SYNGENTA CROP PROTECTION, INC. v. HENSON

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Argument of Henry B. Alsobrook, Jr.

Chief Justice Rehnquist: We'll hear argument now in No. 01-757, Syngenta Crop Protection, Inc. v. Hurley Henson.

Mr. Alsobrook.

Mr. Alsobrook: Mr. Chief Justice, and may it please the Court:

In Kikkonen v. Guardian Life, this Court hypothesized the very situation that we have before you this morning because here we have a nationwide class action settlement where the court specifically by judgment retained jurisdiction to manage the settlement as well as enforce it.

A critical part of that settlement was the dismissal of this case.

However, when class counsel went to dismiss the case, as the Eleventh Circuit pointed out and as the district court pointed out, his efforts were thwarted and the case was not dismissed.

Chief Justice Rehnquist: Mr. Alsobrook, I see you've changed the question presented from the time in your certiorari petition to your opening brief.

And the question presented, when we granted, referred to 28 U.S.C., section 1441, and now you have dropped your reference to that.

Does that mean you're abandoning reliance on 1441 or simply broadening the question?

Mr. Alsobrook: No, sir.

We... we're saying that under 1441 that because the district court retained jurisdiction, that that was original jurisdiction to remove the matter, and that actually, Your Honor, when we removed this, they... the majority of circuit courts of appeals, namely the second, sixth, seventh, and eighth, had said that the proper vehicle to remove this was the All Writs Act.

And that is what we are claiming today, as well as 28 U.S.C. 1367 ancillary jurisdiction, and we have set that out in our brief.

Justice Ginsburg: But you have no right to remove under 1441 because there wasn't complete diversity in the Louisiana suit.

Isn't that right?

Mr. Alsobrook: That is correct.

Justice Ginsburg: So you can't rely on 1441 and that's conceded.

Mr. Alsobrook: We... we can... our reliance on 1441 was based on the fact that the Alabama court retained original jurisdiction and--

Justice Ginsburg: But that's not... nothing in 41 rests on that.

It has to be a case that would qualify for original jurisdiction, and you don't have that.

Mr. Alsobrook: --Yes, Your Honor, but we... we construed that as being a venue rather than a... a... because the Alabama court had original jurisdiction.

And certainly under 1651--

Chief Justice Rehnquist: What did you construe as being venue?

Mr. Alsobrook: --The... the fact that we had to take it to a Federal court in the district where the State court suit lay, and then it was immediately transferred to the... to the Alabama court.

Chief Justice Rehnquist: Yes, you... you can't remove a case to a Federal court outside of the district in which the State court sat, is my understanding.

Mr. Alsobrook: That's right, Your Honor.

We took... we took our road map from Agent Orange Product Liability.

There they had a Texas--

Chief Justice Rehnquist: Who is they?

Mr. Alsobrook: --There, there was a--

Chief Justice Rehnquist: What court are you talking about?

Mr. Alsobrook: --We're talking about the Second Circuit.

And--

Justice Ginsburg: Initially the Eastern District of New York, Judge Weinstein's--

Mr. Alsobrook: --Yes.

Justice Ginsburg: --order, which was in no way based on 1441.

It was based on 1651.

Mr. Alsobrook: But, Your Honor, also in that case was the case of Ryan, and in Ryan, it was brought by to class members in the State court in Texas.

And it was removed to the Federal court in Texas and then transferred to the Eastern District of New York.

And that was our road map for getting this case to... back to Alabama.

Justice Ginsburg: But that was all done under the All Writs Act or what they thought was the authority granted by 1651.

Mr. Alsobrook: Yes, and we also, Your Honor... in our removal petition, we pled the All Writs Act, as well as ancillary jurisdiction under 1367.

Chief Justice Rehnquist: Well, what is your theory under the All Writs Act?

Is your theory that removal is itself... comes under the All Writs Act?

Mr. Alsobrook: We contend that... that in order for the Court--

Chief Justice Rehnquist: Can't you answer the question yes or no?

Mr. Alsobrook: --Oh, I'm sorry.

I'm sorry.

Yes.

Chief Justice Rehnquist: I thought the All Writs Act required the existence of some sort of a common law writ like certiorari or prohibition or injunction or something like that.

There... there never was a common law writ of removal.

Mr. Alsobrook: That is correct, Your Honor.

But the jurisprudence, particularly the Agent Orange case--

Chief Justice Rehnquist: Well, but can you cite any of our cases that support you in this respect?

Mr. Alsobrook: --Well, I can cite the New York Telephone case where the Court said that... that removal was... not removal, but a writ under the All Writs Act was... was proper to avoid the frustration of judgment, and that was... that was certainly the situation here.

Chief Justice Rehnquist: But... but that was a different... that was an existing writ.

Here... here you're saying, in effect, that removal is... is itself a writ.

And I simply don't see how the cases support you there.

Mr. Alsobrook: I agree with that, Your Honor.

Justice O'Connor: Do you agree that the All Writs Act is not a source of original jurisdiction?

Mr. Alsobrook: Yes, ma'am.

Yes, Your Honor, by the--

Justice O'Connor: Why... why then didn't you try to get an injunction in the district court in Alabama?

Mr. Alsobrook: --There were two reasons, Justice O'Connor.

First is that an injunction would not dismiss the case.

An injunction would enjoin the... the State court suit from going forward.

Justice O'Connor: Yes.

Mr. Alsobrook: And we would have had... our client would have had to carry this as a liability on their books ad infinitum.

Justice Kennedy: Well, couldn't the injunction have ordered the party to dismiss the case?

Mr. Alsobrook: Yes, they did... they could, Your Honor, and--

Justice Kennedy: But then why... why wouldn't that be sufficient?

Mr. Alsobrook: --I suppose it would have been.

Justice Breyer: But if that's so, then why don't... why are we trying to read into 1441 language that isn't there and read requirements out of 1651, requirements that are there, when there was another way, totally consistent with the words, the statute, everything else, that you could have achieved any legitimate objective that you had?

Mr. Alsobrook: Well, Justice Breyer, at the time that we did this, as I said earlier, there was... the majority of Federal circuit courts said that the proper vehicle was to remove the case and get it before the court where... that had issued the judgment.

Today with the number of class action settlements that are going on, there must be some kind of way by which a Federal court who issues a judgment can enforce that judgment across State lines.

Justice Breyer: There is.

Isn't that just in your answer to Justice O'Connor and Justice Kennedy?

You provided the way.

Mr. Alsobrook: Yes.

Justice Souter: The... the only loose end, it seems to me, that... that you have left, after your answers to Justices O'Connor and Kennedy, is the problem you say your client would have in carrying liability on the books until the second action was somehow finally terminated.

But isn't the answer to that that once you had gotten either the injunction or simply the... the order to the parties under the retained jurisdiction, you then could have gone into court in the second suit and said, they cannot prosecute the suit?

It has been enjoined.

Therefore, please dismiss it.

Wouldn't you have gotten your dismissal and wouldn't that have taken the... the liability off the book?

Mr. Alsobrook: I don't know, Your Honor.

Justice Souter: Well, I... I guess why wouldn't that have been the appropriate course?

Mr. Alsobrook: I... I presume that the State court under those circumstances would dismiss it, but we don't know that as a matter of fact.

Justice Kennedy: I... I was thinking about different writs, and you've researched this more thoroughly than I, I suspect.

I thought the closest thing here was a writ of certiorari.

This is like a writ of certiorari, but a writ of certiorari is from a superior court to an inferior court.

And I... I don't think that's the way we treat State courts and Federal courts.

Mr. Alsobrook: That is correct, Your Honor.

And another reason--

Justice Kennedy: And... and... which... and so that the absence of that kind of... of writ indicates to me that the safer course, the more prudent course is to rely on the standard equitable remedies such as injunction that we've been discussing.

Mr. Alsobrook: --That is correct, Your Honor.

Justice Scalia: Except that a lot of other lawyers had... had relied on the course that you relied on.

Mr. Alsobrook: That's correct, and a lot of--

Justice Scalia: You were following what had been a successful course in the past.

Mr. Alsobrook: --And not only that, a lot of judges.

Justice Scalia: Well, to be sure.

Mr. Alsobrook: And so there were a plethora of district court cases that allowed the removal under the All Writs Act and took jurisdiction where they had jurisdiction originally under the cases of NAACP, under the Agent Orange case, and the Sixth and Seventh Circuit cases.

Justice Ginsburg: Were there any cases under the relitigation exception to the Anti-Injunction Act that used that device, the antisuit injunction, to accomplish the same thing?

Mr. Alsobrook: Well, Your Honor, no.

The Tenth Circuit had ruled that the... that the All Writs Act could not be used in this... in the method that we used it.

We are not unmindful of Rivet v. Regions, but we... our situation there... our situation in this case is much different--

Justice Ginsburg: But that was... that was a question of fighting it out in the State court, and it's not the antisuit injunction that we're discussing now.

Rivet said it's an... preclusion is an affirmative defense.

You can raise it in the State court that prior Federal litigation precludes this case.

The other way to go is to ask the court that entered the judgment, the class action judgment, the nationwide class action, to enjoin the party who was supposed to have settled the claim from proceeding in the... in the original case when part of the bargain was to dismiss it.

So I... I'm just curious why you didn't attempt that route.

Mr. Alsobrook: --We didn't attempt that, Your Honor, because the majority of the circuits at the time approved the All Writs Act as the vehicle with which to remove the case and to get it back before the district court.

Additionally, we felt that it... State courts have cases removed all the time to Federal court.

And we thought it would be less onerous to the State court judge to have it removed rather than being enjoined by a Federal court.

Justice Ginsburg: I don't understand that because right... built right into the removal provision is a command that the State court shall proceed no further.

So the removal petition acts as... as a... an injunction against the State court proceeding further.

Mr. Alsobrook: Well, the removal petition... actually the court loses jurisdiction of it at that time because they... it... it is removed to... to the Federal court.

And there again, Justice Ginsburg, the... we felt that it was less onerous and there was some jurisprudence or some dicta and some legal writing that indicated that it would be less onerous to the State court judge to have it removed rather than have it enjoined.

Justice Stevens: May I ask this question?

Looking at the language of the All Writs Act, which authorizes all courts established by act of Congress to issue writs necessary or appropriate in aid of their respective jurisdictions and so forth.

Now, in this case, you removed from the Federal... to the Federal court in Louisiana in order to protect the jurisdiction of the Federal court in Alabama.

Mr. Alsobrook: Yes, sir.

Justice Stevens: How do you square that with the language, respective jurisdictions?

Mr. Alsobrook: Well, Your Honor, there again we had to rely on Agent Orange.

Justice Stevens: You don't rely on the statute, though.

Mr. Alsobrook: Well, we relied on the statute because it says in the aid of their respective jurisdiction, and--

Justice Stevens: Don't you think that refers to the court to which removal would take... would occur?

And here it's the Louisiana Federal court, not the Alabama Federal court.

Mr. Alsobrook: --Yes, sir, and we... it was our position that there... there respective jurisdiction related to the Alabama court.

That is our position.

Justice Stevens: Even though you removed to the Louisiana court.

Mr. Alsobrook: We had to, Your Honor.

That... under 1441, we had no alternative but to remove it.

We couldn't have removed it from the Louisiana court to the Alabama court because 1441 by venue says that it has to go to the Federal district court in the... of the district where the case lies.

Justice Ginsburg: But 1441 wasn't available to you.

So as long as something new is being created in... under 1651, why not say that... that the court that has jurisdiction over the class action can issue orders to stop inconsistent litigation?

Mr. Alsobrook: That could be done under the Anti-Injunction Act, Your Honor.

There's no doubt about that.

And as... as--

Justice Ginsburg: But do... as far as... you're creating a removal that doesn't exist by statute.

So not... why not go all the way and say, under the All Writs Act, we can remove to the... from the Louisiana State court to the Alabama court?

Why touch base with 1441 when 1441 is inapplicable?

Mr. Alsobrook: --Because 14... we didn't know of any other vehicle that would allow us to remove it from Louisiana to Alabama.

Even the All Writs Act would not allow us to remove it across State lines or even out of the district.

Certainly if this case had been brought in Mobile, then we wouldn't be here today because the... the court in Mobile would have authority to... to remove it to that district.

But it was brought... brought across State lines.

And again, we followed the road map that had been set out for us in Agent Orange.

Justice Ginsburg: But you still have problems even if it were to the Middle District of Alabama, because you don't have complete diversity in the Louisiana action.

Therefore, 1441 doesn't apply.

You would still have to use your All Writs Act theory even if the case were pending... if the Federal and State court were in the same State.

Mr. Alsobrook: Well, Your Honor, we feel that... that under... under the hypothet set out in Kikkonen that the Alabama court would have jurisdiction to take that case.

Justice Scalia: Mr. Alsobrook, what is... what is this writ called?

I mean, Lyndon Johnson is... is once supposed to have asked somebody in the Justice Department to get him a writ of fixitatis.

Unknown Speaker: [Laughter]

Justice Scalia: What... what is this writ called?

A writ of removal?

Mr. Alsobrook: This could be a... well, there is no writ for this, Judge... Justice.

There isn't any writ for this.

Justice Scalia: Well... well, then how can you do it under the All Writs Act?

Mr. Alsobrook: Because in other cases, the All Writs Act has been used to... to remove cases to avoid a State court case from thwarting a Federal judgment.

Justice Breyer: Certiorari I guess is the closest.

Historically you could have sent certiorari... a court to any other court and to any administrative agency.

I guess that would be the closest historically.

Would it?

Mr. Alsobrook: Well, I think Justice Kennedy brought that up and--

Justice Breyer: Yes.

As we've come to limit it, it's... it's higher to lower, but if you go back into history, it wasn't, I don't think.

I mean, has it come down to saying, look, you were in a situation where you thought that the signer of the stipulation was flat out violating it, and you didn't know what to do, so you read the precedent, and there was precedent that suggested, under the lower court precedent, that this was the right thing to do.

So you did it.

Mr. Alsobrook: --Yes, sir.

Justice Breyer: Okay.

Now, if you turn out to be wrong, what should we do next, assuming you're right about the stipulation?

They just flat-out wouldn't follow it.

And... and suppose you were wrong about the route.

Have you any suggestion for us as to what to do?

Do we... I guess we'd have to dismiss... order this case dismissed without prejudice to your going to the Alabama court and... and asking them to enjoin?

Or what is your suggestion about what we should do--

Mr. Alsobrook: Well--

Justice Breyer: --if you're right on the merits of this thing?

Mr. Alsobrook: --If we're right on the merits, Your Honor, what I suggest you should do is reverse the Eleventh Circuit.

Justice Breyer: I don't mean the merits of the procedural issue.

Suppose that you're wrong about that, hypothetically, but you're right about your basic instinct, that they signed a piece of paper saying, we promise to dismiss this case in the State court and then they didn't.

They just didn't do it.

That was your view of this.

Right?

Mr. Alsobrook: Yes, sir.

Justice Breyer: All right.

So have you any suggestion for us about how we might help you achieve that ultimate objective, and by us, I don't mean this Court particularly.

I mean the law.

The law should provide a way that you get that objective if you're right.

Mr. Alsobrook: I would... the alternative I would suggest is to remand the matter to the Federal district court in Mobile with instructions for them to file an injunction or a contempt proceeding against the party--

Justice Ginsburg: But that would be up to you to... I mean, the court doesn't initiate an injunction.

You'd have to ask for it.

And I assume you would be free to do it.

If all this Court would decide, if it decided against you, was that the All Writs Act is not available for this purpose, that would leave you as though you had never pursued that route and you could pursue another.

There's something curious about this case, and maybe you can... you can help me understand it.

When the plaintiff's class counsel in Price went into the Louisiana court and said, Louisiana court, drop that case, dismiss that case, the defense counsel wasn't there.

Mr. Alsobrook: --No.

Justice Ginsburg: Why not?

Mr. Alsobrook: Your Honor, this is not in the record but I was that counsel, and I had talked with the class counsel days before, and he assured me that he would take care of it and there would be no problem.

We didn't anticipate this happening because the language of the stipulation of settlement, which the respondent signed, was so specific that we couldn't imagine that the State court judge would not dismiss it on the motion of class counsel.

Justice Ginsburg: So you were relying on plaintiff's counsel--

Mr. Alsobrook: Yes, ma'am.

Justice Ginsburg: --to do... to do that job for you and felt you didn't need to appear in the State court.

Mr. Alsobrook: He actually told us we didn't have to appear, that he would take care of it.

Justice Scalia: Mr. Alsobrook, if we disagree with you and reverse the... and affirm the Eleventh Circuit, we would be affirming a decision that says in its conclusion, we accordingly vacate the district court's order dismissing Henson and remand with instructions for the court to remand Henson to Louisiana State court.

We do not, however... this is part of what it said... we do not, however, imply that the district court may not by injunction force Henson's dismissal.

So, you know, we wouldn't have to say that... that our decision here was without prejudice.

The decision of the Eleventh Circuit was said to be without prejudice.

So you... you'd be able to, as far as the Eleventh Circuit opinion is concerned, get... get the injunction.

Mr. Alsobrook: Yes, sir, but the--

Justice Scalia: I wonder why it wasn't... wasn't more efficient for you to seek the injunction instead of coming up here.

Mr. Alsobrook: --Well--

Justice Scalia: I guess... I guess--

Mr. Alsobrook: --Justice Scalia--

Justice Scalia: --your answer is better to have two bites at the apple than one.

Right?

Mr. Alsobrook: --Yes, sir.

And--

Justice Scalia: Even if you lose here, you can then seek the injunction.

Mr. Alsobrook: --And also because the majority of the circuits have approved the procedures that we followed in this case.

You have the Second Circuit; you have the Sixth, Seventh, and Eighth.

And--

Chief Justice Rehnquist: Well, what was the reasoning of those circuits?

Mr. Alsobrook: --The reasoning of those circuits were that they had retained jurisdiction to enforce their judgments.

For example, if you take NAACP II... rather, NAACP I, the court remanded the case to the circuit court.

NAACP II, the court said that because they had retained jurisdiction in an order, that they could go forward under the All Writs Act.

Chief Justice Rehnquist: And what... did they specify what kind of a writ it was they were talking about?

Mr. Alsobrook: No, sir.

Chief Justice Rehnquist: I should think that might have made you a little hesitant to rely.

Mr. Alsobrook: Well--

Chief Justice Rehnquist: It's a good defense to a malpractice action.

Mr. Alsobrook: --Well, we had to rely on what the courts were telling us, Your Honor... I mean, Mr. Chief Justice.

Justice Stevens: Were those cases in which there were two... two different districts involved?

Mr. Alsobrook: The Agent Orange case, there were two different districts, yes.

Justice Stevens: But all of them were not, were they?

Mr. Alsobrook: No.

Justice Stevens: Weren't some of them... yes.

It seems to me it's quite different if you're remanding to the court where the problem arose than remanding to a different court.

Mr. Alsobrook: That's right.

Justice Stevens: Yes.

Or removing, rather.

Mr. Alsobrook: That's right.

Chief Justice Rehnquist: Do you wish to save the--

Mr. Alsobrook: Yes, sir.

Chief Justice Rehnquist: --remainder of your time for rebuttal?

Mr. Alsobrook: Thank you.

Argument of David Jeremy Bederman

Chief Justice Rehnquist: Very well.

Mr. Bederman.

Mr. Bederman: Mr. Chief Justice, and may it please the Court:

The All Writs Act may not be relied upon to remove an otherwise unremovable case.

It is Congress's province to define the limits of removal, and chief of these is the requirement of original jurisdiction in Federal court.

Justice Scalia: Mr. Bederman, I just asked your... your friend to... to explain why he was up here.

Why are you up here?

Because even if you win, the case will... you know, don't you think that an injunction will issue?

Mr. Bederman: Very likely Mr. Alsobrook will apply, as the Eleventh Circuit invited them to, for an injunction.

Such an injunction could proceed because under this Court's decision in Parsons Steel, the State court has yet to issue a conclusive ruling about preclusive effect.

And therefore, they're at liberty to.

We are, by no means, conceding the... the substantive merits of the injunction motion whether they would have a substantial likelihood of success on the merits, but we would certainly agree that they have the ability to file an injunction immediately.

Justice Scalia: Why... why... okay.

What... what is at issue on the merits?

Mr. Bederman: The issue on the merits would be presumably the proper construction of the settlement agreement--

Justice Scalia: Of the settlement agreement?

Mr. Bederman: --That's right.

And, of course, whether an injunction, narrowly tailored to the parties, would, as... as the Justices have already indicated, be properly addressed to the parties to order dismissal of the case.

Justice Scalia: Okay.

So you... you would... you would contest the injunction just as you're--

Mr. Bederman: We would contest the merits of the injunction.

We would not context the ability of them to file for the--

Justice Breyer: --You can say in a sentence... as I read this, it says, class counsel hereby stipulates that the related case, including any and all claims, will be dismissed.

And then it defines related case to refer to Hurley Henson by number in the State of Louisiana.

Mr. Bederman: --That's right, Justice Breyer.

Justice Breyer: So I'm just curious what the defense would be.

Mr. Bederman: The only defense that... that I could imagine is the ambiguity in that provision, as you were reading, at 38a of the joint appendix, that the concern about whether including any and all claims, including without any limitation any claims defined herein.

And what has not been made clear is that there were subsequent amendments to the stipulation, which made clear that certain classes of claims were excluded.

Justice O'Connor: Well, I guess that isn't before us here--

Chief Justice Rehnquist: --It's not before us.

Justice O'Connor: --is it?

Mr. Bederman: Certainly not, Justice O'Connor.

What's before this Court is what is the proper procedural mechanism to be used here.

Justice O'Connor: And several circuits have allowed the All Writs Act to be used in this fashion, do you think?

Mr. Bederman: In this fashion?

Yes, Justice O'Connor.

That clearly this is what I would characterize as a newfangled procedural device that was launched by the Second Circuit after the Yonkers and Agent Orange cases; that it has developed, as I think Mr. Alsobrook fairly characterizes, a momentum of its own in the court of appeals.

Justice Ginsburg: In the Yonkers case, the United States Government urged the court to take that position, didn't it?

So it wasn't something newfangled that the court dreamed up on its own when it was the Department of Justice urging it.

Mr. Bederman: That is true, but my recollection of... of the procedural background with the Yonkers case was that there was some concern about how Judge Sand drafted the consent decree in that case.

He... as was later acknowledged, Judge Sand had been perhaps misled by certain representations made by the Archdiocese of New York and therefore he did not include a provision that would allow for a subsequent injunction or... or a retention of jurisdiction.

That may have led the court in that circumstance to invoke All Writs Act.

But there, again, the complete alternative was an injunction that could have issued in these New York land use proceedings that were pending in State court.

So even in Yonkers, which presents, I think, analytically a very different context here, not a preclusion case, not a case that turns on the construction of an earlier Federal court judgment or settlement, there was the availability of injunctive relief.

In that case, the Second Circuit bypassed that... that reasoning and went straight towards an All Writs Act basis--

Justice Ginsburg: But you said you would defend against injunctive relief on the ground that the settlement was narrower than--

Mr. Bederman: --We would defend essentially on the merits, is that an injunction should not issue because our construction of... of the settlement is--

Justice Ginsburg: --Well, why didn't you seek that construction from the court that issued... that... that entered the settlement?

Why go to another Federal court?

Louisiana doesn't know anything about this case... instead of saying, Alabama Federal District Judge, please clarify the scope of the settlement so that we can either go on with our case or know that we can't?

Mr. Bederman: --We believe that the proper course is... in view of the precise enumeration of the... of the case in State court, that the proper course was to amend the petition and seek a resolution.

Mr. Henson and his counsel could have very well initiated an entirely new case and evaded the terms of... of the settlement in that fashion.

They agreed and decided that the proper course, the more forthright course was to seek leave to amend the petition to make clear that certain claims were dropped by virtue of the earlier settlement, but there were remaining claims in play.

And it was believed that this was the most forthright approach to... to use here.

I would credit, Justice Ginsburg, that it may have been equally appropriate to go back to the Federal court, seek a declaratory judgment or some kind of decision in that fashion.

But I believe that this course was certainly honest and forthright on the part of counsel below.

I... I hardly think it may be necessary to indicate that the All Writs Act does not confer jurisdiction under 1441, as was already made clear in certainly the questioning and certainly in view of petitioners' discussion.

Original jurisdiction has always been required and has been upheld in countless cases.

And moreover, the All Writs Act textually demands that Federal courts issue writs, quote,

"in aid of their respective jurisdiction. "

Petitioners' argument essentially would read out 1651.

Clearly the All Writs Act does not independently grant original jurisdiction, and this has been consistently upheld by this Court for nearly 200 years from the McIntire decision in 1813 to as recently as Clinton v. Goldsmith in 1999.

Moreover, issuance of writs under the All Writs Act is certainly conditioned by the statutory requirement that such be necessary or appropriate.

And as this Court indicated in Pennsylvania Bureau of Corrections, this is essentially a threshold requirement for invocation of the All Writs Act.

And in the Goldsmith case, as recently as 3 or 4 years ago, this Court made clear that the All Writs Act can't be used as a form of cure-all to... to fix what would otherwise be the availability of other statutory mechanisms which are not otherwise complied with.

Justice Ginsburg: What would be wrong with the Eleventh Circuit saying in substance it's the same thing?

What we're trying to do is to stop this litigation from going forward in Louisiana.

So even though the defendants used the wrong device, we'll treat it as though it had been in application for an antisuit injunction?

Mr. Bederman: Well, if... if, of course, the Eleventh Circuit had construed petitioners' filings in that way and... and had indicated that injunction was the proper mode and essentially substituted, as they... as they seem to invite in their closing lines of their decision, I think that would be appropriate.

But there is certainly a difference in form and in content between a removal and a narrowly tailored injunction, and I think the Eleventh Circuit was correct.

And other courts of appeals that have so held have indicated that there are profound federalism concerns that are implicated in allowing essentially a common law writ of removal to be used to evade what is Congress's role in dictating the mechanism for removal and... and patrolling the boundary and the balance of authority between State courts and Federal courts in this country.

There is, as... as the Court indicated, no such thing as a... as a common law writ of removal.

There was no analogy in English common law at the time of the founding.

The... a writ of certiorari, as Justice Breyer indicated, would have been... could have been potentially directed, I would agree, to... to courts.

But in no circumstance was there analogy in English common law for the court of one sovereign to remove cases from... from another sovereign.

And unless we delve into a kind of obscurantist legal history, I think that would be clear.

But there was, in fact, no analogy for that.

And in truth, there's no such thing as a writ of removal--

Justice Breyer: Administrative agencies.

Mr. Bederman: --I presume that in English common law, to the extent that administrative agencies existed, the ones I'm aware of, of course, were quite inchoate.

It's potential that you--

Justice Breyer: Sewer commissioners, I think is--

Mr. Bederman: --That's right.

Or... or sanitary commissions in London.

One might imagine that.

But again, at issue here is... is removal, which this Court has always indicated is a creature of statute because of the profound federalism concerns.

And essentially what... what petitioners would have this Court do is allow, by use of the All Writs Act or analogous theories of ancillary enforcement jurisdiction, to achieve what is otherwise unavailable by statute.

And as this Court clearly said in the Pennsylvania Bureau of Corrections case, although the All Writs Act empowers Federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.

If I can say just a word or two about ancillary enforcement jurisdiction, to the extent to which petitioners appear to be relying on it.

This Court has said very clearly in both Kikkonen, where the Court indicated that ancillary enforcement jurisdiction may be used in view of what courts require to perform their functions, and in Peacock, where the Court made very clear that ancillary enforcement jurisdiction is a creature of necessity, there can be no showing of necessity here by virtue of the availability of alternate mechanisms, whether in the form of an injunction properly issued against the parties and consistent with the relitigation exception under the Anti-Injunction Act, or even, preferably, recourse to State courts to properly rule on the preclusive effect of earlier Federal court judgments and settlements, as this Court made clear.

Justice Stevens: --What about contempt?

I suppose you could have been... your client could have been held in contempt in that court, couldn't it?

I mean, assuming you're wrong... that he's right--

Mr. Bederman: In the... in the Federal court.

And of course, obviously sanctions were imposed below by the Federal district court, and that's, of course, not... no longer at issue before this Court, but that court has that power.

So certainly there are a variety of mechanisms to ensure compliance with... with court orders.

It is not respondent's submission to suggest that we take an important tool out of the toolbox of Federal courts in order to maintain the dignity and the enforcement of their judgments.

But--

Justice Ginsburg: --A number of courts that have allowed the 1651 All Writs removal have said that they thought that that was less offensive.

That was more faithful to the federalism concern, that... that issuing an antisuit injunction was more offensive to the State than this removal device.

Mr. Bederman: --I would respectfully disagree with that characterization.

The assumption seems to be that the injunction would somehow issue to the State court, and as of course we all know, that would never be the case.

That truly would be offensive.

The... the injunction would issue to the parties, however, with instructions to... to dismiss or an even maybe even more narrowly tailored instrument.

Chief Justice Rehnquist: Well, it may be that a particular remedy in a particular situation might be less offensive to federalism, but that's a concern that should be addressed by Congress, isn't it--

Mr. Bederman: Absolutely.

Chief Justice Rehnquist: --in view of this statute?

Mr. Bederman: Absolutely.

It is... if Congress wishes to address the availability of removal in this class action context... and there is pending legislation today to that effect... Congress is free to do so.

Justice Scalia: And... and if Congress wants to be more offensive, it presumably can.

Unknown Speaker: [Laughter]

Mr. Bederman: I wouldn't speak to the propensity of Congress in those circumstances, but they could also amend the Anti-Injunction Act to also change the balance of power between State courts and Federal courts.

We take no issue with that.

Your Honors, unless there are any further questions.

Rebuttal of Henry B. Alsobrook, Jr.

Chief Justice Rehnquist: Thank you, Mr. Bederman.

Mr. Alsobrook, you have 7 minutes remaining.

Mr. Alsobrook: Excuse me.

Mr. Chief Justice, and may it please the Court:

I think Justice Breyer was correct when he pointed out that the stipulation that was entered into is really not ambiguous.

The Eleventh--

Chief Justice Rehnquist: That's not... I don't think that's before us, Mr. Alsobrook.

Mr. Alsobrook: --All right.

Chief Justice Rehnquist: I mean, I don't think whether or not you might be entitled to an injunction, should you seek one, is... is presented by the... your question.

Mr. Alsobrook: Yes, sir.

Well, Your Honor, I would say that at the time that we removed this also we relied on NAACP II, and there the Court said that if there are two alternatives that... and they also pointed out a footnote 3 in the Kikkonen case which said that an injunction could be issued where there are two alternatives that... that you can choose between one or the other, and that the... the--

Anti-Injunction Act does not preclude the remedy under the All Writs Act.

So we realize that the Court is not a legislative body and that it has been brought out here that Congress is the one that can... can dictate the jurisdictional bounds of Federal courts.

But by the same token, Your Honor, we have a great number of class action settlements that are pending in this country that have been already consummated in this country, and we face a situation where the settling party who has settled a national class action must have some kind of remedy to stop suits in State courts that attempt to thwart that class action settlement.

And so we would ask the Court to consider that in its... in its deliberations.

If there any further questions?

Chief Justice Rehnquist: Thank you, Mr. Alsobrook.

Mr. Alsobrook: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Print this transcript Transcript: 

Argument of Chief Justice Rehnquist

Mr. Rehnquist: I have the opinion of the Court to announce in No. 01-757, Syngenta Crop Protection versus Henson.

In this case, respondent, Henson filed a tort suit against the petitioner, Syngenta Crop Protection in State Court in Louisiana.

The State Court judge stayed his suit when Henson intervened in a similar suit against Syngenta in Federal Court in Alabama and participated in a nationwide settlement.

The settlement appeared to provide that Henson would dismiss his Louisiana suit but when he returned to Louisiana, he told the State Court judge that the settlement did not require dismissal and the judge allowed the suit to proceed.

So, Syngenta promptly sought to remove Henson's Louisiana suit from State to Federal Court relying on the general removal statute, 28 U.S.C. 1441.

Section 1441 authorizes the removal of actions over which the Federal Courts have original jurisdiction.

Syngenta claimed there was original jurisdiction based on the All Writs Act and the supplemental jurisdiction statute.

The Federal Court transferred the case to the same Alabama Court that had entered the earlier settlement and the Alabama District Court dismissed Henson's suit as barred by the settlement.

Henson appealed and the Court of Appeals for the Eleventh Circuit reverse concluding that the action was not properly removed.

In an opinion filed with the Clerk of the Court today, we affirm this decision.

The All Writs Act authorizes courts to issue all writs necessary or appropriate in aid of their respective jurisdiction.

This is a fairly broad statement but as we explained in Pennsylvania Bureau of Corrections, where another statute specifically addresses the particular issue at hand, it is that authority and not the All Writs Act that controls.

Removal of a lawsuit from state to federal court is permitted only where authorized by statute.

Here, Henson relied on the general removal statute Section 1441.

But that statute permits removal only of actions over which the Federal Courts have original jurisdiction.

Henson claimed original jurisdiction first based on the All Writs Act but as we explained in Clinton versus Goldsmith, all that does is authorize writs in aid of a court's jurisdiction; it does not grant Federal Courts any jurisdiction in its own rigth.

Henson also relied on the doctrine of ancillary jurisdiction, but that doctrine allows a court to exercise jurisdiction over claims that are ancillary to claims over which it already has jurisdiction.

Ancillary jurisdiction, whether alone or in combination with the All Writs Act, cannot help Henson satisfy the statutory requirements for removal.

The opinion of the Court is unanimous.

Justice Stevens has filed a concurring opinion.