CARNEGIE-MELLON UNIV. v. COHILL

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IN THE SUPREME COURT OF THE UNITED STATES

CARNEGIE-MELLON UNIVERSITY, ET AL., Petitioners, v. MAURICE B. COHILL, JR., JUDGE, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, ET AL.

No. 86-1021

November 10, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 p.m.

APPEARANCES:

WALTER P. DeFOREST, III, ESQ., Pittsburgh, Pennsylvania; on behalf of Petitioners.

ALLAN J. OPSITNICK, ESQ., Pittsburgh, Pennsylvania; on behalf of Respondents.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: We will hear argument now in No. 86-1021, Carnegie-Mellon University v. Maurice B. Cohill. Mr. DeForest, you may proceed whenever you are ready.

ORAL ARGUMENT BY WALTER P. DeFOREST, ESQ. ON BEHALF OF PETITIONERS

MR. DeFOREST: Chief Justice, and may it please the Court:

The issue before the Court in this case is whether a district court has the authority to remand a properly-removed case to the state court for a reason not set forth in 28 U.S.C. Section 1447(c)?

In this case, the reason for the remand was because the Plaintiffs voluntarily amended the Complaint after removal to federal court to delete the federal cause of action which had provided the basis for removal.

I would first in my argument review the procedural history in this case since it is a procedural case; then discuss the statutory framework.

This Court's decision in Thermtron, which we believe is controlling, and this Court's decision in the Gibbs case, and finally the various policy and statutory considerations that we urge the Court follow in determining that it is not appropriate to create a judicial mechanism for remand beyond that set forth that in the applicable statute.

This case arose in the State Court of Common Pleas in Allegheny County. It was filed by William and Carrie Boyle against Carnegie-Mellon University, Mr. Boyle's former employer and John Kordesich, Mr. Boyle's former supervisor. The Claim filed in the state court alleged that Mr. Boyle's discharge and the University's refusal to rehire him violated federal statutes prohibiting age discrimination and state statutes prohibiting age discrimination.

The state tort and contract principles -- had a claim in there for Carrie Boyle, which was -- she is Mr. Boyle's wife and her claim was derivative of Mr. Boyle's claim for the alleged injury to the marriage and for loss of consortium, et cetera.

The case was timely removed and there was no contest by the Plaintiffs as to the propriety of the removal at that time. An Answer was filed. The district court set a discovery schedule five months. Discovery proceeded.

Shortly before the termination of that discovery period, the Plaintiff sought and obtained an extension of that discovery period, for an additional two months. Shortly before the conclusion of that discovery period, the Plaintiffs filed a Motion to Amend the Complaint to delete, inter alia, the federal cause of action, and seeking a Remand to the State Court of Common Pleas of Allegheny County. This was filed seven months after the case had been in litigation in the federal district court.

The district court accepted briefs, and more than a year after the case had been in federal court, remanded it, issued an Order of Remand to the State Court of Common Pleas of Allegheny County. The federal court held that the case had been in fact improperly removed. And in fact held that section 1447(c) of Title 28 provided no basis for the remand.

The district court also recognized clear implication -- the court described it as an "implication;" I believe it is a holding, of the Thermtron decision that prohibited such remands, but the district court nevertheless determined that it would remand the case.

The district court held that it would not grant review as a certification under Section 1292 for an appeal, and stated that the reason for that was because review was available pursuant to a writ of Mandamus under the Court's Thermtron Opinion.

We filed both an appeal and a Petition for a Writ of Mandamus in the United States Court of Appeals for the Third Circuit; The Third Circuit dismissed the appeal holding that that was not a proper vehicle for review of the determination by the district court; the Third Circuit did, in fact, set the Mandamus petition down for review by a merits panel.

The Merits Panel, by a 2 to 1 vote held that the district court erred; the Thermtron decision by this Court was controlling; and in fact there had been no reason for remand of this action, as provided under Section 1447(c), and accordingly issued a Writ of Mandamus.

A Petition for Rehearing was filed; the court en banc accepted rehearing and under their internal operating procedures, vacated the Panel Opinion in the Third Circuit -- their Grant of Rehearing vacates the Panel Opinion.

The Third Circuit heard the case en banc, and by a 5 to 5 vote divided equally on the issue, did not issue an Opinion, and accordingly denied the Writ of Mandamus.

QUESTION: Mr. DeForest, what do you say the district court should have done with this case in the posture in which it was when it was ruled?

MR. DeFOREST: Your Honor, we had held that the district court should have, or urged the district court, to retain the case. Assuming the district court determined that it would not retain the case, it should have dismissed the action without prejudice.

QUESTION: And if it had retained the case, it should have just gone on and decided all the state law questions?

MR. DeFOREST: Yes, Mr. Chief Justice. If it determined it to be appropriate to retain the case, it could have decided the state law questions. They were all pendent claims arising out of a common nucleus of operative fact with the federal claim. They all arose from Mr. Boyle's discharge from the University.

QUESTION: Was there any federal claim left at that point?

MR. DeFOREST: No, Justice Brennan.

QUESTION: Just the state law claim?

MR. DeFOREST: Once the permission was given to the Plaintiff to voluntarily make the federal claim, there were only remaining state law claims.

QUESTION: Then there is some question whether they could have retained the case under the constitutional grant of power?

MR. DeFOREST: Justice Scalia, I believe, and it is clear that Section 1441(a) and (b) provide that these actions may be removed, and under this Court's holding under United Mine Workers v. Gibbs, both the federal claim and the pendent state claim require one constitutional case, and that under the statute, it is, I think, clear that, as one constitutional case the district court had the power to dispose of that case, once it had accepted remand.

QUESTION: Well, it is a constitutional case when it is removed, because there is a federal question in it when it is removed. But once the federal question in it is excised, how can you say that there is a case or a controversy any longer arising under the laws of the United States?

MR. DeFOREST: Justice Scalia, the work of this Court in the case of St. Paul Indemnity Casualty Co., has I believe, addressed that issue, and held that an amendment held after removal, is not a basis for the defeat of removal jurisdiction once it has attached, and we believe that Congress had an appropriate power to permit the, under 1441(a), federal courts, to take these cases.

Similarly, in the Gibbs case itself, this Court made clear that there are -- can be, situations in which the district court may determine to retain a case, even notwithstanding dismissal of a federal claim, and I think, Justice Scalia, in the given case itself, the facts in Gibbs, if we look at it where a situation where there was a Section 303 claim under the Labor Management Relations Act, as well as the state law claims, and the Court, I believe in that case, on the facts of it that, notwithstanding the fact that the federal claim properly was dismissed, that a jury verdict on the state law claim could have been maintained on a procedural ground.

In that case, because of this Court's interpretation of the Norris-LaGuardia Act, they found that the Norris-LaGuardia Act precluded that particular type of cause of action, so in my judgment, Congress did appropriately determine that these cases could be maintained and --

QUESTION: Mr. DeForest, what is the sole reason that you can get in the federal court from a state court? The sole reason? It is because you have a federal question, is it not? Is that not the sole reason? The only reason?

MR. DeFOREST: Justice Marshall, I believe that diversity cases can go into federal court --

QUESTION: I am not talking about -- I am talking about removal cases --

MR. DeFOREST: Well, diversity cases can be --

QUESTION: The only way you can remove is because you have a federal question.

MR. DeFOREST: You can remove a diversity case, Justice Marshall.

QUESTION: Well, this is not a diversity case.

MR. DeFOREST: This is not a diversity case.

QUESTION: So the only reason for removal was a federal question in this case.

MR. DeFOREST: In this case the basis for removal was a federal question.

QUESTION: That was removed?

MR. DeFOREST: It was removed after the case went over to the federal district court.

QUESTION: Then it was removed. The federal question was removed. Under normal procedure, would it go back?

MR. DeFOREST: Justice Marshall, there is two questions: one, whether or not the federal court can keep the case, and secondly, what it should do with it if it determines it should not keep the case. Those are two separate issues.

QUESTION: On what grounds would they keep it?

MR. DeFOREST: Well, Justice Marshall, it is this Court's decision in Gibbs does indicate that in some situations that the federal courts can keep it. I would also say that this Court's decision in the St. Paul Indemnity & Casualty case, where there was an amendment after the removal of the case, to reduce the amount of the damages claimed, below the jurisdictional amount, so there was no longer a federal jurisdiction, this Court held that that amendment could not and would not, mean jurisdiction. So the Court has addressed this issue previously and held, and I think there is longstanding law on this issue, that the federal court, if it determined it appropriate, would have had jurisdiction.

QUESTION: Mr. DeForest, a long time ago, someone asked you what the courts should do, and among the options you stated, it should dismiss.

MR. DeFOREST: I think it had that option.

QUESTION: Without prejudice? Without prejudice to what?

MR. DeFOREST: If a plaintiff sought to restate those claims again.

QUESTION: But suppose that the statute of limitations has run?

MR. DeFOREST: Justice, if in fact the statute of limitations had run --

QUESTION: It is just his hard luck?

MR. DeFOREST: I suggest that that is one factor that the, the district court might want to consider in determining whether or not to dismiss the case or to keep it. It is not crucial to my position that the federal court --

QUESTION: Or to remand it?

MR. DeFOREST: Excuse me?

QUESTION: Or to remand it?

MR. DeFOREST: My position on that is, which I would like to address right now, is that the statutes on remand have very clearly specified over a long history over a hundred years, the bases on which cases may properly be remanded.

QUESTION: Where do you find the express statutory authority for the Court to dismiss to dismiss the case after removal?

MR. DeFOREST: Justice O'Connor, I believe that under this Court's decision under United Mine Workers v. Gibbs, that was an option available to the district court.

QUESTION: It certainly is not based on any express statutory provision, is it?

MR. DeFOREST: I believe that the Court's decision in Gibbs was not based on statutory provision. And I would like to indicate --

QUESTION: Right. And similarly, perhaps, the option is open to remand? Or dismiss?

QUESTION: Well, Justice, I would like to address that: it seems to me that there are several factors that are crucial here. First of all, removal jurisdiction is purely a creation and a creature of statute, and remand is purely a creation and a creature of statute. If the Court determines in this case that there is some sort of general power, that is a very far-reaching issue, in my judgment not limited to removal cases. Because if you are going to create some power I do not know how you are going to say it is limited to removal cases.

But the removal statutes themselves, you have a long history of very careful delineation of bases in which to permit remands. You do not have that in the Gibbs type situation.

Secondly, Gibbs, and the Gibbs decision arises based on a longstanding traditional power of the court system to dismiss cases. And this Court in the case of Link v. Wabash made very clear that that is an inherent and deep-rooted power in the district courts. We also have in the Federal Rules Rules that provide for dismissal.

We have no such counterpart in the remand area. In fact, we have direct contrary congressional intent in the removal area, because it specifically provides very limited situations -- only two, in which remand may be permitted under the removal statutes. Those two situations are set forth in Sections 1447(c) "if the case was in fact removed improvidently and without jurisdiction," -- not applicable here.

Secondly, Congress set forth in Section 1441(c) a power, a discretionary power. Congress clearly knew how to set forth a discretionary power if they wished it to be there. They set it forth in 1441(c) for a discretionary power whenever you had a case in which there were separate and independent claims removed.

QUESTION: Is there any real disagreement about the inapplicability of 1447(c) and 1441(c) here?

MR. DeFOREST: I do not think there is.

QUESTION: I do not think there is either, and I wonder why you are dwelling on it so?

MR. DeFOREST: Well, because I suggest to you, by the fact that Congress has provided in Section 1441(c) for a discretionary power, it very clearly knew how to create this power. They did not provide it in any other area.

Now, I would also urge that there are very strong policy judgments and questions that arise. Remand is not the function --

QUESTION: You are saying that they would not have needed 1441(c) if there were a general power to remand anyway?

MR. DeFOREST: That is correct, and I will also say --

QUESTION: Especially since they do not mandate remand, but just put it within the courts' discretion at all?

MR. DeFOREST: And I also say that it indicates that very clearly in their mind that they knew they could do it if they wished to. It was not just something in the back of their mind; here they did it in another section of the statute, so 1441(c) makes pretty clear they knew how to do it if they wanted it done.

It is important to remember in my judgment, that removal in this Court in the Shamrock Oil and Gas case made very clear the removal area, because of a long history of statutory regulation -- in fact, the Court said, "the policy of the success of Acts of Congress regulating the jurisdiction of the federal courts, is one calling for strict construction of such legislation.

We are dealing here in the removal area with interpretation of legislation. We are dealing with interpretation of legislation which also contains in it a discretionary power when Congress wished it to be here.

QUESTION: We are also dealing, are we not, with interpretation of Thermtron?

MR. DeFOREST: Yes, Justice.

QUESTION: Because obviously, the courts and the justices below were all -- go off in all directions.

MR. DeFOREST: I would like to address that, if I might, for a second here: in this Court --

QUESTION: Thermtron certainly does not control this case. That was a diversity case. This is a pendent claims case.

MR. DeFOREST: Thermtron was a case in which -- I do not believe it was diversity: I believe it was a case in which there was a remand for a reason of the judge saying that there was a crowded docket.

Now, I understand there was a diversity aspect to the case, but my view of it is that the Court.

QUESTION: How did they get out of the state court?

MR. DeFOREST: I agree, it was a diversity -- it was initially a diversity case --

QUESTION: Yes, that is why it was removed.

MR. DeFOREST: Yes, but I was going to say that this Court's decision was not in any way conditioned upon the fact that it was a diversity case. The Court said --

QUESTION: Well, the fact is, we did not have a federal question case before us.

MR. DeFOREST: Well, I would urge the Court, where Congress has passed a statute that says a diversity case is removable, that there is just as much a right in that situation for somebody to be in federal court as if the Congress had passed a statute saying "age discrimination is illegal."

So I personally believe both diversity cases and jurisdiction for diversity cases and a jurisdiction for age discrimination cases is conditioned upon congressional statute, Justice, and that is why I am saying that I do not believe that the diversity there was contingent -- was a factor in the determination. The Court said --

QUESTION: The difference is in that the reason it was in the federal court survived and still existed at the time of the remand, which is not true here. That does not mean that it does not make any difference, but at least the difference --

MR. DeFOREST: No, that is a difference -- there is a difference there, Justice, and I would address that by saying that obviously there are many reasons why claims, whether they be federal, initial federal claims under federal statutes, or diversity statutes, are removed from cases.

And this Court dealt with one in Gibbs, where in fact the federal claim was in fact held. It was dismissed, but it was also held that in state courts a judgment could have been maintained. In that case they determined not to do it for reasons of interpretation of the Morris-LaGuardia Act, so what my suggestion is is that there is in fact that factor, but I do not think it is a distinction.

QUESTION: You are asking about discretion, which I guess is what we are talking about: do you think that the district court would have had discretion to grant a Motion to Abstain Pending the Plaintiff's Attempt to Refile, and get a ruling on the statute of limitations question in the state court, and then just hold the case until it finds out what happens in the state court, and then dismiss? Or either to go ahead and dismiss and then go ahead and retry it?

MR. DeFOREST: Justice Stevens, I do not believe that that type of abstention is authorized under any of the abstention doctrines that I am familiar with under Younger, Pullman, or Burford. I do not believe that that would be an appropriate type of abstention in my opinion.

QUESTION: Do you think the judge would have the power to do that? Maybe it has not been done before, but is there anything to restrict his power to do that?

MR. DeFOREST: It would be creating a new basis for abstention, Mr. Justice, and I guess if you wanted to do it, you, the Court, probably could, but -- so I cannot say that you cannot create it, but it does not seem to me to be -- I mean, the Court's -- the district courts, as a practical matter, in the administration of cases would have to deal with many different contingencies and factors. And they make many --

QUESTION: Of course, one consideration, federal judges, if they can get state judges to decide state law issues, they kind of like to do it that way.

MR. DeFOREST: I can understand that, Justice, but it seems to me that the basic -- so I suppose that there could be an abstention for the purpose --

QUESTION: And the question they might be uncertain about is whether the statute of limitations had run, and so why not hold the case on the docket until they could find out?

MR. DeFOREST: I suppose that is a possibility, Justice, but frankly it is not within any of the doctrines of abstentions which I am --

QUESTION: Who moved for a remand here?

MR. DeFOREST: The Plaintiffs did. They deleted and -- at the same time deleted the federal claim and moved to remand it to state court.

QUESTION: And why is it worth your time to argue that, well, the judge could have gotten rid of the case, but if he wanted to get rid of it, he had to dismiss it rather than remand it?

MR. DeFOREST: Well, are you asking a practical question or a question of statutory interpretation?

QUESTION: I am asking why it was worthwhile for your client to send you up here on a Petition?

MR. DeFOREST: Yes, because as a practical matter, there are several factors, one of which is that this case, in our judgment, would have been and should, have been tried shortly. And in our -- and in one month left in our --

QUESTION: That may well be, but you say the judge could have gotten rid of the case. He was not required to keep it.

MR. DeFOREST: I am attempting to say to you --

QUESTION: I know -- is that not your position, that he was not required to keep it? He could have dismissed it?

MR. DeFOREST: I believe that, under this Court's Gibbs, he probably had the discretionary power. I am not saying he should have done it;--in fact, I would, if I were the district court judge, I do not believe that I would have done it, and I do not think that this judge would have done it.

QUESTION: Go ahead, what are the other questions?

MR. DeFOREST: What I am saying to you is that I do not think that the district judge would have dismissed it. I think that he would have kept the case and would have had a trial. That is my -- you are asking me the practical consequences of the process that I went through, or we go through in our mind here, that if he does not have an option to remand here, I do not think he is going to dismiss it. I think he probably would have kept the case and tried it.

QUESTION: Why would he not?

MR. DeFOREST: Because I think he probably would have been concerned about these statute of limitations issues.

QUESTION: Well, was it arguably barred by the statute or not?

MR. DeFOREST: Some of the claims would have been, Justice. In my opinion.

QUESTION: Well, that -- I can understand why you did not want to remand, then. Was that one of the reasons?

MR. DeFOREST: I am telling you our reason. We felt we would get a trial, and that is what -- that is our reason. We thought it would have been appropriate.

But as a matter of statutory interpretation, which I believe is really the crucial issue here in my opinion, that we have the question whether under the removal statutes, this Court is going to create a power that does not exist clearly under the statutes now, and where that power is going to come from. I have urged all the reasons why I think it is a matter of statutory interpretation, that in looking at the legislation, in my opinion, it would be inappropriate for the Court to do so.

I would like to suggest that the Gibbs case itself does not provide any independent power, which is the district court seemed to feel, and that is another avenue here. It is even assuming that the Court is not going to follow the strict interpretation of the removal statute that you would still have to face the question where does this power to remand come from?

QUESTION: Mr. DeForest, what is a remand? Is it a -- mandate by a federal court? If I am a state court judge and I get a remand case, can I decline to entertain it? I mean is it just a request to a state court to entertain it? Or is a state court bound to entertain it on remand as though --

MR. DeFOREST: Well, Justice, I think it is an Order. I am not a state court judge either and I do not --

QUESTION: Where it started off is in the state court?

MR. DeFOREST: Yes, so I do not know whether in some situations a state court judge might say he will not take it, but --

QUESTION: Well, I am wondering if a state court judge says, "I will not take it," for whatever reason, you will have to refile and take your chances with the statute of limitations, I wonder if that is in violation of a federal court Order, but you do not know?

MR. DeFOREST: In my opinion I think it would be, but again, I do not know if that is the way that I have ever seen it.

QUESTION: Are you not creating a new rule of law when you see it violate a federal statute? Not when the federal statute says they have to take it. Or they can dismiss it?

MR. DeFOREST: Justice, I do not know if I am creating a new rule.

QUESTION: You seem to be, on what the judge wants to do. I guess he makes it up as he goes along?

MR. DeFOREST: I do not know what the state court judge is going to do, Justice.

QUESTION: And the statute does not tell us the answer to that question, you are saying?

MR. DeFOREST: I do not think it does, in my opinion.

QUESTION: Well, on the remand --

QUESTION: Congress must have thought some judges had to do a little filling in of holes in the statute, I suppose?

MR. DeFOREST: I think perhaps. But I think that if you are alluding to this issue, this issue is clearly addressed by Congress well in their contemplation, and I think that there is a very different issue when you have an area that Congress has specifically addressed, as they have here, both under 1447(c) and 1441(c).

I would like to discuss just briefly --

QUESTION: I know you may have covered it but I just want to be sure I have your answer: what is the source of the district court's power to dismiss a diversity case?

MR. DeFOREST: I believe that the district court probably would have discretion in the application of the Gibbs factors.

QUESTION: But before Gibbs was decided, say this came up?

MR. DeFOREST: That power has been recognized in this Court for a long time. It goes back to the case of Osborne v. Bank of U.S., Chief Justice Marshall. And that power before that comes the inherent power that this Court recognizes in the case of Link v. Wabash R.R., of nonsuit and non-prosecutor at the common law.

QUESTION: So there is an inherent power to dismiss a case, like there no inherent power to remand it?

MR. DeFOREST: I think that is correct. Remand is very specifically a creation of statute. This Court has so-held, both in the Shamrock Oil & Gas case, and I believe that if you look at the St. Paul Indemnity & Casualty case, where they say, once you get the jurisdiction from federal court, that the plaintiff's subsequent amendments cannot remove it.

I would just like to state, too, a few policy considerations. One, it seems clear to me that Congress, which knew how to create this power, did so in certain sections of the statute, did not create it here.

Secondly, that if this court would create such a power, it would be -- make meaningless the creation of that power to remand set forth in the limitations in Sections 1447(c) and in 1441(c).

It would also in my opinion be an unwieldy situation in the district courts where the district courts now, contrary to the rule of this Court in Thermtron, and in the case of Gravitt v. Southwestern Bell, where the Court said, "the appellate courts are not to get into reviews here of these things, but just determine whether there is a power there."

Once we create this additional power, non-statutory power, to remand, we are now saying to the circuit courts, you are going to have to somehow administer that; we are going to embroil the circuit courts, in my opinion, in mandamus review of our actions and, if they are not embroiled in that, there would be no appellate review at all --

QUESTION: By "circuit court," you mean court of appeal? Is that what you are talking about?

MR. DeFOREST: Yes, Justice.

And finally, it can lead to the possibilities of manipulation of the forum, as well as, in my opinion, needless delay and duplicate procedures --

QUESTION: Cannot the district judge supervise and control alleged manipulation? He knows when counsel are manipulating.

MR. DeFOREST: Well, Justice, I am not sure that you can tell what someone's reason for doing something is in their mind. I mean, I am just saying that, where somebody wants to get out of federal court, it is going to be very easy to do under this power.

QUESTION: I want to go back to your comment, too, about you do not know what a state court judge is going to do. The state court judge has nothing to do with removal at all, does he? If a Petition for Removal is filed, the case is removed. And -- any issue of the propriety of removal is a federal court issue, not a state court issue. So if the court -- if the case is remanded, the state court judge merely finds it back in his files again, and of course he is going to try it.

MR. DeFOREST: I did not say he was not. Someone asked me if in fact he could refuse to try, if it would be a violation of a court Order, and I do not know the answer to that.

I would like to reserve whatever time I have left.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. DeForest.

We will hear now from you, Mr. Opsitnick.

ORAL ARGUMENT BY ALLAN J. OPSITNICK, ESQ. ON BEHALF OF RESPONDENTS

MR. OPSITNICK: Mr. Chief Justice, may it please the Court:

While the District Court has clearly the ability to dismiss pendent state claims, I believe also the Court has the power in this case to remand those pendant state claims and return them to the state court.

This case, unlike the situation in Thermtron, is a pendent jurisdiction case. It is a federal law claim linked with certain state law claims that arise from a common nucleus of operative fact. There has been no debate to that point.

As a result, this case is controlled by the doctrine of pendant jurisdiction that began, I believe, as Mr. DeForest said, by the Oswald or the Osborne case in the 1800s, and was most recently discussed by this Court in the Gibbs case.

QUESTION: You do have some rather strong intimations in the St. Paul Mercury case to overcome, do you not, or where they say that the fact that a district court could not dismiss a case means a fortiori it could not remand it. The authority to remand is more strictly construed and more circumscribed than the authority to dismiss.

MR. OPSITNICK: I think that rule is clear, Mr. Chief Justice. However, the policy of strictly construing removal statutes would, I believe in this case, even reinforce the decision of the district court, that removal is limited in that this case because there is no federal issue at this point in time, it should be returned to the state court.

QUESTION: Well, St. Paul does not say removal should be more strictly -- it says remand should be more strictly construed. And you are saying it should be remanded?

MR. OPSITNICK: Yes, Your Honor. The, I guess, the best answer to that would be the analysis in Gibbs which came after St. Paul, lays out certain elements that have to be adhered to for the court to retain jurisdiction. There has to be an analysis of judicial economy; convenience and fairness to the litigants.

Chief Judge Cohill in the district court made that analysis in this case, found that the case, when the federal claim was deleted, there were no other federal claims -- the state claims predominated; the case was not at the point of trial, and the state claims that remained would not implicate any important federal policy. He therefore remanded the case in line with Gibbs, even though Gibbs, since it was not a removed case, dealt strictly with dismissal, without prejudice, as opposed to remand.

QUESTION: Counsel, it may be utterly irrelevant, but what is the state of the state court calendars in Pittsburgh?

MR. OPSITNICK: Justice Blackmun, the civil calendar in the Court of Common Pleas in Allegheny County is such that, from when the phrase is, "the case is placed at issue," it would be approximately 18 months before the case was listed for jury trial.

QUESTION: How does that compare with the federal calendar?

MR. OPSITNICK: I do not think that there is any doubt that this case would be tried faster in federal court than if it were turned over to state court. Obviously, we were willing to -- "we," on behalf of the Plaintiffs in this case, were willing to take a little more time. We did not factor in this two-plus year detour to this honorable Court.

QUESTION: What happened to the federal issue?

MR. OPSITNICK: Justice White, the federal issue was raised in the Complaint. The Complaint was filed shortly before the one-year statute of limitations on the state defamation claim that expired. Upon preparation of the depositions of Plaintiff and his wife, we determined that both procedurally and in fact, the allegation of age discrimination under the Age Discrimination Employment Act simply was not viable, that the factual thrust and where Plaintiffs will succeed if they do succeed, is solidly on a just common-law Pennsylvania employment unlawful discharge case. At that point, shortly after the deposition was taken of the Plaintiffs is when the Motion to Amend the Complaint, to delete the federal age discrimination claim, a very similar state age discrimination claim, state common law defamation claims and certain consortium allegations, was deleted.

QUESTION: If you are the Plaintiff in this case and you are in federal court by virtue of the removal, you have an opportunity to get to trial in federal court in a couple of months, and you are going to wait a lot longer in state court, why is it not to the Plaintiff's interest to have it tried in federal court?

MR. OPSITNICK: Three reasons, I believe, Mr. Chief Justice: one, the state court system would provide for quite possibly a settlement that would be favorable to the Plaintiffs.

QUESTION: You mean compulsory arbitration or something like that?

MR. OPSITNICK: Not compulsory arbitration. Simply the state court, given their, by comparison, crowded civil schedule, I think exercises much more --

QUESTION: Much more pressure.

MR. OPSITNICK: Much more "pressure," thank you, Justice White --

QUESTION: Pressure on both sides.

MR. OPSITNICK: On both sides.

QUESTION: And you wanted that?

MR. OPSITNICK: I did. While it sounds rather confusing, I must given the facts of this case --

QUESTION: Well, it sounds pretty plain to me.

QUESTION: So you want us to foul up all of the laws so you can do that?

MR. OPSITNICK: I do not, Justice Marshall. I do not think any law has to be fouled up.

QUESTION: Did you not file this case originally?

MR. OPSITNICK: Yes I did, Your Honor.

QUESTION: Did you not remand it?

MR. OPSITNICK: Yes I did, Your Honor.

QUESTION: You removed it?

MR. OPSITNICK: No, it was removed by the Defendant, by Carnegie-Mellon University.

QUESTION: And so now you want it remanded?

MR. OPSITNICK: Yes, Your Honor.

QUESTION: "Go back where I came from."

QUESTION: Well, you have wanted to be in the state court all along.

QUESTION: Right.

MR. OPSITNICK: Yes, Your Honor. It was filed by the Plaintiffs initially in state court in Pennsylvania.

QUESTION: So you wasted a lot of time, did you not?

MR. OPSITNICK: A lot of time has been consumed, Justice Marshall. I do not know whether Plaintiffs or this counsel would consider we had wasted a lot of time. I would agree with you.

QUESTION: Well, at this stage in this litigation, would you not be willing to agree that one of the courts is being maneuvered? Either the federal or the state? And after you answer that, which one?

MR. OPSITNICK: Justice Marshall, I believe that by your use of the word, "maneuvering," you try -- I hear something that says, "something improper." If the question is, "is one court over another chosen for a tactical reason, yes. At this point in time I could not say whether the state or the federal court --

QUESTION: Did you not withdraw that one particular clause in order to get it remanded?

MR. OPSITNICK: That was part of the reason, yes, Your Honor. In addition, there were state claims that simply were not viable. I mean, we were at a point after deposition where certain claims, among them the federal claim, was deleted.

QUESTION: The whole aim was to get it back to the state court?

MR. OPSITNICK: That was one of the thoughts, yes, Your Honor.

QUESTION: Well what was the other one?

MR. OPSITNICK: The other thought was to simply not pursue claims that were not going to be viable.

QUESTION: Your federal claim just was not any good, you decided?

MR. OPSITNICK: Yes, Your Honor.

QUESTION: You started to tell us there were three reasons why you wanted to be in state court. One is you wanted to settle the case. What are the other two reasons?

MR. OPSITNICK: I was getting to that, Justice Stevens. The -- I believe -- hindsight could prove me wrong that the state court jury that would be empaneled from residents of Allegheny County would give a more favorable hearing to the case than would the federal court jury empaneled from the Western District of Pennsylvania.

QUESTION: That is very interesting because I talked to the counsel who argued the Thermtron case here a couple of years after Thermtron. And he had exactly that reason for wanting to be in the federal court. He said, "I get jury from all over eastern Kentucky if I am in the federal court. If I am in this particular county, I get all welfare cases."

MR. OPSITNICK: Okay, but it is not the same situation, but we believe that -- excuse me?

QUESTION: It is vice-versa.

MR. OPSITNICK: Yes it is. And I would prefer having, rather than having a six-person jury from out of the 20-some counties that comprise the federal district, I would prefer the singular Pennsylvania county.

The third reason was that --

QUESTION: -- jury in the --

MR. OPSITNICK: State court, yes, Your Honor.

QUESTION: And only six in federal court?

MR. OPSITNICK: Only six in federal court.

The third reason, Justice Stevens, was and still is, that the state court rules permit an award of post-verdict delay damages in certain personal injury actions. Without going into detail, that was a --

QUESTION: It is kind of ironic. You expected delay damages, and yet you wanted to take the slower route to judgment?

MR. OPSITNICK: Well, that was not the overriding consideration, Your Honor.

QUESTION: No?

MR. OPSITNICK: It was a consideration nonetheless.

QUESTION: Mr. Opsitnick, if we agree with you that there is an inherent power to remand, explain to me what function is served by Section 1441(c)? Why does that provision not become completely superfluous?

MR. OPSITNICK: As Mr. DeForest pointed out, there are two types of remand in the statute. The mandatory remand under 1447(c) which everybody agrees does not apply, and the discretionary remand, that in 1441(c), although there is some confusion among circuit courts of appeal, it seems to say that in cases where there is a separate and independent controversy or cause of action, that is, cases where the non-federal claim would not be removable as pendent under 1441(b), there should be, similar to a pendent jurisdiction claim to remand, there should be a statutorily-created ability for the Court to have a discretionary remand.

QUESTION: But I am saying why would it have to be statutorily created? If you say that the courts have the authority to determine what they may remand, if it is not a federal question over which they must exercise jurisdiction, why would you have needed 1441(c)? What function does it serve if we take your view in the case?

MR. OPSITNICK: If my understanding, my reading of pendent jurisdiction is that because of the close factual proximity of the federal and state causes of action, the case would be removed. In a 1441(c) type removal, you do not have that close factual -- nexus --

QUESTION: I understand all that, but why do you have to tell the court you may remand if as you just told us we always have authority to remand? Why did Congress feel it necessary to say in 1441(c) that we have discretionary authority to remand? When you are telling us we always have it?

MR. OPSITNICK: The discretionary authority to remand comes from the doctrine of pendent jurisdiction which would apply in a 1441(c) case.

QUESTION: "The discretionary authority?"

MR. OPSITNICK: If I may continue for a moment, it seems as though cases removed pursuant to 1441(b) can be remanded -- there is provision already for discretionary remand pursuant to the pendant jurisdiction doctrine. Cases remanded -- or cases removed, excuse me -- pursuant to 1441(c) are not, as I read the statute and the cases, are not pendent jurisdiction cases. The case in front of this court was a pendent jurisdiction case pursuant to 1441(b), and not (c).

QUESTION: So you think there is inherent authority to remand pendent jurisdiction cases? That is just inherent, right? But there is no inherent authority to remove cases which even have less reason to be in federal court than pendent jurisdiction cases, to wit: separate and independent claims?

MR. OPSITNICK: Yes, Your Honor. I admit that is confusing --

QUESTION: It is not confusing. It is strange.

MR. OPSITNICK: It was inserted in, I believe, 1948.

The Thermtron case must be discussed and distinguished at this point. As I pointed out earlier, there were certain factual differences. The primary factual difference is the fact that Thermtron was a diversity case and Justice White in his Opinion framed the issue, "shall a" -- I am sorry, Your Honor.

It was not a pendent jurisdiction case: pendent jurisdiction was not discussed. The Thermtron case --

QUESTION: When you say, "pendent jurisdiction," Mr. Opsitnick, your distinction between "pendent jurisdiction" and "federal question jurisdiction," I mean, (b) of 1441 really does not talk about "pendent jurisdiction." It talks about federal question jurisdiction.

MR. OPSITNICK: Yes, it does. I agree with you. So you are using the two interchangeably -- pendent question and federal question?

MR. OPSITNICK: I am in this context, and I do not know if that is technically correct.

QUESTION: I do not either, so I will not correct it.

MR. OPSITNICK: Mr. Chief Justice, the case -- the basis for the removal in Thermtron was the diversity. The basis for the removal in the present case is the existence of a federal question.

The Thermtron decision concentrated primarily -- the primary thrust was whether not so much that mandamus should issue, but whether the matter should be reviewed at all. That is not an issue in this case. In fact, the Thermtron decision holds in part when it gets to near the end of the Opinion, where it indicates that mandamus should indeed issue in this case because there was no basis to remand, no valid basis to remand the case to state court, it says in essence that, because there was no foundation at all, having the phrases, "resting on grounds having no warrant in the law," and "not limiting it strictly to the statute."

For those reasons, I believe that the holding of this Court in Thermtron is non-applicable to this situation. That the discretion that the district court would have to remand the case under Gibbs and pendent jurisdiction, can be dealt with consistently with the holding of this Court in Thermtron, that indeed, non-1447(d), 1447(c), remand cases, can be reviewed under mandamus and strictly in Thermtron, mandamus should issue.

QUESTION: Thermtron also discussed, and in the first part of the Opinion, the provision of 1447(c) about the circumstances under which a district court could remand, could it not?

MR. OPSITNICK: Yes, it did. The circumstances under 1447(c) where it must remand, the 1447(c) type of remand when there is a lack of jurisdiction or the removal was improvident, is mandatory.

QUESTION: What other types of remand are there provided by the statute?

MR. OPSITNICK: In 1441(c), as pointed out by Justice Scalia, there is a discretionary remand, where the removal is pursuant to that section, where separate and independent claims --

QUESTION: That is not your case, is it?

MR. OPSITNICK: It is not. This is not a 1441(c) removal, no, Your Honor.

QUESTION: So what kind of a remand is yours?

MR. OPSITNICK: It is a remand pursuant to the admittedly non-statutory doctrine of pendent jurisdiction.

QUESTION: In other words you are saying that the district court may, under some circumstances remand in areas not specified under the removal and remand statutes?

MR. OPSITNICK: Yes, Mr. Chief Justice.

QUESTION: And is there any case from our Court that says a district court does have authority to remand in a situation where a remand is not authorized by the statute?

MR. OPSITNICK: I have not found one. Because, as it was mentioned, Gibbs was not a removal case, remand was not a viable alternative. Obviously, the thrust of my argument is that logically remand in this case would follow under the directive or under the ability, of the local court in Gibbs to dismiss without prejudice.

QUESTION: Maybe the district court could have kept the case? If you are relying on Gibbs in pendent jurisdiction, I suppose you would say --

MR. OPSITNICK: Under an analysis of those factors, with the district court making the finding that it did, that there were no federal ramifications, and that trial was not near, I think the Court would be hard-pressed, given the factual findings, to retain jurisdiction of the case; retain the case.

QUESTION: Well, do you think if you would have retained it, and the case got here, we should say he made an error in retaining it? That he did not have the discretion really to retain it?

MR. OPSITNICK: No, because he -- the lower court has a certain amount of --

QUESTION: Well, do you think he could have -- did he have three options: retain it; remand it; or dismiss it?

MR. OPSITNICK: He did, Your Honor. Dismissal without prejudice. He had three options. And the court, on the factual --

QUESTION: There are two ways, you agree, that he could have gotten rid of the case?

MR. OPSITNICK: Yes, Your Honor. Those ways being, to remand it or to --

QUESTION: Well, Gibbs would say, would point to, dismissal.

MR. OPSITNICK: To dismiss it, because the remand was not an option. The -- I think remand in a case like this, and dismissal without prejudice from the point of the federal court, sending it to state court, is equivalent.

QUESTION: Is there -- when a remand takes place and it is a proper remand, is it -- it is just out of the state court, is it not?

MR. OPSITNICK: When removal takes place?

QUESTION: When a case is -- removed from a state court, it is just out of a state court?

MR. OPSITNICK: Yes, Your Honor.

QUESTION: And they just burn up the file, or what do they do with it?

MR. OPSITNICK: Well, no. They simply, as I understand the mechanics, transfer the file from the state court to the --

MR. OPSITNICK: It goes right out?

MR. OPSITNICK: Right. It went in Pittsburgh from one end of the street to the federal clerk at the other end of the street.

QUESTION: How old is the -- is the remanding of that the so-called "remand to the state court," in a case like this any different than if the case had been filed in federal court? And under a Gibbs pendent jurisdiction theory, and then the federal claim dropped out, could the federal court then remand it to a state court?

MR. OPSITNICK: I do not -- if it were an original jurisdiction case to begin with, I do not think so.

QUESTION: Why not?

MR. OPSITNICK: Your Honor, "remand" seems to be a docket-clearing --

QUESTION: Well, then why could you do it in this case?

MR. OPSITNICK: Because it was in state court originally. I say that from the state court view, they are not the functional equivalent. From the federal court -- from the court sending the case to state court, they are the functional equivalent.

QUESTION: Do you not think that the file -- is in the state court again?

MR. OPSITNICK: My understanding is if the Order remanding the case is upheld -- no, Your Honor. That it would simply go back -- the file would be lodged -- back in the civil court Prothonotary. I would then have the opportunity to list the matter for trial.

QUESTION: It even takes the old Court file number, does it not?

MR. OPSITNICK: Excuse me, Your Honor?

QUESTION: It even reassumes the old court file number?

MR. OPSITNICK: I would think it would.

QUESTION: At least that is the way it used to be 100 years ago when I was practicing.

MR. OPSITNICK: Yes, Your Honor. In talking to the Prothonotary, or the Civil Clerk's staff, that is my understanding. It would go right back where it was.

QUESTION: Mr. Opsitnick, can I ask you sort of the same kind of question that I was asking Mr. DeForest: it is my guess that if a federal court remands under 1441(c), which is a specific congressional authorization to remand, it is my guess, although I have not heard argument on it, that the state court would have to take the case back.

Now, under the remand that you are proposing to us, would the state court have to take the case back? I think they would because it was properly filed in the state court to begin with, and this comes from our inherent powers. We have an inherent power to make the state court take the case back.

MR. OPSITNICK: I do not think we do, Mr. Justice. I think the state court, when that case is returned to it, has the power, the obligation to permit that case to proceed.

QUESTION: But you are saying that that is a state law obligation? It has a state law obligation to entertain suits that are properly filed with the state court?

MR. OPSITNICK: Yes.

QUESTION: The question has never come up. I have never heard of it coming up. When they are remanded they just take one folder from the federal court and put it in the state court. It is the same folder.

MR. OPSITNICK: Yes, Your Honor. I think Justice Scalia's point was, "what if," and it is, "was there some way we could contest that?" I do not know the answer to it, but I think in a remand --

QUESTION: Arguably they have done so, because there is a federal statute that says the thing can be remanded. I would assume that has the force of federal law and that the state court would have to take it back. I am not quite as certain about the fact of what happens if we decide that we have some inherent power to remand -- is it a mandatory power binding the state court, or is it just sort of precatory? I have no idea.

QUESTION: Well, may I just say that I do not think the state court would have to take it back if as a matter of state law there no jurisdiction and no viable cause of action, I suppose they could dismiss it just like they could dismiss a suit that was filed in the state court in the first place.

MR. OPSITNICK: If there were no jurisdiction and no cause of action, I would agree with you.

QUESTION: Is there no service on the Defendant? The fact that a federal judge sends the papers over is no different, is it, than if the Plaintiff sends and files the papers. If there are papers before a judge then he has some kind of state law duty to do what he is supposed to do with them.

MR. OPSITNICK: No, I think there is a difference, Your Honor. I think, as in this case, if the case is timely filed and proper service was made, whether it is transferred to state court --

QUESTION: What Justice Scalia is suggesting and you are apparently agreeing with him, the duty to go forward with the case after it is remanded, is a federal duty, rather than a state duty. I just question that.

MR. OPSITNICK: Well, I say that I believe I say that while I am certainly not solid on that point, because as Justice Marshall said, it is something that has not, or presumably would not come up, I would think my basis would be under state law, since the case was timely filed and served properly, that they under state law have an obligation to proceed with the litigation until such time as it would be -- go to verdict or be dismissed on some other valid basis, but I do not think they could reject it out of hand just by virtue of the fact that, "we have not had this case."

QUESTION: Has there been any indication from the Prothonotary or otherwise, that they were going to reject it out of hand?

MR. OPSITNICK: None at all, Mr. Chief Justice. Their limited experience is, as I found out in investigation, that they simply take the case -- physically return it to where it would go and it begins again where it left whenever it was removed.

To conclude, the doctrine of pendent jurisdiction was not affected by the holding of this Court in Thermtron Products. They are both viable rulings. The district court's remand of a pendent state law claim, as in here, when the underlying federal law claim, the basis for removal has been deleted, is permissible, in that Order remanding the case to state court should be upheld, it is the position of the Respondents that no mandamus should issue. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Opsitnick.

Mr. DeForest, you have three minutes remaining.

ORAL ARGUMENT BY WALTER P. DeFOREST, ESQ. ON BEHALF OF PETITIONERS -- REBUTTAL

MR. DeFOREST: Thank you Mr. Chief Justice.

First I would like to emphasize one very important consideration that has not been considered: there is a very important difference between remand and dismissal, and that is in regard to the scope and nature of appellate review. And that is a very important factor to a litigant, as I can say.

If we are talking about remands, there are going to be situations in which there is much more limited scope of review. If you are talking about dismissals it is very clear that the courts have set up a very strict mechanism for reviewing dismissals, and that is an important consideration. I suggest that there are a number of "what if" questions that have not arisen simply because up until now, remand has been pursuant to a federal statute, that these have been occurring, remand is in --

QUESTION: But is it not a fact that there is a conflict on the point we were discussing today in that a lot of courts have been following the rule you think has not -- should not, apply.

MR. OPSITNICK: Well, Justice, I do not think those courts, and there has been some suggestion if you look at the Fourth, the Eighth and the Second Circuits' Opinions, they do not even discuss this Court's Thermtron Opinion. So I am not sure what they were doing.

QUESTION: But some of the other courts do.

MR. OPSITNICK: Yes, Justice, they do. The Sixth Circuit does, and the Sixth Circuit essentially goes off on the pendent jurisdiction theory. And that pendent jurisdiction in my judgment talks about the power to keep a case.

What we are talking here of is a power to transfer a case. I think that -- is an important consideration. I do not think it could be arguably limited to removal cases. If there is a power to transfer cases, it is going to apply to any case in federal court that I know of if there is some inherent power. I do not know how we would have some common law inherent power that is going to be limited to the removal statute. If it is there it is going to be for all transfer of all cases in federal courts, in my opinion.

Second, the considerations Mr. Opsitnick set forth to you, the three considerations, in my judgment are situations where a litigant desires to control a forum. For whatever reason, that seems to me a consideration that Congress has faced and determined when there will be permission to remand these cases. And it does not want the power to control the forum to be in the hands of the litigant.

And in the St. Paul case --

QUESTION: That is precisely what you are trying to do.

MR. DeFOREST: No, Justice.

QUESTION: You removed to federal court.

MR. DeFOREST: I had a statutory right to do that, Justice.

QUESTION: But of course. But you still are trying to control it. You could have left it in state court.

MR. DeFOREST: I had --

QUESTION: The case would have been tried long-since.

MR. DeFOREST: I am urging that the power to control the forum is not a basis for the creation of a judicially-created power. My decision to exercise a statutory power that congress has given me is in my judgment something that is permissible under the statute.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. DeForest. The case is submitted.

[Whereupon at 1:52 p.m. the case in the above-entitled matter was submitted.]

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 86-1021, Carnegie-Mellon University versus Cohill will be announced by Justice Marshall.

Argument of Justice Marshall

Mr. Marshall: This case is here on certiorari to the Court of Appeals to the Third Circuit.

Here we hold that a Federal District Court has discretion under the doctrine of pendant jurisdiction to remand and remove the case to a State court when all federal-law claims in the action have been eliminated and only state law claims remain.

Accordingly, we affirm the order of the Third Circuit denying petitioners' application for a writ of mandamus.

Justice White has filed a dissenting opinion in which the Chief Justice and Justice Scalia have joined.