Brown v. Francis

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

2-7-1996

Brown v. Francis
Precedential or Non-Precedential:

Docket 95-7273

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________

NO. 95-7273
_________________

BARRY BROWN; JOLIE STAHL, AS THEY ARE TRUSTEES OF THE LONG
BAY TRUST

v.

LEO FRANCIS, AS HE IS THE COMMISSIONER OF THE DEPARTMENT
OF PUBLIC WORKS; DELMA G. HODGE, AS SHE IS THE COMMISSIONER
OF THE DEPARTMENT OF PROPERTY AND PROCUREMENT OF THE
GOVERNMENT OF THE VIRGIN ISLANDS; GOVERNMENT OF THE VIRGIN
ISLANDS OF THE UNITED STATES OF AMERICA

(D.C. No. 92-cv-00081)
________________

GOVERNMENT OF THE VIRGIN ISLANDS

v.

0.459 ACRES OF LAND CONSISTING OF FOLLOWING: PARCEL NO.
6A ESTATE THOMAS KINGS QUARTER AND PARCEL NO. 9A ESTATE
THOMAS, VIRGIN ISLANDS; LONG BAY TRUST

(D.C. No. 93-cv-00059)

LEO FRANCIS, AS HE IS THE COMMISSIONER OF THE DEPARTMENT OF
PUBLIC WORKS; DELMA G. HODGE, AS SHE IS THE COMMISSIONER
OF THE GOVERNMENT OF THE VIRGIN ISLANDS; GOVERNMENT OF
THE VIRGIN ISLANDS OF THE UNITED STATES OF AMERICA
_________________

On Appeal from the District Court of the
Virgin Islands
(Division of St. Thomas and St. John)
(D.C. Civil Action Nos. 92-00081 and 93-00059)
_________________

Argued December 4, 1995
BEFORE: GREENBERG and MCKEE, CIRCUIT JUDGES, and
ACKERMAN, DISTRICT JUDGE1

1
Honorable Harold A. Ackerman, Senior Judge of the United States
District Court for the District of New Jersey, sitting by
designation.

1
 (Filed: February 7, 1996)

Robert W. Bornholt
Pamela Tepper (argued)
Department of Justice
48B-50C Kronprindsens Gade
GERS Bldg., 2d Floor
St. Thomas, USVI 00802

Attorneys for Appellants

Morris M. Goldings (argued)
Ellen S. Shapiro
Mahoney, Hawkes & Goldings
The Heritage on the Garden
75 Park Plaza
Boston, Massachusetts 02116

Attorneys for Appellees

______________

OPINION OF THE COURT
______________

HAROLD A. ACKERMAN, Senior District Judge
On this appeal, we are faced with several interrelated

jurisdictional issues arising out of appellant Long Bay Trust's

inverse condemnation action filed in the District Court of the
Virgin Islands and the Government of the Virgin Islands'

("government") parallel eminent domain action filed in the

Territorial Court of the Virgin Islands. Both cases involved the

same parcels of land.

First, we must determine whether the government's eminent

domain case was properly removed from Territorial Court to the

district court. Second, we must assess the impact, if any, of

the district court's order consolidating the eminent domain and

2
inverse condemnation cases following the removal from the

Territorial Court, and the parties' subsequent submission of

their claims to binding arbitration.

For the following reasons, we conclude that the district

court did not have subject matter jurisdiction over the

government's eminent domain case and that the case was therefore

improperly removed to the district court. Ultimately, this lack

of jurisdiction requires us to vacate the district court's order

confirming the arbitration award. The eminent domain and inverse

condemnation cases will be remanded to the district court with

instructions to remand the eminent domain case to the territorial

court. Finally, for the reasons we set forth below, the district

court is to consider abstaining from deciding the inverse

condemnation case.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Introduction

This appeal involves a dispute that arose out of the Virgin

Island Government's plans to condemn a portion of privately-owned

commercial property located in the Virgin Islands. Sometime

prior to 1988, the government began planning to improve traffic

circulation on or about Long Bay Road and Route 313 in the Virgin

Islands. The project, which was to be 100% U.S. federally

funded, and was known as the "Long Bay Road Highway Improvement

Project" required the use of additional land. Accordingly, the

Virgin Islands government commenced negotiations for the "taking"

of private land that would be needed for the project.

3
 Specifically, the government required approximately 2.64

acres of land known as Parcels No. 6 and No. 9, located in Estate

Thomas, Kings Quarter, St. Thomas. The property was commercially

zoned and several buildings were situated upon the land. During

December 1988 or January 1989, the government commenced

negotiations with the owners of the property, Millad Associates,

for the acquisition of the property.

Before a deal could be ironed out with the government,

Millad Associates sold the property to Jolie Stahl and Barry

Brown, as co-trustees ("trustees") of the Long Bay Trust. The

purchasers paid $3.25 million for both the property and the

buildings situated upon the property. A deed to the property was

executed by the parties on May 9, 1989, and the deed was recorded

on May 31, 1989. At the time of purchase, the trustees were

aware of the government's plans to "take" a portion of the

property.

B. The Litigation

Three years after the trustees purchased the subject

property, the trustees filed an inverse condemnation action in

the District Court of the Virgin Islands against the government,

alleging that the government had unreasonably delayed in taking

portions of the trust property. According to the trustees, the

government had deprived the trust of the highest and best value

of its property by unreasonably delaying in the condemnation of

Lots 6 and 9, while at the same time condemning property across

the street from the two lots. The trustees contended that this

4
sequence of events allowed a competitor to get a head-start on

business, to the detriment of the trust. Moreover, the trustees

alleged that they could not secure financing or tenants while the

government's proposed taking was pending.2

The government responded to the trustees' federal court

action on August 13, 1992, by filing an eminent domain action,

pursuant to V.I. Code Ann. tit. 28, § 411 (1957 & Supp. 1994), in

the Virgin Islands Territorial Court. The government alleged in

its complaint that the property was worth approximately $1.2

million. Furthermore, the government submitted a Declaration of

Taking and an Order Vesting Title. The order vesting title was

signed by Judge Ive Arlington Swan on September 1, 1992.

On September 14, 1992, the trustees filed a notice of

removal seeking to remove the government's territorial court

eminent domain action to the District Court of the Virgin

Islands. App. 10-13. The government thereafter moved to dismiss

the removal petition, arguing that removal was improper because

the district court did not have subject matter jurisdiction over

2
See App. 215 (Appellees' Inverse Condemnation Complaint
(D.V.I.)). The government filed a motion to dismiss the inverse
condemnation suit on May 29, 1992. The government argued that
the action should be dismissed for failure to state a claim
because the government's failure to act on the condemnation at
issue was not amenable to court scrutiny. Furthermore, the
government alleged that the district court lacked jurisdiction to
hear the inverse condemnation case. See App. 231-57 (containing
filings pertinent to the motion to dismiss). The district court
denied the government's motion in its entirety on March 11, 1993.
App. 256-57.

5
the eminent domain claim.3 The district court denied the motion

to dismiss.

According to the court, diversity of citizenship

jurisdiction supported removal of the eminent domain case to

federal court. The court reasoned that complete diversity of

citizenship existed between the Government of the Virgin Islands

and the trustees. Furthermore, the court found that the

trustees' tenants were merely nominal parties to the action whose

citizenship could be disregarded for purposes of establishing

diversity jurisdiction. The district court therefore found that

it had subject matter jurisdiction over the government's eminent

domain case and the court denied the government's motion to

dismiss the removal petition.

The government renewed its jurisdictional argument in a

motion for reconsideration. According to the government, the

trustees erroneously relied upon the citizenship of the Territory

of the Virgin Islands in invoking the diversity of citizenship

jurisdiction of the district court. The government argued that

because the citizenship of the territory could not be relied upon

for purposes of establishing diversity jurisdiction, the district

3
The government filed its motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(h). It appears, however, that the
government's motion should have been filed as a motion to remand
pursuant to 28 U.S.C. § 1447(c), which states that "[i]f at any
time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded."
Whether the government labeled its motion as motion to dismiss or
as a motion to remand, does not, however, have any impact on the
outcome of this case.

6
court did not have diversity jurisdiction over the eminent domain

case. The government argued that removal was therefore improper.

The district court denied the motion for reconsideration,

without discussion, in an order dated December 6, 1993.

C. The Arbitration

Following the trustees' successful removal of the eminent

domain case, two actions involving lots 6 and 9 were left pending

in the District Court of the Virgin Islands. Eventually, the two

actions were consolidated for both discovery purposes and for

trial without a jury. See Appellee's Brief, at 7. Thereafter,

the government and the trustees entered into a joint stipulation

to refer their controversies to binding arbitration. App. 125.

The stipulation specified that the parties would abide by the

award rendered, and that the district court could enter judgement

on the arbitration award. App. 126.

An arbitration hearing was held on October 5 and 6, 1994.

Alex Gonzalez, Esq., served as the arbitrator. App. 126. The

arbitrator issued his findings on October 24, 1994. App. 128.

The trustees of the Long Bay Trust were awarded a total of

$2,891,158.00. App. 134.

D. Post Arbitration Litigation

The Government of the Virgin Islands filed a motion to

dismiss the arbitration award on December 7, 1994. App. 104. The

government claimed that its agents had acted without statutory

authority when they had signed the arbitration agreement.

7
Furthermore, the government argued that the district court was

without statutory jurisdiction under the Federal Arbitration Act

("FAA") to confirm the arbitration award. App. 104-105. The

trustees moved to confirm the arbitration award on February 13,

1995.

The district court denied the government's motion to dismiss

and granted the trustees' motion to confirm the arbitration award

in a memorandum opinion and order dated March 31, 1995. App.

161-167. According to the court, both the government and the

trustees signed the arbitration agreement voluntarily. This in

itself constituted an enforceable contract under the FAA, the

court reasoned, which the court could enforce. Despite the

government's obfuscation, the court noted, the proceeding was

governed by the FAA, and the trustees could seek entry of

judgment on the arbitration award.

Furthermore, the court noted that the joint stipulation

stated that the government would abide by and perform any award

rendered by the arbitrator. Even if the parties mistakenly

referred to irrelevant statutes in the stipulation (which the

government contended deprived the district court of

jurisdiction), the court found that the parties' intention to

arbitrate their dispute was clearly evidenced by the stipulation.

The court therefore denied the government's motion to dismiss the

arbitration award and granted the trustees' motion to confirm the

arbitration award. App. 167.

Finally, the court also took issue with the government's

written submissions in support of its motion to dismiss.

8
According to the court, the government's brief did not contain

one citation to precedent. Furthermore, the court noted that

"[c]onsidered as a whole, the Government's motion papers are

inexcusably opaque and insufficiently supported by case law."

App. 167. Accordingly, the court determined that the government

would be sanctioned. The court ordered the Government to pay all

costs and attorneys' fees associated with the motion. The

Government was, however, given an opportunity to show cause why

it had not violated Rule 11 of the Federal Rules of Civil

Procedure by filing the motion. The Trustees were directed to

file an affidavit of costs and attorney fees. App. 163-67. At

the present time, the district court has not rendered its

decision on the sanctions issue.

II. DISCUSSION

The government filed a timely notice of appeal from the

district court's final order and judgment confirming the

arbitrator's award. This order was final within the meaning of

28 U.S.C. § 1291 and we may therefore exercise jurisdiction over

the government's appeal from that order.4
4
The district court also ordered the government to show cause by
April 14, 1995, why it should not be sanctioned for its written
submissions on the motion to dismiss the arbitration award. The
government argues on appeal that the district court abused its
discretion in imposing sanctions. At the same time, however, the
government concedes that the district court has not yet issued a
final order quantifying or even definitively imposing sanctions.
A court of appeals clearly does not have jurisdiction to
review an order which has not yet been issued. The court is
therefore without jurisdiction to review the sanctions which may
be imposed upon the government. We hasten to add, however, that
our lack of jurisdiction over the sanctions issue does not

9
 Proper appellate jurisdiction does not, however, relieve us

from inquiring into the propriety of the district court's

exercise of jurisdiction in this case. Employers Ins. of Wausau

v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990) (citing

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.

Ct. 1326, 1331, 89 L. Ed.2d 501 (1986)). We exercise plenary

review in determining whether the district court was vested with

subject matter jurisdiction. Bumberger v. Insurance Co. of North

America, 952 F.2d 764, 766 (3d Cir. 1991).

A. The Eminent Domain Case Was Improvidently Removed From
Territorial Court

The Federal Rules of Civil Procedure permit a defendant in a

state court action to remove that action to a federal forum. See
28 U.S.C. § 1441, applicable in the Virgin Islands under 48 U.S.

C. § 1613. As § 1441(a)'s language indicates, removal under

that section is proper only if the federal district court would

have had original jurisdiction if the case was filed in federal

court. This jurisdictional prerequisite to removal is an

absolute, non-waivable requirement. See Allbritton

Communications Co. v. NLRB, 766 F.2d 812, 820 (3d Cir. 1985),

cert. denied, 474 U.S. 1081, 106 S. Ct. 850, 88 L. Ed.2d 891

deprive us of jurisdiction over the larger, substantive issues
out of which the sanctions issue arose. See McDonnell v. United
States, 4 F.3d 1227 (3d Cir. 1993) (finding that unresolved
attorney fee issues in case does not deprive court of appeals
from exercising jurisdiction over appeal from underlying
controversy) (citing Budinich v. Becton Dickinson & Co., 486 U.S.
196, 198-202, 108 S. Ct. 1717, 1719-22, 100 L.Ed.2d 178 (1988)
(other citations omitted)); see also Confer v. Custom Eng'g Co.,
952 F.2d 41, 44 (3d Cir. 1991).

10
(1986). "Because lack of jurisdiction would make any decree in

the case void and the continuation of the litigation in federal

court futile, the removal statute should be strictly construed

and all doubts resolved in favor of remand." Abels v. State Farm

Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985) (citations

omitted). If there is any doubt as to the propriety of removal,

that case should not be removed to federal court. See Boyer v.

Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert.

denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed.2d 1046 (1991);

Abels, 770 F.2d at 29.

Diversity of citizenship subject matter jurisdiction falls

within the original jurisdiction of the district court and a

state court case that implicates diversity jurisdiction may

therefore be removed to federal court. Abels, 770 F.2d at 29.

Diversity jurisdiction is properly invoked in cases where there

is complete diversity of citizenship between plaintiffs and

defendants and where the amount in controversy exceeds $50,000.

28 U.S.C. § 1332. See Development Fin. Corp. v. Alpha Housing &

Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995) ("It is

axiomatic that the federal judiciary's diversity jurisdiction

depends on complete diversity between all plaintiffs and all

defendants.") (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch)

267, 2 L.Ed. 435 (1806)). For purposes of determining whether

the complete diversity requirement has been met, the citizenship

of nominal parties to the litigation may be disregarded. Abels,

770 F.2d at 29.

11
 The district court ruled that the Virgin Islands Government

could be considered a citizen for purposes of establishing

diversity of citizenship jurisdiction. We disagree with the

district court's conclusion. More than one hundred years ago,

the United States Supreme Court ruled that a state cannot be

considered a citizen for purposes of establishing diversity of

citizenship jurisdiction in federal court. Postal Telegraph

Cable Co. v. State of Alabama, 155 U.S. 482, 487, 15 S. Ct. 192,

194 (1894). See Ramada Inns, Inc. v. Rosemount Memorial Park

Assoc., 598 F.2d 1303, 1306 (3d Cir. 1979) ("[I]t is well settled

that a state is not a citizen within the meaning of the diversity

statute.") (citations omitted); see also Gable v. Commonwealth of

Pennsylvania, 521 F. Supp. 43, 43-44 (E.D. Pa. 1981) ("The rule

that a state is not a `citizen' for diversity purposes is a long-

standing one; it enjoys a history of acceptance, which remains

undiluted by the passage of time.") (citations omitted).

In this case, the district court relied upon the citizenship

of the Territory of the Virgin Islands in finding that diversity

of citizenship jurisdiction supported removal of the trustees'

eminent domain case to federal court. Thus, the question is

whether the Government of the Virgin Islands constitutes a

"state" for purposes of establishing diversity of citizenship

jurisdiction. The trustees argue that the Virgin Islands is not

a State, but a Territory of the United States and that the

policies which preclude sovereign immunity for territories in

federal court similarly preclude a Territory from being

12
considered a "state" for purposes of establishing diversity

jurisdiction. We are not persuaded by these arguments.

Section 1332 of Title 28 of the United States Code

specifies, in pertinent part, that "district courts shall have

original jurisdiction of all civil actions" between "citizens of

different States." 28 U.S.C. § 1332(a). According to § 1332(d),

the "word `States,' as used in this section, includes the

Territories, the District of Columbia, and the Commonwealth of

Puerto Rico." Accordingly, the Territory of the Virgin Islands,

a United States Territory, qualifies as a "state" for purposes of

the diversity jurisdiction statute.

As noted above, a state cannot be considered a citizen for

purposes of establishing diversity of citizenship jurisdiction

subject matter jurisdiction in federal court. Therefore, it

follows that a Territory of the United States, which is

considered a state pursuant to § 1332(d), also cannot be

considered a citizen for purposes of establishing diversity of

citizenship jurisdiction. The Territory of the Virgin Islands

should not have been considered a citizen for purposes of

establishing diversity jurisdiction in the court below. Cf. Mann

v. District of Columbia, 742 F.2d 750, 752 (3d Cir. 1984)

(concluding that District of Columbia did not qualify as a

citizen for purposes of diversity of citizenship jurisdiction

because § 1332(d) specified that the District of Columbia (like

the territory of the Virgin Islands) was to be construed as a

"state" for purposes of the diversity statute).

13
 Therefore, the district court did not have subject matter

jurisdiction over the eminent domain case and the case was

improvidently removed from the Territorial Court.5

B. The District Court's Post-Removal Actions

We have concluded that the government's eminent domain case

was improvidently removed to federal court. In the ordinary

case, this conclusion would lead us to remand the action to the

district court with instructions to remand the case to the state

court. See Abels, 770 F.2d at 27. This case does not, however,

fit within the mold of a garden variety improvidently removed

case.

The district court engaged in actions subsequent to the

removal of the government's case which served to integrate the

jurisdictionally improper eminent domain case with the trustees'

jurisdictionally proper inverse condemnation case. Following

removal of the eminent domain case, the eminent domain and

inverse condemnation cases were consolidated for discovery

purposes and for trial without a jury. Thereafter, the parties

entered into a stipulation to submit all of their claims to an

arbitrator. Finally, the parties' claims were reduced to one

award from the arbitrator and the court entered an order and

judgment confirming that award.

5
In view of this conclusion, there is no need for us to address
the question of whether the trustees' tenants were nominal
parties in the eminent domain proceeding.

14
 We must determine whether the district court's merger of the

inverse condemnation case with the substantively similar, but

jurisdictionally deficient eminent domain case precluded the

district court from exercising its jurisdiction over the inverse

condemnation case. For the reasons set forth below, we have

determined that the district court could not properly exercise

its jurisdiction over the inverse condemnation case.

It is clear in this case that due to the similarity of the

issues in the two cases, the district court's post-consolidation

exercise of jurisdiction over the jurisdictionally proper inverse

condemnation case also constituted an exercise of authority over

the government's jurisdictionally improper eminent domain case. A

court may not, however exercise authority over a case for which

it does not have subject matter jurisdiction. See Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S. Ct. 1326,

1331, 89 L. Ed.2d 501 (1986)). Neither consolidation with a

jurisdictionally proper case nor an agreement by the parties can

cure a case's jurisdictional infirmities. See McKenzie v. United

States, 678 F.2d 571, 574 (5th Cir. 1982) (consolidation of

jurisdictionally deficient claim with jurisdictionally proper

claim does not cure jurisdictional defects) (citations omitted);

Reich v. Local 30, IBT, 6 F.3d 978, 982 n.5 (3d Cir. 1993)

(parties to action cannot waive subject matter jurisdiction

requirements by consenting to court's jurisdiction) (citations

omitted). Nonetheless, the district court's consolidation of the

cases and the parties' subsequent arbitration agreement had the

practical effect of permitting the district court to exercise

15
authority over a case for which it did not have subject matter

jurisdiction. We are unwilling to approve of this result.

The district court could not exercise jurisdiction without

exercising jurisdiction over the improperly removed eminent

domain case. The actions by the court and the parties to this

action allowed the jurisdictional infirmity of the eminent domain

case to taint the court's attempts to exercise its subject matter

jurisdiction over the inverse condemnation case. It follows that

we must vacate any orders entered by the district court that were

entered after the eminent domain case was removed to the district

court and in which the district court purported to exercise

jurisdiction over both the eminent domain and inverse

condemnation case.

C. Restoring the Parties to their Pre Removal
Postures; Abstention

We have determined that the district court erroneously

denied the government's motion to dismiss the trustees' removal

petition. Furthermore, we have determined that the district
court acted without jurisdiction when it purported to exercise

authority over the consolidated inverse condemnation and eminent

domain cases. Because any post-removal actions taken by the

court in this case were therefore ineffectual, we have determined

that restoring the parties to the positions that they occupied

prior to the removal is the proper course of action for us to

take on this appeal.

16
 Consequently, we will vacate the district court's order

confirming the arbitration award as the district court did not

have jurisdiction to enforce the award in this case. See

Southland Corp. v. Keating, 465 U.S. 1, 15 n.9, 104 S.Ct. 852,

861 n.9 (1984). Furthermore, we will remand the eminent domain

and inverse condemnation actions to the district court. The

district court shall separate the two actions by remanding the

government's condemnation action to the Territorial Court of the

Virgin Islands and by retaining jurisdiction over the trustees'

inverse condemnation action.

This disposition of the appeal will restore the parties to

the positions that they occupied prior to the district court's

improvident removal and improper exercise of jurisdiction. Two

actions involving the same parcels of land will therefore be left

pending in federal court and territorial court. Despite our

resolution of the jurisdictional issues arising from the district

court's improper removal, we are nonetheless concerned about the

possibility of the district court's exercise of jurisdiction in

this case even though the Territorial Court will also be

exercising its jurisdiction over similar issues.

On similar facts, the United States Court of Appeals for the

Eleventh Circuit ordered the district court to exercise its power

of abstention. T.J. Fountain v. Metropolitan Atlanta Rapid

Transit Auth., 678 F.2d 1038, 1046 (11th Cir. 1982). The court

ruled that the district court should abstain from deciding an

inverse condemnation case until such time that it became apparent

that the inverse condemnation plaintiff would not receive the

17
relief it sought in the State of Georgia's previously-filed

condemnation action. According to the court, "[a]s has been

noted many times before, a suit involving state condemnation of

private property is primarily a local matter that is best left to

the state courts." Id. The court further reasoned that although

abstention was not required in all condemnation cases, abstention

was necessary in T.J. Fountain because there was the possibility

of inconsistent state and federal judgments. We agree with the

T.J. Fountain court's analysis.

Like the T.J. Fountain court, we too are concerned about the

problems that may arise from inconsistent judgments in this case.

Unlike the T.J. Fountain court, however, we believe that the

abstention decision is one that should be exercised by the

district court in the first instance. Therefore, instead of

ordering the district court to abstain in this matter, we will

suggest to the district court to consider abstaining in light of

the parallel Territorial Court action. As previously noted, the

Territorial Court had actually entered an order vesting title in

the government prior to the district court's improper removal. In

remanding the case, we leave this fact for the district court's

consideration in its abstention analysis.

III. CONCLUSION

The district court's order and judgment confirming the

arbitration award will be vacated. The trustees' inverse

condemnation action and the government's eminent domain action

18
will be remanded to the District Court of the Virgin Islands with

instructions for the district court to remand the government's

eminent domain case to the Territorial Court for the Virgin

Islands. Finally, in accord with our discussion on T.J.

Fountain, the district court shall consider whether it should

abstain from deciding the trustees' inverse condemnation case.

We must stress the narrowness of our ruling. We have

determined that the district court acted without subject matter

jurisdiction and was therefore without power to enter the post-

removal order specified above. It does not necessarily follow

from this conclusion, however, that the parties' post-removal

agreement to arbitrate is similarly void and without legal

effect. Thus, our opinion does not preclude further litigation

on the point. Indeed, it is possible that if the arbitration

award can be enforced in a jurisdictionally correct proceeding,

this entire controversy may be put to rest without the need for

extensive proceedings on the remand. Nonetheless, we do not

express an opinion on whether the parties' agreement to arbitrate

19
can survive our conclusion that the district court was without

power to enter decisions on that agreement.

_________________________

20