Cook v. Weber, 82-1342

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before PELL, BAUER, and WOOD; BAUER
• Citation: 698 F.2d 907
• Parties: Roger Lee COOK, Plaintiff-Appellee, v. Donald W. WEBER, Defendant-Appellant.
• Docket Number: No. 82-1342,82-1342
• Decision Date: 03 February 1983

Page 907

698 F.2d 907 Roger Lee COOK, Plaintiff-Appellee,
v.
Donald W. WEBER, Defendant-Appellant. No. 82-1342. United States Court of Appeals,
Seventh Circuit. Argued Dec. 14, 1982.
Decided Feb. 3, 1983.

Page 908

James C. Cook, Walker & Williams, Belleville, Ill., for defendant-appellant.

Amiel Cueto, Belleville, Ill., for plaintiff-appellee.

Before PELL, BAUER, and WOOD, Circuit Judges.

BAUER, Circuit Judge.

Plaintiff-appellee filed a nine count complaint in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, against Debbie Frey, a private citizen, and Donald Weber, the State's Attorney for Madison County, seeking relief under both state law and 42 U.S.C. Sec. 1983 for redress of injuries sustained when he was prosecuted in Madison County for rape. He alleges that Frey, the rape victim, and Weber conspired to prosecute him, even though they knew he was not guilty. The defendants subsequently sought removal under 28 U.S.C. Sec. 1441.

The district court held that since the grounds under which the petition is filed are the Sec. 1983 counts and since Sec. 1983 is a law of the United States, the matter is removable without regard to the citizenship of the parties. However, the district court dismissed the Sec. 1983 counts against defendant Weber, based on a prosecutor's absolute immunity from Sec. 1983 suits. As to the remaining counts stating pendent state law claims, the court exercised its discretion in dismissing these claims without prejudice to the right to refile in state court.

I

Before addressing the merits of this appeal, it is necessary for us to address a challenge to our appellate jurisdiction raised by the appellee.

The appellee contends that the district court actions constituted the functional equivalent of a remand to the state court which is non-appealable under 28 U.S.C. Sec. 1447(d). ¹ We disagree with appellee's "functional equivalent" analysis. Remand is not the functional equivalent of a dismissal. There are crucial distinctions between both dispositions affecting the application of the statute of limitations, the priority of the case upon its return to the state court, and the appellate review of the district court's order itself. Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (remand orders under Section 1447(c) are not reviewable by reason of Section 1447(d)); see Salveson v. Western States Bankcard Ass'n, 525 F.Supp. 566, 581 n. 17 (N.D.Cal.1981). We think that the proper analysis is to ask whether the district court's "dismissal without prejudice" was the proper disposition, if it was, then the order is clearly appealable pursuant to 28 U.S.C. Sec. 1291; ² or, should the district court have "remanded" the

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state claims, if so, then the order is clearly non-appealable pursuant to 28 U.S.C. Sec. 1447(d). The court in Salveson stated that:

[u]nless one were to accept authority to remand cases falling under neither Section 1441(c) ³ nor Section 1447(c) ⁴ as being within the district court's inherent power, developed as a part of federal common law, the courts in these cases would be limited to retaining jurisdiction of the State claims or dismissing them.

The issue can be of substantial importance.... An authoritative clarification would be helpful to district courts.

Id. (footnotes added).

Removal jurisdiction is based entirely on statutes, which are to be strictly construed in keeping with congressional intent to limit the right of removal out of concern for state courts' independent jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). In keeping with and in effectuation of congressional policy as to removal we hold that the basis for remanding a removed case must be grounded on federal statutory authority. We believe that the crucial consequential distinctions, authorized by Congress, between remand and dismissal of removed cases, to which we referred above, militate in favor of our holding that remand of removed cases must be based on specific statutory authority.

Our holding that district courts' authority to remand removed cases is purely statutory, rather than based on inherent common law authority, will not leave district courts without recourse in cases where the statute of limitations has run, and where...