Bryant v. Ford Motor Co.
| Decision Date | 12 December 1988 |
| Docket Number | Nos. 84-6389,85-5698,s. 84-6389 |
| Parties | Gary BRYANT, Plaintiff-Appellant, v. FORD MOTOR CO., Defendant-Appellee. . Following the United States Supreme Court's Order Vacating Certiorari |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael L. Goldberg, Greene, O'Reilly, Broillet, Paul, Simon, McMillan, Wheeler & Rosenberg, Los Angeles, Cal., for plaintiff-appellant.
Howard J. Privett, Richard A. Goette and Ralph Zarefsky, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendant-appellee.
United States District Court for the Central District of California.
Before WALLACE, HUG, and HALL, Circuit Judges.
This court has had an enduring relationship with this case, although we never have considered the merits of plaintiff-appellant Gary Bryant's contention that the district court below erred by entering summary judgment in favor of defendant-appellee Ford Motor Corporation. Instead, we have concluded--on two occasions--that the district court lacked subject matter jurisdiction to enter judgment due to the presence of doe defendants. See Bryant v. Ford Motor Co., 794 F.2d 450 (9th Cir.1986); Bryant v. Ford Motor Co., 844 F.2d 602 (9th Cir.1987) (en banc) (Bryant II ). In our Bryant II en banc decision, we overruled numerous cases that had created exceptions to the general rule in this circuit that doe defendants defeat diversity jurisdiction.
As Bryant II overturned the judgment entered in Ford's favor, Ford filed a petition for certiorari, which the Supreme Court granted on October 3, 1988. --- U.S. ----, 109 S.Ct. 54, 102 L.Ed.2d 32 (1988). On November 19, 1988, the President signed into law the Judicial Improvements and Access to Justice Act of 1988, Pub.L. 100-702, 102 Stat. 4642 (1988) (the "Act"). Section 1016(a) of Title X of the Act contains an amendment to the removal statute that provides that doe defendants do not defeat diversity jurisdiction. 102 Stat. at 4669. On December 5, 1988, the Supreme Court vacated its order granting the petition for certiorari and denied the petition. --- U.S. ----, 109 S.Ct. 542, 102 L.Ed.2d 572 (1988). 1
Fed.R.App.P. 41(b) provides that the circuit courts shall issue the mandate "immediately" following the denial of a petition for writ of certiorari. 2 On December 7, 1988, Ford filed an emergency motion to stay the mandate, which the en banc court granted. Ford's motion preceded this court's receipt on December 12, 1988, of the Supreme Court's order denying certiorari. On December 20, 1988, Ford filed a motion to extend the stay of mandate and to vacate the en banc opinion. On January 25, 1989, the en banc court referred this motion to this three-judge panel. We first address Ford's motion to stay the mandate in this opinion. As a result of Ford's motion the mandate has not yet issued.
Section 1016(a) of the Act amends 28 U.S.C. Sec. 1441(a) by adding the following sentence: "For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded." Congress obviously reached the conclusion that doe defendants should not defeat diversity jurisdiction. Ford argues that this amendment controls this case. If it does, then our en banc opinion in Bryant II ordering the district court to remand this case to the state court must be vacated, and we will have to reach the merits of Bryant's appeal.
Congress did not specify an "effective date" for section 1016(a). Consequently, it was unclear whether it applied to cases pending when the Act became law. Where a case is pending on direct review "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). In Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1425 (9th Cir.1989), amended (June 26, 1989), this court held that section 1016(a) fell within the general rule: "section 1016(a) took effect upon passage and applies to cases pending on that date." We find no manifest injustice in applying Kruso 's holding to this case.
Despite the Kruso decision, Bryant raises three challenges to application of section 1016(a): first, this court can stay the mandate only under exceptional circumstances, which are not present; second, the Bradley presumption is inapplicable because this case is not pending on direct review; and third, application of section 1016(a) is unconstitutional.
Bryant is correct that "[t]here is no provision in the United States Code or the Federal Rules of Appellate procedure that permits an appellate court to prevent or delay issuance of its mandate" following the denial of certiorari. In fact, Rule 41(b) expressly directs that "[u]pon the filing of a copy of an order of the Supreme Court denying the petition for writ of certiorari the mandate shall issue immediately." Nonetheless, Bryant does not contend that this court is powerless to stay issuance of the mandate. Bryant concedes that we retain jurisdiction where a party moves for a stay of the mandate prior to this court's receipt of the Supreme Court's order denying certiorari. But he argues that a stay is warranted only where exceptional circumstances would justify an order recalling the mandate.
Rule 41(a) provides that the mandate shall issue 21 days following a circuit court's judgment. But the Rule authorizes a circuit court to stay the issuance of the mandate beyond this 21-day period. No exceptional circumstances need be shown to justify a stay. This matter is entrusted to the circuit court's sound discretion. Rule 41(b) provides that a circuit court may stay the mandate pending the filing of an application for a writ of certiorari, and that any such stay shall continue until "final disposition" by the Supreme Court. 3
Ordinarily, then, a party seeking a stay of the mandate following this court's judgment need not demonstrate that exceptional circumstances justify a stay. The situation changes markedly, however, once the Supreme Court has denied the petition for a writ of certiorari. Rule 41(b) orders that the mandate "shall issue immediately" upon the denial of certiorari. Consequently, a circuit court's issuance of the mandate following the denial of certiorari ordinarily is a ministerial act. For this reason, Bryant argues that a stay following the denial of certiorari is the exceptional case, analogous to a circuit court's decision to recall a mandate.
While no statute or rule so provides, we have recognized a circuit court's inherent power to recall its mandate to prevent injustice or to protect the integrity of its process. See Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988); Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248, 254 (9th Cir.1973). The power of a Court of Appeals to recall its mandate should only be exercised in exceptional circumstances, such as to protect the integrity of its own processes, to prevent injustice, or for other good cause. Zipfel, 861 F.2d at 567. Recalling the mandate is solely within the circuit court's discretion. Id. Although this court has not addressed our inherent power to stay the mandate upon proper motion following the Supreme Court's denial of certiorari, the Fourth Circuit has done so in Alphin v. Henson, 552 F.2d 1033 (4th Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 67, 54 L.Ed.2d 80 (1977).
In Alphin, the appellate panel previously had affirmed a finding that the plaintiffs had proved the defendant's attempted monopolization, but it held that plaintiffs were not entitled to attorney's fees because they could not prove damages. Id. at 1034. The plaintiffs petitioned for certiorari and, while the petition was pending, Congress amended the antitrust laws to provide for attorney's fees whenever a plaintiff substantially prevails. After the Supreme Court denied certiorari, but prior to the circuit's receipt of a notice of denial of certiorari, the plaintiff moved the circuit court to stay issuance of the mandate and to award him attorney's fees based upon the new law.
The Alphin court concluded that it would not work a manifest injustice to apply the new attorney's fees statute to the case pending before it. The court found the Bradley presumption applicable because "[o]ur control over a judgment of our court continues until our mandate has issued." Id. at 1035. Thus, the court treated a change in the law occurring in this procedural posture the same as a change in the law occurring before an appellate court files its judgment. In other words, the court interposed no special requirement of exceptional circumstances in order to stay the mandate following the denial of certiorari.
We agree with the Alphin court that a circuit court has the inherent power to stay its mandate following the Supreme Court's denial of certiorari. "An appellate court's decision is not final until its mandate issues." Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir.1988). However, Bryant appropriately objects to a reading of Alphin that makes it obligatory for an appellate court to stay its mandate in this situation. The Alphin court did not expressly interpose a threshold requirement of exceptional circumstances before the mandate would be stayed. 4 Yet, we find that Rule 41(b)'s express direction that the mandate shall be issued immediately upon the denial of certiorari makes such a threshold showing necessary. "For most purposes, the entry of judgment, rather than the issuance of mandate, marks the effective end to a controversy on appeal." Finberg v. Sullivan, 658 F.2d 93, 96 n. 5 (3d Cir.1981) (en banc).
In the nearly unprecedented procedural posture of this case, we find that exceptional circumstances justify a stay of the mandate....
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