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1987 May a Federal a Case to State Court After Federal Claims Have Been Deleted? Joseph P. Bauer Notre Dame Law School, [email protected]

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Recommended Citation Joseph P. Bauer, May a Federal Court Remand a Case to State Court After Federal Claims Have Been Deleted?, 1987-1988 Preview U.S. Sup. Ct. Cas. 104 (1987-1988). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/813

This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. JURISDICTION May a FederalCourt Remand a Case to State Court After FederalClaims Have Been Deleted? by Joseph P. Bauer

arising under Pennsylvania state law, including tort, Carnegie-Mellon University breach of contract, infliction of" elotional distress, defit- V. mation and misrepresentation. In addition, Boyle as- Honorable Maurice B. Cohill,Jr. serted that his discharge was based oil the Ifact that lie (Docket No. 86-1021) was fifty-six years old, and that this age discrimination was unlawftl under the laws both of Pennsylvania and Argued November 10, 1987 of the United States. Based on a federal statute which permits certain This case concerns the circumstances under which a cases brought in state courts to be removed to federal , properly commenced in a state court and then court (28 U.S.C. section 144 1), Carnegie and Kordesich removed before to a federal court, may he sent back removed the case to the United States District Court for (remanded) to the state court. the Western )istrict of' Pennsylvania. The Boyles made On one level, this case seems only to involve technical no objection to the removal, nor did they seek to have interpretations of federal statutes governing procedure the case remanded to tile state court. in the federal courts. At another level, however, it in- After a variety of steps leading ip to trial, which took volves more general and important issues. Among these about eight months, the Boyles amended their coin- are how to allocate judicial power and responsibility plaint to delete the cause of action arising under the between the state and federal courts; the authority of federal Age Discrimination in Employment Act. federal judges to expand limitations on federal statutes, Since the Boyles' complaint then asserted claims aris- through exercising judicial discretion and the rights of ing solely under state law, they simultaneously made a individuals to control the foruin for litigating their dis- motion to reniandl the case to state court. Carnegie-Niel- putes by changing their original complaint. ton objected, asserting that the federal court had atl- thority either to retain the case or to dismiss it, but not lo ISSUES remand it to state court. The court decided to remand When an action is originally filed in a state court the case. which asserts claims arising under both state and f[ederal Carnegie and Kordesich then appealed this decision laws, and then removed to federal court, may the fed- to the United States Court of for the Third eral court send the action back to the state court if the Circuit. Asserting that the federal judge- federal claims are deleted from tile complaint? Or, in Judge Maurice Cohill-had abused his discretion in re- such a situation, is the federal court limited to either nmanding the action, they sought a writ of mandamus frol retaining the action or dismissing it for lack of'jurisdic- the appellate court, to require judge Cohill to rescind tion? his remand order. The action was first heard by a three judge panel. By FACTS a 2-to-I decision, the Third Circuit determined that William Boyle, an employee of Carnegie-Mellon Uni- .Judge Cohill had abused his discretion in remanding the versity in Pittsburgh, Pennsylvania, was discharged from action, and issued the writ of mandamus ordering him to employment because lie refused to accept blame for vacate his order. The court of appeals voted to hear the some improper billings and certain thefts at the Univer- case en banc and to vacate the decision of the three judge sity. He and his wife, Carrie Boyle, brought a lawsuit panel. After the rehearing, the Third Circuit split 5-to- against Carnegie and against John Kordesich, his super- 5. This had tile effect of upholding the district court's visor at Carnegie, in a Pennsylvania state court. The order. Carnegie-Mellon then sought review in the complaint alleged that he was wrongfully discharged United States Supreme Court. and entitled to recovery under a variety of' theories

Joseph P. Bater is a Professor f Law and Associate Dean at BACKGROUND AND SIGNIFICANCE Notre Dame Law School, Notre Dante, IN 46556; telephone The judicial power of the federal courts is limited. (219) 239-6514. For these courts to havejurisdiction to hear a case, the

104 PREVIEW action must in the first instance fall within Article III of noted, that action could not have been brought origi- the Constitution, and then within a federal statute. nally in federal court, and hence would have been unre- Broadly speaking, there are two major categories of movable. In this now altered state of affairs, what should situations in which the federal courts can hear a case: the federal court have done with the action? where the plaintiffs and defendants are citizens of dif- Similar problems have been presented in a number ferent states (), or where the plain- of prior lower court cases. About a half dozen of the tiff asserts a claim which arises under federal law federal intermediate appellate courts-the courts of ap- (federal questionjurisdiction). peals-have wrestled with this question, and have Here, the parties apparently were all citizens of Pen- reached differing conclusions. In part, it was this split in nsylvania, and therefore diversity jurisdiction did not the circuits which motivated the Supreme Court to take exist. If the plaintiffs had asserted claims arising solely this case and to resolve this question. under Pennsylvania law, there also would have been no One obvious possibility was that the district court federal question jurisdiction, and therefore this case could have dismissed the action, allowing the plaintiffs could have been heard only in a state court. On the to recommence it in state court. One objection that the other hand, once the plaintiffs asserted a claim under a plaintiffs might have to this alternative, however, is that federal statute (the Age Discrimination in Employment in the meantime the statute of limitations on the action Act), a federal question was presented, and federal court might have run, foreclosing any action in any court. jurisdiction existed over that claim. Although there is some doubt as to the facts, the plain- In a case decided in 1966-United Mine Workers v. tiffs here probably would have faced such a bar in state Gibbs (383 U.S. 715)-the Supreme Court held that if a court. plaintiff asserts both state law and federal claims in the A second possibility is that the federal court could same lawsuit, and if those claims arise out of the same nonetheless have retained the now purely state law ac- transaction or occurrence, the entire case can be tion. The Gibbs case offers some authority for such a brought in federal court, and it can exercise "pendent procedure. If a mixed federal-state law action is com- jurisdiction" over the entire action. This decision was an menced in a federal court, and the federal claim fails, interpretation both of the judicial power conferred by Gibbs held that the court still may, under certain circum- Article III and the statutory specification of federal stances, retain the nonfederal claims. However, perhaps jurisdiction found in 28 U.S.C. section 1332. Applying because of the factual differences of this case, as well as the Gibbs test to this case, since all of the Boyles' claims the relatively early stage of the litigation here (before arose out of the alleged wrongful discharge, they could trial had started), the federal court did not follow that have commenced the entire action in a federal court. option. The right of a defendant to remove an action from Just as the procedure for removal is purely statutory, state to federal court is entirely statutory, there being no so is the procedure for remand. The relevant statute (28 express provision for removal in the Constitution. In 28 U.S.C. section 1447(b)) provides that if "at any time U.S.C. section 1441, a defendant is given the right to before final judgment it appears that the case was re- remove an action to federal court if the action was one moved improvidently and without jurisdiction, the dis- over which the federal courts would have had original trict court shall remand the case." Here, however, the jurisdiction. Since, as noted, the Boyles could have removal was proper. It was only after the removal oc- brought their combined state and federal claims in fed- curred and part of the claim was dismissed, thatjurisdic- eral court had they wanted to do so originally, the de- tion no longer existed. Furthermore, this situation arose fendants probably had the absolute right-without because of the unilateral action of the plaintiff. seeking permission either of the plaintiffs or from the In this case, the federal district court judge stated court-to remove the action. By filing the removal peti- that the statute was not the sole source of authority for tion with the federal court, removal was automatic, and remand, and that he could exercise "discretion" to re- an objection by the Boyles-had it been made-probably mand in situations such as this. Objecting, the de- would have been futile. (While neither of the parties fendants asserted that remand can be done only as the challenged tile propriety of removal, and both lower statute authorizes, and that the Congress, by passing courts assumed removal was proper, one of the amici' such a statutory provision, determined not to give argues that removal was unauthorized by the relevant judges any such discretion. federal statutes. If the Supreme Court agrees with this This case, then, turns in part on the construction of a position, it could decide the case on this ground and federal statute (28 U.S.C. section 1447(b)), and the Su- would then never reach the issues presented by the preme Court could decide the case on relatively narrow parties.) grounds, basing its decision purely on the proper inter- The particular issue arises once the Boyles obtained pretation of the statute. The Court could, however, take leave of the federal court to delete their federal claim, a broader view of the issues. leaving an action arising solely under state law. As As noted, this case involves the allocation of judicial

Issue No. 4 1An responsibility between the federal and state courts. Ap- the plantiffs have the right to deprive the defendants of proximately 6 to 7 per cent of all federal cases arrive a federal forum by deleting claims selectively? Since each year in the federal courts by removal from state federal courts have frequently been jealous about pro- courts. Whether the parties choose federal or state court tecting their jurisdiction, there may be concerns about is influenced by such varied factors as docket length, possible manipulation by post-removal changes in the location of the courthouse, perceived biases of the complaint. judges and juries and differences in rules of procedure and . Thus, a decision on the circumstances in ARGUMENTS which remand is available will affect both this choice and For Carnegie-MellonUniversity (Counsel of Record, Walter P. the caseloads of the two sets of courts. DeForest, 111, Mellon Square, 435 Sixth Avenue, Pittsburgh, PA This case also raises issues of federalism and comity 15219; telephone (412) 288-3383) between state and federal courts. Since the action now 1. Prior Supreme Court caselaw indicates that federal involves only state law issues, it would appear that a state statutes provide the exclusive grounds upon which a court is the best forum for resolving the dispute. Reten- district court may remand a properly removed action. tion of the action in federal court would interfere with 2. Policy reasons support the conclusion that a district state interests. This concern led eighteen states to file an court may remand an action only pursuant to these amicus brief, supporting the Boyles' position and argu- statutes; on the other hand, there is no basis for ing for the propriety of remand. expanding the grounds for remand by exercising A third broader issue arises from the exercise of judicial discretion. discretion by the federal courts. It is unclear to what extent a federaljudge can read a statute expansively, or ForJudge Cohill and the Boyles (Counsel of Record, AllanJ. add a provision not found in its precise language, when Opsitnick, 527 Court Place, Pittsburgh, PA 15219; telephone the court deems this necessary to achieve justice or to (412) 391-3299) adjust for unexpressed congressional intent. Although 1. In Gibbs, the Supreme Court gave federal courts the issue arises here in the context of a procedural broad discretion to exercise pendentjurisdiction. provision for managing federal litigation, the Court's 2. Under Gibbs, once a federal claim is dismissed and decision could have implications elsewhere. only state claims remain, federal courts have discre- Finally, the case does involve competition by the tion to retain the entire action, to dismiss the lawsuit, parties for control of the forum for their litigation. In or to remand to state court. the first instance, if the plaintiffs had omitted any fed- eral claim from the original action, it would clearly have been unremovable, and the defendants would have been AMICUS BRIEFS relegated to state court. On the other hand, by adding In Support ofJudge Cohill and the Boyles the federal claim, the plaintiffs afforded the defendants The state of California with seventeen other states, the right of removal over which the plaintiffs had no jointly; Department of Water and Power, City of Los control. Once removal takes place, to what extent should Angeles

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