dissenting:
I dissent.
I agree with the majority that unless the district court’s order is clearly erroneous as a matter of law the writ of mandamus should not issue. I cannot agree with the majority that this court should conclude that the district court clearly erred because we cannot determine the exact ground upon which the court relied.
The district court’s order to show cause said in part:
Federal court jurisdiction over the state claims depends upon whether this Court exercises its discretion to retain supple*1563mental claims. Accordingly, the Removing Party(ies) is hereby ordered to show cause in writing no later than June 14,1993 why the Court should not exercise its discretion to remand the state claims to state court.
In its response to this Order, the Removing Party(ies) should take into account that the Supreme Court defined the parameters of a federal court’s supplemental jurisdiction in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Under Gibbs, a federal court may exercise supplemental jurisdiction over state law claims only if the state and federal claims derive from a common nucleus of operative fact and are the types of claims the Court would ordinarily be expected to try together in one proceeding.
Even if these two conditions are met, however, a federal court has discretion to decline jurisdiction over the state law claims if, for instance, the state claims substantially predominate, the state claims involve novel or complex issues of state law, trial of the state and federal claims together is likely to result in jury confusion, or retention of the state claims requires the expenditure of substantial additional judicial time and effort. Id. at 726-27, 86 S.Ct. at 1139-40; see also 28 U.S.C. § 1367(c); Carnegie-Mellon Univ. v. Co-hill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).
The Removing Party(ies) should also be aware that this Court does not interpret the 1990 enactment of Section 1367 as restricting the discretionary factors set forth in Gibbs. Rather, this Court interprets Section 1367 as merely allowing this Court, at its discretion, to exercise jurisdiction over supplemental parties, which was previously foreclosed by Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989).
The order to show cause included a discussion of the court’s discretion to decline jurisdiction, which included the following possible grounds:
1.' The state claims substantially predominate.
2. The state claims involve novel or complex issues of state law.
3. Trial of the state and federal claims together is likely to result in jury confusion, or
4. Retention of the state claims requires the expenditure of substantial additional judicial time and effort.
The record does not suggest that the court relied on any ground or factor not mentioned in its order to show cause. Because the court made no findings, we do not know which one or more of the grounds it relied on. On that basis alone, however, the majority concludes that the district court may have relied on a ground not enumerated in section 1367(c); that this was in error, and not only error, but clear error for the purpose of mandamus. I cannot join the majority’s reasoning to the effect that our inability to find that the court did not err puts it in clear error.
Grounds one and two, suggested in the order to show cause, are mentioned in section 1367(c)(1) and (2). Ground three, jury confusion, in my view would be a sufficiently compelling reason for remand, as would the fourth ground, “the expenditure of substantial additional judicial time and effort.”
The district court committed no error unless it relied on an unauthorized ground in exercising its discretion to remand. The court did not say that it relied on an unauthorized ground nor does the record tell us that it did, unless the majority means to hold that likely jury confusion or the expenditure of substantial additional judicial time are not exceptional circumstances in which compelling reasons for declining jurisdiction can be found. The fact that the district court does not interpret the 1990 enactment of section 1367 as restricting the discretionary factors set forth in Gibbs is of no moment unless we can say that the trial court exceeded its lawful authority wherever it may be found.
As for pendent jurisdiction in the sense of judicial power, the court in Gibbs said it need not be exercised in every case. “It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” 383 U.S. at 726, 86 S.Ct. at 1139 (footnote omitted).
*1564According to Gibbs, the justification for pendent jurisdiction lies in considerations of judicial economy, convenience, and fairness to litigants. Congress chose to except from section 1367(a) those cases that were to be remanded under section 1367(c). In (a) it said, “Except as provided in subsection (b) and (c) ... in any civil action in which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims.... ” The sentence that Congress used to confer jurisdiction excepts from its scope those claims over which the district court may decline to exercise jurisdiction. The statute does not say that the court shall “exercise” jurisdiction. I find the majority’s resort to footnote fourteen in Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir.1993) puzzling at best. The footnote says, “The language in § 1367 expressly ... states that federal courts shall exercise supplemental jurisdiction over pendent claims arising out of the same case or controversy and may decline to exercise jurisdiction [as provided by § 1367(c) ].” (emphasis in original). I cannot find the words “shall exercise jurisdiction” in the statute. I find only “shall have supplemental jurisdiction,” and that phrase is further clarified by the exceptions in subsection (c).
Just as the doctrine of supplemental jurisdiction itself is justified by considerations of judicial economy, convenience, and fairness to litigants, Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, so should a federal court “consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon Univ., 484 U.S. at 360, 108 S.Ct. at 619. Congress did not use the word “discretion” in section 1367, but the Federal Courts Study Committee appointed by the Chief Justice at the direction of Congress in advocating the legislation said:
These supplemental forms of jurisdiction which may be exercised in the discretion of the federal courts, enable them to take full advantage of the rules on claim and party joinder to deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence. Pendent and ancillary jurisdiction may be used with respect either to additional claims between parties already before the courts (as with compulsory counterclaims) or to claims bringing in new parties (as with impleader of a third-party defendant).
Report of the Federal Court Study Committee, at 47 (April 2, 1990) (emphasis added). The House Report that accompanied the final version of the statute explains the goal of section 1367(e):
[Section 1367(c) ] codifies the factors that the Supreme Court has recognized as providing legitimate bases upon which a district court may decline jurisdiction over a supplemental claim. Subsection (c)(1) — (3) codifies the factors recognized as relevant under current law. Subsection (e)(4) acknowledges that occasionally there may exist other compelling reasons for a district court to decline supplemental jurisdiction, which the subsection does not foreclose a court from considering in exceptional circumstances.
H.R. No. 734, 101st Cong., 2d Sess. 29 (1990), reprinted in 1990 U.S.C.A.A.N. 6860, 6875. Thus, the majority puts us in conflict with other circuits. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993) (Posner, J.) (“[T]he new statute is intended to codify rather than to alter the judge-made principles of pendent and pendent party jurisdiction^]”); Growth Horizons, Inc., 983 F.2d at 1284 (“In making its determination [whether to remand pursuant to section 1367(c) ], the district court should take into account generally accepted principles of ‘judicial economy, convenience, and fairness to the litigants.’”) (quoting Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139); Hays County Guardian v. Supple, 969 F.2d 111, 125 (5th Cir.1992) (finding “exceptional circumstances” and “compelling reasons” under section 1367(c)(4) where “[adjudicating state-law claims in federal court while identical claims are pending in state court would be a pointless waste of judicial resources”).
*1565Remanding the state claims is only one step beyond bifurcation of the trial which we so readily leave to the discretion of the trial court. See, e.g., Hirst v. Gertzen, 676 F.2d 1262, 1261 (9th Cir.1982) (bifurcation to avoid unnecessary jury confusion is within the sound discretion of the trial court). It may be that the effect of today’s ruling will be less damaging than I fear because the district courts can achieve the goals of judicial economy, convenience, and fairness to litigants by bifurcation of the state claims when necessary.
Finally, I am concerned about the effect of granting a petition for a writ of mandamus in this case. If a district court decides that under the standards arrived at by the majority, it is bound to refuse remand, it may be subject to mandamus for failure to exercise its discretion if it wrongly decided that it had no discretion. If it remands, as in this ease, it will be subject to mandamus if it is wrong in concluding that it has discretion. In any event, it will be subject to mandamus if it fails to make adequate findings or give sufficient reasons. My hope is that the Bauman factors will restrain us in granting petitions for a writ of mandamus. See Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir.1977). At least future remand orders will not raise new and important problems or issues of law of first impression and therefore, we will have good reasons not to issue the writ.
Because the Gibbs standards survived the enactment of section 1367, I cannot say that the district court clearly erred in remanding the plaintiff’s state law claims by applying the Gibbs standards. Under the clearly erroneous standard, we should not require the district court to persuade us that it is correct. Because I cannot conclude that the district court is wrong, I would deny the petition.