Price v. PSA, Inc., s. 86-5973
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 829 F.2d 871 |
| Docket Number | 86-7462,Nos. 86-5973,s. 86-5973 |
| Parties | 126 L.R.R.M. (BNA) 2805, 56 USLW 2226, 56 USLW 2279, 107 Lab.Cas. P 10,158, 2 Indiv.Empl.Rts.Cas. 1357 Richard PRICE and Joe Bridges, Plaintiffs-Appellees, v. PSA, INC., Defendant-Appellant. PSA, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, Respondent, Richard Price and Joe Bridges, Real Parties in Interest. |
| Decision Date | 06 October 1987 |
Page 871
56 USLW 2279,
107 Lab.Cas. P 10,158,
2 Indiv.Empl.Rts.Cas. 1357
v.
PSA, INC., Defendant-Appellant.
PSA, INC., Petitioner,
v.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, Respondent,
Richard Price and Joe Bridges, Real Parties in Interest.
Ninth Circuit.
Decided Oct. 6, 1987.
Page 872
Marie Backes, San Diego, Cal., for plaintiffs-appellees-real parties in interest.
Suzanne J. Holland, Bruce A. Gothelf and Robert J. Lanza, Meserve, Mumper & Hughes, Los Angeles, Cal., for defendant-appellant-petitioner.
Appeal from the United States District Court for the Southern District of California.
Before SNEED, FARRIS and NOONAN, Circuit Judges.
SNEED, Circuit Judge:
PSA, Inc. (PSA) seeks review of the district court's remand of this case to state court. PSA alleges that the plaintiffs' state law wrongful discharge claims are completely preempted by the Railway Labor Act (RLA), 45 U.S.C. Sec. 151 et seq., and thus the district court had no discretion to remand the case once it was properly removed. PSA seeks a writ of mandamus commanding the district court to rescind its remand order. We find that the plaintiffs' claims are not completely preempted, and we deny the petition for writ of mandamus.
I.
On May 8, 1985, Richard Price and Joe Bridges filed an action in the Superior Court for the State of California, alleging violation of four federal statutes: Title VII of the Civil Rights Act of 1964, the Railway Labor Act, the Age Discrimination in Employment Act, and 42 U.S.C. Sec. 1981. PSA timely removed the action to federal court.
In January 1986, Price and Bridges, apparently believing a state forum was to be preferred, sought to amend their complaint to allege non-federal, State of California claims. On January 17, the district court approved a stipulation between the parties, which provided in pertinent part:
IT IS FURTHER STIPULATED that, if upon filing a plaintiff's first amended complaint, it is apparent that there is no jurisdiction in the United States District Court, the parties agree that the action will be remanded to the Superior Court for the State of California, for the County of San Diego.
Appellant's Excerpt of Record at 31.
On January 27, the plaintiffs filed their first amended complaint, alleging, inter alia, (1) state law claims predicated upon violation of the public policy inherent in California Labor Code Secs. 922 and 923, prohibiting retaliation for union organizing activities; and (2) claims based upon violation of the public policy inherent in California Code of Civil Procedure Sec. 1209(a)(5), prohibiting disobedience of lawful orders of courts.
Price and Bridges thought their first amended complaint satisfied the stipulation. Accordingly, they requested PSA's consent to remand the action in accordance with the parties' stipulation. PSA withheld its consent on the ground that the plaintiffs' claims alleging violation of the public policy inherent in California Labor Code
Page 873
Secs. 922 and 923 were completely preempted by section 2 of the RLA. Thus were invoked the laws of preemption and removal, both functions of federalism.On March 28, 1986, the plaintiffs responded by bringing a motion to remand the case to state court, and on April 28 the district court granted the motion. PSA stood its ground and timely sought review of the remand order. It both appealed the order and petitioned this court for a writ of mandamus to prevent the remand of the case to state court.
Before reaching the preemption issue Price and Bridges seek to preserve their advantage by invoking 28 U.S.C. Sec. 1447(d) as a bar to review of the district court's remand order. We shall discuss this issue initially.
II.
Review of remand orders appears to be prohibited by 28 U.S.C. Sec. 1447(d), which provides that an "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." However, the Supreme Court limited the scope of Sec. 1447(d) in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). It held that relief by writ of mandamus was available to prevent a district court in a diversity case from ordering a remand solely on the grounds that its docket was congested and that the case would be expedited in state court. Id. at 351-53, 96 S.Ct. at 593-94. The Court reasoned that the prohibition on review found in Sec. 1447(d) can only be read in conjunction with 28 U.S.C. Sec. 1447(c), which provides that "[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case." See id. at 345-46, 96 S.Ct. at 590. The Court concluded that "only remand orders issued under Sec. 1447(c) and invoking the grounds specified therein--that removal was improvident and without jurisdiction--are immune from review under Sec. 1447(d)." Id. at 346, 96 S.Ct. at 590.
That immunity is not applicable in this case. Both parties agree, as they must, that this case was not removed "improvidently and without jurisdiction." At the time of removal the plaintiffs stated only federal claims; removal was clearly proper. This does not resolve the matter, however. Price and Bridges argue that this circuit, in its post-Thermtron decisions, has limited review of remand orders to permit it only in those situations in which the remand was based on a substantive decision on the merits apart from any jurisdictional determination. See Clorox Co. v. United States District Court, 779 F.2d 517 (9th Cir.1985); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th Cir.1984). Inasmuch as the remand here was based upon a lack of jurisdiction and not a matter of substantive law, 1 Price and Bridges insist that the Pelleport-Clorox immunity exists. Under those circumstances, they contend that we should find the remand order unreviewable.
We disagree. They read Pelleport and Clorox improperly. In neither case did we attempt to fix the outer limit of reviewability. In Pelleport, we found reviewable a remand based on the conclusion by the district court that a forum selection clause was valid and enforceable. 741 F.2d at 275. We found the remand reviewable because the order was based, not on jurisdictional
Page 874
grounds, but rather on a substantive determination affecting the rights of the parties. Id. at 276-77. In Clorox, our review of the district court's remand order was based on a substantive determination that Clorox had waived its right to removal by informing employees in its employee handbook that suits to recover benefits under the plan in question could be filed in state or federal court. 779 F.2d at 520-21. In both cases we held that a remand order is appealable as a collateral order under 28 U.S.C. Sec. 1291 where the remand is based on a decision on the merits, apart from any jurisdictional decision. Such appeals are appropriate because Congress did not intend to preclude review of a decision on the merits simply because it preceded a remand order.As already indicated, both parties acknowledge that this is not a case in which removal was improvident and without jurisdiction. On the basis of the original complaint the removal was proper. The remand order was based on the district court's perceived discretion to remand the remaining state claims. Because the order was not a mandatory remand under Sec. 1447(c), it enjoys no immunity from review. While reviewable, the order does not fall within the narrow class of remand orders that are appealable because the remand order did not result from a...
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