Republic of Venezuela v. Philip Morris Inc.

• Citation: 287 F.3d 192
• Decision Date: 26 April 2002
• Docket Number: No. 00-7215.,No. 00-7216.,No. 00-7257.,No. 00-7213.,No. 00-7258.,No. 00-7214.,00-7213.,00-7214.,00-7215.,00-7216.,00-7257.,00-7258.
• Parties: REPUBLIC OF VENEZUELA, Appellee, v. PHILIP MORRIS INCORPORATED, et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

287 F.3d 192

REPUBLIC OF VENEZUELA, Appellee, v. PHILIP MORRIS INCORPORATED, et al., Appellants.

No. 00-7213.

No. 00-7214.

No. 00-7215.

No. 00-7216.

No. 00-7257.

No. 00-7258.

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2001.

Decided April 26, 2002.

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (No. 99ms00213).

Herbert M. Wachtell argued the cause for appellants Philip Morris Companies, Inc., et al. With him on the briefs were Timothy M. Broas, Robert F. McDermott, Jr., Paul S. Ryerson, Daniel F. Kolb, Kenneth N. Bass, Gene E. Voigts, Richard L. Gray, Patrick S. Davies and Steven Klugman. David Gruenstein and Leigh A. Hyer entered appearances.

Robin S. Conrad, Kenneth S. Geller and John J. Sullivan were on the brief of amicus curiae Chamber of Commerce of the United States of America in support of appellants.

Joel S. Perwin argued the cause for appellees. With him on the brief were Jonathan S. Massey, George M. Fleming, Sylvia Davidow and Andres C. Pereira.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

Separate concurring opinion filed by Senior Circuit Judge STEPHEN F. WILLIAMS.

GINSBURG, Chief Judge:

The district court issued orders remanding to a Florida state court four lawsuits filed by foreign states against tobacco companies based in the United States. The companies ask that we reverse the orders of the district court and that we issue a writ of mandamus to prevent the court from ordering the remand of similar lawsuits still pending before it. We hold that we are without appellate jurisdiction to review the orders the district court already has issued and that we have no warrant to prohibit the district court from remanding to state court those cases upon which it has not yet acted.

I. Background

Various foreign countries or subdivisions thereof sued 15 United States tobacco companies in a Florida court to recover damages under the laws of Florida. Specifically the Republics of Venezuela and of Ecuador, the Brazilian States of Mato Grosso Do Sol, Goias, and Espirito Santo, and the Russian Federation filed nearly identical complaints in the Circuit Court for Florida's Eleventh Judicial District in Miami-Dade County. They advanced at least ten distinct theories of liability, such as fraud, negligence, and unjust enrichment, and sought compensation from the companies for the costs of treating persons suffering from diseases associated with tobacco use. Twenty-nine other foreign states or subdivisions have filed similar actions — not now before us — in state and federal courts around the United States. The tobacco companies removed the present cases from the Florida state court to the United States District Court for the Southern District of Florida. The Judicial Panel on Multidistrict Litigation then consolidated the cases brought by Venezuela and three other foreign states and transferred them to the United States District Court for the District of Columbia.

Some months later the district court dismissed for failure to state a claim a substantially similar suit against the tobacco companies brought in that court by the Republic of Guatemala. See In re Tobacco (Guatemala), 83 F.Supp.2d 125, 126 (1999), aff'd, Service Employees Int'l Union Health & Welfare Fund v. Philip Morris Inc., 249 F.3d 1068 (2001). The court ruled that Guatemala's claims were not viable because Guatemala could not establish that its alleged injuries, that is, its expenditures for the care and treatment of its citizens, were proximately caused by any misconduct on the part of the tobacco companies. For the same reason the district court has since dismissed several cases that had originated in other federal courts and been transferred by the JPML to this district. The cases under review are unlike those the district court dismissed only in that they were filed originally in state courts and therefore reached the district court after the tobacco companies removed them to a federal court pursuant to 28 U.S.C. § 1441; they are substantively identical in all other respects.

The district court ordered that Venezuela's suit be remanded to the Circuit Court for Florida's Eleventh Judicial District on the ground that there is no federal jurisdiction over the case. The court held that Venezuela's complaint does "not present a federal question on [its] face, and federal question jurisdiction is not proper under the federal common law of foreign relations." In re Tobacco (Venezuela), 100 F.Supp.2d 31, 38 (2000); see also id. at 35 ("The complaints ... contain only state statutory and common law claims"). The court later ordered the cases filed by Ecuador, Espirito Santo, and Goias remanded to the same Florida state court "for the reasons stated" in Venezuela. Since this case was argued on appeal, the Florida court in turn has dismissed the suits of Venezuela and Espirito Santo, citing with approval the district court's opinion in Guatemala. See Venezuela v. Philip Morris Cos., No. 99-01943 (Nov. 20, 2001); Espirito Santo v. Brooke Group Ltd., Inc., No. 00-07472 (Nov. 20, 2001). The suits filed by Ecuador and by Goias remain pending before the Florida court.

On October 30, 2000 — after the district court had dismissed Guatemala and ordered Venezuela remanded — the JPML transferred to that court the cases Russia and Mato Grosso had brought in Florida and the tobacco companies had removed to the federal court there. The district court here has not yet acted upon those cases.

To summarize, the six cases now on review were originally filed in the Florida Circuit Court, then removed to a federal court in Florida, and finally transferred to the district court here; the district court ordered four cases — Venezuela, Ecuador, Espirito Santo, and Goias — remanded to the Florida Circuit Court for lack of federal subject matter jurisdiction and has pending before it the two — Russia and Mato Grosso — that reached the district court after it had ordered the other cases remanded. For the sake of simplicity, we will refer to the four remanded cases as the Latin America Cases.

II. Analysis

The tobacco companies appeal the remand orders in the Latin America Cases. They also ask the court to issue a writ of mandamus prohibiting the district court from ordering the remand of Russia and Mato Grosso to the state court where those cases originated. Apparently, the companies would rather have the district court dismiss all the cases on the merits, as it dismissed Guatemala, than remit the cases to any less certain fate in the courts of Florida.

A. Appeal of the Latin America Cases

This court is without jurisdiction to consider the appeal of the Latin America Cases. The orders of the district court return those cases to the state court from which they were removed on the ground that the court did not have federal subject matter jurisdiction over them. When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case, 28 U.S.C. § 1447(c), and the court's order remanding the case to the state court whence it came "is not reviewable on appeal or otherwise," id. § 1447(d). See also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) ("remands based on grounds specified in § 1447(c) are immune from review under § 1447(d)").

The tobacco companies claim that, notwithstanding the unambiguous bar of the statute, some courts have said the prohibition of § 1447(d) "is not as broad as it seems." Poore v. American-Amicable Life, 218 F.3d 1287, 1291 (11th Cir.2000). In each case they cite, however, the court was describing not the prohibition in § 1447(d) but the exception thereto allowing review of a remand order that is not predicated upon either a lack of subject matter jurisdiction or a defect in the removal process. See Poore, 218 F.3d at 1289; Liberty Mut. v. Ward Trucking, 48 F.3d 742, 745-46 (3d Cir.1995). Because the district court remanded the Latin America Cases for want of federal subject matter jurisdiction, the exception does not apply here, and the cases cited by the companies are not on point.

The tobacco companies argue also that their appeals raise the "substantial question whether Congress intended by § 1447(d) to make a district court the final arbiter of ... an important issue of constitutional dimension," namely, "whether, under our constitutional scheme, claims by foreign governments of this nature fall within the adjudicatory authority of the federal courts based upon federal common law." We are tempted to say, as Wolfgang Pauli once said of a colleague's idea, the contention is "not even wrong." JAMES GLEICK, GENIUS: THE LIFE AND SCIENCE OF RICHARD FEYNMAN 115 (1992). For starters, the appeal does not raise an issue of "constitutional dimension." The district court decided a pleading point: whether a complaint alleging various torts under the law of Florida "raises issues of federal law." Chicago v. International Coll. of Surgeons, 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). There is no provision in the Constitution, and the companies do not cite to any, that suggests this mundane inquiry takes on a "constitutional dimension" when the plaintiff is a foreign sovereign.

Furthermore, the companies err in suggesting there is an exception to the prohibition of appellate review in § 1447(d) when the remand order does raise a constitutional question. As long as the district court orders a case remanded for want of subject matter jurisdiction, the Congress has insulated the decision to remand from review "whether or not that order might be deemed erroneous by an appellate court." Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). The decision of the...