 21, 1992

Submitted April 2, 1992.

Page 707

Robert A. Knuti, Jane H. Veldman, R.R. McMahan, Lord, Bissell & Brook, Chicago, Ill., Thomas C. Walsh, Rebecca Jackson, Sabrina M. Wrenn, Bryan Cave, St. Louis, Mo., and Neil L. Brilliant, Amoco Corp., Chicago, Ill., for petitioners.

Douglas J. Klingberg, Ruder, Ware & Michler, Wausau, Wis., Lawrence T. Hofmann, Timothy W. Regan, Dale I. Larson, Robert M. Wattson, Zelle & Larson, Minneapolis, Minn., and John T. Papa, Pratt & Callis, Granite City, Ill., for respondents.

Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Two petitions for mandamus present questions concerning review of orders remanding cases to state court.


Employees working in a laboratory in Wood River, Illinois, complained to management that Kathryn Gullick and Dennis Cheatham, a supervisor, were visiting the women's locker room together during working hours. Amoco Petroleum Additives Company, the employer, installed a video camera in the ceiling of the entrance hallway, which enabled the firm to record who entered and left the locker room, and when, but not what they were doing inside. The videotape recorded one instance of a joint Gullick-Cheatham visit. Local No. 7-776 of the Oil, Chemical and Atomic Workers International Union, AFL-CIO, filed suit in state court seeking an order restraining the operation of the camera; "Jane Doe" sought damages for invasion of privacy and intentional infliction of emotional distress. Defendants (Amoco and one of its managers) removed the case to federal court, contending that despite the state-law veneer the suit required the court to interpret the collective bargaining agreement, creating federal jurisdiction and a right to remove under 28 U.S.C. § 1441(b).

Plaintiffs asked the district judge to remand the case, contending that it is based on state law and so may not be removed. (Amoco does not contend that the parties are of diverse citizenship.) On January 17, 1992, the district court entered this handwritten order: "Before the Court is plaintiff's motion to remand. Having considered the premises contained in the plaintiff's motion, briefs, and heard oral argument, plaintiffs motion is Denied." The court gave no explanation. After taking some discovery, Amoco filed a motion for summary judgment. Plaintiffs opposed the motion and also altered the lineup of parties. The union dropped out, and eight female employees (including Gullick) replaced "Jane Doe." The new plaintiffs filed a motion to remand. More briefs and another oral argument ensued, and on March 6 the court entered this handwritten order:

Case called on u's Motion for Summary Judgment and W's Second Motion for Remand. Ct considers the Motion for Remand initially. Arguments heard and the Court being fully advised the Motion to Remand is granted. The Court does not consider u's Motion for Summary Judgment as it does not have jurisdiction.

Again the judge furnished no explanation. Amoco lodged its petition for mandamus, which has been briefed.

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An order remanding a case to state court is not appealable--not only because the case continues, see Insurance Co. v. Comstock, 83 U.S. (16 Wall.) 258, 270, 21 L.Ed. 493 (1873); Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 23 L.Ed. 103 (1875); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 352-53, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542 (1976), but also because of 28 U.S.C. § 1447(d), which provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.

Amoco did not remove under § 1443, so a straightforward reading of § 1447(d) leads to the conclusion that we lack power to act, for mandamus is the "or otherwise" of which § 1447(d) speaks.

"Straightforward" is about the last word judges attach to § 1447(d) these days, however. Thermtron holds that § 1447(d) does not mean what it says, that it forbids mandamus only when the judge relies on § 1447(c), which provides the exclusive reasons for remand. Remand on an unauthorized ground produces an automatic writ of mandamus, while even an obviously erroneous invocation of § 1447(c) is untouchable. Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). Then Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), held that Thermtron does not mean what it says--that district courts sometimes may remand cases on grounds unmentioned in § 1447(c). When they do so, review by mandamus remains a possibility. Carnegie-Mellon approved a remand of state claims after the plaintiff dropped all federal claims. That leaves us with three categories: (1) remands on grounds listed in § 1447(c) and beyond the power of appellate review; (2) remands on grounds not listed in § 1447(c) but nonetheless sometimes proper, and reviewable to decide whether this is one of those times; (3) remands not authorized by § 1447(c) or anything else, and subject to automatic mandamus. Figuring out which remands fall into which categories is a difficult task, as a series of our cases illustrates. See Hernandez v. Brakegate, Ltd., 942 F.2d 1223 (7th Cir.1991); J.O. v. Alton Community Unit School District 11, 909 F.2d 267, 269-71 (7th Cir.1990); Rothner v. Chicago, 879 F.2d 1402 (7th Cir.1989). Complex proceedings just to determine whether a remand is reviewable by the court of appeals defeat the speed and simplicity that one would have thought to be the principal justification for § 1447(d).

Section 1447(c) calls on a court to remand a case "on the basis of any defect in removal procedure" or whenever "it appears that the district court lacks subject matter jurisdiction". Why did Judge Beatty remand this case? He did not say. Even his second order, which mentions jurisdiction, may mean only that after the remand the court lacks jurisdiction and so cannot adjudicate the motion for summary judgment. But the only reason we can imagine, and the only one the parties discuss, is lack of subject-matter jurisdiction.

The dispositive question is: "When?" Was there subject-matter jurisdiction at the time of removal, vanishing because of the change in the identity of the plaintiffs? If so, we have a replay of Carnegie-Mellon and may review the remand order. Well, not quite a replay, for that case involved the remand of pendent state claims after the resolution of the federal claim. Here there are no pendent claims; the parties dispute whether the claims rest on state or federal law. But we understand Carnegie-Mellon to permit review when the district judge believes that removal was proper and that later developments authorize remand. If the judge believed that subject-matter jurisdiction was missing at the outset, however, § 1447(d) puts the remand beyond our ken.

Unfortunately, the district judge did not reveal whether he believes that jurisdiction has been missing all along, or whether instead the case was properly removed but jurisdiction is no longer present. Appellate

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judges are no better than average mind readers, which creates difficulties in reviewing unexplained acts. Still, it is hard to understand the court's order of January 17, refusing to remand the case, if it believed the removal improper. The only way to make the two orders consistent is to assume that the judge believed that so long as the union was a plaintiff, there was federal-question jurisdiction, which vanished when the union dropped out. If that was indeed the court's approach, then we may review the order by mandamus, properly asserted here in aid of our (eventual) appellate jurisdiction if indeed the case comes within federal subject-matter jurisdiction.


Whether this case comes within the subject-matter jurisdiction of the federal courts depends on a doctrine misleadingly known as "complete preemption." When federal law occupies a field, state rules are preempted. But preemption is just a defense, and federal defenses to claims based on state law are adjudicated in state court. There is no general right of federal-defense removal. When national law is so pervasive that it is impossible even to state a claim based under state law, though, a court treats the attempt to do the impossible as equivalent to a spelling error, which does not affect the body of law invoked by the complaint. See Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 2852, 77 L.Ed.2d 420 (1983); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir.1992).

Federal law so dominates relations between employers and unions that the Supreme Court treats any attempt to interpret, enforce, or question a collective bargaining agreement as necessarily based on national law--in this case, § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. "[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles--necessarily uniform throughout the Nation--must be employed to resolve the dispute."...

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