Gonzalez-Garcia v. Williamson Dickie Manufacturing Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1728

GLORIA GONZALEZ-GARCIA, ET AL.,

Plaintiffs, Appellees,

v.

WILLIAMSON DICKIE MANUFACTURING CO.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge]

No. 96-1737

IN RE: WILLIAMSON DICKIE MANUFACTURING CO., ET AL.,

Petitioner.

PETITION FOR WRIT OF MANDAMUS

Before

Selya, Boudin and Lynch,
Circuit Judges.

Radames A. Torruella, Ariadna Alvarez and McConnell Valdes on

brief for appellant.
Luis Toro Goyco, Nora S. Rivera Carrasquillo and Arturo Luciano

Delgado on brief for appellees.

Rafael J. Vazquez Gonzalez and McConnell Valdes on Petition for

Writ of Mandamus.

November 8, 1996

Per Curiam. Williamson Dickie Manufacturing Co.

("Williamson Dickie") has filed both a notice of appeal and a

petition for writ of mandamus from a district court order

remanding a case to a Commonwealth of Puerto Rico court from

which it had been removed. We conclude that this court lacks

jurisdiction to review the order of remand, either by way of

appeal or mandamus, and therefore summarily dismiss the

appeal and deny the petition for mandamus. Because the issue

is a recurring one, a brief opinion explaining our result may

be useful for guidance in the future.

I.

In 1993, Williamson Dickie dismissed some employees when

it decided to close its plants in Puerto Rico and transfer

its operations outside of Puerto Rico. In November 1994, 117

dismissed employees filed suit in a Commonwealth Court,

claiming entitlement to severance pay in accordance with

Puerto Rico Severance Law Statute, Law 80 of May 30, 1976,

P.R. Laws Ann. tit. 29, 185 et seq. (1985) (hereinafter

"Law 80"). They also claimed that, in retaining only younger

employees until the operations were completely shut down,

Williamson Dickie violated the Commonwealth's law against age

discrimination.

Williamson Dickie removed the suit to the federal

district court on the ground that it was a civil action

arising under the laws of the United States, i.e., that it

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presented a federal question. Specifically, Williamson

Dickie alleged that, although the plaintiffs' complaint did

not mention the Employee Retirement Income Security Act of

1974 ("ERISA"), the suit, in fact, was a claim for benefits

under an ERISA plan, falling under ERISA's civil enforcement

provision, 29 U.S.C. 1132(a)(1)(B), and thus was removable

to federal court.

Plaintiffs responded with a motion to remand back to the

Commonwealth Court, contending that their complaint was not a

claim for benefits under an ERISA plan, but rather was a

claim for "indemnity for wrongful discharge" pursuant to Law

80. Williamson Dickie then moved to dismiss the plaintiffs'

severance pay claim, arguing that this claim was preempted by

ERISA. Plaintiffs filed an opposition to this motion to

dismiss, reiterating their contention that their claim for

severance pay was not ERISA-based.

In April 1996, the district court issued an opinion, in

which it concluded that Law 80 was not an employee benefit

plan under ERISA. It opined that Law 80 more closely

resembled the "one-time, lump-sum payment triggered by a

single event requir[ing] no administrative scheme," found not

preempted by ERISA in Fort Halifax Packing Co. v. Coyne, 482

U.S. 1, 12 (1987), rather than the more extensive and complex

administrative obligations imposed by the Massachusetts "tin

parachute" statute that this court found preempted by ERISA

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in Simas v. Quaker Fabric Corp. of Fall River, 6 F.3d 849

(1st Cir. 1993). The district court concluded, therefore,

that the cause of action under Law 80 was not preempted by

ERISA. It determined that Williamson Dickie's motion to

dismiss the plaintiff's Law 80 claim as preempted by ERISA

was moot. And, it remanded the case to the Commonwealth

Court.

II.

Section 1447(d) of Title 28 provides, subject to an

exception for civil rights cases not relevant here, that

"[a]n order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise."

Section 1447(d) applies only if the case is remanded for the

reasons stated in 28 U.S.C. 1447(c)--a timely raised defect

in removal procedure or lack of subject matter jurisdiction.

Things Remembered, Inc. v. Petrarca, 116 S. Ct. 494, 497

(1995). But where the district court order of remand rests

on lack of subject matter jurisdiction, that order is not

reviewable by appeal or mandamus, even if erroneous.

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343

(1976); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723

(1977) (per curiam).

Contrary to Williamson Dickie's contention, we interpret

the district court's order of remand as a determination that

it lacked subject matter jurisdiction over the removed case

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because no federal claim had been presented to invoke the

court's federal question jurisdiction. Rejection of

Williamson Dickie's preemption defense was a link in the

chain of reasoning. But the preemption ruling, "rather than

being apart from the question of subject matter jurisdiction,

[is] necessary to determine whether such jurisdiction

existed." Hansen v. Blue Cross of California, 891 F.2d 1384,

1388 (9th Cir. 1989); Nutter v. Monongahela Power Co., 4 F.3d

319, 321 (4th Cir. 1993) ("The preemption findings were

merely 'subsidiary legal step[s] on the way to its

determination that the case was not properly removed.'")

(citation omitted).

After remand, the district court's ruling that the

plaintiff's claim is not completely preempted by federal law

"has no preclusive effect on the state court's consideration

of the substantive preemption defense." Whitman v. Raley's

Inc., 886 F.2d 1177, 1181 (9th Cir. 1989); Nutter v.

Monongahela Power Co., 4 F.3d at 321-22 (same); Soley v.

First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.

1991) (same); Glasser v. Amalgamated Workers Union Local 88,

806 F.2d 1539, 1540 (11th Cir. 1987) (per curiam) (same).

Because the district court's preemption finding is

unreviewable, principles of collateral estoppel would not

apply to preclude relitigation of the issue in state court.

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Nutter v. Monongahela Power Co., 4 F.3d at 321-22; Whitman v.

Raley's Inc., 886 F.2d at 1181.

The approach we take in declining to review the remand

order is supported by at least four circuits. See, e.g.,

Nutter v. Monongahela Power Co., 4 F.3d at 320-23; Soley v.

First Nat'l Bank of Commerce, 923 F.2d at 407-10; Hansen v.

Blue Cross of California, 891 F.2d at 1387-90; Glasser v.

Amalgamated Workers Union Local 88, 806 F.2d 1539 (11th Cir.

1987) (per curiam). Section 1447(d) recites that "[a]n order

remanding a case to the State court from which it was removed

is not reviewable on appeal or otherwise." Thus, a number of

circuits have considered mandamus as a vehicle for review and

rejected it as well. See, e.g., Nutter v. Monongahela Power

Co., 4 F.3d at 320-23; Soley v. First Nat'l Bank of Commerce,

923 F.2d at 407-10; In re Business Men's Assurance Co. of

Am., 992 F.2d 181, 182-83 (8th Cir. 1993) (per curiam).

Two circuit court opinions point in the other direction.

In In re Life Ins. Co., 857 F.2d 1190 (8th Cir. 1988), the

Eighth Circuit considered mandamus appropriate in somewhat

comparable circumstances and gave as its reason the otherwise

lack of appellate review and the preclusive effect of the

district court's ruling on the state court. Because the

district court's preemption finding is unreviewable,

principles of collateral estoppel would not apply to preclude

relitigation of the issue in state court. As for the lack of

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appellate review, this is just what Congress directed in

section 1447(d).

In Tingley v. Pixley-Richards West, Inc., 953 F.2d 1124

(9th Cir. 1992), the Ninth Circuit regarded appellate review

of a remand order, substantially identical to the order at

issue in the case before us, as not barred by 1447(d).

This approach taken by the Tingley panel, however, appears

inconsistent with the Ninth Circuit's own case law in Hansen

v. Blue Cross of California, 891 F.2d at 1388-89, and Whitman

v. Raley's Inc., 886 F.2d at 1178, neither of which was

cited, nor appears to have been considered, by the Tingley

panel. We agree with the Fourth Circuit, see Nutter v.

Monongahela Power Co., 4 F.3d at 322-23, that the Tingley

opinion therefore ought not be given weight.

The appeal in No. 96-1728 is summarily dismissed. Loc.

R. 27.1. The petition for writ of mandamus in No. 96-1737 is

denied.

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